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The opinion of the court was delivered by Schroeder, J.: This is an action to recover damages from a commercial transportation company caused by the unreasonable delay in delivering household goods and furniture and for damages caused in crating, storing and transporting the same from Niceville, Florida, to Eureka, Kansas. A verdict was returned in the sum of $622.14 upon which judgment was entered. The defendant has appealed from the judgment and all other adverse rulings. The appellee, Richard H. Jukes, hereinafter referred to as the plaintiff, filed his action against the North American Van Lines, Inc., án Indiana corporation, and L. R. Burnham, doing business as Burnham’s Van Service. Service was not obtained upon the latter, and the action was dismissed against this defendant in the lower court. The appellant, North American Van Lines, Inc., will be hereinafter referred to as the defendant. The plaintiff for his cause of action against the defendant alleged that on the 16th day of July, 1954, the defendant, by its agents and servants, entered into an oral contract with the United States Air Force through 1st Lt. Raymond H. Gaylor, the Commercial Transportation Officer at Eglin Air Force Base, Florida, whereby the defendant agreed to remove all of the household goods and furniture of the plaintiff, who at said time was a member of the United States Air Force, from the plaintiff’s residence in Niceville, Florida, and store the same until such time as notice was given by the plaintiff to deliver such household goods and furniture to the new residence of the plaintiff in Eureka, Kansas, and that upon receiving such notice the defendant would transport said household goods and furniture to the plaintiff’s new residence. The plaintiff then further alleged that the defendant took possession of the household goods and furniture on the 19th day of July, 1954, was notified on the 12th day of August, 1954, that the defendant should deliver his household goods and furniture to his Eureka, Kansas, address forthwith; and that said household goods and furniture were not delivered to the plaintiff’s Eureka, Kansas, residence until the 29th day of September, 1954, by Burnham’s Van Service. Plaintiff alleged in his first cause of action that by reason of the failure of the defendant, North American Van Lines, Inc., to deliver the household goods and furniture in accordance with the terms, of their agreement, the plaintiff was required to make expenditures in the amount of $565.04 which he would not otherwise have been required to make had the household goods and furniture been delivered without delay after having been given notice on the 12th day of August, 1954. Plaintiff further alleged in a second cause of action that while the household goods and furniture-were in the possession and under the control of the defendant the furniture was extensively damaged; that said damage occurred at a time unknown to and without the fault of the plaintiff, and as a result of the acts of omis sion or commission on the part of the defendant; and that as a result thereof plaintiff was damaged in the sum of $230.90. Insofar as is material herein the defendant’s answer specifically denied that it was liable to the plaintiff for any damage to the household goods and furniture for the reason that the defendant, North American Van Lines, Inc., did not transport any of said household goods and furniture, and for the further reason that the plaintiff had prior to the action made settlement for the damages alleged by the plaintiff with L. R. Burnham, doing business as Burnham’s Van Service, who transported such household goods and furniture. The defendant further denied generally each and every other allegation in the plaintiff’s petition. Generally the evidence of the plaintiff was consistent with and in support of the allegations in his petition. Concerning the contract the plaintiff’s testimony disclosed that a Mr. Broxson, manager of the branch office of the North American Van Lines, Inc., defendant, came to his residence in Florida where they agreed üpon the storage and transportation of plaintiff’s household goods and furniture, it being understood by Mr. Broxson that the defendant was to be paid by the government and that the household goods and furniture were to be stored until such time as the plaintiff could find a house in Eureka, Kansas, at which time plaintiff was to notify the defendant in Florida and the defendant would immediately ship the household goods and furniture to the plaintiff. Plaintiff admitted that subsequent to bringing this action he received $73.80 from Burnham’s Van Service for damage to his household goods and furniture admittedly caused by Burnham’s Van Service in transporting said household goods and furniture, and that the $73.80 reduced the amount of his uncompensated damages to the household goods and furniture to a of $157.10. A furniture man who inspected plaintiff’s household goods and furniture testified on behalf of the plaintiff that it appeared plaintiff’ s furniture had been water-soaked, stored in a location of high humidity, and had been damaged from mildew, in addition to breakage in handling. After hearing all the evidence admitted by the court and in due course of the trial, the jury returned a verdict for the plaintiff in the sum of $465.04 on his first cause of action, that being $100.00 less than requested by the plaintiff in his second amended petition, and for the sum of $157.10 on his second cause of action, that being the total sum requested in the second cause of action less the $73.80 paid by Burnham’s Van Service. Judgment was entered. In due course defendant’s motion for a new trial, setting forth each and every statutory ground, was filed and overruled. The questions to be determined by this court are limited. Specifications of error assigned by the defendant to the lower court’s order overruling its motion to strike, its motion to make definite and certain, and its demurrer to the second amended petition of the plaintiff have neither been briefed nor argued, hence they must be regarded as abandoned. (Collins v. Wichita Transportation Corp., 177 Kan. 677, 679, 281 P. 2d 1102; Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 521, 280 P. 2d 623; McKay, Executor v. Parker, 176 Kan. 526, 529, 271 P. 2d 245; Wingerson v. Tucker, 175 Kan. 538, 540, 265 P. 2d 842; State v. Anderson, 172 Kan. 402, 404, 241 P. 2d 742; See, West’s Kansas Digest, Appeal & Error, § 1078 [1]; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 185.) The scope of this review is therefore limited to the trial errors hereafter discussed, and to the question as to whether an acceptance of payment for damages from Burnham’s Van Service, admitted by the plaintiff, constitutes a settlement which will bar plaintiff’s recovery for the balance of the damages from the defendant, North American Van Lines, Inc. It is well to digress at this point to show the confusing manner in which the defendant presented its case not only in the lower court but on review to this court. This information will also indicate the nature of the defendant’s evidence and its theory in defense. The defendant in its cross-examination of the plaintiff produced a document referred to as defendant’s Exhibit 1 and called it a “Bill of Lading” and then asked this question: “Q. Now, that bears the date of July 19, 1954, would that be about the time that they were out there and loaded? “A. That is about the time, yes.” Counsel for the defendant then addressed the court as follows: “Your Honor, I offer defendant’s Exhibit 1 in evidence. The word ‘Cancelled’ written on there, disregard that, it was written on there by someone.” Counsel for the plaintiff then counters with this remark: “We object for the reason that there has been no showing that the original cannot be produced, and for the further reason that the instrument has writing on there, which is admitted was not on this at the time it was signed.” After further questions and answers defendant’s Exhibit 1 was admitted by the court, with an admonition that the word “Cancelled” should be ignored. As a matter of fact, defendant’s Exhibit 1 as set out in the abstract by the defendant is entitled “U. S. GOVERNMENT FREIGHT WAYBILL — CARRIER’S COPY.” It indicates that the date the bill of lading issued was “14 SEPT. 54” (not July 19,1954); that the name of the initial transportation company was Burnham’s Van Service; that the shipment was from Atwell Transfer & Storage Co., (admitted to be the agent of North American Van Lines, Inc.) Ft. Walton Beach, Florida; that the name of the shipper was the Transportation Officer, Eglin Air Force Base, Florida, and indicates that it was for a 1st Lt. Richard H. Jukes, [ AXXXXXXXX ]; that the shipment was consigned to 1st. Lt. Richard H. Jukes, c/o Eureka Motel; that the destination was Eureka, Kansas; that the issuing office was the Commercial Transportation Office, Eglin Air Force Base, Florida; that the name and title of the issuing officer was “RAYMOND H. GAYLOR 1ST LT PSAF TO B/L Symbol and No. F-2437916; that there was no pick-up service at origin; that the packages were as follows: “No. Kind Description of Articles and Exceptions 1 LOT HHG REL VAL NOT TO EXCEED 30 CENTS PER LB PER ARTICLE”; that the net weight of the shipment was 1970 pounds; that there was no packing; that the name of the transportation company was Burn-ham’s Van Service. The date of receipt of shipment was September 15,1954. Defendant’s Exhibit 3 is entitled “COMBINED UNIFORM HOUSEHOLD GOODS BILL OF LADING AND FREIGHT BILL.” On the next line are the words “FREIGHT BILL — DELIVERY RECEIPT.” The following is then set out: “BURNHAM’S VAN SERVICE Movers of Fine Furniture 1636 Second Avenue, Columbus, Georgia Received, pursuant to Order for Services (if any) and subject to the classifications and tariffs, rules and regulations in effect on the date of the issue of this Bill of Lading. Date SEPT. IS, 34 Issued at EGLIN AFB FT. WALTON FLA ' From 1st. LT. RICHARD H. JUKES Address NORTH AMERICAN VAN LINES— ATWELL MOVING AND STORAGE City FT. WALTON State FLA.” In this exhibit the following appears under the heading “VALUATION”: “Shippers are required to declare in writing the released value of the property. The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding 30 cents per pound, per article. (Shipper or Agent)” Under the heading “RECEIPT OF DELIVERY” in defendant’s Exhibit 3 is the following: “Services shown herein were rendered and the property described above received in good condition except as herein noted. Carrier BURNHAM’S VAN SERVICE Shipper 1st Lt. R. H. Jukes By David F. Van Haverbeke /s/ Date 9 SEPT 54” It was admitted by the Plaintiff, Richard H. Jukes, that David F. Van Haverbeke signed for the furniture and household goods upon delivery at Eureka, Kansas, and with the exception of the date “9 SEPT 54” last above given the evidence all disclosed that the receipt of said household goods and furniture in Eureka, Kansas, was on the 29th day of September, 1954. Obviously, the date of September 9, 1954, is in error since this date is before Burnham’s Van Service received the shipment. The defendant contends that the plaintiff should have been limited in his recovery for damages to the household goods and furniture to a maximum of 30 cents per pound on the weight of each article of household goods or furniture damaged by reason of the released value provisions of the bill of lading. U. S. C. A. Title 49, Sec. 20 (11), provides as follows: “Any . . . transportation company . . . receiving property for transportation from a point in one State ... to a point in another State . . . shall issue a receipt or bill of lading therefor, and shall be hable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered . , . and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such . . . transportation company from the liability imposed; and any such . . . transportation company so receiving property for transportation ... or transportation company delivering said property so received and transported shall be hable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such . . . transportation com pany to which such property may be delivered . . . notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, . . . and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: . . .” (Emphasis added.) The same section of the act provides for a lawful limitation under special circumstances. The defendant, however, made no effort to plead or prove any special circumstances under this act to show that such a limitation could lawfully be applicable in this case. In the case of Clubb v. Hetzel, 165 Kan. 594, 198 P. 2d 142, paragraphs 1 and 2 of the syllabus read: “1. In the absence of proof to the contrary the liability of a common carrier for loss sustained in transporting property is presumed to be its liability under the common law. “2. Any carrier asserting a liability for such loss, less than that imposed by the common law, has the burden of proof in establishing a contract for such limitation of liability.” In the instant case neither did the defendant plead that damages were claimed in excess of any limitation imposed under the contract, nor did the defendant introduce any evidence to show the weight of the articles damaged. The jury by its verdict resolved this question in favor of the plaintiff. The defendant argues that the plaintiff was fully paid for any and all damages to his household goods and furniture when he accepted the check in the sum of $73.80 from Burnham’s Van Service. The endorsement on the back of the check over the signature of Richard H. Jukes reads: “Endorsement of this check will constitute settlement in full for any and all loss or damage claimed against Burnham’s Van Service, or their associates.” It must be conceded as a general rule of law that where several persons jointly commit an injury there can be but one satisfaction, and the acceptance of payment in full without reservation will operate as a bar to the further prosecution of actions for the same injury against any other persons. (Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881; Skaer v. Davidson, 123 Kan. 420, 256 Pac. 155; Wendel v. Chicago, Rock Island & Pacific Rly. Co., 170 Kan. 68, 223 P. 2d 993.) While the defendant may be liable for the full amount of the damages to the furniture committed by both the defendant and Burnham’s Van Service, by reason of the nature of the bailment, it does not follow that the damages were committed by a joint act of the two companies. On the contrary, the damage in crating, storing and transporting to storage would necessarily have had to have been caused by the defendant only, since Burn-ham’s Van Service did not receive the household goods and furniture until the 15th day of September, 1954, prior to which time the defendant, North American Van Lines, Inc., was in complete possession. In no event could the two van lines have acted together or jointly. The law on separate operation and individual damage is well explained in the case of Railway Co. v. McWherter, 59 Kan. 345, 53 Pac. 135. This court said: “. . . The reason of the rule which renders the acceptance of satisfaction from one of two or more joint tort feasors a discharge as to all, is that the wrong is single and entire, and the injured party is entitled to one and only one satisfaction, no matter how many parties may have joined in the act. As a general rule, the nature of the case does not admit of an apportionment of the damages among the wrongdoers, but they are liable jointly and severally for the whole. When the wrongful act is not done jointly by the persons from whom compensation is sought, but is the deed of one or the other and not of both, we are unable to perceive on what principle a settlement with and discharge of one affects the cause of action against the other. Certainly it is not by way of estoppel, for the party not released is no party or privy to the arrangement, and has no joint interest with the one discharged. . . .” (p. 352.) Furthermore, the release of one party jointly hable does not bar an action against the others liable unless it is a general release without reservation. (Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784.) Later cases support the rule that in order for a release of one to bar actions against others, a release or covenant not to sue must be a general one, which clearly shows the intention to release all parties. (Jacobsen v. Woerner, 149 Kan. 598, 89 P. 2d 24.) In the case of Wendel v. Chicago, Rock Island and Pacific Rly. Co., supra, the release provided for a release of “all claims to all persons” without reservation. It follows that the receipt by Richard H. Jukes of the $73.80 as settlement in full for any and all loss or damage claimed against Burnham’s Van Service did not operate as a release against the defendant. The defendant contends that the trial court erred in refusing to admit evidence of a custom of motor vehicle transportation companies. The defendant attempted to establish the custom of van lines to hold a partial load until such time as additional freight could be added to the load for the purpose of transporting the property shipped over long distances in interstate commerce. The trial court excluded all evidence concerning this custom, and properly so for the reason that the plaintiff pleaded a specific contract. The law has become well established that a custom may be introduced only to explain the terms of a written or an oral contract which is ambiguous. It may not be introduced to vary or change the express terms of the contract. (Stout v. McLachlin, 38 Kan. 120, 15 Pac. 902; Stanly v. Buser, 105 Kan. 510, 185 Pac. 39; Tire Co. v. Equipment Co., 111 Kan. 719, 208 Pac. 659; The State v. Wilfong, 114 Kan. 689, 220 Pac. 250; and Hezlep v. Oil & Gas Co., 112 Kan. 661, 212 Pac. 881.) The foregoing rule is in addition to the general rule of law that any evidence of a custom to be admissible must first be shown to be known to the parties. (Stout v. McLachlin, supra.) In the case at bar the defendant made no attempt to show any knowledge in the plaintiff of the custom of the motor vehicle transportation companies. It is further noted that the defendant in its answer did not make any reference to the custom which it attempted to prove, but merely filed a general denial. Under such circumstances, it was proper for the trial court to exclude evidence of the custom as not being within the issues of the case. (Mill Work Co. v. Railroad Co., 112 Kan. 658, 212 Pac. 654.) Defendant contends that the trial court erred in excluding evidence of oral and written statements made by Lt. Gaylor, the Transportation Officer for the Air Force, contained in the depositions of Mr. Broxson and Mr. Hortman. An attempt was made by the defendant to introduce into evidence the deposition of Mr. Broxson relative to conversations of Mr. Broxson, agent of North American Van Lines, Inc., with Lt. Gaylor, not in the presence of the plaintiff. The record discloses that the trial court ruled these matters on the premise that counsel for the defendant admitted that Lt. Gaylor was not the agent of the plaintiff, Richard H. Jukes. This would make the evidence inadmissible as hearsay. Other reasons exist, however, which would make the evidence inadmissible. Part of the deposition testimony of Mr. Broxson with Lt. Gaylor concerned the obligations of the defendant under government regulations. These government regulations were not pleaded by the defendant and no attempt was made by the defendant to introduce these regu lations into evidence. While under the provisions of G. S. 1949, 60-2878, every court of this state must take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States, it does not follow that regulations of a department of the Federal Government are entitled to judicial notice. In this respect, a regulation is in the same category as a city ordinance in civil actions. It is a fact that must be pleaded and proved just as any other fact in the case. In Pankey v. Wyandotte Cab., Inc., 174 Kan. 17, 254 P. 2d 305, it was said: “Long ago we held in Watt v. Jones, 60 Kan. 201, 56 Pac. 16, that in civil actions courts will not take judicial notice of a city ordinance. In order for it to be admissible in evidence, it must be pleaded by quoting its language or stating the substance of its provisions. A reference to an ordinance by title is not sufficient. See, also, Showalter v. Rickert, 64 Kan. 82, 67 Pac. 454. Defendant having failed to plead the ordinance, the court did not err in refusing to admit it in evidence.” (p. 20.) Furthermore, Lt. Gaylor’s interpretation of the defendant’s obligations under those regulations are not the best evidence and are merely conclusions of the witness. Even if it is assumed that Lt. Gaylor was the agent of the plaintiff, evidence of his conclusions of the defendant’s obligations under a contract not within his knowledge are not admissible. As to other matters in the deposition of Mr. Broxson excluded from evidence, the defendant has made no statement in its brief or showing that it was prejudiced. The trial court excluded evidence offered in the deposition of Joseph C. Hortman, an employee of Burnham’s Van Service, concerning a letter written by Lt. Raymond H. Gaylor to Lt. Richard H. Jukes, a copy of which was produced by the witness. This letter set out certain joint travel regulations concerning the shipment of household goods by a commercial transportation company with the United States Government to force, if possible, the release of the bill of lading which Richard H. Jukes refused to sign and surrender to the carrier, Burnham’s Van Service, upon advice of his counsel. Among other things, the letter explained the military procedures under the regulations and what had happened to the household goods and furniture of Richard H. Jukes, and then recited: “. . . The delay in forwarding was considered unreasonable, . . .” It was signed “Raymond H. Gaylor.” For the reasons above stated, these regulations were inadmissible in evidence since they were not pleaded by the defendant. A thorough study of the letter, considering all its aspects, reveals that the defendant was not prejudiced by its exclusion. In fact, if anything the letter was beneficial to the plaintiff, had it been admitted, to prove that the delay in receiving his furniture was unreasonable. This court has consistently held that the exclusion of evidence which would not have materially aided the complaining party is not reversible error. (Meyer-Bridges Co. v. Warehouse Co., 94 Kan. 288, 146 Pac. 361; Parker v. McLain, 88 Kan. 657, 129 Pac. 939; State v. O’Leary, 144 Kan. 563, 61 P. 2d 1325; Leach v. Urschel, 112 Kan. 629, 212 Pac. 111; Farmers State Bank v. Crow, 126 Kan. 395, 399, 267 Pac. 1100.) The defendant contends that the trial court erred in instructing the jury. Complaint is made of three specific instructions, all of which the defendant concedes to be a correct abstract statement of the law, thus not erroneous, but contends they have no application to this case. It does not appear from the record that the defendant objected to any one of these instructions at the trial, and no request was made for modification or clarification. Under such circumstances a litigant cannot be heard to complain on appeal. (Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 287, 139 P. 2d 859; Krehbiel v. Milford, 171 Kan. 302, 306, 232 P. 2d 229; Klassen v. Creamery Co., 160 Kan. 697, 708, 165 P. 2d 601.) Defendant also complains that the trial court failed to instruct on agency. On this point it does not appear from the record that the defendant requested an instruction at the trial. In State v. Anderson, supra, this court said: “While it is true that it is encumbent upon a trial court to instruct the jury upon all matters of law necessary for their information in giving their verdict (G. S. 1949, 62-1447; State v. Smith, 161 Kan. 230, 167 P. 2d 594), a party who desires an instruction upon some particular question not included in the general charge should request that the trial judge give such instruction. Where no such request is made and the case is fairly presented to the jury, he cannot afterwards complain that the instruction was not given. The omission to instruct the jury upon some particular phase of the case for which no request was made is not error. (Skaer v. American Nat’l Bank, 126 Kan. 538, 540, 268 Pac. 801, and cases therein cited: State v. Rook, 42 Kan. 419, 22 Pac. 626; State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Jones, 137 Kan. 273, 20 P. 2d 514; State v. Nelson, 68 Kan. 566, 75 Pac. 505.) . . .” (For other cases see Hatcher’s Kansas Digest [Rev. Ed.], Trial, §193 and 238.) We now turn to the last specification of error wherein the defendant complains that the trial court erred in overruling its motion for a new trial. Primarily this action was brought by the plaintiff for damages caused by negligence in the crating, storing and transporting of his household goods and furniture, contrary to the duty of an ordinary bailee, and for damages caused by the unreasonable delay in delivering said household goods and furniture, without regard to its duty in the premises and under its contract. It is reasonable, after examination of all the evidence disclosed by the record in its entirety, to conclude that the jury in plaintiff’s second cause of action found for the plaintiff on the ground that all the damages to the household goods and furniture for which its verdict was rendered were caused prior to the time Burnham’s Van Service took possession to make delivery thereof to Eureka, Kansas. A number of cases have been before this court in which the delay in delivery, including a delay of only a few hours, constituted actionable negligence on the part of the transportation company and rendered it liable. (See, Poultry Co. v. Railroad Co., 99 Kan. 540, 163 Pac. 448, and Ott v. Railway Co., 102 Kan. 254, 169 Pac. 957; Railway Co. v. Fry, 79 Kan. 21, 98 Pac. 205; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421; Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847; and Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875.) In Ray v. Railway Co., supra, the court said: “Section 20 (Part 1, 34 U. S. Stat. at Large, ch. 3591, p. 593) of the interstate commerce law (Carmack amendment) [U. S. C. A. Title 49, § 20 (11)] makes the carrier liable to the holder of the bill of lading, required thereby, for any damages caused by it or any other carrier to which it may deliver the property for which the bill of lading is issued or over whose line or lines such property shall pass, and no contract, receipt, rule or regulation shall exempt the initial common carrier from such liability. This provision is construed to mean that the initial carrier may not by contract, rule or regulation protect itself from damages resulting from its own negligence or from the negligence of any other carrier into whose possession the property may come by virtue of the issuance of the bill of lading. . . .” (p. 249.) The case of Poultry Co. v. Railroad Co., supra, was before this court on a demurrer to the petition. There the petition alleged a delay of eighteen hours in shipping a car of poultry from Winfield, Kansas, to New York City and it was held sufficient to state a cause of action. While the question of pleadings in the present case is not before this court for review, counsel for both parties may have been well advised had they checked the files from the State Library in the Poultry Co. case and studied the pleadings framed under the Federal Statute cited in the Ray case. In the Off case the trial court instructed the jury that if, when the cattle were tendered for shipment, the defendant knew of conditions likely to cause delay in transportation, and the shipper did not know of these conditions, the defendant should have informed the shipper of the conditions, in order to excuse itself from liability for delay which the conditions occasioned. This instruction was held to be appropriate to the issues. This situation is particularly applicable to the case at bar since the defendant attempted by its evidence to show that it knew there could easily be a delay in shipping the household goods and furniture of Richard H. Jukes until such time as a fully loaded van was secured. Therefore, if a partially filled van was the excuse advanced by the defendant for failure to ship immediately, this circumstance should have been explained to the plaintiff. There is no evidence in the record that it was explained or told to the plaintiff. In conclusion it should be stated that the lower court did not err in excluding any of defendant’s evidence and there was no showing made on the motion for a new trial that the defendant was in any way prejudiced by the exclusion of any of this evidence. It is the province of the jury to weigh the evidence and pass upon the facts. Upon all the evidence presented and under all the circumstances disclosed by the record in the case, the jury was justified in finding for the plaintiff in the sum for which the lower court entered judgment. The trial judge acted within his powers of discretion when he overruled the motion for a new trial. The judgment of the trial court should be and hereby is affirmed.	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The opinion of the court was delivered by Smith, J.: The action was for replevin of an automobile. Defendant filed answer and cross petition. He recovered the value of the automobile and damages for money expended for attorney fees and punitive damages for malicious prosecution of the suit. Plaintiff appeals. The appellant sold an automobile to a man by the name of Parsons, who paid part of the purchase price in cash and gave a mortgage on the car for the balance. The mortgage contained a provision that in case the mortgagee should deem itself insecure it would have the right to seize the car. The petition alleged the sale; the giving of the note and mortgage; the fact that payments were due and had.not been paid; that the mortgagee had parted with possession; that appellee was in possession and refused to give up the car to appellant. A writ of replevin was issued and the sheriff took the car into his possession. The appellee answered that he had come into possession of the car by buying it when it was sold by the sheriff of Mitchell county in condemnation proceedings, where it was charged that the car had been used in the transportation of liquor. At the same time he filed a cross petition in which he claimed damages against the plaintiff on account of the alleged malicious prosecution of the action. Appellant filed a motion to strike this cross pétition from the files for the reason that it purported to set forth a claim for malicious prosecution of an action which was pending and undetermined. Later the county was made a party to the action at the request of appellee and filed its answer to the petition. Appellant filed a demurrer to the answer of the county commissioners. With the issues made up as just detailed the case came on for trial. The appellant made its opening statement in which the facts were detailed about as they have been given here. At the close of this statement Neil Fuller, the appellee, and the county commissioners moved for judgment for the value of the car on the pleadings and opening statement. During the argument of this motion the court considered the proceedings that had been had in the condemnation case, so it will be necessary to examine them here. If the judgment of the court under which the car was sold was void the appellant should prevail, and if it was merely voidable, then the appellee should prevail on that branch of the case. The action was entitled “The State of Kansas v. A Described Automobile.” No person was named as defendant. The action was started on July 13,1929. A warrant was issued on that day. It did not command the sheriff to arrest any person and was not returned until October 1, 1929. At the same time the sheriff certified a paper attached to the warrant to be a copy of a notice which purported to have been issued by the clei*k of the court on July 13. It does not bear the seal of the court and is not signed by the clerk. However, the original notice was signed by him. It was issued on July 13 and fixed September 10 as the last day in which to answer. Appellant insists that this only gives a period of fifty-nine days instead of the sixty required by the statute. This will be treated later. The judgment of forfeiture in the case was issued four days before the return of the warrant. This order was signed by the court. It does not bear the seal of the court. On the same day that this order was made and three days before the car was sold the court made an order confirming the sale. All the above alleged defects were pointed out by counsel for appellant on the argument of the motions for judgment on the pleadings and opening statement. At the close of this argument the court sustained the motion of appellee and entered judgment for him for $800, the alleged value of the car. The court then proceeded with the trial of the cross-petition of appellee against appellant. Opening statements were made and witnesses examined. At various stages in the trial appellant made appropriate motions to take the case from the jury and for judgment. These motions were overruled. The jury returned a verdict for defendant on his cross-petition for $225 attorney fees and $300 punitive damages for malicious prosecution. Judgment was rendered accordingly. Appellant concedes that the evidence introduced by appellee was in all respects sufficient to sustain the verdict and judgment rendered if the cross-petition could be properly considered in the action. That leaves only the question of law as to whether the cross-petition was properly considered. This is a collateral attack upon a judgment. The rule is that there are three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person and the power or authority to render the particular judgment. (1 Freeman on Judgments, 5th ed., 444; Simington v. Cubberly, 132 Kan. 199, 294 Pac. 908.) What one of these elements is lacking here? Certainly not the jurisdiction of the subject matter. District courts have been confiscating cars with the approval of this court for years. For the same reason we conclude there can be no doubt that there was ample power and authority to render the particular judgment. That leaves the question in this case, then, whether or not the district court had jurisdiction of the person, or since this is a judgment in rem, of the res. Appellant urges that the court below erred in taking judicial notice of the pleadings, files and orders in the confiscation case. That case had taken place in the same court before the same judge. Counsel for appellant was asked by the court whether the car in question was the car that was in the confiscation case and whether the files and orders in that case were the records of the court before which this action was pending. These questions were answered in the affirmative. Whereupon the court took judicial notice of these proceedings. We fail to see where appellant was prejudiced by this action. The case turns upon the question of jurisdiction. That in turn will be decided on the question of whether there are any such defects in the warrant, its manner of service and return, the notice that is required, the order of sale and sale as warrant this court in saying that the purported judgment was no judgment at all. Appellant does not point out in its brief any evidence that it could have furnished other than the files in the confiscation case that would throw light on this case. We conclude, therefore, that appellant was not prejudiced by the action of the court in taking judicial notice of the confiscation proceedings. Appellant urges first that the court did not acquire jurisdiction of the car in this case because no person was named in the information and the warrant did not command the sheriff to arrest any person, but simply to seize the car. The rule in this state is that an automobile can be guilty of an offense. (State v. Carr, 114 Kan. 442, 218 Pac. 1007; United States v. Rembert, 284 Fed. 996.) A further answer to this contention lies in the language of the statute. There it is provided that within forty-eight hours after the return of the warrant for the seizure of any automobile a notice shall issue in the same manner as a summons, directed to the defendant in the action and to all persons claiming any interest in the automobile. The statute then provides for this notice fixing a time not less than sixty days for answer. It provides for service of this notice the same as a summons and for a posting of it in some public place in the county. As to the contention raised by appellant just referred to, it seems clear that the intention was that confiscation of the car could go on whether any arrest was made or not, else why would the act have provided for the notice “whether an arrest was made or not”? What the legislators had in mind was that occasionally an automobile would be captured by peace officers and the driver would flee and not be apprehended. It was surely the intention of the legislature that in a case of that kind the car could be confiscated anyway. Probably the objections of counsel would have been met had the county attorney had recourse to our two old friends, John Doe and Richard Roe, but what good would that have done appellant here? We fail to see where this omission prejudiced appellant in the least. Appellant next urges that the judgment of confiscation is void because the sheriff did not return the warrant till October 1, more than eighty-two days after it was issued. No decisions are pointed out by counsel where it is held that this is such a defect as would render this judgment void, nor can we find any. Appellant complains because the notice required by the .statute was not styled as process. This notice had the heading “notice” at the top. That is what the statute calls it. That is what it is. Complaint is made that this notice was issued on the same day as the warrant instead of within forty-eight hours of its return. The provision with reference to the notice being issued within forty-eight hours of the return of the warrant is for the purpose of preventing the seizure of automobiles and the keeping of them for a long time before an attempt to confiscate. The issuing of this notice on the same day as the warrant certainly did not prejudice appellant. Complaint is made that the return of the sheriff showed that he posted the notice and that he served it on certain persons. Appellant points out that the sheriff attached a copy of this notice to the warrant when he made his return on it and that the seal does not appear on the copy of the notice that is attached to the warrant, and that it fixed a period of fifty-nine days in which to answer. Appellant insists that on account of these things the notice should never have been considered by the court, and that there was nothing before the court in the present case by which it could be said that the court had jurisdiction in the confiscation case. The trouble with all these defects is that they should have been pointed out by appellant by an appropriate' motion in the confiscation case.. It appears plainly from the-record that appellant had actual notice of the condemnation proceedings, and since it had this notice and sat by and let the case go to judgment and the car be sold it cannot now attack that judgment collaterally. (Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Blair v. Blair, 96 Kan. 757, 153 Pac. 544.) There are other irregularities urged in the brief of appellant. These have been examined and under the authority of R. S. 60-3317 and Elfert v. Elfert, 132 Kan. 218, 294 Pac. 921, it is held that they are technical irregularities and not sufficient grounds for holding a judgment based thereon void. It follows that there was no error committed by the court in sustaining the motion of the appellee for judgment on the pleadings and opening statement. This brings us then to the question of the cross petition of defendant. As has been seen, this cross petition was filed in the replevin case. The basis of it was that the replevin suit was maliciously brought. It was, of course, filed before the outcome of the suit, which it was alleged was maliciously brought, could have been known. This cannot be done. (Harper v. Cox, 113 Kan. 357, 214 Pac. 775; Buchanan v. Insurance Co., 108 Kan. 520, 196 Pac. 249; Investment Co. v. Burdick, 67 Kan. 329, 72 Pac. 781.) The motion of appellant to strike the cross petition from the files should have been sustained. The judgment of the court below for defendant on the pleadings and opening statement is affirmed; that part of the judgment awarding damages to defendant on his cross petition is reversed.	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The opinion of the court was delivered by Burch, J.: The proceeding was one by dependents for compensation for death of a workman. The commissioner of compensation denied compensation on the ground the deceased was an independent contractor. On appeal the district court held the deceased was not an independent contractor, and awarded compensation. The employer and the insurance carrier appeal. Burton Hill collected bodies of dead animals throughout the territory lying within 100 miles of Topeka, and converted the carcasses into merchantable products at his factory in Topeka. Charley Shay went out after carcasses designated by Hill, and hauled them to the factory. Shay furnished his own autotruck, equipped and operated it at his own expense, and was paid a price per head for hauling large animals and a price per pound for hauling small ones. The general practice was to pay him weekly, but he could draw compensation whenever he desired. While returning to the factory with a truck load of dead animals, Shay was instantly killed when his truck collided with another truck at a highway intersection. Shay’s dependents made a claim for compensation against Hill, with the result stated. The single question in the district court was whether-Shay was an independent contractor. That is not the question before this court. In compensation appeals this court has jurisdiction with respect to questions of law only. While this court has the same transcript before it the district court had, it is not the province of this court to determine whether the evidence, duly weighed and duly considered in the light of the legal definition of independent contractor, 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? There is testimony in the record which the district court might have discounted. For example, numerous assertions of no control over truck drivers, doubtless intended to be quite probative, gave no information regarding the important matter of right to control, and assertions of liberty of truck drivers referred to conduct in fact subject to understood regulative customs to which they were expected to conform. There is testimony in the record which the trial court may have disregarded as conclusions designed to help Hill. For example, a witness testified that Shay’s employment was like a certain class of work which is done by independent contractors. There was testimony which the district court may not have believed. For example, a truck driver not at the plant, who was the next man out, would be notified by telephone; a witness said the driver would be called to see if he had quit. There was testimony with respect to facts much emphasized — privilege of truck men to do other work, to decline a particular turn, and to report irregularly in the morning, which in view of the nature of the business and the necessary method of conducting it, meant little or nothing with respect to whether Shay was an employee or an independent contractor. In independent contractor cases, from Milligan v. Wedge, 12 A. & E. 737 (1840) to Weaver v. Shanklin Wal nut Co., 131 Kan. 771, 293 Pac. 950 (December, 1930), whether there was exercise of an “independent employment” — that is, a distinct trade, business, or calling — has generally been considered important in determining character of relation. In their brief appellants interpret the evidence as showing Shay was exercising the distinct vocation of what might be called carcass carrier. There was no testimony that Shay so held himself out to the public, and the testimony was conclusive that'Shay was one of a few persons who would consent to do Hill’s hauling. Much is made of facts which the district court may have regarded as- quite unimportant. There was testimony that sometimes a hauler would have somebody else drive his truck. The employment was not one requiring special skill and competence, such as a perfume manufacturer demands of his scent tester; and the fact that a laborer gets another laborer to do his work temporarily does not convert him into an independent contractor. These observations respecting the testimony are illustrative, and the result is, this court does not know what the district court regarded as established facts material to a decision of the controversy. Turning to the law, it may be assumed the district court applied the “right of control” test recognized by courts generally and by this court. The American Law Institute’s definition of independent contractor, and comment on the definition, follow: “Sec. 6. An independent contractor is a person who undertakes to execute certain work or to accomplish a stipulated result for another, under such circumstances that the right of control of the doing of the work, and of the forces and agencies employed in doing it, is in the contractor. “Comment: (a) The characteristics of the independent contractor are that he is a person (usually carrying on a distinct occupation) who for a stipulated compensation (usually a lump sum) undertakes to do a piece of work (usually of some magnitude) by his own forces and instrumentalities (usually supplying labor and materials), being responsible to his employer for the stipulated results, but (essential characteristic) being left in control of-the operation of the forces and instrumentalities by which the stipulated result is to be accomplished.” (Agency, American Law Institute Restatement, Part 1, ch. 1, § 6.) The right of control test breaks down in some classes of employment, there are better tests for some classes of employment, and the test is such a blind guide that different courts continually reach different conclusions when professing to apply the test to substantially identical fact situations. (28 Mich. Law Rev. 365, February, 1930; 29 Mich. Law Rev. 519, February, 1931.) Therefore the test should not be mechanically applied when some freedom of action is found, as in this instance, in a department of an organized business. Burton Hill testified as follows; “I am engaged in operating the Topeka Rendering Works, and have been for the last twenty-two years, which business consists of removing dead stock and rendering same; have a factory for that purpose; Mr. Shay was hauling for me in September, 1929, as also were Gilbert Henry, Bob Barnes, and Spickard. ... I oversee the work generally, and Mr. Hagan had charge of the office and of the men who did the hauling, . . . He had control of those whom I engaged to do hauling, and had that control in September, 1929. . . . Carcasses are hauled up to 100 miles, but seldom go that far. The busy season is the summer and fall. It varies from day to day and week to week, and some days there will be more hauling than others. . . . There are a comparatively small number of-people who engage in hauling dead animals, and there are others who haul in to us besides the men who haul for us, and we have enough work to keep the three men pretty busy.” J. L. Hagan testified as follows: “I am employed by the Topeka Rendering Works, operated by Burton Hill, and have been since November, 1928, having charge of the truck drivers, the books, and the office; was acquainted with Mr. Shay, who hauled for the company. “Q. Was he one of the truck drivers whom you just said you had charge of? A. Yes. “Frazier’s employment is as stenographer and telephone operator. . . . The business of hauling carcasses is seasonal, in the spring or after April 1, and through to the first of November, it is heavier than the rest of the time. For six months of the year it is practically double what it is the other six months. . . . “There are three men hauling for the firm now, and had four when Shay was there. . . . Around Topeka those who will haul dead animals are few and far between. . . . The business of the Topeka Rendering Company consists in receiving orders and notice of animals that die in the surrounding country, giving the orders out to the truck drivers, who bring the business in; about 30 per cent is converting dead animals into merchantable products, and 70 per cent is packing products from live animals shipped in over the railroads. . . . About 30 per cent of that [the whole business] is dead animals picked up. In that phase of the business it is necessary to have a constant supply of them. For that purpose we advertise for dead animals, and we now pay for them, but at the time of the accident we did not pay for them. The truck drivers now determine the price, and pay for them when they pull them in their trucks, drawing a sight draft on our [form of] drafts. “I have been with the Topeka Rendering Works since November, 1928, and I am familiar with their business; . . . hauling has been a regular part of the business, and the same men have been doing that work, with occasional changes, irregularly since I have been there.” Bob Barnes testified as follows: “I am employed by the Topeka Rendering Works, and have been for five or six years, doing the same kind of work Shay was doing.” Jack Spickard testified as follows: 'T am engaged in hauling .dead animals for Burton Hill, of the Topeka. Rendering Works, and have been for about sixteen or eighteen months. I knew C. L. Shay, who did the same work as I am doing. Barnes does the same work.” Mrs. Shay testified as follows: “At previous times when Mr. Shay worked for Mr. Hill, before his first injury, he did some other work for other people, and hauled some coal. Mr. Shay did not do any other work after he went back to work for Hill in April or May, 1929. He went to work at a regular time of day, at seven o’clock in the morning; he worked seven days in the week, and returned at diffei’ent times, from-early in the evening to as late as midnight.” The trial court might have considered this evidence as indicating a crew of employed haulers, in charge of and under the control of Hagan, kept reasonably busy doing a regular part of the business of the concern producing 30 per cent of the total business, and not as indicating a number of independent contractors reporting to the factory day by day for contracts to transport a dead horse from here, a dead cow from there, and a dead pig from yonder, and on completion of the contracts receiving — not more directions or orders, but more contracts. The calls to remove dead animals that came to Hill’s office were in response to extensive advertising. Hagan testified for Hill as follows: “Q. I show you what I will call an ‘order book,’ and . . . ask you if you know what this book is? A. Yes, sir. “Q. What is it? A. That is the book which we used to list orders received over the telephone for dead animals. . . . This shows the orders which we gave Mr. Shay to haul the day he was killed. They were to Jess Campbell’s for two cows, 2 miles north and % west of Whiting, Kan.; a horse at W. L. Simpson’s, 5 miles west and one north of Horton; and to P. S. Williamson’s, east of Denison on 24. I received these orders over the telephone, [and] as was the customary method, wrote them in the book'. Well, the first driver that shows up there, I just copy this on a slip of paper and hand it to him, and he goes after it. But I write the driver’s name on the book, and deliver the slip to him.” This testimony regarding the manner in which a hauler gets a “contract” does not fully cover the subject. There were long hauls and short hauls, and the haulers agreed on a rule of “first in, first out,” such as prevails with respect to certain employees at railway division points. Hagan testified as follows: “Q. You probably have heard some testimony here about this ‘first in, first out’ practice. Do you know anything about that? A. Well the drivers thought they weren’t getting an even shake on it, and they thought it would be better to have some kind of an arrangement among themselves. They would come to the office there and suggest we try to cooperate with them on ‘first in, first out,’ and since that time we have tried to cooperate with them, but we haven’t let it hurt the business.” Barnes testified as follows: “Just describe what you do in getting these orders. You go up to Mr. Frazier and ask him if he has got any orders? A. No, he will let you 'know. You don’t have to ask him. He will call you. “Q. Does he call all thé haulers, or just call particular ones? A. Oh, no; just whichever one is up first. “Q. You mean they take it by turns? A. Yes,'sir; first in, first out.” Spickard testified as follows: “Q. Suppose you don’t get down till 11 o’clock in the morning, and before you do get there an order comes in that is your turn, do they try to get you, call you about it? A. Yes.” Mrs, Shay testified as follows: “Mr. Shay went to work every morning about seven o’clock. On some occasions he would be a little after seven, and on those occasions some one from the plant would call; sometimes Mr. Hill, sometimes one of the other fellows ; couldn’t say which. If they called and asked if Mr. Shay was there, I would say, he is here, or he has just left, or tell them if he was on the way to work. I don’t think they ever gave me any orders for Mr. Shay. On one occasion Mr. Hill called about seven or seven-thirty in the evening, and left word for Mr. Shay to call him.” Barnes testified as follows: “Q. How do you decide whether you get a one-mile haul or a hundred? A. We don’t decide. We just take it as they give it to us. “Q. Have you got anything to say about that? A. No, sir.” Spickard testified as follows: “When I get a haul of one cow for 75 or 100 miles, we just got to go and get it. We don’t refuse. If anybody refused to go, nothing would happen; some one would go. I have never known of anyone refusing.” From the evidence the district court might have concluded that in winter, when there was little hauling to do for Hill, the haulers did not remain idle. When Hill’s work was irregular and not very active, and perhaps at other times, the haulers took jobs of hauling. Hill testified haulers “were free to do other hauling as long as it did not interfere with our work.” A hauler might not report at a particular hour, and if he had been out late at night, he was not likely to report early the next morning. Spickard testified as follows: “A. Well, if you get out and get your stuff and get — maybe you get back in, and they give you an order, and you go out, and maybe not get back to 3 • o’clock in the morning. I have been out all night. “Q. What happens if you decide you are not going down there to-morrow morning? A. I just keep quiet and say nothing. They generally call me on the phone. I have told my wife to tell ’em I am sick, and all kind of excuses; make up every kind of excuse to keep from going.” For obvious reasons of business prudence the haulers were not disciplined. Hill testified they were kept pretty busy, and there was no testimony that his business ever suffered because he could not depend on his crew of haulers. The district court might have inferred from all the foregoing testimony that, under the system of operation of the Topeka Rendering Works, haulers were workmen who were in fact subject to call and who were under well-understood obligation to respond to calls. When a hauler got a “contract,” what was his freedom in executing it? Hill said, “My interest consists in getting the orders out and having the stock delivered at the plant.” It was “expected,” however, that the hauler would go at once, and return promptly. There was no promulgated rule to that effect, and the faster a hauler worked the more he earned. But quick work was a need of the business — the need to minimize putrefaction — and it was inferable that the constraint of the known and necessary custom and practice had a practical effect equivalent to a direction. Hagan testified that when he was told Shay had been killed, his first thought was to get-help over there and get the dead animals Shay was hauling. The slip given to a hauler gave the location of the dead animal. Hill said the hauler was “supposed” to go to the owner of the land where the animal was. It is a fair inference a hauler understood what it meant when his employer “supposed” or “expected” he would conduct himself in a certain way. When the hauler reached the animal to be transported he was not permitted to handle it according to his own methods and by instrumentalities of his own choice. He was no.t allowed to cut up the animal in order to load it. He was required to load it and bring it in just as it was when he found it — whole, or as it then might be mutilated. To do this the hauler was obliged to have special equipment, a hoist, to draw animals up into, his truck. Barnes and Spickard had hoists belonging to Hill. Shay did not have a hoist. Barnes said Hill wanted Shay to have one, and Barnes loaned Shay an old hoist which Barnes did not use after reequipping his own truck with Hill’s hoist. The result is that in doing the particular thing he went out to do — getting the dead animal — the hauler was obliged to obey the will of his employer, and not his own will. Place and manner of delivery at the factory and important incidents to delivery were governed by prescribed regulations, and the freedom of a hauler to execute his “contract” according to his own will consisted essentially in choosing his way out and back. Hill said, “Those boys all know the road conditions.” In the case of McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743, the opinion reads: “The defendant was operating, a coal mine in Cherokee county. The plaintiff with his boy was digging coal for the defendant at sixty cents for each mine car of coal produced. The plaintiff furnished his own tools and supplied his own material, such as powder, fuses, paper, etc., to be used in mining coal. The defendant argues that this made the plaintiff an independent contractor and took him out of the operation of the workmen’s compensation act. . . . The plaintiff was an employee within the meaning of the workmen’s compensation act.” (pp. 193, 194.) Appellants undertake to distinguish this case by giving their interpretation of the evidence relating to privilege to work or not, to refuse a particular haul, and to substitute a driver. This effort to distinguish does not break the force of the decision regarding inconclusiveness of piece-work pay and the furnishing of instrumentalities as factors determinative of nature of employment. The factors referred to by appellants have been discussed in their relation to the whole situation as the district court might have viewed it. Whether Shay was an employee or an independent contractor was distinctively a matter of inference, and without pursuing the subject further it is sufficient to say there was evidence from which the district court might fairly infer that Shay was an employee within the protection of the workmen’s compensation act. The judgment of the district court is affirmed. Harvey, J., not sitting.	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The opinion of the court was delivered by Johnston, C. J.: This action was brought by Paul Taneyhill and others against Kansas City, the commissioners, and the clerk of the city, the J. A. Tobin Construction Company, and the Riverview State Bank, to enjoin the levy and collection of special assessments for the improvement of a portion of Kansas avenue in that city, which had been designated as a part of one of the main arterial traffic ways of the city. A demurrer to plaintiff’s petition, on the ground that the pleading did not state a cause of action in favor of plaintiffs, was sustained, and plaintiffs have appealed from that decision. In the petition it was alleged, in substance, that the governing body of Kansas City, in pursuance of the authority conferred by chapter 132 of the Laws of 1929, had passed certain ordinances establishing main arterial traffic ways, one of which was a part of Kansas avenue, and that this body had proceeded to and improved a section of that avenue under the authority of the act named, and had enacted an ordinance levying special assessments on property within the benefit district without any petition from property owners for such improvement. The record shows that on May 14, 1929, the initiatory steps were taken by the governing body of the city towards the establishment of the Kansas avenue traffic way. Later, and on July 2, 1929, ordinances were passed by the city providing for the paving and recurbing of the avenue and providing for the payment of the improvement. On July 8, 1929, notices were sent to contractors and proposals for the making of the improvement were asked. The notices stated that one-half of the cost of the work was to be paid for with improvement bonds of the city or cash, at its option, and the other half in tax bills or special assessments on the property owners of the district. A city engineer’s estimate of the cost of the improvement was made on the unit plan and a contract let to the J. A. Tobin Construction Company. The work was completed and the engineer’s final estimate made and filed with the city commissioners on November 14, 1929. The plaintiffs raise a multitude of questions and they have subdivided and expanded their objections to the act, the city ordinances and the steps taken by the city authorities thereunder, to fifty-nine in number, and then pray that the defendants be perpetually enj oined from the collection of any taxes or assessments for the improvement. Plaintiffs first attack the validity of the act providing for the establishment of main arterial highways in first-class cities having more than 115,000 inhabitants, claiming that it is unconstitutional, in that it is a special act for which a general law could be made applicable. The same question was raised respecting the same act in State, ex rel., v. French, 130 Kan. 464, 286 Pac. 204, where the act was held to be valid. Counsel for plaintiffs, cite many authorities on the question, but evidently failed to find the recent one, which is directly in point. In view of that decision there is no occasion to reconsider the point. (See, also, Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77.) Plaintiffs contend that the act is invalid because of the proviso in the second section of the act, which provides that: “The governing body shall never designate and establish as main arterial traffic ways more than ten such streets or avenues.” It is said that the legislature has undertaken to enact irrepealable legislation. Aside from the word “never” there is nothing in the law which contemplates that the act may not be amended or repealed' by subsequent legislatures, and even if that had been the purpose it would have been without effect. It is clear that the legislature cannot bind its successor as to the amendment or repeal of its laws. (Gilleland v. Schuyler, 9 Kan. 569.) The legislature of 1929 is presumed to have known the scope of its powers and that it could not enact irrepealable legislation, especially where the supreme court had previously decided that it was not within the power of a legislature to bind its successor. It is manifest that it was not the intention of the legislature of 1929 to circumscribe the action of any future legislature. The language of the proviso is no more than to say that during the existence of the act or until it was amended or repealed not more than ten traffic ways should be established. No constitutional'defect is discovered in the title of the act which is challenged or in the application of the funds to the improvement provided for by the legislature or for lack of restrictions required under article 12, section 5, of the constitution. (State, ex rel., v. French, supra.) Nor is there anything in the claim that the act must be regarded as the denial of due process or the equal protection of the law. Plaintiffs contend that the establishment of the traffic way in question results in more than ten traffic ways in the city, and that several streets or parts of streets are improperly included in a single main arterial traffic way. First, the act is prospective in its nature and authorizes the governing body thereafter to establish ten traffic ways. The authority was not limited by the fact that there may have been other main traffic.ways in the city when the act was passed. After the passage of the act the city was empowered to create ten traffic ways regardless of the existing ways when the act was passed. As to the inclusion of several streets or parts of streets in a single traffic way, the act provides: “That such streets or avenues shall be established and designated as main arterial traffic ways by the governing bodies of said cities, because of their adaptability to such purpose, and shall be established at such places in the city as in the judgment of the governing body will best serve to carry the traffic of said cities,” etc. The purpose of the legislature evidently was that traffic ways shall be established according to the topography of the ground and in such place or places as will contribute best to carry the traffic. It is not required that traffic ways, to be established, shall be along a straight line or over a single street; the adaptability of the places or streets that will best serve the public in carrying the traffic of the city, is a prime consideration. The route along which a traffic way shall be established is left to the judgment of the governing body of the city. As to the route and the promotion of one that will properly care for the traffic, that body should, of course, select a route that is practical, one that will conduce to the convenience of the public and best serve the public in caring for the through traffic of the city. The commission has exercised its judgment in that respect, and there being no charge of fraud it may be assumed that the route chosen is both practical and proper and is not now open to question. Another of the grounds of invalidity asserted by plaintiff is that the commission passed ten ordinances in designating the ten named arterial traffic ways, when one would have served the purpose. The ordinance for the traffic way in question appears to be sufficient to meet the requirements of the act and that objection is deemed to be without merit. There is nothing in the act requiring that all ten of the traffic ways shall be established at one time, or under one ordinance, nor is there anything substantial in the objection that more than ten traffic ways have been established under the act of 1929. The act refers to and borrows from chapter 133 of the Laws of 1927, as to the assessments on property in the benefit district, and plaintiffs contend that the act of 1927 is inoperative because of the repeal of section 1 of the borrowed act of 1927. Section 1 of the later act, it appears, was amended and is operative as amended. But one section of the act was amended and that section is continued in force, and, besides, the other sections of the act are applicable to the matter of making assessments. No difficulty can arise or has arisen apportioning the assessments for the improvement of main arterial traffic ways, and that object is not deemed to be substantial. There is a further contention that the assessments are unenforceable because no petition was presented asking for the improvement by property owners. It was competent for the legislature to dispense with a petition for the improvement and to provide for it with or without a petition of property owners. (Baird v. City of Wichita, supra.) An attack is made on the validity of ordinances passed by the city commission in establishing the traffic ways and providing for the payments of the improvements. Fault is found with the titles of the ordinances in that the subject is not clearly expressed in it. It is only necessary to say that an examination of the ordinances satisfies us that the title is broad enough to cover the provisions included in the ordinances. It is not necessary to include in the title all the details of the provisions of the ordinance, and not necessary to insert in the title what constitutes a repaving or recurbing of the traffic way. It is enough if the title is sufficiently broad to indicate in general terms the provisions of the ordinance. Without recounting at length the terms of the ordinance and of the titles, we hold them to be free from the objections made by plaintiffs. An objection is raised as to the paying for the estimate of the engineer. That is an essential part of the work and is a wise provision for the protection of the public as well as the owners of the property assessed. We find nothing in the estimate to warrant the complaint made by plaintiffs. There are some other objections as to selection of the kind of pavement, the work required under the contract that was made, the completion of the work contracted for, that the contract was let at unit prices instead of a lump sum, that more than half the cost of the improvement was assessed against the owners of the property, of a lack of competitive bidding, and that the work might have been done for a less price, but none of them are deemed to be material or to justify the granting of the injunction asked. Eliminating the conclusions of the pleader, the matters of which the court takes judicial notice, and statements in the petition which are inconsistent with each other and also with matters of record, we conclude that the court rightly held that the petition of plaintiffs did not state a cause of action in their favor. The judgment is affirmed. Harvey, J., not sitting.	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The opinion of the court was delivered by Sloan, J.: This action was brought to determine the ownership of an oil and gas lease covering 320 acres of. land in Ness county. The appellees, William F. Kuehn and wife, intervened and contended that plaintiff’s lease was procured by fraud and that a certain mineral deed given to the Landowners Oil Association was not delivered. They asked that the title to their land be quieted. The trial court sustained their contention and rendered judgment accordingly. The plaintiff and the Landowners Oil Association appeal. The Landowners Oil Association has filed no abstract or brief and has made no appearance in this court. The trial court made special findings of fact, which state all of the essential facts in the case, and for that reason they are set out herein. “Findings of Fact. “The court finds: “I. The intervener, William F. Kuehn, on May 12, 1922, purchased from the Kansas Investment Company the S!4 of the of section 5, the S% of the SW14 of section 4, and the N% of the NW14 of section 9, in township 18, range 25, in Ness county, Kansas. “That the said William F. Kuehn at this time went into possession of said real estate; his purchase thereof, being under a wheat contract which contained the clause that a failure to comply with its terms ‘shall at the option of the owner of the contract, work a forfeiture thereof.’ This contract was assigned by the Kansas Investment Company on October 30, 1923, to Arthur W. Van Boskirk, of Colorado Springs, -Colo., and on the same date the legal title to said real estate was conveyed to Van Boskirk. On May 22, 1929, Van Boskirk conveyed- said real property to William F. Kuehn, he having complied with the terms thereof. “II. That prior to May 31, 1928, the Marland Production Company had obtained oil and gas leases on land in the vicinity of that owned by the intervener, and on May 31, 1928, William F. Kuehn and Ethel L. Kuehn executed •and delivered, on the real property above described, an oil, gas and mineral lease to the defendant Marland Production Company. That said- lease was acknowledged on May 24, 1929, and recorded in the office of the register of deeds of Ness county, Kansas. Said lease recited a consideration of one dollar and the payment of a yearly rental of fifty cents an acre as annual delay rentals. Said one dollar consideration was not paid at the time of the execution and delivery of the lease. “III. On May 31, 1928, the Marland Production Company entered into a written contract with William F. Kuehn and Ethel L. Kuehn by which the Marland Production Company obligated itself to commence the drilling of a test well on some portion of the acreage included in the block of acreage adjacent to and including the land herein described, on or before June 1, 1929, and it was agreed, in default of the drilling of said well, said lease given by Kuehn and wife to the Marland Production Company should be held null and void. “IV. The said Marland Production Company prior to June 1, 1929, commenced drilling of a well on the acreage included in said block, which well was completed, and thereafter said Marland Production Company and the Continental Oil Company, its successor, paid the annual rentals provided in the lease above referred to, in the depository therein designated, the Beeler State Bank of Beeler, Kan., which rentals so paid, were refused by the said William F. Kuehn. “V. That the Landowners Oil Association, defendant herein, is a corporation permitted to carry on its business in the state of Kansas. That on or about the 2d day of February,' 1929, William F. Kuehn and wife made, executed and conditionally delivered to the Landowners Oil Association a certain conveyance, whereby they granted to the Landowners Oil Association an undivided one-half interest to the royalties, rents and profits which might accrue to them as owners of the S% of the S!4 of section 5, township 18, range 25, Ness county, Kansas, a part of the real estate herein described. That said conveyance was delivered to an agent of the Landowners Oil Association, who negotiated its execution, with the express understanding that it was not to become effective, unless the Landowners Oil Association procured the consent and approval thereof, by Van Boskirk, the then holder of the legal title to said real estate. That said condition was never complied with, and the Landowners Oil Association never did -procure the consent to, or approval of said mineral deed, by Van Boskirk. Said conveyance to the Landowners Oil Association recited that said land was under an oil and gas lease executed in favor of the Marland Production Company,- and was made subject to the terms of said lease. “VI. That on or about March 9, 1929, agents of the plaintiff, W. H. Lassen, went to the residence of William F. Kuehn for the purpose of procuring an oil and gas lease on the land herein described. Said agents were informed by Kuehn that he had previously executed a lease on said land to the Marland Production Company, and they were shown a copy of said lease, and said agents of Lassen at that time, or shortly prior thereto, had seen a copy of the drilling contract, which the Marland Production Company had made with all parties from whom they obtained leases in that vicinity, and knew that such a contract had been made between Kuehn and the Marland Production Company. At this time the agents of Lassen told Kuehn and his wife (that the Marland Production Company was ‘blown up’ and had abandoned their intention of drilling a well in that vicinity), and that they, the agents of Lassen, had obtained oil and gas leases from other land in that vicinity, including the Olsen land and the land of the Shiners, and that if they could obtain the Kuehn lease and the Leonard Everett land, Lassen would drill a deep test well on some portion of the acreage obtained. These representations were untrue and were made for the purpose of inducing Kuehn and his wife to execute an oil and gas lease to Lassen, and were believed and relied upon by Kuehn and his wife in executing a lease to Lassen, which they did on that date. “VII. That on the 13th day of March, 1929, Arthur W. Van Boskirk and wife executed and delivered an oil and gas lease covering the real property involved in this action, to W. H. Lassen. That said oil and gas lease was acknowledged on March 22, 1929, and filed for record in Ness county, Kansas, on the 11th day of April, 1929. That when Arthur Van Boskirk and wife executed the said oil and gas lease to W. H. Lassen, Arthur W. Van Boskirk was the owner of the legal title of said land, and at the time said lease was executed and delivered, W. H. Lassen paid to Van- Boskirk a valuable consideration therefor. “VIII. That on March 21, 1929, a written agreement was entered into between Arthur W. Van Boskirk and Wm. F. Kuehn. This agreement was acknowledged on the 21st day of March, 1929, and was recorded in Ness county, Kansas, on July 31, 1929. That by the terms of this contract Wm. F. Kuehn gave to Arthur W. Yan Boskirk full authority to execute to W. H. Lassen an oil and gas lease covering the property described in this action.” The appellant contends that finding No. 6 is not supported by the evidence. This requires an examination of the evidence. William F. Kuehn, one of the appellees, testified: “On March 9, 1929, I had a conversation with a Mr. Chesbro and Mr. Reid [admitted agents of appellant Lassen] at my farm . . . They said the Marland was blowed up. They were leasing everything around here and got everything around here and got everything around the Everett place. I asked them if they had the Olson place, the place adjoining me on the north, and they said ‘yes’ and I said ‘have you got the Ray Shiners’ and they said ‘yes,’ I got all of that . . . “They made an offer of $160 cash, $1 an acre rental. Then is when I told them I only had a contract on the place and was sort of in bad on the payments. That they would have to get VanBoskirk’s signature to the lease “I told them the Marland had a lease on the place, but when the Marland got its lease it' did not pay me any money.” They produced a map and pointed out to appellee the land on which they held leases, including the Olson place, the EveVett place and Ray Shiners’ land. “Q. Now, Mr. Kuehn, would you have signed that lease to Lassen if he had not told you the Marland company blowed up, and were not going to do anything with any of the leases; isn’t that the reason you signed? A. Yes. . . . “I says to them, well, if you will give me $160 spot cash, and a dollar an acre rental to me personally, in the face of the Marland lease, and make it all right with Yan Boskirk, that I will sign your lease.” Mrs. Kuehn, one of the appellees, testified to substantially the same facts as her husband. This evidence was in part disputed by the agents of appellant. The statement that the Marland company had “blowed up” was shown by ample evidence to be false, and the appellant did not have leases, but did have royalty contracts on a part of the land adjacent to the land in question. The evidence is substantial and fairly covers and supports the findings made by the trial court, and is conclusive in this court. (Bauman v. Hoffman, 125 Kan. 62, 262 Pac. 545; Cox v. Gibson, 125 Kan. 76, 262 Pac. 1030; Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 263 Pac. 778.) It is claimed by the appellant that the facts found do not show actionable fraud and that the judgment cannot be sustained as a matter of law. It is contended that the statements made by the agents of appellant were not material and did not relate to a past- or existing fact, and that the appellee suffered no consequent injury. The evidence shows, and the court found, that the appellant’s agents represented to the appellee that the Marland company had abandoned its intention of drilling' a well, and that it had surrendered certain leases which had been acquired by appellant. These were statements of an existing condition and related to a matter in which the appellee was vitally interested. The real and important consideration for the lease executed to the Marland company was the promise to drill a test well near appellee’s land, and if this had come to naught appellee would not be bound by the contract, and could lawfully lease his land to appellant. There is no merit to the contention that the statements were immaterial and not related to an existing fact. The claim that there was no consequent injury is likewise without merit. The appellee clouded his title by conflicting leases, subjected himself to the hazard of litigation and was deprived of the use of the rentals on the lease because of adverse claims. It is not necessary to prove pecuniary damages to have cancellation and rescission of a contract induced by fraud. (Hirschman v. Healy, 162 Minn. 328, 202 N. W. 734; Conrad v. Darnell, 114 Okla. 48, 242 Pac. 772.) The contention is made that the agreement entered into between the appellee and Van Boskirk) authorizing Van Boskirk to execute a lease to appellant, estopped appellee to deny the validity of the lease and waived the alleged fraud. At the time of the execution of the agreement to Van Boskirk, which was in fact a part of the same transaction as the execution of the lease to appellant, the appellee had no knowledge of the alleged fraud. His action was predicated on the truth, not on the falsity, of the statements made by appellant’s agents. The fraud which vitiated the lease invalidated the agreement. Estoppel is an equitable doctrine, its function is to protect from loss and not to secure advantage or to fortify gain. Estoppel is not available to the appellant. It is claimed that the court erred in excluding evidence tending to impeach the appellee, who was appellant’s witness. The records disclose that the appellant was permitted to cross-examine the witness at length, but the court refused to admit impeachment testimony. This was within the sound discretion of the court. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408; Avery v. Howell, 102 Kan. 527, 171 Pac. 628.) The court did not abuse its discretion. We have examined the record and.find that the evidence fairly supports the findings of fact and the court properly applied the law. The judgment is affirmed. Hutchison, J., not sitting.	[ 112, 106, -7, 13, 10, 96, 58, -103, 72, -79, 117, 83, -55, -38, 4, 61, -62, 13, 117, 104, -25, -78, 6, -64, -46, -77, -39, -51, -79, 95, -28, 87, 73, 0, -54, 85, -62, 64, -43, 92, -114, 4, -103, -28, 89, 16, 52, 107, 82, -53, 97, -93, -29, 41, 21, -61, 13, 44, -5, 37, 81, -16, -85, -107, 95, 18, 2, 0, -112, 1, -56, 62, -110, -72, 8, -24, 114, 38, -44, -11, 7, 25, 8, 46, 106, 49, 116, -17, -24, -104, 15, -6, -115, -89, -110, 88, -29, 72, -106, -103, 113, 18, 3, -10, -20, 5, 94, -4, 20, -117, -42, 3, 15, -8, -104, 9, -21, -123, -76, 96, -51, -26, 92, 71, 122, -101, 15, -79 ]
The opinion of the court .was delivered by Harvey, J.: This is an appeal by interveners, in an action for mandamus, from an order of the court granting the writ notwithstanding their answer. The Wolf River Drainage District of Robinson, Brown county, Kansas, moved for the writ against the county treasurer, alleging that it is a corporation duly organized under our statute (R. S. 24-501 et seq.), and one of the governmental divisions of the state organized for public purposes, with officers, who were named, duly elected and qualified; that on August 5,1929, its officers, proceeding in accordance with the statute, levied a general tax.of five mills on the dollar of the taxable property within the district to create a general fund; that the resolution making the levy was duly certified to the county clerk and by him entered on the tax rolls, and that the county treasurer had collected taxes thereunder, in a sum named, but had refused to credit plaintiff on her books with the taxes so collected, or to pay therefrom warrants properly drawn thereon, as was her duty under the statute. An alternative writ was issued. The county treasurer filed her answer and return, in which she stated that under the levy made by plaintiff she had collected $4,148.27, of which $1,371.51 had been paid under protest. She listed the warrants drawn by plaintiff on this fund, none of which had been paid, and prayed that the writ be denied. Jere Kimmel and other taxpayers of the district, alleging that they had an interest in the fund in controversy, moved to be made parties defendant and for leave to intervene and answer. This motion was granted, and they filed an answer. Plaintiff filed a motion for a peremptory writ notwithstanding the answer of the county treasurer, and a separate motion for a peremptory writ notwithstanding the answer of the interveners. These motions were heard by the court and sustained. The interveners alone have appealed. Plaintiff questions the right of the interveners to be heard and argues that their appeal should be dismissed for the reason that the alternative writ of mandamus imposed no duty upon them to perform any act, and for the further reason that they have an adequate remedy at law. In State v. Dolley, 82 Kan. 533, 108 Pac. 846, it was held: “In mandamus it is proper to make persons defendant from whom the performance of no duty is sought, but who might be affected by the judgment. See, also, Livingston v. McCarthy, 41 Kan. 20, 20 Pac. 478; State v. Railway Co., 81 Kan. 430, 105 Pac. 704; Kansas City v. Stewart, 90 Kan. 846, 136 Pac. 241; State, ex rel., v. Akers, 92 Kan. 169, 172, 140 Pac. 637; Ousley v. Osage City, 95 Kan. 254, 147 Pac. 1110. Perhaps the fact that the application to be made parties and to intervene and answer, and also the answer filed, alleged that three injunction suits had been brought to enjoin the collection of the taxes in question, which suits were then pending and had been in part tried, would have justified the court in refusing the application to intervene and answer. But there has been no appeal from the order of the court permitting the interveners to be made parties and to intervene and answer, if, indeed, it is an appealable order; hence we do not have this specific question before us. If the interveners were proper parties in the court below, they are, of course, entitled to appeal from a final judgment against them. Plaintiff’s motion for a peremptory writ notwithstanding the answer of the interveners is tantamount to a demurrer to the answer, hence the real question before us is whether the answer states a defense, and in determining that question we must consider as true all allegations of fact well pleaded in the answer. Before examining the answer filed by the interveners it should be noted that it is well settled in this state that a drainage district created under the statute (R. S. 24-401 et seq.) in question is a quasi-municipal corporation — an arm of the state created by the legislature to perform a function of government. (See State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31, and cases cited, page 47.) It is also well settled that a private individual has no legal capacity or standing in court to question the regularity of the organization of quasi-municipal corporations in. this state such as drainage districts (Euler v. Rossville Drainage District, 118 Kan. 363, 235 Pac. 95), school districts (Scamahorn v. Perry, 132 Kan. 679, 296 Pac. 347) and the like. The interveners recognize these rules but contend that the rules should not apply when an attack is made on the lack of jurisdiction of the boards of county commissioners or organizing bodies to create any districts the creation of which would add to the burden of their taxes. On that point they rely largely on the holding of this court in Schur v. School District, 112 Kan. 421, 210 Pac. 1105. There an effort had been made to establish a rural high-school district. Resident taxpayers brought an action alleging facts stating a cause of action in quo warranto; also facts which stated a suit for an injunction. It was held to be no justiciable concern of private litigants that there may be an infirmity in the organization of the rural high-school district, that being a matter of which the state alone could complain, but where such infirmity likewise affects a proposed bond issue authorized simultaneously with the proceedings to organize the district, an action involving the same facts might be maintained by private litigants to enjoin an illegal bond issue and consequent tax levies. Referring to this question, in the later case of Scamahorn v. Perry, 132 Kan. 679, 680, 296 Pac. 347, it was said: “In seeking to enjoin issuance of bonds, a taxpayer may not question any step in the proceeding which affects existence of the organization, such as sufficiency of the initial petition, enumeration, notice of election, conduct of election, and result of election. The county attorney or attorney-general must do that. Accepting the fact of organization, the taxpayer may question the bond issue on grounds which would invalidate a bond issue by a legally organized district, such as invalid notice of election. This distinction was made clear in Schur v. School District, 112 Kan. 421, 210 Pac. 1105.” This was followed in Shaffer v. Ford County Comm’rs, ante, p. 256, 299 Pac. 613. Let us now examine the answer of the interveners. Broadly speaking, it consists largely of .allegations in general terms that the steps taken for the organization of the district, the making of the levy in question and having it entered on the tax rolls, are not in strict accord with the statutes relating thereto. But it is wholly lacking in allegations of fact as to such shortcomings. For example, it is alleged “that a petition for the organization of said district was never made and presented to the board of county commissioners . . . as required and provided by R. S. 24-403.” It is clear from the answer as a whole that, some such petition was presented to and acted upon by the board of county commissioners. In what way was the petition so presented defective or insufficient? In what way was it not “made and presented ... as required” by statute? The answer filed is silent as to facts constituting such faults, omissions, or defects. It is alleged in the answer that at the time of the hearing of the petition “the board of county commissioners did not first ascertain and determine whether notice had been given of the time of hearing . . . and . . . did not make declaration of, and finding of that fact, and did not cause the same to be entered upon its records,” as required by R. S. 24-405. The statute does outline that course of procedure, and it should have been followed. But if the commissioners heard some of the parties before making the examination, declaration and entry, instead of hearing them afterwards, it is of no concern to these interveners. Even in quo warranto by the state, perhaps the court would regard which was done first of but little importance. It is alleged, broadly, that the description of the territory embraced in the petition is so indefinite as to make the determination of the boundaries impossible, but it further appears from the answer that the description was by sections or subdivisions of sections, according to government survey, and by metes and bounds, and by blue prints attached. No specific fact is alleged as to what constituted the indefiniteness, if any, of the description. These are matters on which the interveners predicated their claim of want of jurisdiction of the board of county commissioners to make the order organizing the district. Obviously the answer states no facts which, if established by proof, would sustain the claim of lack of such jurisdiction, and as to mere irregularities in the proceedings, the interveners cannot be heard. The answer contains other allegations which do not go to the jurisdiction of the board of county commissioners to organize the district, but since the interveners have no standing to complain of them they need not be stated. The result is that the answer of the interveners contains no allegations of fact constituting a defense to the motion for the peremptory writ, and the judgment of the court below is affirmed.	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The opinion of the court was delivered by Sloan, J.: This is an action in replevin, in which six suits were consolidated and tried as one case. The defendants prevailed, and plaintiff appeals. The appellees, who are Osage county farmers, purchased in the aggregate 502 head of cattle from Omer Power, which were, at the time of the purchase, in a pasture on the Moore ranch in Oklahoma. The principal question in the case is whether Power acquired a good title to the cattle in question from Jesse C. Moore. For many years prior to 1928 Jesse C. Moore owned and operated a cattle ranch near Sulphur, Okla. The ranch consisted of about 15,000 acres of land, which was used as a pasture. Some of the pastures were in Pontotoc county, others in Johnston county, and still others in Murray county. Pontotoc county on the east and Murray county on the west had a common boundary north of Johnston county, which was bounded by Pontotoc county on the north and Murray county on the west. Moore was an experienced ranchman and, before the crash in his fortunes which occurred shortly before this litigation, his borrowing line of credit frequently ran above $250,000. It was Moore's practice during the fall of each year to purchase cattle in Texas, Arkansas and other places and ship them to his ranch. In the fall of 1927 he bought in west Texas, and shipped to his ranch, about 600 white-faced cows and about 1,600 white-faced steer calves, which were on the ranch in the summer of 1928. In the summer of 1928 Moore employed R. C. Ridley, an experienced cattle man, to purchase for him in Texas between 2,000 and 3,000 head of cattle. The cattle so purchased were shipped to the ranch between the 13th and 23d of October, 1928. There is a conflict in the testimony as to the number of cattle that were taken to the ranch. One witness estimates 1,500, while another says 2,800. The cattle were unloaded at Scullin, a station near the ranch, in Murray county, and from there they were taken to the ranch headquarters,. dehorned, branded and then distributed to the various pastures. The length of time the cattle remained in each pasture is not definitely established, and the evidence is indefinite as to the number of cattle that were on the ranch. About this time Moore applied to the appellants for a loan with which to pay for the cattle as they were delivered. The application was at first rejected and on October 30, 1929, he succeeded in procuring a loan from the Stock Yards Loan Company, of Kansas City, in the amount of $62,817.50, and to secure the payment thereof he executed a chattel mortgage, which was filed in Johnston county November 5,1928, upon certain cattle described as follows: “Fifteen hundred ten (1,510) head of Hereford cattle, more particularly described as: 1,424 hd. coming 1 yr. old extra high-grade steers. 86 hd. coming 1 yr. old extra high-grade heifers. 1,510 hd. “Branded: - on left thigh. Located.on my ranch 2Yz miles south of Scullin, in Johnston county, Oklahoma.” On November 14, 1928, Moore, who was then indebted to the appellants in the sum of $40,000, which amount he represented had been used in the purchase of the cattle shipped from Texas, executed a chattel mortgage to secure the payment of said indebtedness, which was filed in Pontotoc county, on November 15, 1928, upon certain cattle described as follows: “1,035 head of white-face yearlings, weighing at this time about 500 lbs. each, branded-on left thigh, bought in Ford and Motley counties, Texas, recently, high-grade white-face steers; will be dehorned; value $54,337.50. “(Including also sufficient feed and grass to properly care for the above cattle during the life of this loan.) “Now located on the Jesse C. Moore ranch, 3 miles southeast of Hiekory, Pontotoc county, Oklahoma.” The mortgage was written at appellant’s bank and no inspection was made of the cattle until May, 1929, when Mr. Teter, an officer of the bank, visited the ranch and found cattle which appeared to meet the requirements of the mortgage, but Moore represented that the cattle'shown to Teter were in Pontotoc county, while in fact they were in Johnston and Murray counties. By September 11, 1929, the indebtedness had increased to $52,500 on account of funds advanced by appellant to Moore for feed. Moore, at that time, represented to the appellant that -five of the cattle described in the mortgage had died, and that he intended to take 600 head to Carter county and retain 440 head in Pontotoc county. Accordingly, new notes and mortgages were executed on September 11, 1929. To secure the payment of a note in the amount of $22,500, a chattel mortgage was executed, which was filed in Pontotoc county September 18, 1929, upon certain cattle described as follows: “430 head of coming 2-year-old white-faced steers, being the front end off of 1,030 steers branded with a stripe (-) on left thigh, bought in Ford and Motley counties, Texas, in 1928; a good grade of white-faced cattle dehorned; value, $70 a head. “Including also sufficient grass and feed to properly care for the above cattle during the life of this loan. “Now located on the Jesse C. Moore ranch, 3 miles northeast of Scullin, Pontotoc county, Oklahoma.” To secure the payment of a note in the amount of $30,000 a chattel mortgage was executed, which was filed in Carter county, September 13,1929, upon certain cattle described as follows: “600 head of white-faced steers, coming twos, bought in Ford and Motley counties, Texas, 1928, branded with a stripe (-) on left thigh, a high grade of white-faced dehorned steers. Value, $39,000. “Including also sufficient grass and feed to properly care for the above cattle during the life of this loan. “Now located on land leased by jesse C. Moore, 4 or 5 miles northeast of Berwyn, Carter county, Oklahoma.” The appellant knew at the time the mortgage was taken on the 600 head of cattle that they were not situated in Carter county, but were in Johnston county, and they were never taken to Carter county. On the execution of these mortgages last described the mortgage in the amount of $40,000 was released of record. In April, 1929, the Stock Yards Loan Company learned that Moore was in financial trouble and made an investigation of their mortgage security. Moore admitted a large shortage of cattle. The inspection showed that there was on the ranch at that time about 6,000 head of cattle. The Stock Yards Loan Company, through its agent, found the cattle covered by their mortgage in Johnston county, where the mortgage was filed. They took charge of the cattle, sorted and shipped them when marketable, reducing their loan to $35,000. On September 5,1929, Moore, with the assistance of a representative of the Stock Yards Loan Company, sold to Omer Power 600 head of cattle described in a bill of sale, as follows: “Six hundred (600) head óf dehorned white-faced one-year-old past steer cattle branded-low down on left thigh. Said cattle are now located on what is known as the Armstrong ranch, six miles southeast of Scullin, Johnston county, Oklahoma, where they are to remain until January 1, 1930, without any cost to the said Omer Power.” In order to pay for the cattle Power obtained a loan from the Drumm-Standish Commission Company in the amount of $37,448.55, and secured the same by a mortgage on the cattle purchased from Moore. The cattle at the time of the purchase were located in what is known as the Meadow pasture in Johnston county. About November 1, 1929, the cattle were moved from the Meadow pasture to the quarantine pasture, which is located in Murray and Pontotoc counties, and it is from this pasture that the cattle were purchased by the appellees. The law of Oklahoma relating to chattel mortgages was introduced in evidence, which provides that a mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers for value, unless the original or an authenticated copy of the mortgage be filed by depositing the same in the office of the register of deeds of the county where the property mortgaged, or any part thereof, is situated. It is provided, however, that when a mortgaged chattel is moved from one county to another that the previous filing of the mortgage shall not operate as notice for a longer period than 120 days after such removal. It was contended in the trial of the case by the appellees that the cattle purchased by them from Power were not included in the mortgage given by Moore to the appellant, and that Power purchased the cattle from Moore before the execution of the mortgages of September 11, 1929. The jury found generally for the appellees, and specially that Power purchased the cattle and took open, notorious and actual possession of them on September 5, 1929. It is contended by the appellant that the evidence presented a question of law, and that the court should have disposed of the case in appellant’s favor without submitting it to the jury, and after the return of the verdict should have sustained appellant’s motion non obstante veredicto. The court, after instructing the jury generally, gave the following instruction: “(19) The court instructs the jury that if you believe and find from the evidence that the 140,000 mortgage of plaintiff dated November 14, 1928, and referred to in the evidence was not on the cattle in question, then your verdict should be for the defendants and against the plaintiff, provided you further believe and find from the evidence Omer Power bought the cattle in question from Jesse C. Moore on or about September 2, 1929', and took open, notorious and exclusive possession of said cattle prior to September 11, 1929.” The law is well settled that the sufficiency of a description contained in a chattel mortgage is a question of law for the court, while the identity of the property mortgaged is one of fact for the jury. (Dendy v. Bank, 76 Kan. 301, 91 Pac. 682; Rudolph v. Commission Co., 76 Kan. 789, 92 Pac. 1103; Ehrke v. Tucker, 99 Kan. 52, 160 Pac. 985; Hillery v. Waurika Nat. Bank, 100 Okla. 34, 226 Pac. 1051; 11 C. J. 472, and cases there cited.) It is the duty of the court to examine the mortgage and determine from the description therein given whether it is sufficient to describe the property. The description is sufficient if a person with ordinary prudence, reading such mortgage and making such reasonable inquiry as the mortgage itself suggests, can identify the property described in the mortgage. The mortgage was not void nor held to be void by the court by reason of an insufficient description. The court held that the mortgage was valid and the description sufficient, but submitted to the jury the question of fact to determine whether the cattle in question were the cattle described in the mortgage. It devolved upon the appellant to prove that the cattle were those described in the mortgage and the appellant did produce the evidence of Mr. Moore, who testified that the cattle in controversy were the cattle described in the mortgage. On the other hand, the evidence of the appellees tended to show that the cattle purchased in' the fall of 1928 were calves and not yearlings; that the cattle were not situated in the county designated by the mortgage; that the cattle described in the mortgage were the cattle purchased in the fall of 1927; that Moore had misrepresented the location of the cattle and had shown the appellant cattle which did not belong to him. The court properly submitted the question of the identity of the cattle to the jury. The jury found from substantial testimony that the cattle purchased were not the cattle described in appellant’s mortgage, and that Power took exclusive possession of them before the execution of the mortgages of September 11,1929. It is contended that the court erred in the admission of immaterial testimony. We have examined the record and are of the opinion that the testimony was material and properly admitted. Finding no reversible error, the judgment of the court is affirmed.	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The opinion of the court was delivered by Smith, J.: This action was started in justice court for the recovery of money paid to defendant by plaintiff by mistake. Defendant filed a counterclaim for commissions which the breach by plaintiff of a contract between plaintiff and defendant’s principal caused defendant to lose. Judgment was for plaintiff in justice court. Appeal was taken to the district court, where judgment was for defendant for the difference between the amount paid and the amount claimed by defendant. Trial was to the court. The facts are best told by the findings of fact and conclusions of law. They are as follows: “In April, 1929, plaintiff made a contract in writing with the Minneapolis Threshing Company to purchase a certain machine. The contract was approved by the company and the machine was shipped to Grainfield, Kansas, upon the terms of the contract. The plaintiff failed, neglected and refused to accept the machine or to make the payments and give the notes and security, as prescribed by the contract. “After the machine came, and after the plaintiff had given the company’s agent at Grainfield a check for SI 10, amount of freight on the machine, payable to C. A. Wood, the plaintiff proceeded no further, but two or three days later plaintiff bought a machine of the same company at Ness City. Some what later the machine which had been shipped to Grainfield to fill plaintiff’s order was sold and delivered to another purchaser, Joe Walt. “2. The check for $110, which was intended to pay freight, as required of the purchaser by the contract, was made payable to C. A. Wood, and was signed by the plaintiff without his noticing that it was not payable to the company. Plaintiff made effort to stop payment of the check, but the bank did not identify the same as described by him, and so paid the money, $110, to the defendant. “3. The defendant at all times had an agency contract with the company to represent it in Gove county, where the contract between plaintiff and such company was made. Under the terms of the contract defendant was entitled to certain commission for the sale of machinery for the company, but was not entitled to the commission until the contract of purchase had been fully closed by the customer, the machine delivered to him, and any notes and mortgages required under the contract had been fully executed. “4. The plaintiff, by his failure to accept the machine and pay for it, and execute and deliver the instrument and security, as required therein, breached the contract, and beyond paying $110, intended for freight, made no attempt to carry out the contract in any particular.” “Conclusions op Law. “The purchase by the plaintiff of another machine from the company at Ness City, was in no way a fulfillment, wholly or partly, of the contract made by plaintiff in April, 1929. “2. The defendant, by his acts, had earned his commission amounting to $257.50 upon the contract between plaintiff and the company, in consideration of the services that defendant performed in connection therewith under his contract of agency with the company. “3. The company is not liable, and was not liable to defendant until plaintiff had fully performed his part of the contract, and this plaintiff had not at any time done. “4. The defendant was damaged by plaintiff’s failure, neglect and refusal to carry out the contract. The amount of defendant’s damage was $257.50 under his contract with the company. The plaintiff having caused this damage and loss to defendant by plaintiff’s breach of his contract with defendant’s principal, the company became liable for the damage and loss so caused to the amount of $257.50. The defendant having received moneys from plaintiff to the amount of $110 was compensated to that extent upon his loss and damage. “5. The plaintiff is indebted to defendant for the difference in the sum of $147.50, for which judgment should be entered.” Appellant contends that appellee had no right to sue him to recover a commission because the contract of purchase was between appellant and the principal of appellee, while the contract for compensation was between appellee and his principal. Appellee, on the other hand, contends that he had such a sub stantial interest in the contract between the Minneapolis Threshing Machine Company and appellant as to entitle him to maintain an action upon the breach of that contract by appellant and to recover from him any actual damages which he sustained by the failure of appellant to perform. He cites and relies on R. S. 60-401 and Manufacturing Co. v. Burrows, 40 Kan. 361, 19 Pac. 809, also Gross v. Heckert, 120 Wis. 314, 97 N. W. 952, and other cases which hold that the real party in interest may bring a suit and that where a contract is made between two parties for the benefit of a third the third party, though not a party to the contract, is the proper person to commence and to maintain any action which may be brought upon any breach of the contract. We have reached the conclusion that this statute and the cases are not in point. It cannot be said that a contract between appellant and the threshing-machine company was made for the benefit of the appellee, the agent of the company. When appellant breached his contract to take the machine he was liable to the company in damages. The measure of damages would not have any relationship to agent’s commission, however, but would be what the company lost by shipping the machine out there and not selling it. Instead of this action, however, the company saw fit to sell the machine to some one else and not bring suit against appellant. Appellee had not yet earned his commission. His contract with the company was that he would not be entitled to any commission until the contract of purchase had been fully closed by appellant, the machine delivered to him and any notes and mortgages required under the contract fully executed. The general rule is that one who contracts as agent cannot maintain an action in his own name and right upon the contract. (Lawson on Contracts, § 192; 2 Meehem on Agency, 2d ed. § 2022; Story on Agency, 9th ed. § 391; Tinsley v. Dowell, 87 Tex. 23; Everet & Wightman v. Bancroft, 22 Ohio St. 172.) There are exceptions to this rule which may be classified as follows: “First, where the agent contracts in his own name; second, where the agent does not disclose his principal, who is unknown; third, where by the usages of trade the agent is authorized to act as owner of the property; fourth, where the agent has an interest in the subject matter of the contract.” (Tinsley v. Dowell, 87 Tex. 23, 28.) It is readily seen, that appellee does not come under the first, second or third of the above subdivisions. The contract in this case was in. writing between appellant and the threshing-machine company and there are no usages of the trade by which the agent is authorized to act as owner of the property. The rights of the company and the buyer are defined by the contract executed' by them, and the rights of the company and the agent are defined by the contract of agency. Hence we must look to the fourth exception noted above. Does the agent have such an interest in the subject matter of the contract as to entitle him to sue? The authorities hold that the mere interest in commissions to be earned in case the contract between his principal and the other party is performed would not of itself be sufficient, but the rule must be limited to those cases in which the agent has a lien upon or a special property in the subject matter. (2 Mechem on Agency, 2d ed., §2035; Tinsley v. Dowell, supra; Chapman v. McLawhorn, 150 N. C. 166; San Jacinto Rice Co. v. A. M. Lockett & Co., [Tex. Civ. App.] 145 S. W. 1046.) It will not be contended by appellee in this case that he had any lien upon the proceeds of the contract between appellant and the threshing-machine company. He looked to the company and to it alone for his commission upon any sales that he should make. In the case last cited, San Jacinto Rice Co. v. A. M. Lockett & Co., the court in speaking of this question said: “We think it well established that, where an agent seeks to bring himself within the fourth exception in. order to maintain a suit in his own name against a third party to a contract, he is required to show that his agency, or the power under which he acts, is coupled with an interest in the subject matter of the contract.” (p. 1047.) The case of Hunt v. Rousmanier, 21 U. S. 174, 5 L. Ed. 589, is quoted and followed in that opinion. At 64 A. L. R. 380 there is a comprehensive compilation of the cases on the subject under a headnote as follows: “In order that a power may be irrevocable because coupled with an interest it is necessary that the interest shall be in the subject matter of the power and not in the proceeds which will arise from the exercise of the power.” Among the cases annotated is Henderson v. Lebow, 95 W. Va. 74, 120 S. E. 300, where the court held that— “Commission to be earned by an agent is not an interest rendering the power of agency irrevocable.” (Syl: If 2.) It would follow that commissions to be earned by an agent would not be such an interest as to permit the agent to sue a third party in his own name for commissions lost on account of a breach of contract by a third party to the contract between the agent and his principal, although he was a party to a contract with the agent’s principal. Another case annotated is Butterfield v. Fuel Co., 42 Utah 499, 132 Pac. 559, which held that an agency created for the purpose of selling property upon a commission to be paid in case of sale is not coupled with an interest, so that it may be terminated at any time. What happened in the case at bar was that when the appellant breached his contract with the company it did not stand on its rights and sue for damages, but made an adjustment of the matter by selling him another machine in an adjoining county. What did appellant agree to do? He agreed to buy a threshing machine from this company. Is the company complaining? Not at all. They have sold him another machine. . The party with whom appellant made his contract is satisfied. In Chase v. Chapman, 89 Kan. 196, 131 Pac. 615, this court held: “To constitute a power coupled with an interest there must be an interest in the thing itself, and not merely in the execution of the power. An agency or privilege to sell real property and receive all the proceeds above a certain sum as commission is not a power coupled with an interest; nor does an agreement on the part of a managing agent to be responsible to the principal for all general losses in the conduct of a business result in making him an agent with such an interest.” Following the reasoning of that case and the cases cited therein, we have concluded that appellee did not have such an interest in the contract between appellant and the threshing-machine company as to enable him to maintain an action against appellant on that contract for the commissions which he would halm received had appellant completed it. What has been said disposes of that portion of the judgment of the court below which had to do with the claim of the agent for his commission from the appellant. The judgment also allowed the $110 which was paid the agent by mistake to be deducted from the amount that appellee would have realized in the way of commission had the deal been finally consummated. This money was paid to appellee by mistake. He thought the check was made out to the threshing-machine company when as a matter of fact it was made out to appellee. This was a breach of trust on the part of the agent toward his principal. The party to whom appellant should have looked for the recovery- of his $110 was the threshing-machine company and not the agent. . However, there was no cross appeal taken from the part of the judgment which held appellant entitled to the $110 and it cannot now be disturbed. The -judgment of the district court is reversed with directions to enter judgment for appellant for the amount sued for.	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The opinion of the court was delivered by Smith, J.: This is an action to recover damages for injuries suffered in an automobile collision. Plaintiff recovered. Defendants appeal. The facts are simple. Appellee was riding in the rear seat of an automobile. Appellant Miller was driving the car east on highway 166. His wife, the sister of appellee, was in the front seat with him. The brother of Mrs. Miller and Miss Link had died at a town in Missouri. They were on the way to the funeral. The day before, Mrs. Miller, who lived at Coffeyville, had called up Miss Link, who lived in Oklahoma. She told her that if she would come to Coffey- ville on the train they would take her to the funeral and bring her back to Coffeyville. When the car reached the intersection of highway 166 with highway 7 a collision^ occurred between it and a car driven by appellant, Bernice Davies, which was' being driven east thereon. Both cars were traveling at the rate of from thirty to thirty-five miles an hour when the collision occurred. Miss Link was injured. She brought suit against F. P. Miller, who was driving the car in which she was riding, and Bernice Davies, who was driving the other car, and her father, W. B. Davies, who was riding with her. The jury returned a general verdict for plaintiff against Mr. Miller and Bernice Davies. It excused W. B. Davies from liability. It also answered special questions as follows: “1. Do you find that at the time of the injuries to the plaintiff, Daisy M. Link, that she and the defendant, F. P. Miller, were engaged in a common enterprise, as that term is defined by the court? A. No. “2. Do you find that the defendant, Miller, in driving to the scene of the collision crossed other intersections of highway, approaching said intersections and crossing the same at a rate of speed more than fifteen miles per hour? A. We don’t know. “3. If you answer the above question ‘Yes,’ do you find that the plaintiff made any protest to him as to such speed or cautioned him with reference thereto? A. -. “4. If you answer the above question ‘Yes,’ please state what you find that the plaintiff, Daisy M. Link, did in the way of protesting to or cautioning the defendant, F. P. Miller? A. -. “5. How wide do you find that the main intersection of the highway was where the collision occurred? A. Thirty feet. “6. When the plaintiff was at a point 200 feet from the point where the collision occurred, were there any obstacles which would have prevented her from seeing the Davies automobile coming south toward the intersection which she was about to cross? A. No. “7. If the plaintiff, Daisy M. Link, had looked to the left when she was at a point 200 feet from the point where the collision occurred, or at any time after that time and prior to the collision, could she have seen the Davies car approaching the point where the collision occurred? A. Yes. “8. What, if anything, do you find the plaintiff did to prevent the collision of the ear in which she was riding with the Davies car? A. No control. “9. If you find for the plaintiff and against the defendant, F. P. Miller, please state fully all the negligence of which ’you find the defendant, Miller, guilty. A. Violating state law regarding rate of speed on the intersections. “10. If you find for the plaintiff, how much do you allow her for: (a) Loss of time? A. $500. (b) Pain and suffering? A. $250. (c) Medical expenses? A. $250. (d) Permanent injury? A.-. “11. At what rate of speed was the Miller car moving at the time of the collision? A. We don’t know. “12. Was the Davies car standing still at the. time of the collision? A. No. “13. If you answer the preceding question in the negative, at what rate of speed was the Davies car moving at the time of the collision? A. We don’t know. “14. Had any part of the Davies car passed the center of the road running east and west at the time of the collision? A. No. “15. Do you find the defendant, Bernice Davies, in driving the Davies car was on her own separate business? A. Yes. “16. Was the defendant, Bernice Davies, guilty of any negligence that contributed to and was the proximate cause of any injury to the plaintiff? A. Yes. “17. Did the plaintiff warn or remonstrate with the defendant, F. P. Miller, on account of the rate of speed he was driving said car as it approached, or drove across, said intersection where the collision happened? A. No.” Appellants contend that the judgment should be reversed because, first, appellant Miller and appellee were engaged in a joint venture when the injury occurred and that the negligence of Miller in driving upon the intersection at an unlawful rate of speed is attributable to appellee; second, that appellee was guilty of contributory negligence, which caused her injury; and third, that the negligence charged by appellee in her petition and found by the jury was not the proximate cause of the injury. The other questions raised will be settled when we have answered the above. As to the contention of appellant that Miss Link and Mr. Miller and his wife were engaged in a joint venture, the jury answered that in the negative. No complaint is made of the instructions under which that was submitted. The evidence was that Mrs. Miller had called her sister and invited her to come to Coffeyville and ride to the funeral with them. There is no evidence that she was bearing any of the expenses. She was riding in the back seat. The evidence that she had any control over the management or direction of the car was very meager. Appellant calls attention to the fact that all were on their way to the funeral. He argues that since they were on the journey for a common purpose the venture was a joint one. The fact, however, that the trip upon which people are engaged has a common purpose is not conclusive upon the question of joint venture. All the surrounding facts and circumstances must be considered. The decision turns upon whether there was mutual purpose and equal privilege of direction and control and whether they were traveling in the same vehicle in pursuit of a common object. (Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524, and cases there cited.) The instruction under which this question was sub mitted to the jury was drawn upon that theory. The jury answered the question in the negative. There was ample evidence to warrant it in reaching that conclusion. We see no reason why it should be disturbed. Appellant urges that this case comes under the rule announced in the case of Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117, where this court held that a passenger in an automobile has a duty to exercise due care for his own safety against the possibility of collision with another automobile at an intersection of public crossroads, and that a failure to exercise that duty would bar a recovery of damages. He points out the evidence that there were no obstructions to the sight at the intersection in question — that the jury found that at a point 200 feet from the intersection appellee could see the automobile coming from the south and that she failed to warn the driver of the car as he approached it and failed to make any effort to avert the collision. He points out further the finding of the jury that if appellee had looked to the left when she was at a point 200 feet from the point where the collision occurred, at any time after that and prior to the collision, she could have seen the Davies car approaching. We have concluded that there is evidence in this record which takes the case out of the rule referred to above. It was not the duty of Miss Link to remonstrate or take steps to leave the car until the danger became apparent. (Naglo v. Jones, 115 Kan. 140, 222 Pac. 116.) At the rate the car in which appellant was riding was traveling as it approached the intersection about ten seconds elapsed between the time when the jury found that appellee could first see the approaching car till the collision occurred. When she first saw the car she was not in a dangerous position. She had a right to expect the driver to manage the car so as to avoid a collision. She was not in a place of danger till the car reached a point near enough to the intersection that she could see it could not be stopped or slowed up quickly enough to avoid a collision. At that point what was there that she could do? Appellant Miller testified that he did not stop or slow up because the Davies car was coming from his left and he thought that since he had the right of way the driver of that car would stop or slow up and let him by. Since he had this idea in his mind if Miss Link had screamed when 200 feet away that there was a car coming — “Look out” — or if she had asked him to stop he would have answered, “I have the right of way,” and would have driven ahead. The only thing left for her to do would have been to jump out of the car. This is not contemplated by the rule laid down in any of the cases. We conclude that Miss Link was not guilty of such negligence that would bar her recovery. Appellant next argues that the negligence of F. P. Miller charged in the petition and found by the jury was not the proximate cause of the injury. This argument is based on the claim that it was not the speed at which appellant was going that caused the injury, but the fact that Miller approaching the crossing observed the Davies car the same distance from the crossing, and continued to drive toward the place of collision, assuming that the Davies car would stop. The answer to that argument is that if Miller had been going at the lawful rate of speed when he entered the intersection he could have stopped when he saw that the Davies car was not going to stop or slow down. Appellant Miller complains because some instructions that he requested were not given. These instructions deal with the fact that he testified that he had passed other intersections between the place of collision and Coffeyville at an unlawful rate of speed, and that appellee had not objected. He also testified that if she had objected he would have slowed up. The instructions requested were to the effect that the failure of Miss Link to object every time appellant crossed an intersection at an unlawful rate of speed would bar her right to recovery. The instructions were properly refused. The duty was on her to protest or make some effort to stop the car when the danger which caused her injury became apparent. That did not happen, it has been shown, till just a second or two before the collision. Appellant Miller complains because the jury was not compelled to answer certain questions more specifically. One of them was question 2. It was as follows: "2. Do you find that the defendant, Miller, in driving to the scene of the collision crossed other intersections of highway, approaching said intersections and crossing the same at a rate of speed more than fifteen miles per hour? A. We don’t know.” The only evidence on that point was the testimony of Miller. Perhaps the jury did not believe him. If they did not see fit to take his word for it there was no way for them to know. Furthermore, in view of the position the court has taken on the fact that Miller crossed other intersections at an unlawful rate of speed, the answer to that particular question has no bearing on the case. The other question which appellant urges should have been answered more specifically is number 8. It was as follows: “8. What, if anything, do you find the plaintiff did to prevent the collision of the car in which she was riding with the Davies car? A. No control.” What the jury meant by this answer undoubtedly was that appellee did nothing to prevent the collision of the cars because she had no control of the car. We fail to see where appellants were prejudiced by this answer. Appellant, Bernice Davies, adopts the brief of appellant Miller with the addition that she urges that certain instructions should have been given along the same lines as those requested by Miller and refused. We see no error in the proceedings in the court below, and the judgment is affirmed.	[ -48, 106, -96, -82, 26, 96, 34, -102, 113, -45, -91, -45, -83, -53, 1, 41, -5, -99, 81, 43, -11, -77, 87, -94, -46, -109, 59, -51, -105, -56, 102, -17, 77, 48, 10, -107, 102, 74, 69, 124, -50, -106, -23, -24, 73, 66, 56, 122, 70, 15, -11, -113, -61, 46, 24, 87, 45, 42, -5, -88, -48, 112, -54, 5, 95, 22, 49, 36, -68, 41, -40, 24, -104, -79, 40, -4, 114, -90, -107, -44, 109, -103, 12, -30, 103, 33, 21, -21, -68, -104, 6, -6, 21, -89, 30, 25, -117, 37, -65, -103, 123, 80, 14, 120, -6, 85, 89, 96, 5, -49, -76, -111, -51, 48, -102, 10, -29, -123, 50, 113, -56, 114, 95, -59, 62, -101, -41, -80 ]
The opinion of the court was delivered by Burch, J.: The appeal was taken from an order refusing to dismiss a ease for want of jurisdiction. The case was before the district court on appeal from a justice of the peace, and the contention was the justice of the peace had no jurisdiction because the amount involved, with interest, exceeded $300. The action was one for an attorney fee of $700. The bill of particulars alleged employment, rendition of services, agreement with respect to amount of fee, and an agreement with respect to when payment would be completed. Credits were allowed, and the bill of particulars concluded as follows: “Wherefore, plaintiff prays judgment for the sum of two hundred fifty ($250) dollars, with interest at the rate of six (6) per cent per annum, and for the costs of this action.” ' Interest not contracted for is allowed-by way of damages for nonpayment of money. The interest statute prescribes the receivable rate when there is no agreement (R. S. 41-101), and the rate judgments shall bear (R. S. 41-104; 41-105). The civil code prescribes the form of the petition in an action in the district court. There must be a demand for the relief to which the party supposes he is entitled. If recovery of money be demanded the amount must be stated, and if interest be claimed the time for which interest is to be computed must be stated. (R. S. 60- 704.) While the prayer is an essential part of the petition it is not a part of the cause of action, and the party gets not what he prays for but what his cause of action warrants. (Webster v. Broeker, 97 Kan. 219, 155 Pac. 15.) The code of civil procedure before justices deals with the subject of pleadings. It is not so strict regarding form, and the initial pleading, called a bill of particulars, may be quite informal. It is merely a bill of particulars of the demand. (R. S. 61-601.) If a story is to be told the bill of particulars should state in a plain and direct manner the facts constituting the cause of action. (R. S. 61- 602.) Prayer for relief is not mentioned, and the provision of the civil code is not applicable. In this instance the contract pleaded was not one which bore interest. To get damages by way of interest it was necessary to exhibit a demand which included damages. It cannot be made out from the bill of particulars, including the prayer, whether the demand was for interest on the whole sum from the time the amount was fixed, or from date of breach of a subsequent agreement to pay out of proceeds of a loan, or from date of the last payment which was made, or from date of filing the bill of particulars. Therefore the balance claimed to be due did not exceed \|300. (R. S. 61-103.) In the district court the bill of particulars was amended to show a prayer for interest from the date the bill of particulars was filed. Having acquired jurisdiction by appeal, the district court was authorized to allow the amendment. The case is clearly distinguishable from that of Kirkpatrick v. Berry, ante, p. 244, 299 Pac. 598, in which the prayer for a balance due with interest necessarily meant contract interest for a time and rate disclosed in the statement of the cause of action in the body of the bill of particulars. A purported supplemental abstract shows on its face that it is not an abstract of anything connected with the proceeding, and it has no place in the court’s files. The judgment of the district court is affirmed.	[ -78, -12, -12, 108, -117, -96, 32, -102, -39, -95, 39, 83, 109, -62, 0, 99, -13, 25, 113, 107, 95, -73, 23, -63, -14, -77, 81, 69, -80, -17, -26, 94, 77, 48, -30, -107, 103, -54, -127, 20, 14, 0, 9, 105, -23, 74, 48, 123, 22, 11, 49, -97, -13, 42, 24, 64, -23, 44, 121, -84, -48, -16, -113, 13, 95, 16, -127, 101, -36, 39, 82, 72, -120, 57, 3, -24, 112, -90, -122, 20, 33, -69, 33, 100, 102, 0, 33, 107, -40, -103, 38, -38, 29, -90, -109, 120, 74, 45, -74, -67, 109, 20, 37, 124, -8, 21, 22, 108, 27, -50, -42, -77, -113, 116, -98, 67, -18, 19, 48, 117, -49, -32, 92, 71, 90, -109, -66, -103 ]
The opinion of the court was delivered by Dawson, J.: The defendant was convicted of being a persistent violator of the prohibitory law and sentenced to one year’s penal servitude. He assigns various errors which cannot be reviewed because no transcript of the record was obtained and the abstract submitted for our perusal contains none of the testimony except that given by one Clarence Pierson, a witness for the state. A perusal of that testimony tends to show that the prosecuting attorney was not quite satisfied with Pierson’s frankness and candor, and over defendant’s objection the trial court permitted the county attorney to call Pier-son’s attention to certain pertinent testimony he had theretofore given at a liquor inquisition. The record in part reads: Witness Pierson, testifying: “A. I walked up to the car and asked if they knew where I could get some liquor, and one fellow said he thought so. [County Attorney] : “Was the defendant in the car? ... A. Well, I don’t know. . . . [County Attorney] : “Do you remember being in my office with Pete Parks the morning you were arrested? A. I remember being in the office with a colored man, all right. [County Attorney] : “Well, it was Pete Parks, wasn’t it? “The Court : Just tell the facts about it. “A. Well, I guess it was him. [County Attorney] : “You sat in there with him and I talked with him and then talked with you, and the stenographer took it down? A. I sat in there with the same man that is in the county jail with me. [County Attorney] : “Well, that is he? A. I guess. “The Court: Don’t say you guess. [County Attorney] : “That is the fellow that was in my office the morning you were arrested? A. Yes, sir. [County Attorney] : “And I asked you that morning if he was the man, in his presence — if he was the man you bought the whisky from? [Counsel for Defendant] : “I want to object to this form of the county attorney examining his own witness. “The Court: It won’t make any difference. He is perfectly within his rights. Overruled. There are times when that is perfectly proper.” Defendant contends that he was prejudiced by this cross-examination of the state’s own witness. But it is well settled that where a witness is evasive or uncandid when being examined by the party calling him, he may be cross-examined, and the extent to which this may be done is left to the sound discretion of the trial court. (State v. Hughes, 8 Kan. App. 631, 56 Pac. 142; State v. Spidle, 42 Kan. 441, 22 Pac. 620; State v. Hamilton, 74 Kan. 461, 87 Pac. 363; State v. Gaunt, 98 Kan. 186, 191, 157 Pac. 447; State v. Terry, 98 Kan. 796, 161 Pac. 905.) It is also contended that the testimony of witness Pierson tended to implicate defendant in another offense (illegal possession of liquor) than the one on which he was being tried. It is settled law, however, that if the evidence tends to throw light on the question at issue — the guilt or innocence of defendant of the crime charged against him — it is admissible although perchance it may also tend to implicate him in another crime or many crimes. (State v. King, 111 Kan. 140, 144, 206 Pac. 883, and citations.) Counsel for defendant seem to discover an analogy between the case at bar and that of State v. Keefe, 54 Kan. 197, 38 Pac. 302, where it was held that the unauthorized declarations of another person not made in the presence of the accused were not admissible in evidence against him. This salutary rule was not breached in the instant case. At the conclusion of the examination of the manifestly evasive and uncandid witness Pierson, the record reads: “The Court: I will say further to the jury that this statement taken in the county attorney’s office was not introduced in evidence, and the jury can only consider whatever was testified to by the witness Pierson on the stand. I think you understand it. His attention was called to some of the questions, and whatever was testified to on the stand is competent, but not the statement given, unless it should be the same, of course. [Counsel for Defendant] : “We want the record to show that the defendant objected to counsel reading from that statement. We think that is highly improper. “The Court: I don’t think he did read from it. What he has undertaken to say, as I understand him, was that he testified to those things here on the stand. If there was anything outside of that, the jury, of course, cannot consider it. [Counsel for the State] : “That was my intention, to call attention to the testimony in this case.” The next error assigned is based upon the giving of oral instructions to the jury — being the matter just quoted. But the trial court’s timely explanation to the jury that what the witness Pierson had stated at the county attorney’s inquisition was not evidence for them to consider was not the sort of instructions covering the pertinent law of a criminal case such as the statute requires the court to give to the jury in writing. (R. S. 62-1447; State v. Potter, 15 Kan. 302; 38 Cyc. 1763-1766.) The partial record presented for our review contains no error, and the judgment is affirmed.	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The opinion of the court was delivered by Hutchison, J.: This action was originally one to recover on city warrants, but the appeal is from the refusal of the court to strike from the files an amended petition and from the sustaining of a motion to render judgment for plaintiff on the- pleadings and the evidence. The plaintiff sought to recover on seventy-two warrants issued by the defendant, the city of Tribune, a city of the third class. A waiver of service and a confession of judgment signed by the mayor and councilmen for the city was filed. Three taxpayers were upon their own request permitted to intervene on behalf of the city to make a defense to the action. They filed an intervening answer admitting the corporate existence of the plaintiff and the organization of the defendant as a city of the third class; also admitting the execution of all the city warrants by the proper officers of the city; that they were indorsed by the payees thereof, were presented for payment and not paid for want of funds, and that the plaintiff is the owner of them. The answer denies the issue of them for valuable consideration and alleges that the city did not get value received for the issue of them, and that they are invalid and illegal because issued in excess of the levy of taxes of the city for the current year; no proper city ordinance for the appropriation of this money or the issue of the warrants was passed as required by law prior to their issuance; and further alleges collusion between the officers of the city and the plaintiff in the offer of the city to confess judgment. Shortly after the filing of this pleading and before any hearing was had, the city of Tribune by leave of court withdrew its offer to confess judgment and filed an answer to the petition, the same as that filed by the interveners. To this answer of the city the plaintiff filed its reply specifically denying having-entered into any collusion with the officers of the city and alleging that it is not advised as to whether any of the warrants were issued in excess of the revenues of the city, but— “. . . that whatever the fact may be in regard to the current revenue of the city" of Tribune, at the time of the issuance of the warrants described in the plaintiff’s petition, or any of them, and whatever the fact may be as to whether an ordinance of said city was passed authorizing the issuance of said warrants, the facts are, that each and every one of said warrants was issued for bona fide indebtedness of the city of Tribune, which it had authority at the time to contract, and in pursuance of the allowance and settlement of such indebtedness by the duly constituted authorities of said city. . . . “That each and every one of said warrants mentioned and described in the several causes of action contained in the petition were issued to the payees of said warrants respectively, on account of debts legally due to said payees of said warrants respectively, on contracts entered into by said city with said payees respectively, which said contracts, and each of them, the said defendant, city of Tribune, had authority at the time to make, and did make with the payees of said warrants respectively.” The defendant assumed the burden of proof and a trial was had before the judge upon the issues thus formed. Judgment was rendered for plaintiff on part of the warrants and the others were held to be invalid, in the following language and manner: . . that the warrants in question drawn on the street fund during the year 1924, up to the amount of $750.72, the amount of the tax levy for street purposes, are legal and valid and all warrants drawn on said street fund during the year 1924, in excess of that amount, are invalid. ... It is further considered, ordered, adjudged and decreed, that nothing in this decision is intended to determine the right of the plaintiff or its assignors to recover upon the original indebtedness represented by the warrants sued on in the other causes of action, upon which judgment has not been rendered.” Both parties filed motions for new trial, which were overruled and no appeal was taken. Plaintiff filed an amended petition, alleging as to the first count— “That the defendant is indebted to one E. P. Fox in the sum of ninety-four and 16/100 dollars ($94.16), for labor performed for the defendant at its special instance and request, the particulars of which will appear by an itemized account, duly vei'ified by affidavit, and filed in the office of the city clerk of Tx-ibune, Kansas, all as required by law, which account is hereby referred to and made a part of this petition the same as though fully set out herein. “That to evidence such indebtedness the defendant made and delivered to said E. P. Fox its warrant No. 960, drawn upon'its city treasurer, in the sum of ninety-four and 16/100 dollars ($94.16), dated August 29, 1924, which warrant is attached to the original petition filed in this cause, marked ‘Exhibit 1,’ and is by reference made a part of this amended petition the same as though fully set out herein. “That for a valuable consideration the said E. P. Fox assigned said account to this plaintiff, by indorsing on said warrant the words ‘E. P. Fox’ and delivering the same to this plaintiff.” The amended petition concludes with the allegation that the plaintiff is the lawful owner of the account, that the defendant fails and refuses to pay the same, that there is due the plaintiff the amount named with interest, and prays for judgment accordingly. Similar allegations were made as to each of the forty-nine counts, differing only as to dates, amounts, labor performed or material furnished. The motion of the defendant to strike the amended petition from the files assigns four reasons, as follows: “1. The said amended petition and every one of its forty-nine causes of action is for entirely different causes o.f action from the original causes of action set up by the plaintiff in its petition in this case. “2. Because judgment has been rendex-ed by the corn't in this case and the judgment entered on the journal of this court long prior to the filing of this amended petition. “3. Because there is no authority in the statutes for the filing of this amended petition. “4. Because the above-entitled action was fully determined and settled long prior to the filing of this amended petition and the plaintiff cannot start another and entirely different lawsuit by filing an amended petition.” This motion and a motion of the plaintiff for judgment on the pleadings and the evidence were presented and heard together and were decided by the trial court at the same time, the former being overruled and the latter sustained. Judgment was rendered for plaintiff accompanied with findings of fact and conclusions of law. The third ground stated in the motion of the defendant to strike the amended petition from the files is because there is no authority in the statutes for the filing of this amended petition, and appellant refers to the caption of the petition reading as follows: “Comes nowthe plaintiff, leave of court first having been obtained, to amend its petition to accord with the e\ddence in this cause, and for its amended petition in the above-entitled cause, alleges and states”; also to the provisions of R. S. 60-759, where it is stated amendments may be made for certain purposes, one of which is “or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense.” Aside from the question of the amendment changing substantially the claim of the plaintiff, which will be considered later, the statute seems to authorize such amendments to conform to the facts proved. Appellant cites and urges the decision in the case of Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894, where it was held to be too late after verdict to make such amendment, when throughout the trial at every available opportunity objection was made to the reception of evidence concerning an allegation entirely omitted from the petition that no administrator had been appointed for the deceased where his widow was attempting to recover damages for his death. This holding was later distinguished where the circumstances were different and more nearly like those in the instant case. “When a petition claiming damages is not demurrable for insufficiency in its statements of fact to constitute a cause of action, but is only subject to a motion to make it more definite and certain as to the allegations of damages sustained, and upon it a first trial is had, in the course of which the plaintiff makes a full disclosure of the several items constituting his demand, it is not error, upon a second trial and at the close of the plaintiff’s evidence, during which the same disclosures were made, to allow the petition to be amended by setting out the various items of damages claimed, so as to conform to the evidence given. The case of Walker v. O’Connell, 59 Kan. 306, 52 Pac. 894, distinguished.” (Tullock v. Mulvane, 61 Kan. 650, syl. ¶ 2, 60 Pac. 897. See, also, Sutter v. Harvester Co., 81 Kan. 452, 106 Pac. 29.) So if there were any facts proved as to the original indebtedness, then there was authority conferred by this statute to permit the amendment, unless, of course, the amendment substantially changed the claim. The first ground of the appellant’s motion is that every one of the forty-nine causes of action in the amended petition is for an entirely different cause of action from the original causes of action upon the warrants. Reference has been made by both parties to the initial case on this subject and one which we think rather decisive of the controversy here, where Justice Brewer in the opinion uses the following language: “A party, when sued upon its own instrument evidencing indebtedness, introduces testimony tending to show that the instrument as an instrument is invalid; but at the same time shows the existence of a valid debt for which the instrument was issued. Having shown that fact, an amendment is permitted so that the pleading alleges the indebtedness as well as the instrument by which it was evidenced. Under those circumstances, in view of the large discretion vested in the trial court, it cannot be held that any material error, any error working prejudice to the substantial rights of the defendant, has been shown.” (School District v. Dudley, 28 Kan. 160, 164.) A more recent decision refers with approval to that early decision and shows that allegations of the original indebtedness for which the warrants were issued do not constitute a departure. “Where the answer of a school district to an action upon school warrants pleads that the warrants were unlawfully issued and are without consideration and void, a reply which alleges that the defendant received and used the property and services for which the warrants were issued, that the acts of its officers in issuing the warrants were ratified by the electors of the district, and that defendant is estopped to question the validity of the warrants, does not set up a new cause of action nor constitute a departure.” (Bank v. School District, 102 Kan. 98, syl. ¶ 3, 169 Pac. 202.) In another recent case, Citizens State Bank v. School District, 124 Kan. 300, 259 Pac. 796, it was said as to the pleadings: “Although the plaintiff in this case did not plead the indebtedness represented by the warrant, nor ask leave to amend its petition by doing so, yet we are not without sufficient pleadings in the case to make the question of indebtedness an issue. As stated above, the defendant district, in addition to general denial, pleaded the invalidity of the warrant because it was not authorized by a meeting of the board, and a further defense that the indebtedness represented by the warrant, naming the two items, was not a legal obligation of the district, and to this the plaintiff replied by general denial, which put in issue the question of the indebtedness of the district as to these items, and such issue was decided by the trial court in favor of the plaintiff.” (p. 304.) The test of departure or substantial change -seems to be whether or not the indebtedness is an issue under the original pleadings in the case. After admitting in the answer the execution of the warrants, that they were indorsed by the payees thereof to the plaintiff and that plaintiff is the owner of them, the city alleged want of consideration, that the city did not get value received for them, and that they were drawn on the street-improvement fund. The reply alleged that the warrants were issued on account of debts due the payees on contracts with the city and issued in pursuance of the allowance and settlement of such indebtedness. The amended petition does no more than amplify and set out the details of such indebtedness by referring to the itemized account of the work done or material furnished, which under the authorities cited is not a departure nor a substantial change of the claim. They are the same claims as those on the warrants, namely, the indebtedness for which the warrants were given — the consideration for the warrants. If there was no work done or material furnished, there was no consideration for the warrants. The question of consideration was in the case from the beginning. For the material furnished or the labor performed for the city, if any was furnished or performed, there were obligations due, and the warrants were only the evidence of such debts or obligations. There was no change in the claims, only in the form of them, the warrants being simply an evidence of the indebtedness. Do the amendments made by the amended petition conform to the facts proved? On the apparent issue of consideration we find in the record the testimony of the city clerk as to the minutes showing on different dates that the city council had ordered that gravel be placed on certain streets and the appointment of a suitable person to oversee the work; also making the purchase of corrugated iron culverts to be used at certain intersections and ordering the hauling of gravel to surface certain streets. He also identified the list of warrants drawn on the street-improvement fund. The one placed in charge of the work and the members of the council testified that hauling and surfacing was done. The following paragraph, as appears in the abstract at the close of the testimony of the defendant city during the trial as pertaining to the question of consideration for the warrants and the work done on the streets, is pertinent: “The court asked if there was any contention the city did not get value received. One of the attorneys answered, ‘To some extent.’ We will admit they hauled a lot of sand for which they paid about twice as much as they should have paid and they hauled a lot of cinders and did a lot of work. We will admit that these vouchers were filed in the regular form; that all warrants were issued, but at the same time object to the introduction of such evidence on the ground it is incompetent, irrelevant and immaterial. The court overruled the objection.” There can be no question from this evidence as to the identity of the consideration of the warrants and the indebtedness of the city for labor performed and material furnished in street-improvement work, and that these statements proved or tended to prove a consideration for the warrants issued and that such consideration was the labor performed or material furnished, which when performed or furnished, constituted an obligation or debt of the city.. We are not now and here concerned with the sufficiency of such proof, but only whether or not there were facts of this kind proved on the trial, and if so, then the amendment was properly made to conform to the facts proved. Considerable is said in the brief of appellant as to the amended petition being filed without leave of the court, but that question does not seem to have been raised by the motion to strike nor the motion for a new trial, and the presumption is that leave was obtained as stated in the introduction thereof. Besides, if it was filed without leave and was otherwise proper, we are not shown how it would constitute reversible error. The second and fourth grounds of the motion to strike will be considered together. They are based upon the theory that a judgment having been already rendered on these warrants, the matter is res judicata and therefore no amended petition would be proper, attempting to raise the same or similar question. The record shows that the former district judge did decide that these particular forty-nine warrants were invalid because they were in excess of the amount of the levy for street improvement for the year 1924, but followed that holding with the positive statement “that nothing in this decision is intended to determine the right of the plaintiff or its assignors to recover upon the original indebtedness represented by the warrants sued on in the other causes of action, upon which judgment has not been rendered.” The court specifically says “judgment has not been rendered.” Even without the last clause of this paragraph of the journal entry the earlier clauses show unmistakably that the court had in mind a further consideration of the question involved as to the indebtedness represented by these warrants held to be invalid. We are cited to those decisions which logically hold that the adjudication between litigants is not limited to those things they may choose to litigate, but to everything that could have been litigated in the action. The difficulty with the application of this well- recognized principle to this situation is that here the matter was not adjudicated. The court held the warrants to be invalid but declined to go further, expressly reserving and keeping open for further consideration the remaining question. None of the cases cited in support of this contention meet or approach this feature of the case. It is similar to a holding of the court as to the other warrants which were held to be valid if the court had reserved the matter for further consideration as to the rate of interest to be allowed and the total amount due. That would not be an adjudication that would prevent a subsequent determination of the rate of interest and amount of judgment. We find no error in overruling the motion to strike the amended petition from the files. Much that has been said on the question of defendant’s motion to strike the amended petition from the files especially with reference to the issues raised thereby being res adjudicata is applicable to the next and separate question of the errors assigned because of the sustaining of the motion of plaintiff for judgment on the pleadings and the evidence. These motions were heard and determined by a new and different judge from the one who held the warrants invalid. The matter was fully briefed and argued and the new judge made findings of fact and conclusions of law in favor of the plaintiff and rendered judgment for the plaintiff and overruled defendant’s motion for a new trial. Many specifications of error are assigned and many interesting-points are well argued on both sides, but one point is involved which is not met by the argument of the appellant, and that is the right of the defendant to avoid the payment of a debt for which it received a benefit, and for which it had the right to contract, because of irregular and defective procedure. In other words, if the defendant city had the right to arrange for the hauling of gravel for the improvement of its streets and purchase culvert material for the same purpose, can it now after receiving the benefit of the labor and material retain that benefit and avoid the payment of the claims for such because of omissions, irregularities and defects in the manner and form of its own proceedings in authorizing the work done, material purchased and allowance of the claims? Appellant cites many cases showing the absolute importance of a strict observance of the statutory requirements, particularly R. S. 15-106, 15-402 and 15-412, but a careful examination of them shows that the proceedings for the most part were instituted early and before outside parties had expended time, labor and money on the proposition. In the case of Decker v. City of Pleasanton, 117 Kan. 279, 231 Pac. 330, it was by injunction the irregular and insufficient proceedings for paving and guttering were checked, and in the case of State, ex rel., v. Lander, 87 Kan. 474, 124 Pac. 364, irregular taxing proceedings were called into question by ouster proceedings. Among the defects complained of by the city which it claims should defeat a recovery on the claims for indebtedness are lack of ordinances authorizing the work and street improvement to be done, and the illegality of the ordinances appropriating the money and directing the issue of warrants, claimed to have been passed at illegal meetings and without a roll call; the attempt to pay a member of the council for some labor performed by him and to issue a warrant therefor to him while he was a member of the council; the making of any purchase in excess of the revenue as well as the issuance of warrants as being prohibited by R. S. 15-412. Some of these points are matters of fact to be determined by the evidence; others may be purely questions of law. The trial court made findings of fact in favor of the views and contention of the plaintiff. We find there was some evidence to support each of the findings of fact. It is not contended that the defendant city did not have authority to improve its streets by surfacing them with gravel, as concluded by the trial court in its first conclusion of law. Now if it had the legal right and authority to make such improvement, will its irregular and defective manner of executing that authority, when it has received and is retaining the benefits, prevent a recovery of the claim for such labor performed and material furnished? We think not, under the many rulings along this line. “Where a contract between a city and. a paving contractor is illegal only because of irregularities in the proceedings leading up to the letting of the paving contract, and the contract is not tinctured with moral turpitude, and there was no want of authority to let the contract if the preliminary proceedings had been strictly regular, the city is liable to the contractor for the work actually done under direction of the proper city officers, when that work is adopted and used by the city.” (Ritchie v. City of Wichita, 99 Kan. 663, syl. ¶ 3, 163 Pac. 176.) “Where work is performed upon a street of a city and at its instance, and the city has accepted and is enjoying a valuable benefit of the work, the city cannot escape liability for the reasonable value of the work because of a mere irregularity in contracting for its performance.” (Du Bois v. City of Galena, 128 Kan. 253, syl. ¶ 4, 276 Pac. 802.) “Where there is no want of power on the part of a municipality to make a contract of employment, but merely a failure to comply formally with the provisions of the statute authorizing the city to make such a contract, the city is liable for services rendered by a person informally employed by the city, when his services have been recognized and accepted by the city, and where the city has received valuable benefits from such services. . . .” (City of Topeka v. Ritchie, 105 Kan. 398, syl. ¶ 2, 184 Pac. 728. See, also, Kaill v. Bell, 88 Kan. 666, 129 Pac. 1135; and Getty v. City of Syracuse, 129 Kan. 106, 281 Pac. 883.) By applying the principle expressed in the opinions above quoted to the situation in the case at bar, we conclude the plaintiff had a right to recover notwithstanding the irregularities enumerated, and this makes it unnecessary to discuss the effect of each particular irregularity, nor do we need to approve or disapprove the third conclusion of law discussed in the briefs. There are many other matters mentioned and urged in the brief of appellant, as delays, lack of privileges and opportunities, unusual and special features, which are cited as involved in the case in some way, directly or indirectly. These have- not been overlooked or ignored, but fully considered, and held not to be such as to change the result. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: George Elgin, a workman engaged in the paving of a street along the tracks of the public-service company, over which the company operated its cars, was struck and injured by one of the street cars. He asked for damages and recovered judgment for $1,500, from which defendant appeals. The plaintiff was one of a crew of laborers employed by a construction company in the relaying of" the railroad track and preparing for the pavement of a street upon which the track was laid. The work was being done while the cars were being operated and a number of other laborers were engaged in the work along the line near the plaintiff at the time he was injured. It appears that as the car approached other workmen stepped out of the way of the moving car which 'was running at a rate of from ten to twelve miles an hour. Plaintiff was engaged in cutting off the ends of the ties so that they would be in alignment for placing concrete forms to hold the concrete. He testified that he was using an ax in chopping off the end of a tie and was standing about twenty inches from the track; that about that time he heard a truck coming up behind him and turned to see if there was danger of its striking him, and then turned the other way to make the stroke with the ax and at that moment was struck by the car. There was no obstruction to prevent the motorman from seeing plaintiff at work nor to prevent plaintiff from seeing the approaching car, if he had looked. It was alleged that the company was negligent in failing to sound the gong or give any warning of the approach of the car; in failing to keep a proper lookout to avoid striking workmen, and in failing to stop the car before the plaintiff was -struck. Defendant contends that the plaintiff was guilty of contributory negligence in placing himself so near the track and in remaining in that position when he knew or should have known that cars were constantly passing and when he admits that cars were running past him at least one every five minutes. The jury returned findings of fact including one that the defendant was negligent in failing to sound the gong or exercise reasonable care for the protection of workmen; that plaintiff was exercising ordinary care at the time he was struck; that he did not see the car immediately before he was struck; that in the exercise of reasonable care he could not have seen the approaching car and could not, by the exercise of reasonable care in looking and listening, have seen the approaching car. A demurrer to plaintiff’s evidence was overruled by the court. A motion to set aside the findings because they were not sustained by the evidence was denied and defendant complains that the court erred in refusing requested instructions on the principles of contributory negligence and assumption of risk, instructions which, it is claimed, were not covered by those given by the court. An argument is made by-the defendant that there was no proof that the bell was not sounded by the operator as the street car approached the place of the accident. Plaintiff himself testified that he was hot sure as to the clanging of the bell by the motorman. Another workman testified that he heard no bell as it came towards the point in question, but he said that it was the custom of the defendant to sound warning in approaching the place. The operator testified that he was running the car slowly and sounded his gong. Assuming, however, that the gong was not sounded, and that defendant was negligent in that respect, the conclusion from plaintiff’s evidence is inescapable that his own contributory negligence was the cause of his injury. He was working close to the track over which cars were continuously passing. He voluntarily took a position so close to the track that he was within the range of the car. It was obviously a place of danger and it became his manifest duty to keep a lookout for passing cars and to exercise ordinary care for his own safety. There was no obstruction to his view in the direction from which the car was coming. Without doubt he could have seen it approaching if he had looked. One of his witnesses who stood within a few feet of plaintiff at the time said plaintiff appeared to be looking towards the coming car just before he was struck. He may have thought his distance from the track was far enough to give room for the car to miss him, but if so he necessarily assumed the risk he took. The fellow workmen seeing his danger shouted to him to look out for the car, but this warning did not prevent the accident. Other employees working along the track noticed the passing car and stepped back from it, and a short step back by the plaintiff would have avoided the danger and the injury. In that place of danger, of which he must have been fully aware, his failure to use his faculties to see and hear cars passing every three to five minutes and to exercise the ordinary precautions for his own safety, must be regarded, upon his own showing, as contributory negligence on his part. His situation and his duty under it to observe ordinary care were somewhat similar to that required of a traveler crossing a railroad track or of an employee working in a railroad yard in which cars are being frequently moved, and where, being conscious of the danger of the place, he is bound to observe care for his own safety. His evidence demonstrates that he failed to exercise that care and- it must be decided as a matter of law that his contributory negligence precludes a recovery for the injury sustained. (Lilly v. Wichita Railroad & Light Co., 127 Kan. 527, 274 Pac. 205, and cases cited; Caples v. A. T. & S. F. Rly. Co., 129 Kan. 341, 283 Pac. 53. See, also, Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103; Nolan v. Metropolitan St. Ry. Co., 72 N. Y. Supp. 501; Quinn v. Boston Elevated Railway, 188 Mass. 473; Lyon v. Bay Cities, etc., R. Co., 115 Mich. 114; Bushay v. Ocean City Electric R. R. Co., 74 N. J. L. 30.) The fact that he heard a moving truck near him and had pi-eviously looked towards it did not excuse his lack of care in guarding against a moving street car coming towards him, and in the direction he was facing, when a glance and a step would have saved him from injury. There was no basis for the finding of the jury that the plaintiff was exercising due care when he was struck, nor for a recovery of damages. The judgment is reversed with directions to enter judgment for the defendant.	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The opinion of the court was delivered by Harvey, J.: This is an action by a trustee in bankruptcy to set aside a deed to real property executed by the bankrupt about five months prior to the adjudication on the ground that the grantor was then insolvent and that the deed was executed without consideration. The trial court sustained a demurrer to plaintiff’s evidence, and she has appealed. Briefly, the facts disclosed by the record may be stated as follows: John Ellenberger, an elderly gentleman, retired from farming and he and his wife moved to town. He owned two farms. He had two sons — Ed, for whose estate in bankruptcy the plaintiff in this case had been appointed trustee, and Rudolph. Ed lived on one of the farms and Rudolph lived on the other, paying as rent a share of the crops to the father. The father, John Ellenberger, executed his will, in which he devised to Ed the farm on which he was living, and to Rudolph the farm on which he was living. In May, 1919, Rudolph desired to move west, and he made an agreement in writing to sell the farm on which he was living, or his interest therein, to Ed for the sum of $16,000, payment on that price to be 'made each year of as much as the value of one-third of the crops. The father, John Ellenberger, joined in that agreement, and by it he was to continue to receive as rent one-third of the crops. Ed took possession of the place and farmed it, paying the rents to the father and making payments to Rudolph, which, in the course of about four years, aggregated $4,000. By that time Ed had become involved financially. While he owed other persons, his principal indebtednéss was to his father, from whom he had borrowed money and executed notes aggregating $25,000, and was also indebted to his father on book account in the sum of approximately $10,000. Ed and his wife executed a deed to his father for the land which he had agreed to purchase from Rudolph, and placed it of record. This' was done without the father’s knowledge, but a day or two later Ed told his father he had executed and recorded the deed. The father then agreed to accept the deed, “if it was-worth anything,” for the sum Ed owed him on book account. The sole question presented here is whether or not this, evidence disclosed a consideration for the deed. It must be borne in mind that the title stood in the name of the father, John Ellenberger, all the time. While it is true he had executed a will devising the land to Rudolph, that will had never become effective, for the testator is still living; hence the father could well question whether the deed from Ed to him conveyed any title. If so, it was because he was a party to the agreement by which Rudolph sold his interest in the place to E'd; but that agreement does not purport to convey title from the father to either of the sons. But, assuming, for the purposes of the case, that Rudolph had some title, either actual or prospective, which he could sell to Ed, and hence that Ed had some title or interest which could be conveyed by the deed which he and his wife executed to his father, the question is whether there was consideration for that deed. It was agreed between them that the deed was executed for the sum which Ed owed his father on book account. That constituted a consideration for the deed. The judgment of the court below is affirmed.	[ -16, 108, -104, 44, 42, 96, 42, -102, 65, -93, 39, 119, -21, 67, 0, 41, -12, 105, 65, 122, 85, -78, 55, -79, 83, -13, -47, -43, -80, 77, -10, 87, 76, 48, -118, -43, -26, -126, -63, 80, -114, -58, -119, 69, -55, 80, 52, 43, 84, 13, 117, -98, -13, 46, 61, -42, 72, 44, -21, 61, 80, -72, -86, 12, 95, 3, -111, 81, -104, 7, -56, 46, -112, 117, 8, -22, 115, -74, 22, 84, 27, 25, 40, 102, 98, 16, 101, -19, -56, -104, 10, -29, -115, -89, 80, 88, -125, 40, -67, -99, 125, 112, 6, -2, -18, -123, 29, -28, 1, -117, -44, -109, -119, -4, -104, 11, -5, -89, 49, 113, -49, -94, 93, 103, 123, -101, -114, -13 ]
The opinion of the court was delivered by Dawson, J.: This is an appeal from an order of the district court on a motion to amend the journal entry of a judgment in a divorce case so as to have it speak precisely what the court decreed concerning a division of property between the litigants. The pertinent facts were these: Plaintiff and defendant were married many years ago. By their joint efforts they accumulated a six-room house and its appurtenant ground in Kansas City, Kan., and three acres of land with a two-room cabin o.n it in Clay county, Missouri. When the divorce was granted on July 2, 1930, the Kansas City property was set apart to plaintiff and the Missouri property to defendant. To make such division practically effective, so far as concerned the Missouri property, it was deemed advisable by the court to require plaintiff to quitclaim to defendant all her interest in it, but the journal entry containing the court’s decree did not so recite. Following the decree the plaintiff, being securely in possession and enjoyment of the Kansas City property separately decreed to her, commenced to harass her ex-husband with unconscionable and baseless claims of an interest in the Missouri property. To terminate that annoyance, on September 17, 1930, defendant filed this motion to amend the decree nunc pro tunc so as to have it state explicitly that plaintiff was required in the division of property to execute a proper deed of conveyance to the Missouri property to defendant. On November 8, 1930, this motion came on for hearing and after statements and arguments of counsel for both parties the court sustained the motion, holding that it was the intent and purpose of the court on July 2,1930, to require plaintiff to execute a deed to the Missouri property, and that the omission of such requirement from the divorce decree was a mere oversight and mistake, and the court ordered the decree amended nunc pro tunc to that effect and directed the plaintiff to execute a deed to the Missouri land in favor of defendant. Plaintiff appeals. The gist of her complaint is that the trial court changed the decree after the close of the term at which it was rendered and at a time when it had lost jurisdiction of the cause and of all matters incidental thereto. Of course, a trial court has no jurisdiction to alter a judgment when it has become final and absolute by the close of the term at which it was rendered. But it is begging the question to assume that the proceedings above narrated constituted an alteration of the judgment. Plaintiff contends that there was no proof to support the application for the nunc pro tunc order. We think the circumstances themselves had considerable probative force. Moreover, the trial judge’s own recollection of the facts was the equivalent of testimony. In Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, it was said: “A district court has the power to correct the entry of a judgment so as to cause it to speak the truth after the expiration of the term at which it was rendered, and upon the personal knowledge of the judge of what took place in court at the time of its rendition.” (Syl. ¶ 1.) In State, ex rel., v. Lyons, 106 Kan. 860, 862, 189 Pac. 976, it was said: “Moreover, if the trial judge had been positive as to the accuracy of his own recollection of the incident, his personal knowledge would have been equivalent to evidence.” See, also, Investment Co. v. Walsh, 70 Kan. 899, 79 Pac. 688; Hart v. Hart, 98 Kan. 745, 746, 747, 161 Pac. 585; 34 C. J. 245; 15 R. C. L. 678. These authorities, which could be indefinitely multiplied^ recognize the established rule that where matters which are an essential part of a judgment are inadvertently omitted from its written text, with the effect that it does not fairly state what the court intended, or perverts that intention, they can be corrected and supplied at the instance of an interested party after the close of the term at which the judgment was rendered. Indeed no lapse of time, however long, will preclude the correction of the judgment roll so as to make it speak precisely what the court intended. A notable instance of the application of this rule appears in the case of Rogers v. Bigstaff’s Executor, 176 Ky. 413, where the nunc pro tunc order was made fifty-five years after the rendition of the judgment. (See, also, 1 Freeman on Judgments [5th ed.] 220 et seq.) It should be observed that the judicatory portion of the judgment is not affected by the order made nunc pro tunc. There can be no cavil that the court divided the property accumulated by the litigants as alleged in defendant’s motion for the nunc pro tunc order. It is only the executory portion of the judgment in the instant case which requires elaboration to make the court’s decree effective. (15 R. C. L. 678.) The ruling of the trial court was correct, and its judgment is affirmed.	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In a letter signed on August 29, 2005, addressed to the Clerk of the Appellate Courts, respondent Randall W. Weller of Hill City, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2004 Kan. Ct. R. Annot. 296). At the time the respondent surrendered his license, a panel hearing was pending on a complaint in accordance with Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275). The complaint concerns allegations of misconduct that Weller violated Kansas Rules of Professional Conduct 1.7 (2004 Kan. Ct. R. Annot. 391), 1.8 (2004 Kan. Ct. R. Annot. 396), 1.15 (2004 Kan. Ct. R. Annot. 414), 4.1 (2004 Kan. Ct. R. Annot. 460), and 8.4(c) (2004 Kan. Ct. R. Annot. 485). This court, having examined die files of die office of the Disciplinary Administrator, finds that die surrender of the respondent’s license should be accepted and diat die respondent should be disbarred. It Is Therefore Ordered that Randall W. Weller be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked. It Is Further Ordered diat die Clerk of the Appellate Courts strike the name of Randall W. Weller from die rod of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and diat the respondent forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).	[ -112, -24, -44, 92, -114, 96, 50, 60, 81, -53, 103, 83, -19, -38, 21, 123, -61, 125, 17, 123, -59, -74, 118, -64, 4, -5, -47, -44, -72, 79, -10, -67, 76, 56, 74, -43, 6, -54, -63, -36, -122, 4, 9, -8, -54, -127, 52, 9, 50, 11, 17, 62, -13, 42, 61, -63, -88, 108, -5, -27, 81, -111, -103, -107, 95, 21, -79, 4, 92, -121, 88, 47, -116, 61, 9, -4, -13, 54, 2, -12, 79, -71, 0, 103, 114, 51, 49, -91, -84, -120, 46, 56, -99, -30, -79, 72, 107, -88, -106, -43, 117, 22, 3, -2, -84, 4, 31, 108, 11, -54, -44, -79, -97, 119, -82, -101, -21, 66, 16, 85, -105, -11, 76, 87, 120, -101, -50, -44 ]
The opinion of the court was delivered by Lockett, J.: Harvey Ross appeals his convictions for one count of first-degree murder and one count of attempted first-degree murder, asserting that: (1) The trial court erroneously admitted evidence that Ross fled the state; (2) the trial court erroneously admitted evidence of Ross’ gang affiliation; (3) cumulative errors denied him a fair trial; and (4) the sentencing judge erroneously included Ross’ criminal histoiy without proving it to a jury beyond a reasonable doubt. FACTS During the early morning hours of April 14, 2002, Timothy Cooper and his brother Kenneth Porter were shot at the Paradise Club in Wichita, Kansas. Porter, who suffered three gunshot wounds to his back and abdomen, survived even though his wounds were life threatening. Cooper also suffered three gunshot wounds, two in his chest and one in his wrist. Unfortunately, Cooper died from his injuries. Detective James Espinoza arrived at the scene shortly after the shooting. Marcus Lowery, who had witnessed the shooting, described the shooter to Espinoza. Lowery stated that the shooter was a black male approximately 6 feet tall with a short or medium Afro and slight facial hair, wearing a light-blue shirt. Lowery recognized the shooter as someone he had seen around town but did not know his name. The next day, police showed Lowery a photographic lineup, and Lowery identified Ross as the shooter. Will O’Neal was working as a security guard at the Paradise Club. O’Neal was outside the building in the neighboring parking lot when the shooting occurred. After hearing the shots, O’Neal rushed to get inside the building. As O’Neal entered the door, he saw a black male about 6 feet tall and dressed in a blue shirt run out of the building. The day after the shooting, O’Neal picked Ross’ picture and another person’s picture out of a photographic lineup, stating “[tjhese are [the] two that appeared to have come out of the Paradise.” On April 14, police issued an order to arrest and detain Ross. Officers immediately began searching for Ross at his last known addresses. Several days later, the district court issued a warrant for Ross’ arrest. Ross was arrested on July 10, 2003, in Federal Way, Washington. On April 11, 2002, 3 days before the shooting, Ross reported to work at his permanent job with Berry Tractor. Ross left work early that day for a probation hearing to discuss the court’s concerns about Ross’ job situation. Even though Ross’ previous probationary period was nearly over, at the conclusion of the hearing the district court extended Ross’ probation period for an additional 18 months. On April 12, 2002, Ross did not report for work as scheduled or call his employer. Ross also was scheduled to work the following week. Ross failed to show up again. Ross did not contact his employer or pick up his paycheck for $472.97. Ross did not appear for an appointment with his probation officer on Monday, April 15, 2002, and failed to contact his probation officer as required. After his arrest in July 2003, Ross was returned to Kansas and charged with first-degree premeditated murder, criminal possession of a firearm, and attempted first-degree murder, or, in the alternative, aggravated batteiy. At trial, to contradict Lowery’s eyewitness identification, Ross presented several witnesses, including Wichita police officers and an eyewitness. The eyewitness was Ross’ first cousin, David Robinson, who testified that he was with Ross at the Paradise Club and Ross was not the shooter. Before Robinson testified, the State requested a brief hearing outside the presence of the juiy regarding the admission of evidence that Robinson and Ross were affiliated with the same gang. Over Ross’ objection the trial court ruled that the evidence of gang membership would be admissible to show Robinson’s bias. During his cross-examination, Robinson denied that he and Ross were affiliated with the Tru Boys gang but later admitted that he had “TRU” tattooed on his right shoulder. The State then called a Wichita police officer, who testified that Robinson had previously admitted to being a Tru Boys gang member, and another officer, who testified that Ross and Robinson were both documented as active members of the Tru Boys gang. The jury found Ross guilty of the first-degree premeditated murder of Cooper, criminal possession of a firearm, and the attempted first-degree murder of Porter. The district court sentenced Ross to life in prison (hard 25) for the first-degree murder conviction, a 586-month sentence for the attempted murder conviction, and a 9-month sentence for the criminal possession of a firearm conviction. The court ordered the 9-month sentence to run consecutive to Ross’ life sentence. Ross appeals his convictions and sentences pursuant to K.S.A. 22-3601(b)(l). I. Evidence of flight Ross first asserts that the trial court improperly admitted evidence that he fled to the state of Washington after the murder. Ross filed a motion in limine requesting the district court to exclude the evidence of flight. The district court overruled the motion. The defendant must object to the admission of the evidence at trial to preserve the issue for appeal when the defendant’s motion in limine to suppress evidence is denied. K.S.A. 60-404; State v. Branning, 271 Kan. 877, 880, 26 P.3d 673 (2001). The State argues that Ross failed to preserve this issue for appeal when he failed to object to the admission of the evidence at trial. Contrary to the State’s contention, Ross’ counsel had objected to flight evidence from four witnesses prior to their testimony, stating, “[W]e would object to their testimony, because we are objecting to flight being introduced in this case. . . . And if the State has no objection for this objection standing for those four witnesses.” The court accepted Ross’ objection as a standing objection to all four witnesses and overruled the objection. We have previously noted that a standing objection offered prior to the witness’ testimony is sufficient to preserve an issue for appeal. State v. Haddock, 257 Kan. 964, 984-85, 897 P.2d 152 (1995). When the admission or exclusion of evidence is raised at trial, an appellate court first considers whether the evidence is relevant. State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” Carter, 278 Kan. at 77. Evidence of a defendant’s flight or attempted flight is relevant to show the defendant’s consciousness of guilt. State v. Walker, 226 Kan. 20, 21, 595 P.2d 1098 (1979). The statutoiy rules of evidence do not specifically address the admission of evidence regarding the defendant’s flight or attempted flight. See K.S.A. 60-401 et seq. Thus, K.S.A. 60-445 is the applicable statute which allows the trial court to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. We, therefore, conclude that the trial court has discretion to admit evidence of flight. The trial court’s decision to admit this evidence is reviewed by an appellate court using an abuse of discretion standard. Judicial discretion is abused when the court’s action is arbitrary, fanciful, or unreasonable. However, if reasonable persons could differ as to the propriety of the trial court’s decision, there is no abuse of discretion. State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000). Ross argues that even though flight evidence may be relevant, this court should adopt a restrictive rule for its admission. Ross requests that, prior to admitting the evidence of flight, this court requires the State to prove that the defendant had specific knowledge that he or she was being sought for the crime charged. For support, Ross relies on United States v. White, 488 F.2d 660 (8th Cir. 1973), and United States v. Jackson, 572 F.2d 636 (7th Cir. 1978). In White, the Eighth Circuit Court of Appeals considered the propriety of an instruction that allowed the jury to infer the defendant’s guilt based on evidence that the defendant ran from federal agents at the time of his arrest more than 5 months after the crime at issue occurred. 488 F.2d at 662. The White court concluded that the trial court’s instruction was erroneous because there was no evidence that the defendant knew at the time of his alleged flight that he was being sought for the crime charged. However, we note the White court held the admission of that evidence was harmless and upheld the defendant’s conviction. 488 F.2d at 662. In Jackson, the Seventh Circuit Court of Appeals reversed a defendant’s conviction because of the erroneous admission of flight evidence. 572 F.2d at 643. Jackson had attempted to run from federal agents for about 3½ months after the crime charged. 572 F.2d at 638-40. The Jackson court reasoned that the inference of guilt was weak because there was no evidence that supported Jackson’s consciousness of guilt for the specific crime charged. Nevertheless, the Jackson court refused to establish the requirement that evidence of flight is admissible only when the defendant knows that he or she is being sought for the crime charged, stating that “as the interval between the crime charged and the flight expands, evidence of the defendant’s knowledge that he is being sought for the crime becomes an increasingly important factor in the propriety of drawing the inference from consciousness of guilt to consciousness of guilt concerning the crime charged.” 572 F.2d at 640. In State v. Walker, 226 Kan. at 20, this court addressed the issue of whether to restrict evidence of flight unless the defendant has knowledge that he or she is being sought for the crime charged. Walker sought reversal of his conviction because at trial the State had introduced evidence that he fled from the police officers who went to a house to question Walker about an aggravated robbery. A woman present at the house told police that Walker was not home. Walker later called the police and made an appointment to meet with an officer, but failed to show up. A few days later, the officer returned to Walker’s home and was again advised that Walker was not home. The officer was suspicious, so he watched the residence. Walker emerged about 20 minutes later, entered a car, and departed. The officer followed. When Walker became aware that the officer was following him, he jumped from the car and ran. Walker continued to elude police for about 3 more months. 226 Kan. at 20-21. The Walker court analyzed the federal courts’ decisions in White and Jackson and other cases and concluded that it was not advisable to adopt the restrictive rule of White, stating: “Actual knowledge by a defendant that he is being sought for the crime in question is not a prerequisite to the admission of evidence of flight as tending to show consciousness of guilt but merely goes to the weight to be given such evidence. This is especially true when the flight occurs within a reasonable time of the crime. Possibly such a precautionary prerequisite might be justified in situations where the flight occurs months later. However, we deem it the better reasoned authority to admit flight evidence for consideration by the court or jury with such factors as time lapse and accusation knowledge going to the weight to be given the evidence.” 226 Kan. at 25. Ross argues that the facts in this case present the situation justifying the adoption of knowledge as a prerequisite as alluded to by the Walker court because here there is no evidence that he ever fled from the presence of police. Ross summarizes that the evi dence simply shows that he moved to the state of Washington between April 2002 and July 2003. However, Ross’ factual summary overlooks some key evidence. Ross left his job early on Thursday, April 11, 2002, to attend a probation hearing and failed to report to his job as scheduled on Friday, April 12. Ross never returned to his job or contacted, his employer and failed to pick up his paycheck for $472.97. In addition, Ross had an appointment with his probation officer on Monday, April 15,2002. Ross did not appear for the appointment. Ross’ last contact with his probation officer was at the hearing on April 11. On April 14, the day of the murder, at about 9 p.m., police issued an order for law enforcement officers to arrest and detain Ross and began an immediate and active search for Ross that included checking all of Ross’ last known addresses. Several days later, the district court issued a warrant for Ross’ arrest for the homicide of Timothy Cooper. Officers could not locate Ross until he was arrested on July 10, 2003, in Federal Way, Washington. The evidence in this case does not present the same type of flight at issue in Walker, White, or Jackson. We note there is nothing in the factual circumstances of this case that requires our court to overrule Walker and adopt a knowledge prerequisite for the admission of flight evidence. Here, the evidence clearly supports an inference that Ross was aware that police were looking for him in connection with Timothy Cooper’s murder. Ross’ cousin David Robinson, who testified that he was present during the shooting and that Ross did not shoot Cooper, admitted under cross-examination that he had seen Ross’ photograph identified on television 3 or 4 days after tire shooting as the person police sought for Cooper’s murder. At trial, Ross testified that he moved to Washington because of his probation issues. The State argued that Ross vanished after tire shooting because he knew someone would identify him. These competing arguments presented a factual issue for the jury to decide. This is exactly the scenario the Walker court anticipated when concluding that the better approach was to admit flight evidence for the jury to consider, while factors such as time lapse and the defendant’s knowledge going to the weight to be given the flight evidence. Walker, 226 Kan. at 25. Kansas case law specifically allows the admission of evidence of the defendant’s flight without restriction. See Walker, 226 Kan. at 25. Ross fails to cite any new authority since White and Jackson, which were previously rejected by this court in Walker, to support overruling Walker. Therefore, the trial court did not err when it admitted evidence of Ross’ flight. II. Evidence of gang affiliation Next, Ross claims that the trial court erroneously admitted evidence that he was a member of a gang. Ross’ first cousin, David Robinson, testified that he was with Ross at the Paradise Club on the night of the shooting and Ross was not the shooter. On cross-examination, the State asked Robinson whether he and Ross were members of the same organizations or clubs. When Robinson responded that they were not, the State asked specifically whether Robinson and Ross were both members of the Tru Boys street gang. Robinson again answered no. To rebut Robinson’s answer, the State established that Robinson had “TRU” tattooed on his right shoulder. The State also presented rebuttal evidence from Wichita police officers who testified that Ross and Robinson were active members of the Tru Boys gang. In closing argument, the State attacked Robinson’s credibility by pointing out the discrepancy between his denial of membership in the Tru Boys gang and the presence of “TRU” tattooed on his shoulder. The State did not mention Ross’ membership in the gang or highlight Robinson’s potential bias arising because he and Ross were both gang members. Evidence of gang membership is admissible if relevant. Jamison, 269 Kan. at 568. The first question for the admission of this evidence is relevance. If an appellate court concludes that the evidence is relevant, it applies the rules of evidence and reviews the trial court’s decision either as a matter of law or as the exercise of the district judge’s discretion, depending on the requirements of the rule in question. Carter, 278 Kan. at 77. Evidence of gang affiliation is admissible to establish a motive for an otherwise inexplicable act or to show witness bias. State v. Lowe, 276 Kan. 957, 961, 80 P.3d 1156 (2003) (approving admission to show motive for otherwise inexplicable crime); State v. Roberts, 261 Kan. 320, 324-25, 931 P.2d 683 (1997) (approving admission to show witness bias and credibility). “ ‘[P]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.’ ” State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 (1996) (quoting United States v. Abel, 469 U.S. 45, 52, 83 L. Ed. 2d 450, 105 S. Ct. 465 [1984]), and holding that evidence of gang membership created a stronger inference of bias than mere friendship). K.S.A. 60-455 does not apply because evidence of gang membership is not evidence of a crime or civil wrong. Lowe, 276 Kan. at 963. The statute that addresses the admission of gang evidence is K.S.A. 60-445, which allows the trial court discretion to determine whether the evidence is more probative than prejudicial. The trial court’s decision is reviewed using an abuse of discretion standard. Lowe, 276 Kan. at 961. Ross argues that the gang evidence was not relevant, was highly prejudicial, and was unnecessary to establish bias. Ross argues the State established the possibility of bias by informing the jury of Robinson’s and Ross’ familial relationship as first cousins. This argument limits litigants to one form of impeachment. The rules of evidence do not require such limitation. Furthermore, this court has concluded that the issue of whether a particular bias is more weighty than another for impeachment purposes goes to the weight of the evidence, not its admissibility. Roberts, 261 Kan. at 324 (discussing a familial versus gang relationship). The weight of the evidence is within the jury’s purview and not for this court to review. Roberts, 261 Kan. at 324. Accordingly, Ross’ argument regarding the relevance of the gang evidence has no merit. Ross further argues that the State did not use the gang evidence to establish bias because no argument regarding Robinson’s bias was included in the State’s closing argument. This argument also lacks merit. We note that there is no rule requiring the State to address all or any potential impeachment evidence it had previously introduced in its closing argument. Finally, Ross argues that the evidence was not properly admitted for proving bias because the State did not introduce evidence that gang members protect each other. Although the State presented such evidence in Knighten, the Knighten court did not establish a prerequisite requiring evidence of gang members’ propensity to He for each other before the admission of gang membership to show bias. See 260 Kan. at 54. In State v. Mathenia, 262 Kan. 890, 901-02, 942 P.2d 624 (1997,) this court approved the use of gang evidence for establishing witness bias without addressing whether the State specifically admitted evidence that gang members will lie for each other. The State argues that evidence of Ross’ and Robinson’s mutual gang membership was relevant to establish Robinson’s bias as a witness and attack Robinson’s credibility. The State then argues that any prejudice to the defendant was overcome by the following instruction to the jury: “Evidence has been introduced that a witness is a member of a gang. “Such evidence, if believed, was not received and may not be considered by you to prove that any person is of bad character or that he has a disposition to commit crimes. “Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show the existence of bias or interest of any witness. “You must weigh it in the same manner as you do all other evidence in the case. “You are not permitted to consider such evidence for any other purpose, and [it] may not be considered in any manner against the defendant, Harvey Ross.” Robinson was a key witness for Ross’ defense. He was the only person at the shooting who testified that Ross was definitely not the shooter. Thus, his credibility and bias for Ross were significant for the jury to consider in determining the weight to be given Robinson’s testimony. Although the evidence that Ross and Robinson were gang members was also prejudicial to Ross, it was highly probative for evaluating the credibility of Robinson’s testimony. The jury was made aware of Robinson’s possible bias for Ross and his inconsistent statements about not being a gang member while having the gang’s name tattooed on his arm. Any prejudicial effect was cured by the judge’s instruction to the jury, which limited its consideration of the gang evidence. This court reviews the admission of gang evidence using a deferential, abuse of discretion standard. Lowe, 276 Kan. at 961. Ross has the burden of estabhshing that the trial court abused its discretion. See State v. Martis, 277 Kan. 267, 280, 83 P.3d 1216 (2004). Judicial discretion is abused when no reasonable person would adopt the trial court’s view. Lowe, 276 Kan. at 961. Here the facts do not support Ross’ claim that the trial court abused its discretion. Thus, the trial court did not err when it admitted evidence of Ross’ affiliation with a gang. III. Cumulative errors Ross argues that he did not receive a fair trial because of cumulative error by the trial court. Cumulative trial errors, when considered collectively may be so significant as to require reversal of the defendant’s conviction. Appellate courts must determine whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. However, if the evidence is overwhelmingly against the defendant, there can be no prejudicial error from this cumulative effect rule. State v. Meeks, 277 Kan. 609, 621, 88 P.3d 789 (2004). To support his claim of cumulative error, Ross again highlights his claims that the trial court erroneously admitted evidence. As previously noted, the trial court did not err by admitting evidence of Ross’ flight or his affiliation with a gang. Without error, there can be no cumulative error. Meeks, 277 Kan. at 621. Thus, this issue is without merit. IV. Criminal history Finally, Ross argues that the district court erroneously relied on his criminal history score without proving it to a jury beyond a reasonable doubt. This issue has previously been decided against Ross in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002), where this court held that die defendant’s criminal history score does not have to be found beyond a reasonable doubt by a jury to satisfy Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This court has subsequently reviewed its decision in Ivory on numerous occasions and found no reason to overrule Ivory. See, e.g., State v. Lackey, 280 Kan. 190, 239-40, 120 P.3d 332 (2005). Affirmed. Lockett, J., Retired, assigned.	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The opinion of the court was delivered by Beier, J.: Defendant Robert J. Engelhardt appeals his conviction for first-degree premeditated murder and his hard 50 sentence, raising several issues on appeal. This court has jurisdiction under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime). Factual Background Engelhardt was on parole but had not reported to his parole officer as directed. He lived in Wichita with his girlfriend, Michelle Drake, and his friends, Brian and Dorothy Smith. One evening Drake tiled to telephone her mother, but Engelhardt became concerned that she was going to call the police and turn him in. Both couples began screaming. Drake described Engelhardt as “irate.” Eventually they all left the house in Brian’s car, with Engelhardt driving. At some point, Engelhardt stopped the car by the side of the road, and he and Brian got out to talk at the back of the car, discussing whether to kill the two women. The group traveled to the trailer home of Engelhardt’s cousin, Kevin Eveland, and Kevin’s wife, Christina, in Newton, Kansas. Christina awoke to yelling outside the trailer. When she tried to wake Kevin, Engelhardt came in and told her and Kevin to get up and go into the living room. Michael Smith, an acquaintance of Kevin’s, had come over to stay for a couple of days and was lying on the couch in the living room. Apparently, Kevin told Engelhardt that Michael had been in prison before. Michael awoke when Engelhardt and Brian started yelling at him, leaning over him, and asking him questions. Engelhardt, in a loud and threatening tone, asked Michael who he wás, why he was there, if he had ever “done jail time,” and if he was a “narc” who had been planted there by tire cops. Michael was unable to answer the questions to the satisfaction of Engelhardt and Brian, who were both drunk and “out of control.” At one point, Engelhardt made Michael lift up his shirt and pull down his pants so that Engelhardt could look for a recording device. . . Engelhardt then went to the kitchen, came back into the living room, and demanded that Dorothy, Drake, Christina, and Kevin go to the trailer’s back bedroom. The four of them did so, and Engelhardt and Brian stayed in the living room with Michael. More yelling then emanated from the living room. Christina, who was pregnant, lay down on the bed in the back bedroom and held her hands over her ears. Kevin and Drake also had their hands over Christina’s ears, and Kevin placed a pillow over her head because of Michael’s screaming. Michael, sounding terrified, repeatedly said, “No.” When asked later why she did not call the police, Christina testified that Engelhardt had directed them to unplug the phone when he first arrived. Engelhardt had said that “they were fighting,” and he did not want the police to be called. James Striplin also lived in the trailer. He was asleep in another bedroom and woke up when Engelhardt and the others arrived. From his room, Striplin heard arguing, crying, and yelling. He later testified that he heard a discussion with Michael about prison and a cemetery around a prison. He also heard Michael say, “No, no, no.” Striplin stayed in his room because he thought Michael was being smacked around and “it wasn’t [his] place” to get involved. When the screaming stopped it “just went quiet,” and Striplin fell asleep. During the attack on Michael and its immediate aftermath, Drake emerged from the back bedroom three times. The first time she walked down the hall toward the living room, looked in, and walked back to the bedroom. At that time, Engelhardt and Brian were hovering over Michael, and Michael was screaming; both Engelhardt and Brian were attacking Michael, but she could not see much because of the angle of the couch. When Drake came out a second time, Engelhardt took her back to the bedroom and told her to stay there. The third time Drake left the bedroom, the screaming had stopped. She walked out to the kitchen and saw Engelhardt and Brian standing there, both covered with blood. Engelhardt held a large bloody butcher knife in his hand. Drake walked over to Michael and found him dead; there was blood everywhere, and Michael was, using her word, “demolished.” The entire event lasted 20 or 30 minutes. Drake helped Engelhardt and Brian put Michael’s body on a shower curtain and into the back seat of Michael’s car. Engelhardt drove Michael’s car into the country, and Drake and Brian followed in Brian’s car. Engelhardt and Brian dropped Michael’s body into a ditch. The two men then drove Michael’s car (and Drake followed) to another location and left it. They returned with Drake to the trailer. Christina later testified that, after the trailer got quiet, Engelhardt had come back to the bedroom and told her, Kevin, and Dorothy in a threatening tone to stay there until he returned. Engelhardt had blood on his clothes and his hands. Drake then left with him. When they returned, according to Christina, Engelhardt was covered “from head to toe” with blood. Engelhardt said Michael was there to “narc,” so he “took care of the problem.” Dorothy testified that Engelhardt said he had killed Michael. Engelhardt told the others to clean up the trailer. In the living room there was blood on the walls, on the ceiling, in two puddles on the floor by the couch, and all over the couch. They dismantled the couch, tore out the caipet, and put everything that had blood on it into the back of Kevin’s truck. Engelhardt and Striplin took the items in the truck and burned them. Kevin went with Engelhardt to Wichita to get paint and carpet from die home of Paul Dickerson, Drake’s former boyfriend. Kevin overheard Engelhardt tell Dickerson, ‘We just killed somebody.” Dickerson later testified that Engelhardt said, “I killed somebody.” Back at the trailer, Engelhardt told the others to tell police that the couch was gone because Striplin had fallen asleep on it with a cigarette and the couch had “burned up.” Michael’s decomposing body was found 6 days after he was killed. He had been stabbed approximately 55 times in the head and chest. Michael’s car also was found nearby, its keys still in the ignition. When evidence led police to the trailer, Kevin initially told them that Michael had left to get some food and never returned. When asked about the missing couch, Kevin and Christina said Striplin had fallen asleep with a burning cigarette and set the couch on fire, as Engelhardt had instructed them. However, after arson investigators started examining the scene, Kevin approached one of the detectives and said, “They killed a man on my couch, they stabbed him and we’ve been forced to help.” In Drake’s original statements to police, she placed the blame for die killing on Brian. This was the story she, Engelhardt, Dorothy, and Brian had discussed and agreed upon. Engelhardt had told Drake she would go to jail for 40 years because she was an accessoiy; after the State granted her immunity, she agreed to testify against Engelhardt. According to Drake’s testimony, Engelhardt told her he sliced Michael’s throat and stabbed him in the heart to “put him out of his misery.” Brian testified against Engelhardt pursuant to a plea agreement in which Brian agreed to plead guilty to second-degree unintentional murder. Brian told police that he and Engelhardt had come up with a plan for Brian to take most of the blame for the killing; if witnesses became a problem, Engelhardt was to kill them. Brian said he had agreed to the plan to protect Dorothy and admitted to police that he “just goes off on people” when drunk. Brian further admitted that he and Engelhardt had been drinking on the night of the murder and said that they tended to “feed” off each other during altercations. Brian had three different interviews with police. In all three he admitted that he was the first to stab Michael. And initially, as planned, he took the blame for the murder. By the time of the second interview, Brian said everything in his first statement was true except that he had left out that Engelhardt helped him “ ‘do this dude/ ” At some point, Brian also told police that Engelhardt was trying to lay the whole blame on him and that Brian did not understand why. According to Brian, Engelhardt told Michael to answer his questions or Brian would kill him. During one police interview, Brian admitted to being the first to take a paring knife from a ldtchen drawer. Then Engelhardt got a second paring knife and a butcher knife from tire ldtchen. In another version of Brian’s story, Brian obtained the butcher knife from the ldtchen. As Brian was stabbing Michael, Engelhardt told Brian to “cut him deeper.” In yet another version of Brian’s story, Brian said Engelhardt tried to pull him off of Michael and make him stop. Brian also said that, after he and Engelhardt had inflicted multiple wounds but Michael was still talking, Engelhardt said, “We have to kill him, we’ll go to jail for what we’ve done.” Brian said that was when Engelhardt cut Michael’s throat and stabbed him in the chest. Police discovered blood on Striplin’s socks and shoes, and he eventually led police to the location where he and Engelhardt had burned the bloody items from the house. Officers also found seven knives at the burn site, including paring knives and a larger knife. They found another knife in a bag of trash near the trailer. The State charged Engelhardt with first-degree premeditated murder, three counts of kidnapping, three counts of criminal threat, one count of battery, and one count of aiding a felon. The jury found him guilty of first-degree murder and aiding a felon; however, the district judge dismissed the conviction for aiding a felon as multiplicitous. The judge then sentenced Engelhardt to die hard 50 life sentence. Jury View of Crime Scene Engelhardt first contends the district judge committed reversible error by allowing the jury to view the interior of the trailer crime scene outside the defendant’s presence. Kansas cases have held that a district judge’s decision whether to permit a jury to view a crime scene is discretionary. State v. Morton, 217 Kan. 642, 644, 538 P.2d 675 (1975); State v. Winston, 214 Kan. 525, 530, 520 P.2d 1204 (1974). And we have refused to reverse such a decision unless it qualifies as an abuse of discretion that appears to have affected the substantial rights of the objecting party. State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996). This is the correct analysis under the Kansas statute that addresses jury views most directly, K.S.A. 22-3418, which states: “Whenever in the opinion of the court it is proper for the jurors to have a view of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. They may he accompanied by the defendant, his counsel and the prosecuting attorney. While the jurors are thus absent, no person other than the officer and the person appointed to show them the place shall speak to them on any subject connected with the trial. The officer or person appointed to show them the place shall speak to the jurors only to the extent necessary to conduct them to and identify the place or thing in question.” (Emphasis added.) In this case, the State invoked this statute in its motion to permit members of the jury to walk through the trailer where the murder took place, asserting the jury view would assist the jury in understanding the amount of space in the trailer and its layout. Defense counsel objected, arguing the jury view would be a “critical stage” in the proceedings against Engelhardt, that the jury would be see ing evidence, and that Engelhardt therefore had a right to be inside the trailer during the jury view. The district judge offered Engelhardt the opportunity to be present outside the trailer but ruled he would not be allowed inside the trailer because of its close quarters. Defense counsel rejected the judge’s suggestion that Engelhardt could wait in a car across the street from the trailer so the jury would not see him in shackles. Defense counsel also rejected the prosecutor’s suggestion that Engelhardt be permitted to stand outside the trailer with the judge and counsel for both sides. Ultimately only the jurors were taken to the scene by the bailiff. They had previously been directed by the district judge to enter the trailer two at a time, walk to one end and back, and then get back on the county bus that had transported them. The judge had further admonished the jurors not to talk among themselves or touch anything in the trailer. K.S.A. 22-3418 provides no absolute right for a criminal defendant to be present at a jury view of a crime scene. On the contrary, the statutory language is plainly permissive; jurors “may be” accompanied by the defendant on such a juiy view, but the defendant’s presence is not required. Given the space limitations of the trailer crime scene here, the district judge’s admonition to jurors not to talk during the view, and Engelhardt’s rejection of two reasonable suggestions that would have allowed him to be present just outside the trailer while jurors walked through it, we see no abuse of discretion under K.S.A. 22-3418. This claim requires further analysis, however. Engelhardt also appears to argue that his absence from the jury view in this case denied him his state statutory right as well as his federal constitutional rights under the Confrontation and Due Process Clauses of the United States Constitution to be present at all critical stages of his trial. Claims that require us to engage in interpretation of statutes and constitutional analysis raise legal questions subject to unlimited review on appeal. See State v. Maass, 275 Kan. 328, 330 64 P.3d 382 (2003) (interpretation of statutes); State v. Rivera 277 Kan. 109, 113, 83 P.3d 169 (2004) (constitutional evaluation). K.S.A. 2004 Supp. 22-3405 states that a defendant in a felony case “shall be present ... at every stage of the trial . . . except as otherwise provided by law.” This statute has been interpreted to mean that the defendant must be present at any stage of the trial when the jury is in the courtroom or when the defendant’s presence is “ ‘essential to a fair and just determination of a substantial issue.’ ” State v. Lopez, 271 Kan. 119, 130, 22 P.3d 1040 (2001); State v. Edwards, 264 Kan. 177, 197, 955 P.2d 1276 (1998); State v. Turbeville, 235 Kan. 993, 1002, 686 P.2d 138 (1984); State v. Rhoads, 20 Kan. App. 2d 790, 794, 892 P.2d 918 (1995). In addition, the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require a defendant’s presence at every critical stage of the criminal proceedings against him or her. Lopez, 271 Kan. at 129-30; see Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970); State v. Mann, 274 Kan. 670, 680, 56 P.3d 212 (2002). We have previously determined that the statutory command of K.S.A. 2004 Supp. 22-3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her. See Edwards, 264 Kan. at 197 (holding defendant “has the constitutional right to be present at all critical stages of the trial” as codified in Kansas by K.S.A. 22-3405(1) and that “[i]n determining whether a proceeding is a critical stage, this court must examine whether the defendant’s presence is essential to a fair and just determination of a substantial issue”). With regard to whether jury views should be regarded as a critical stage in criminal proceedings, State v. Stratton, 103 Kan. 226, 173 Pac. 300 (1918), provides guidance on this court’s early 20th-century approach. In that case, this court upheld a jury’s view of a crime scene when jurors were accompanied only by a court officer. The court rejected the defendant’s constitutional claim in part because it determined he had waived his right to confrontation. In addition, however, the court cited Dean John Hemy Wigmore for the proposition that a defendant’s rights are not violated by a jury’s inspection of a crime scene in his or her absence, because no witnesses are examined. Stratton, 103 Kan. at 227 (citing 3 Wigmore on Evidence § 1803 [see Chadboum rev. 1976]). Other Kansas cases have consistently upheld jury views outside the presence of defendants. See, e.g., Hickles, 261 Kan. at 88-89 (no prejudice); State v. Laubach, 220 Kan. 679, 681, 556 P.2d 405 (1976) (no error in district court’s order for jury to view crime scene without first consulting defense, prosecution); State v. McCorgary, 218 Kan. 358, 363-64, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976) (no refusal absent showing of abuse of discretion affirmatively appearing to have affected defendant’s substantial rights); State v. Zakoura, 145 Kan. 804, 812-13, 68 P.2d 11 (1937) (jury’s view of crime scene in accordance with statutoiy procedure, approved practice; no error when defendant did not accompany jury); State v. Harris, 103 Kan. 347, 352-53, 175 Pac. 153 (1918) (unauthorized viewing does not “vitiate the verdict” unless inspection prejudiced defendant); State v. Adams, 20 Kan. 311, 323-26 (1878) (defendant waived right to confrontation; trial not temporarily transferred from courthouse to scene). Engelhardt cites State v. Garza, 26 Kan. App. 2d 426, 431-32, 991 P.2d 905, rev. denied 267 Kan. 891 (1999), in general support of his contentions. Garza provides no assistance to Engelhardt, however, because that case did not involve a jury view. In Garza, the Court of Appeals examined whether the defendant’s right to confrontation and due process were violated by his absence from two hearings in the courtroom. Under the facts of this case, we hold that the jury view did not result in a violation of either K.S.A. 2004 Supp. 22-3405(1) or Engelhardt’s federal constitutional rights to confrontation and due process. The parties are correct that the jury view enabled the jury to more fully appreciate the space available in the trailer and the distance between the place of the attack and the witnesses who had been in the bedrooms while the attack was taking place. It also permitted the jury to see the results of the clean-up job described by witnesses. However, the role of the jury view was strictly corroborative. Engelhardt’s presence was not “essential to a fair and just determination of a substantial issue” and thus the jury view did not constitute a critical stage of the proceedings against him. We are sensitive to the need for us to distinguish this case from our recent opinion in State v. Calderon, 270 Kan. 241, 245-46, 13 P.3d 871 (2000). This can be done both factually and legally. In Calderon, this court evaluated a defendant’s claim that 22-3405(1) and his constitutional right to be present were violated because no interpreter was provided for him during the closing arguments at his trial. Factually, no jury view was in issue; the defendant was physically present, and the juiy was in the courtroom. Legally, the issue before the court in Calderon was whether a defendant who cannot understand the language in which a proceeding is conducted is “present” in a constitutional sense. Here the issue is whether a particular jury view constituted a critical stage of the criminal proceedings. There was no question in Calderon that closing arguments constituted a critical stage, just as there is no question here that Engelhardt was not present at the jury view. Finally, even if we were to determine there was statutory or constitutional error in excluding Engelhardt from the interior of the trailer during the jury view, that error would not merit reversal. Although Calderon indicated that a harmless error inquiry could be inappropriate in certain circumstances when a defendant had been excluded from a trial, see 270 Kan. at 248-53, subsequent cases have limited its structural error approach to its unique facts. See Mann, 274 Kan. at 682-84 (harmless error applies; defendant’s absence from trial judge’s conversation with four jurors did not “implicate a basic consideration of fairness or undermine the function of a criminal trial”); Lopez, 271 Kan. at 134 (harmless error rule applies; defendant absent from juror questioning in chambers not “denied a meaningful presence at a critical stage of his trial, nor did his absence . . . implicate the basic consideration of fairness or undermine the function of a criminal trial”). The Court of Appeals applied a harmless error analysis even in a situation far more similar to that before us in Calderon. See State v. Dosal, No. 89,436, unpublished opinion filed March 26, 2004. In Dosal, a defendant who could understand and communicate in English, as his second language, was not supplied with an interpreter during clos ing arguments. Because he could understand the proceedings, unlike the defendant in Calderon, the basic consideration of fairness was not implicated by the absence of an interpreter, and the court held a structural error analysis would be inappropriate. Dosal, Slip op. at 2-3. In light of the overwhelming evidence against Engelhardt in this case, any theoretical error in excluding him from the juiy view would have been harmless under any potentially applicable formula. See Chapman v. California, 386 U.S. 18, 21-22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (if appellate court able to declare beyond a reasonable doubt error had little, if any, likelihood of having charged result of trial, error harmless); State v. Kendall, 274 Kan. 1003, 1010, 58 P.3d 660 (2002) (errors not affirmatively causing prejudice to substantial rights of defendant, not preventing substantial justice deemed harmless). Engelhardt also takes issue with the jury view on the independent grounds that it was cumulative and prejudicial — cumulative because the State also admitted photographs of the trailer into evidence and prejudicial because his absence could have contributed to a jury perception that he was dangerous or a flight risk. Engelhardt cites no legal authority to support these arguments; we have previously rejected the first and see no logic in the second. In McCorgary, 218 Kan. at 364, we approved the use of a jury view as well as the admission of photographs of the scene. As for the possibility that Engelhardt’s absence may have contributed to a jury perception of him as a flight risk or dangerous, we have no doubt that jurors seeing him inside the trailer in shackles and accompanied by police officers would have been led to a similar, perhaps stronger, perception. Prior Bad Acts Engelhardt argues the district judge erred by allowing the State to introduce evidence of his other crimes or civil wrongs, i.e., prior “bad acts,” specifically: (1) his parole status; (2) a photograph of Drake with bruises allegedly inflicted by him; (3) his use of Brian Smith’s identification when stopped by police; and (4) his mug shot. We have stated many times in the past that this court reviews the admission or exclusion of evidence under an abuse of discretion standard. See, e.g., State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). We have recently clarified this standard of review, reaffirming relevance as tire first consideration of the district judge. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); State v. Shelby, 277 Kan. 668, 679-80, 89 P.3d 558 (2004) (Nuss, J., concurring); State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004); State v. Bloom, 273 Kan. 291, 303, 44 P.3d 305 (2002); K.S.A. 60-407(f). Furthermore, “[o]nce relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” Carter, 278 Kan. at 77. The principal rule on admission of evidence of other crimes or bad acts is K.S.A. 60-455. It reads: “Subject to K.S.A. 60-447, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as a basis for an inference that the person committed another crime or civil wrong on anodrer specified occasion but, subject to K.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identify or absence of mistake or accident.” If evidence is to be admitted under this statute, three requirements must be satisfied. State v. Boorigie, 273 Kan. 18, 34, 41 P.3d 764 (2002). First, the evidence must be relevant in proving one of the facts specified in K.S.A. 60-455. Second, the disputed fact must be a material fact. Finally, the probative value of the evidence must outweigh any potential prejudice. As long as tírese requirements are met, we review the district judge’s ruling under an abuse of discretion standard. State v. Moore, 274 Kan. 639, 647, 55 P.3d 903 (2002); see also State v. Wilkerson, 278 Kan. 147, 153, 91 P.3d 1181 (2004) (when evidence admitted under K.S.A. 60-455, limiting instruction must be given). We also have permitted evidence of other crimes or bad acts to be admitted independent of K.S.A. 60-455 in certain circumstances. For example, Kansas cases have recognized that “ ‘[a]cts done or declarations made before, during or after the happening of the principal occurrence may be admissible as part of the res gestae where the acts are so closely connected with it as to form in reality a part of the occurrence. [Citations omitted.]’ ” State v. Davis, 256 Kan. 1, 21, 883 P.2d 735 (1994). Res gestae evidence, although not proving part of the charged crime, has a natural, necessary, or logical connection to the crime. State v. Gadelkarim, 256 Kan. 671, 690, 887 P.2d 88 (1994). Engelhardt argues that none of the evidence about which he complains was admissible under K.S.A. 60-455 and that the district judge failed to consider fully whether the evidence was relevant. Before the district court, Engelhardt filed a motion in limine invoking K.S.A. 60-455 regarding his parole status evidence, but he did not object at trial that any of the other evidence challenged on appeal violated K.S.A. 60-455. It is well established that “[t]he defendant cannot object to the introduction of evidence on one ground at trial and then assert a different ground on appeal.” State v. Synoracki, 253 Kan. 59, Syl. ¶ 10, 853 P.2d 24 (1993). As for the State, at trial it made a K.S.A. 60-455 or res gestae evidence argument only with regard to the evidence of Engelhardt’s parole status. On appeal the State argues that each piece of evidence was relevant, permitted under K.S.A. 60-455, and part of the res gestae. We now discuss each piece of challenged evidence in turn. Evidence Regarding Parole Status The district court denied Engelhardt’s pretrial motion in limine to prevent the jury from hearing testimony regarding statements made at or near the time of the murder about Engelhardt’s previous time in prison or his parole status. The court found the statements to be part of the res gestae as well as admissible under K.S.A. 60-455 as relevant to Engelhardt’s possible motive, i.e., fear that Michael was a police informant who would report him. Engelhardt contends that this evidence failed to meet the second requirement under K.S.A. 60-455 because motive was not a substantial issue in this case. In his view, motive is merely a form of identity evidence; and the identity of the killer or killers was not in question because numerous witnesses testified Brian and Engelhardt were present when Michael was killed. Engelhardt is mistaken in his assertion that motive evidence is merely a proxy for identity evidence. Although proof of motive can form a part of the State’s proof of identity when identity is in question, it also can go far beyond that. Motive supplies the juiy with some degree of explanation, responding to a juror’s natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State’s theoiy of its case. Motive makes some sense out of what otherwise appear to be completely senseless crimes. See State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002) (motive shown by “longstanding bad blood between an assailant and the victim”); State v. Jordan, 250 Kan. 180, Syl. ¶ 8, 825 P.2d 157 (1992) (“Motive is that which incites or stimulates a person to do an action.”). Engelhardt also emphasizes that there were no previous encounters between himself and the victim, Michael. If this is so, he argues, Michael could not have known he was on parole. Further, he asserts, there was no direct testimony showing he was fearful that Michael might report his parole status; thus, the State’s theory about his motive could have been no more than “pure supposition,” admitted only to inflame the passions of the jury. Engelhardt overlooks ample testimony indirectly supporting the State’s theory that he killed Michael because he was afraid Michael was a snitch who would report him as a parole absconder. Engelhardt had questioned Michael about being a “narc” or a “snitch.” Striplin indicated that Engelhardt walked by his bedroom, opened the door, looked in, and said that he knew Striplin and “that was cool and [Striplin therefore] had nothing to worry about.” In addition, the evidence demonstrated Engelhardt had been angry with Drake earlier in the evening — indeed, he and Brian discussed the possibility of killing her — because he suspected she was going to call the police. We are convinced by review of the record that motive, one of the facts enumerated in K.S.A. 60-455, was in issue. Engelhardt’s fear of being reported for absconding from parole was a recurring theme in the evidence of the events and conversations leading up to the murder. There was a logical, even necessary, connection between this evidence and the otherwise sudden attack on the victim. See Jordan, 250 Kan. at 191-92 (without prior crimes evidence, jury would have been confused concerning hostility between principal actors). The prejudice from this evidence was not undue; nor did it outweigh its probative value. The district judge had good reason to admit the evidence and did not abuse his discretion in doing so. He gave an appropriate limiting instruction. Given our holding that K.S.A. 60-455 permitted admission of the parole status evidence, we need not address the district judge’s further res gestae justification for his ruling. Photograph of Drake During defense counsel’s cross-examination of Engelhardt’s girlfriend, Drake, she said she felt threatened on the night of the murder by Engelhardt’s and Brian’s actions. Defense counsel then referred to her preliminary hearing testimony in which she denied that Engelhardt ever threatened her. During the State’s redirect, the prosecutor attempted to introduce, over defense counsel’s objections, a photograph of Drake taken at the time of her arrest after the murder. The photograph depicted bruises on her face. After hearing argument outside the presence of the jury, the district judge allowed the State to introduce tire photograph because it showed the relationship between the parties and because it was relevant to Drake’s testimony that she was fearful, noting she had initially refused to implicate Engelhardt and later changed her mind. Once the parties were back before the jury, defense counsel again objected to introduction of the photograph, this time based on lack of foundation. Drake then identified herself in the photograph and testified that Engelhardt had hit her in the face with his fist, producing the bruising shown in the photograph. On re-cross, when defense counsel asked Drake how she got the injuries shown in the photograph, she testified that Engelhardt got angry when she told him about his brother-in-law making a sexual advance toward her. She and Engelhardt argued at the trailer, and Engelhardt hit her because she “was getting loud and the cops were down the street.” This incident happened 3 or 4 days after the murder. Engelhardt now argues the photograph was not admissible as part of the res gestae because the incident that gave rise to Drake’s bruises occurred several days after the murder and had nothing to do with it. Evidence is relevant if it renders a desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact. State v. Sexton, 256 Kan. 344, Syl. ¶ 1, 886 P.2d 811 (1994). Although the “relationship of the parties” is frequently suggested as a basis independent of K.S.A. 60-455 to admit prior bad acts evidence, Kansas appellate courts have consistently limited it to evidence that establishes the relationship between the defendant and the victim — not the relationship between codefendants or between the defendant and a witness. See, e.g., State v. Lumley, 266 Kan. 939, 953-54, 976 P.2d 486 (1999); State v. Carr, 265 Kan. 608, 624, 963 P.2d 421 (1998); State v. Jones, 247 Kan. 537, 547, 802 P.2d 533 (1990); State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981). We also tend to agree with Engelhardt that the photograph was not admissible to prove part of the res gestae or to explain why Drake may have initially lied to protect Engelhardt. Her testimony on re-cross concerning the circumstances that led to Engelhardt’s violence against her demonstrates no connection to the crime or her changeable stories about it. Regardless, however, we hold that any error in admitting this photograph was harmless. Reversal is required only where an erroneous admission of evidence “is of such a nature as to affect the outcome of the trial and deny substantial justice.” State v. Walker, 239 Kan. 635, Syl. ¶ 6, 722 P.2d 556 (1986). We are confident the State’s overwhelming evidence of Engelhardt’s guilt would have led to his conviction, with or without admission of the photograph. Use of Brian Smith’s Identification Engelhardt also takes issue with the State’s introduction of evidence, over defense counsel’s objection, that Engelhardt used Brian Smith’s identification during a traffic stop a few days after the murder. He argues the evidence was irrelevant. Defense counsel made only general objections to this evidence at trial; there was no objection based on relevance. “ ‘[A] timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal.’ [Citations omitted.]” State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002); see K.S.A. 60-404. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different objection. State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002). Moreover, even if the evidence of Engelhardt’s use of the identification was irrelevant, and an objection was preserved, any erroneous admission was harmless. As stated above, the jury was presented overwhelming evidence of Engelhardt’s guilt; the exclusion of the identification evidence would not have changed the result of the trial. Engelhardt’s Mug Shot Engelhardt also complains about the State’s introduction of his mug shot taken at a detention center in Newton after he was arrested on the parole warrant. The district judge overruled defense counsel’s relevance objection to the mug shot. The reasons for the mug shot’s admission are unclear. However, even if we agree that the mug shot’s admission was error, that error was harmless in view of the weight of the evidence. Jury Instructions on Aiding and Abetting Engelhardt contends that jury Instructions Nos. 14 and 15 on aiding and abetting, given together, contained misstatements of law that rendered them confusing and misleading. Instruction No. 14 read: “A person who, either before or during its commission, intentionally aids, abets, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.” Instruction No. 15 read: “A person who intentionally aids or abets another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.” Instruction No. 14 conforms to the language of PIK Crim. 3d 54.05 (Responsibility for Crimes of Another), and Instruction No. 15 follows PIK Crim. 3d 54.06 (Responsibility for Crimes of Another — Crime Not Intended). Because defense counsel objected during the jury instructions conference, the following familiar standard of appellate review applies: “ ‘[The appellate court is] required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.’ [Citation omitted.]” State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002). This court has previously approved each of the challenged instructions individually. See State v. Manard, 267 Kan. 20, 34, 978 P.2d 253 (1999) (PIK Crim. 3d 54.05); State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) (PIK Crim 3d 54.06). Engelhardt argues that the district judge’s error was in the decision to give the two instructions together. PIK Crim. 3d 54.05 is congruent with K.S.A. 21-3205(1), which provides that a “person is criminally responsible for a crime committed by another if such person intentionally aids [and] abets . . . the other to commit the crime.” The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim. PIK Crim. 3d 54.06 conforms with K.S.A. 21-3205(2). Under K.S.A. 21-3205(2), a person hable under subsection (1) of the statute is also liable “for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” Engelhardt argues that the use of PIK Crim. 3d 54.06 was confusing because the instruction did not specify which crime was the allegedly intended crime, i.e., the underlying charge, and which crime was the “other crime” committed in pursuit of the underlying crime. According to Engelhardt, this instruction impermissibly lowered the prosecution’s burden of proof for premeditated first-degree murder because the State was not required to prove the specific intent of premeditation. The district judge gave Instruction No. 15 because he believed it would be possible on the evidence for the jury to conclude Engelhardt was aiding and abetting Brian and yet question whether Brian ever intended to kill the victim during the stabbing. The court noted that, when Brian was questioned by an officer about whether his intention ever changed from merely stabbing Michael to lulling him, Brian answered, “No.” The court reasoned that the acts committed by Engelhardt and Brian before the infliction of the “death blows” constituted a crime, and, in the context of aiding and abetting the crime, the murder was reasonably foreseeable. In other words, Instruction No. 15 was effectively a felony-murder instruction. The State argues that, even if Brian initially intended only to inflict serious harm on Michael, i.e., aggravated battery, Engelhardt could have been held liable for Michael’s murder as an aider and abettor. The problem with this argument is that the juiy was never instructed on aggravated battery. Although an accused is not required to be charged with, prosecuted for, or convicted of an underlying felony in order to be convicted of felony murder, the felony murder itself must be instructed upon. That did not occur here. See State v. Wise, 237 Kan. 117, 122-23, 697 P.2d 1295 (1985). Further, if a felony-murder theory had been advanced by the State and instructed upon, it is well established that PIK Crim. 3d 54.05 rather than PIK Crim. 3d 54.06 would have been the appropriate aiding and abetting instruction. Gleason, 277 Kan. at 637-38. We therefore hold that the district judge erred by giving Instruction No. 15. However, we again find the error was harmless. The overwhelming evidence in this case demonstrated that Engelhardt was guilty of either intentionally murdering the victim or aiding and abetting the intentional murder. The victim was stabbed approximately 55 times, and Engelhardt was clearly involved. He was not an innocent bystander. The jury instructions and the evidence, considered as a whole, did not mislead the jury, even if the instructions were in some way erroneous. See State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998). Lesser Included Crime Instructions Engelhardt argues the district judge erred by failing to instruct the jury on unintentional second-degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses of first-degree murder. At trial, Engelhardt objected to instructions on any of these lesser included offenses. Defense counsel also specifically objected unsuccessfully to the intentional second-degree murder instruction given by the district judge, requesting he add language to PIK Crim. 3d 56.03 to inform the jury that intentional second-degree murder does not include situations involving mere “heat of passion” or “sudden quarrel.” The district court must instruct the jury as to lesser included crimes where “there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto.” K.S.A. 2004 Supp. 22-3414(3). Lesser included crime instructions need not be given if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offenses. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993); see also State v. Brice, 276 Kan. 758, 772-73, 80 P.3d 1113 (2003) (no obligation to instruct on lesser included offenses arises unless offense supported by enough evidence to reach jury). In addition, when a defendant does not object to the giving or failure to give lesser included crime instructions, stating distinctly the matter to which the defendant objects and the grounds of his or her objection, we will find reversible error only if the instructions or failure to give the instructions was clearly erroneous. See K.S.A. 2004 Supp. 22-3414(3); State v. Kesselring, 279 Kan. 671, 685-86, 112 P.3d 175, 187 (2005); State v. Drennan, 278 Kan. 704, 712, 101 P.3d 1218 (2004). When there is an absence of evidence to support a lesser included crime instruction, a failure to give it cannot, by definition, be held to be clearly erroneous. Unintentional second-degree murder is a killing committed recklessly under circumstances manifesting extreme indifference to the value of human life. K.S.A. 2004 Supp. 21-3402(b). Voluntary manslaughter requires a killing to be committed intentionally upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403(a). It is well settled that voluntary manslaughter, like second-degree murder, is a lesser included offense of first-degree murder. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). Involuntary manslaughter, defined in K.S.A. 2004 Supp. 21-3404(a) to include a killing differing from reckless second-degree murder only in the degree of recklessness required to prove culpability, see State v. Davidson, 267 Kan. 667, Syl. ¶ 2, 987 P.2d 335 (1999), also is a lesser included offense of first-degree murder. See State v. Hebert, 277 Kan. 61, 105-06, 82 P.3d 470 (2004); State v. Calderon, 270 Kan. 241, 255-56, 13 P.3d 871 (2000). Engelhardt, who clearly adopted an all-or-nothing strategy at trial, now contends that his jury should have had a chance to conclude the murder arose in the heat of passion or during a sudden quarrel, i.e., it amounted to no more than a voluntary manslaughter. In his view, the interrogation and torture of the victim occurred during a “drunken rampage.” Engelhardt also points to Brian’s inconsistent statements concerning Engelhardt’s level of involvement in the murder, asserting the jury could have concluded the attack was an “aggravated battery gone awry.” We view the evidence very differently. The victim’s dozens of wounds, inflicted during a period of approximately 20 minutes, negate any claim that the stabbing and killing were unintentional. Further, “heat of passion” involves an “emotional state of mind ... of such a degree as would cause an ordinary man to act on impulse without reflection.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). A “sudden quarrel” involves provocation sufficient to cause an ordinary person to lose control of his or her actions and reason. Guebara, 236 Kan. at 796. The fact that a de fendant’s passion is easily aroused will not be considered in this connection. State v. Jackson, 226 Kan. 302, 307, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (1980). Engelhardt fails to persuade us that a fear of getting caught while absconding on parole would cause an ordinary person to act in the way his behavior was described in this case. He further fails to show adequate provocation. There simply was insufficient evidence to support lesser included crime instructions for unintentional second-degree murder, voluntary manslaughter, or involuntary manslaughter. In such a situation, failure to give the lesser included crime instructions cannot amount to clear error. Moreover, the “skip rule” precludes reversal for the failure to give any of the lesser included crime instructions Engelhardt argues for on appeal. See State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004): “ “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from [a] failure to give an instruction on another still lesser included offense is cured. [Citations omitted.]’ ” (commonly referred to as skip rule). Because the district judge instructed on second-degree intentional murder and the jury convicted Engelhardt on the greater offense of first-degree murder, there can be no reversal for the failure to instruct on the still lesser included offenses of unintentional second-degree murder, voluntary manslaughter, or involuntary manslaughter. Witness’ Polygraph Examination Engelhardt also challenges the district judge’s decision to exclude the results of Brian Smith’s polygraph test. Our standard of review for this exclusion of evidence has previously been stated. See State v. Beard, 273 Kan. 789, 807-08, 46 P.3d 1185 (2002). In regard to polygraph examination results, the Kansas rule is that such results are inadmissible in a criminal proceeding, absent a stipulation by the parties. State v. Deal, 271 Kan. 483, 492, 23 P.3d 840 (2001). This rule is attributable in part to the unreliability of polygraph methodology and in part to protection of the jury’s role as the factfinder. See State v. Shively, 268 Kan. 573, 579-80, 999 P.2d 952 (2000). The parties did not stipu late to the introduction of the results of Brian’s polygraph test in this case. Engelhardt contends that his constitutional rights to confrontation and to present a defense required the admission of Brian’s polygraph test results as “critical impeachment material.” In his original statement to police, Brian took the blame for killing Michael; in a later interview, Brian said Engelhardt had tried to stop him. He then changed his stoiy to say that Engelhardt stabbed Michael in the chest and cut his throat. Apparently, police eventually told Brian that his inconsistent statements meant he would have to take a polygraph examination. However, the polygraph test was not administered until after he had entered into his plea agreement, and the agreement made no provision for it. The examiner determined that Brian was not truthful in his answers when he said that he saw Engelhardt stab Michael in the neck and chest. Engelhardt cites no Kansas case law to support his legal argument on this claim. He does cite cases from two federal courts that have permitted the defense to cross-examine a witness regarding a failure of a polygraph test or inconclusive answers in response to questions asked during such a test. See United States v. Lynn, 856 F.2d 430 (1st Cir. 1988) (abuse of discretion to prohibit defense from cross-examining coconspirator on inconclusive results; exam part of plea agreement); United States v. Hart, 344 F. Supp. 522, 523-24 (E.D.N.Y. 1971) (jury allowed to determine how failed polygraph test affected principal witness’s credibility). We decline to adopt the rule of these cases. Polygraph evidence cannot be presented for purposes of corroboration or impeachment. See Shively, 268 Kan. at 587-88 (citing United States v. Piccinonna, 885 F.2d 1529 [11th Cir. 1989]). We further reject Engelhardt’s contention that a defendant’s Sixth Amendment right to present witnesses in his or her defense requires admission of the type of polygraph evidence sought to be admitted here. See Shively, 268 Kan. at 588 (citing United States v. Scheffer, 523 U.S. 303, 315-17, 140 L. Ed. 2d 413, 118, S. Ct. 1261 [1998]). The district judge did not err in adhering to our longstanding prohibition of polygraph evidence absent a stipulation of the parties. Engelhardt also asserts that the polygraph evidence should have been admitted because of the prosecution’s duty to disclose any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Engelhardt and his counsel were well aware of the polygraph results pretrial. There was no actionable failure to disclose here. Exclusion of Prior Conviction During Witness Cross-Examination Engelhardt next contends the district court erred by prohibiting the defense from impeaching Dorothy Smith by introducing evidence of Brian’s prior aggravated battery conviction. Our standard of review on this evidentiaiy ruling is the same as previously stated. Generally a district judge has discretion to determine the propriety and scope of cross-examination. State v. Hutchinson, 222 Kan. 365, 367, 564 P.2d 545 (1977). However, Engelhardt asserts this issue has constitutional implications, arguing the district court’s limitation of his cross-examination of Dorothy denied him his right to present a defense and effectively cross-examine. See Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974); Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Constitutional claims raise issues of law subject to de novo appellate review. State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004). During the State’s direct examination of Dorothy regarding her relationship with her husband Brian, she testified that there had been “stress and tension between” them and Engelhardt. Over defense counsel’s objection, the district court allowed the prosecutor to question Dorothy about the reason for the tension relevant to the issue of “control.” Dorothy testified that Brian was an alcoholic and that Engelhardt would bring him alcohol, get Brian “very, very drunk,” and try to turn Brian against her. Dorothy further testified that Engelhardt did not like her to be around because then he could not manipulate Brian all the time. The court sustained defense counsel’s objection to this particular statement as “speculative.” On cross-examination, defense counsel asked Dorothy whether Brian “gets violent when he drinks.” She admitted that Brian was an alcoholic but “wouldn’t say [he was] violent.” When questioned further, Dorothy admitted Brian had “broken a few dishes here and there.” When asked whether Brian had broken windows out of cars, Dorothy answered, “What I was told was that that [sic] wasn’t him. I did not directly witness that.” She further testified she could not remember whether Brian had threatened to kill her and Drake, but she admitted she must have said as much if an investigator’s report said she did. Outside the presence of the jury, defense counsel then requested permission to introduce evidence of Brian’s prior violent conduct, such as “aggravated battery,” as part of this cross-examination. The defense argued that the State had attempted, through Dorothy’s testimony, to portray Brian “as a decent guy unless [Engelhardt was] there feeding him alcohol, getting him drunk.” Defense counsel wanted to prove Brian was capable of committing violent acts without the influence of Engelhardt. The district judge denied defense counsel’s request to introduce evidence of Brian’s prior violent conduct, finding the State did not open the door to such evidence. Engelhardt cites the following two cases to support his contention that evidence of Brian’s prior violent conduct should have been admitted to discredit Dorothy generally and to specifically undercut her testimony regarding Brian’s good character. In State v. Mays, 254 Kan. 479, 866 P.2d 1037 (1994), the victim claimed that Mays raped and robbed her. Mays did not deny the victim was raped. Instead, he claimed the victim named him as the offender at the urging of her boyfriend because of a feud over money belonging to the boyfriend that Mays had lost gambling. The excluded evidence in Mays included testimony about the victim’s financial dependence on her boyfriend and her boyfriend’s threat to “get even” with the defendant. See 254 Kan. at 482-86. This court concluded the “exclusion of relevant, admissible, noncumulative evidence bearing upon the credibility of a critical prosecution witness unfairly prejudiced the defendant” and violated Mays’ right to a fair trial. 254 Kan. at 487. In State v. Davis, 237 Kan. 155, 160, 697 P.2d 1321 (1985), during redirect examination of accomplice Donald Coty, defense counsel elicited comments from the witness that “ ‘[robbing] ain’t my lifestyle.’ ” Coty further stated that he had never robbed people. Following his testimony, the defense sought to present testimony from Coty’s mother that Coty made a living committing robbery. This court noted that K.S.A. 60-420 permitted any party, even the party calling a witness, to introduce extrinsic evidence “concerning any conduct by [the witness] or any other matter relevant” for the purpose of attacking the witness’ credibility. However, evidence of traits of a witness’ character “other than honesty or veracity or their opposites, as well as evidence of specific instances of conduct relevant only to prove such traits of character, are inadmissible as affecting credibility.” 237 Kan. at 160 (citing K.S.A. 60-422[c], [d]; State v. Nixon, 223 Kan. 788, 576 P.2d 691 [1978]). The Davis court concluded that the exclusion of the evidence attacking Coty’s credibility was prejudicial to the defendant. 237 Kan. at 160-61. Davis and Mays are distinguishable from the present case. Unlike the situation in Davis, one reason the defense wanted to introduce evidence of Brian’s prior aggravated batteiy conviction in this case was to show that Dorothy knew of this prior bad conduct and was concealing it. This would have been an improper use of such evidence. See Davis, 237 Kan. at 160. Mays is distinguishable because Dorothy was not a “critical” prosecution witness. This was not a he said-she said rape case. Numerous other witnesses testified to the events leading up to the murder and the activities to avoid detection after it occurred. Even if Dorothy’s credibility had been destroyed, Engelhardt faced other highly effective and incriminating accusers. We see no abuse of discretion and no violation of the defendant’s constitutional rights in the district judge’s ruling on the scope of Dorothy’s cross-examination. Cumulative Error Engelhardt argues that the cumulative effect of multiple trial errors denied him a fair trial. “ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). As we previously observed, the evidence against Engelhardt was overwhelming. There was no cumulative error meriting reversal. Motion for New Trial Engelhardt further argues the district court erred by denying his motion for a new trial based on newly discovered evidence under K.S.A. 22-3501(1). This court reviews the denial of a motion for a new trial based on newly discovered evidence for abuse of discretion. Judicial discretion is abused when no reasonable person would adopt the view taken by the district judge. See State v. Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002). A new trial is warranted only if the defendant establishes that the new evidence could not have been produced at trial with the exercise of reasonable diligence and there is a reasonable probability the new evidence would produce a different result upon retrial. State v. Norton, 277 Kan. 432, Syl. ¶ 2, 85 P.3d 686 (2004). Engelhardt argues he should have been granted a new trial because, after his conviction, Brian Smith told fellow inmate Gerald Gray at the Harvey County Jail that Engelhardt was “pissed because I put my case off on him.” Gray allegedly heard Brian say twice that he “put [his] case off on [Engelhardt].” This information was submitted to the district court by way of an affidavit of defense investigator Sue Neeley. Regarding the question of whether this evidence could have been produced at trial with the exercise of reasonable diligence, we note it is not entirely clear when the alleged statements were made. The record shows that Engelhardt was convicted in November 2002, and these statements allegedly occurred after Gray was placed in jail in October 2002. Without more information, we cannot be certain that the statements were made after Engelhardt’s conviction. Even if this hurdle could be overcome, we are skeptical that this evidence would produce a different result if the case were retried. Contrary to Engelhardt’s contention, the State’s evidence did not rest primarily on Brian’s testimony. As discussed above, multiple witnesses offered testimony implicating Engelhardt in the murder. Moreover,- Brian was not called as a witness for the State; he was called by the defense for cross-examination regarding his statements introduced through other witnesses during the State’s case. Moreover, Brian was thoroughly cross-examined on his shifting version of events; his credibility was unquestionably attacked. We hold the district judge did not abuse his discretion by denying Engelhardt’s motion for a new trial based on newly discovered evidence. The introduction into evidence of Brian’s statements to Gray would not produce a different result upon retrial. Constitutionality of Hard SO Sentence Engelhardt contends that Kansas’ hard 50 sentencing formula is unconstitutional because it does not afford criminal defendants the right to have a juiy determine beyond a reasonable doubt all the facts which might increase the maximum penalty for first-degree murder. The constitutionality of a statute is a question of law over which this court has unlimited review. State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002). Engelhardt asks this court to revisit State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), where we upheld a hard 40 sentence as constitutional. See also Harris v. United States, 536 U.S. 545, 567, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (“Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges malee certain factual findings.”). Engelhardt relies on several recent United States Supreme Court cases. See Ring v. Arizona, 536 U.S. 584, 589, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); Apprendi v. New Jersey, 530 U.S. 466, 494, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); Jones v. United States, 526 U.S. 227, 243, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). This court has previously considered these cases and nevertheless upheld the hard 50 sentencing scheme and Conley. See, e.g., State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d 1249 (2004); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 108, 82 P.3d 470 (2004); State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). This challenge to Engelhardt’s sentence fails. Sufficiency of Evidence to Support Hard 50 Sentence The district court imposed the hard 50 sentence after finding: (1) Engelhardt was previously convicted of a felony in which he inflicted great bodily harm, K.S.A. 2004 Supp. 21-4636(a); and (2) the murder was committed in an “especially heinous, atrocious, or cruel manner,” K.S.A. 2004 Supp. 21-4636(f). Engelhardt challenges the sufficiency of the evidence to support the second aggravator. He also contends mitigating factors outweighed the aggravating factors. K.S.A. 2004 Supp. 21-4636 sets forth circumstances that can lead to a finding a defendant committed a crime in an especially heinous, atrocious, or cruel manner: “(f) ... A finding that the victim was aware of such victim’s fate or had conscious pain and suffering as a result of the physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant killed the victim was especially heinous, atrocious or cruel. In making a determination that the crime was committed in an especially heinous, atrocious or cruel manner, any of the following conduct by the defendant may be considered sufficient: (3) infliction of mental anguish or physical abuse before the victim’s death; [and] (4) torture of the victim.” Our standard of review is whether, after review of the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence. State v. Robertson, 279 Kan. 291, 307, 109 P.3d 1174 (2005). When the evidence in this case is viewed in the light most favorable to the prosecution, it supports the district judge’s finding that Michael’s murder was committed in an especially heinous, atrocious, or cruel manner. Engelhardt and Brian stood over Michael and stabbed him approximately 55 times. The attack lasted about 20 minutes, and several witnesses heard Michael’s anguished screams. Engelhardt bragged to his friends about hearing a hissing sound when he stabbed Michael in the chest and said callously that it seemed each of Michael’s final heartbeats caused more blood to “just squirt out.” The coroner testified that there was evidence of two defensive injuries to Michael’s right arm and possible defense wounds on his right shoulder. These facts demonstrate the existence of the aggravating factors set forth in K.S.A. 2004 Supp. 21-4636(f)(3) and (4). Our standard of review on the district court’s weighing of aggravating and mitigating circumstances is abuse of discretion. See Boldridge, 274 Kan. at 809. “Weighing aggravating and mitigating circumstances is not a numbers game. ‘One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances’ ” or vice versa. State v. Bedford, 269 Kan. 315, 331-32, 7 P.3d 224 (2000) (quoting State v. Phillips, 252 Kan. 937, Syl. ¶ 3, 850 P.2d 877 [1993]). Judicial discretion is abused when no reasonable person would taire the view adopted by the district judge. State v. Beard, 273 Kan. 789, 807-08, 46 P.3d 1185 (2002). The sentencing hearing record reveals the district judge explicitly considered the support of Engelhardt’s family, the “weak sentence” of 22 years given to Brian, Engelhardt’s intoxication at the time of the murder, and the length of sentence Engelhardt would serve even without the imposition of a hard 50 sentence. Without the imposition of a hard 50, Engelhardt still would not have been eligible for parole for 25 years. Although the district judge was troubled by Brian’s lower sentence, his ultimate conclusion that it would be unfair to “under-sentence” Engelhardt for his role in the murder was reasonable. Given the grisly facts of this case, we see no abuse of discretion in the conclusion that the aggravating circumstances — particularly that the crime was committed in an especially heinous, atrocious, or cruel manner — outweighed any mitigating factors. We are similarly unpersuaded by Engelhardt’s complaint that the district judge failed to consider whether he was an accomplice to the murder. See K.S.A. 21-4637(d). The record shows the district court considered this contention and rejected it. There also was no abuse of discretion in this respect. Affirmed. Lockett, J., Retired, assigned.	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Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against Larry L. Myers, of Garden City, an attorney admitted to the practice of law in Kansas in 1978. The formal complaint against respondent alleges violations of KRPC 1.1 (2005 Kan. Ct. R. Annot. 356) (competence) and KRPC 1.5 (2005 Kan. Ct. R. Annot. 397) (fees). A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on July 28, 2005, in Topeka, Kansas. Respondent appeared in person and through counsel, G. Craig Robinson. The panel made the following findings of fact: “1. Larry L. Myers (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 09793. His last registration address with the Clerk of the Appellate Courts of Kansas is Garden City, Kansas. The Respondent was admitted to the practice of law in the state of Kansas on April 10, 1978. “2. In February, 1996, Robert and Betty Brown retained tire Respondent for estate planning purposes. Mr. and Mrs. Brown wanted to provide for the surviving spouse, avoid paying estate taxes, and preserve their assets in the event that nursing home care was required. Mrs. Brown was nine years older than Mr. Brown. The parties assumed that Mr. Brown would survive Mrs. Brown and that Mrs. Brown would require nursing home care. “3. In July, 1996, Mr. and Mrs. Brown’s estate was worth approximately $465,000 and included IRA accounts, mutual funds, checking and saving accounts, and real property. “4. In 1996, the Respondent informed Mr. and Mrs. Brown that the best way to protect their assets and ensure that their children inherited their estate was to provide gifts to their children. Mr. and Mrs. Brown did not want to provide gifts to their children. Mr. and Mrs. Brown wished to retain their property for their benefit during their lifetimes. The Respondent then recommended to Mr. and Mrs. Brown that they split their assets and place them in revocable trusts that would become irrevocable upon the death or incapacity of the respective grantor. Placement of assets into the revocable trusts would not, however, preserve the assets in the event nursing home care was required because Congress revised the Medicaid laws that deal with trusts in 1993 to include such trust assets in determining Medicaid eligibility. “5. Mr. and Mrs. Brown agreed and the Respondent prepared trust documents for Mr. Brown and for Mrs. Brown. “6. Mrs. Brown’s health deteriorated and she was placed in a nursing facility. “7. Mr. Brown became ill with cancer. On October 27,1999, Mr. Brown died. Following Mr. Brown’s death, Patricia Willis, one of Mr. and Mrs. Brown’s children, met with the Respondent regarding her father[’s] estate. As a result of the meeting, the Respondent sent Ms. Willis a letter “8. In the letter, the Respondent stated that the steps necessary to administer Mr. Brown’s estate included: Trepare and file a Kansas Estate Tax Return, which is due nine (9) months after death. Any Kansas Estate taxe [sic] owed will be payable at that time.’ While it was necessary for the Respondent to determine the total value of Mr. Brown’s estate to determine whether estate tax would be owing, it was not necessary to prepare and file a Kansas estate tax return because Mr. Brown’s estate fell below the threshold amount. “9. For the work that the Respondent performed following Mr. Brown’s death, including preparing the inventory and the Kansas estate tax return, the Respondent charged Mr. Brown’s estate $4,250, for a total of 43.5 hours. The Respondent billed in whole hour increments, save one entry. “10. During the hearing on this matter, a member of the Hearing Panel questioned the Respondent regarding his billing practices as follows: ‘Q. [By Mr. Sear] In reviewing these bills, all of the time entries are in full one hour increments except for an entry on March 1, 2000, for three and one-half hours. Was it your practice to bill in full one hour increments in this time frame? ‘A. [By the Respondent] Yes. ‘Q. So regardless of the amount of time that you spent on a matter, if you spent less than an hour on it, you still billed for an hour? ‘A. Well, if we spent three-fourths of an hour, I would bill for an hour, yes. ‘Q. What if you spent one-quarter of an hour? ‘A. I would not bill for an hour. ‘Q. What was the smallest time spent in this time frame that you would bill for a full hour? ‘A. I’d say three-fourths of an hour. ‘Q. Is that your current practice? ‘A. Yes.’ “11. Following Mr. Brown’s death and after Mrs. Brown’s trust was depleted, Ms. Willis applied for Medicaid assistance for her mother. However, the Kansas Department of Social and Rehabilitation Services denied the application, concluding that assets of Mr. Brown’s trust could be used to pay for Mrs. Brown’s nursing home care. “12. The trust document, prepared by the Respondent for Mr. Brown, did not accomplish what it was intended to accomplish. The trust document did not shield Mr. Brown’s assets from the expense of Mrs. Brown’s nursing home care. “13. After SRS denied the Medicaid application, on September 19,2001, Ms. Willis contacted the Respondent for advice. Despite the well established law regarding Medicaid eligibility, evidenced by the 1993 Medicaid amendment and the decision of the Kansas Supreme Court in Williams v. Kansas Dept. of SRS, 258 Kan. 161, 899 P.2d 452 (1995), the Respondent recommended that Ms. Willis appeal the agency’s decision. The Respondent retained Jim Lawing, an attorney practicing in Wichita to assist him with the appeal. However, on appeal, the agency’s decision was affirmed. The Respondent billed Ms. Willis $3,600 for his work on the appeal. “14. On April 26, 2002, Ms. Willis wrote to the Disciplinary Administrator complaining of the Respondent’s representation of Mr. and Mrs. Brown, and Mr. Brown’s estate. Then, on May 15, 2003, Ms. Willis supplemented her complaint. “15. Mrs. Brown died in 2003, after approximately $30,000 of Mr. Brown’s trust assets were used to pay for Mrs. Brown’s care. “16. Ms. Willis retained Robert E. Johnson, II, to review tire Respondent’s representation of Mr. and Mrs. Brown and their estates. Mr. Johnson wrote to the Respondent and suggested that the Respondent settle Ms. Willis’ claims by paying Mr. Brown’s estate $53,934.37. Thereafter, Mr. Johnson and the Respondent negotiated a settlement. To settle Ms. Willis’ claim, the Respondent paid $10,000 and wrote off the attorney fee bill of $3,600 that remained unpaid.” Based on those Findings of Fact, the panel concluded as follows: “CONCLUSIONS OF LAW “1. Based upon the findings of fact and the Respondent’s stipulations, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1 and KRPC 1.5, as detailed below. “2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Mr. and Mrs. Brown when he created trust documents that failed to accomplish the goals of the estate plan and when he encouraged Ms. Willis to file an appeal of the SRS agency action denying Mrs. Brown’s application for Medicaid benefits. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1. “3. The fee that an attorney charges for legal services must be reasonable. KRPC 1.5. It is unreasonable to charge a client afee for performing a legal service that is unnecessary. In this case, the Respondent charged Mr. Brown’s estate a fee for performing work that was not required. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.5 in this regard. “4. Additionally, it is unreasonable to bill in one-hour increments when one-hour of work is not performed. In In re Scimeca, 265 Kan. 742, 760 (1998), the Kansas Supreme Court stated: ‘We agree with the Deputy Disciplinary Administrator that billing for quarter hours is not a violation if that time is spent on a client’s business. The violation is in not spending the time billed to the client on the client’s business. Here, respondent clearly billed for time not spent in representing the client. Pie concedes that his billing practices were improper, and although he claims it was done in ignorance, it is nevertheless a violation of the MRPC.’ The Respondent testified at tire hearing held in this matter that he billed Ms. Willis in one-hour increments even when one-hour of work was not completed. The Respondent also testified that he continues to use this billing practice to date. In this case, it is impossible to know exactly how much time the Respondent spent working in behalf of Mr. and Mrs. Brown and Mr. Brown’s estate, given the Respondent’s billing practices. However, as a matter of law, the Hearing Panel concludes that billing in one-hour increments when one-hour is not spent working on a matter is an improper billing practice and is in violation of KRPC 1.5.” RECOMMENDED DISCIPLINE The panel applied the ABA Standards as follows: “In making the recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. “Duty Violated. The Respondent violated his duty to his client to provide competent representation and to charge a reasonable fee. “Mental State. The Respondent knowingly violated his duties. “Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to his clients. “Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in this case, found the following aggravating factors present: “Dishonest or Selfish Motive. In his letter to Ms. Willis, the Respondent blatandy misstated the law by stating that filing a Kansas estate tax return was man datory. The Hearing Panel concludes that the intentional misstatement of the law was a dishonest act and motivated by selfishness. “Vulnerability of Victim. Mr. Brown, Mrs. Brown, and their heirs were vulnerable to the Respondent’s misconduct. Mr. and Mrs. Brown went to the Respondent to plan their estates. They relied on his experience and expertise in planning for their future. However, the documents the Respondent prepared failed to accomplish their goals..... “Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1978. At the time the Respondent engaged in misconduct, tire Respondent had been practicing law for a period of approximately 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in tlie misconduct. “Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstance present: “Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. “In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: ‘Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injuiy to a client. Standard 4.53.’ ‘Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injuiy or potential injuiy to the client. Standard 4.63.’ “The Deputy Disciplinary Administrator recommended that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. The Respondent recommended that the Respondent be censured by the Kansas Supreme Court. The Respondent, however, urged that the censure not be published in the Kansas Reports. “Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that because of the persuasive aggravating factors, the censure be published in the Kansas Reports.” The respondent has filed no exceptions herein. Contrary to the hearing panel’s finding, we believe, based on respondent’s comments before this court, that the respondent is remorseful of his handling of the Browns’ estate matters. However, we conclude that the findings of the hearing panel are supported by clear and convincing evidence and adopt the findings, conclusions, and recommendation of the hearing panel, although a minority of the court would impose a private censure. It Is Therefore Ordered that the respondent, Lany L. Myers, be and he is hereby censured in accordance with Supreme Court Rule 203(a)(3) (2005 Kan. Ct. R. Annot. 247) for the violations found herein. It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent. Davis, J., not participating. Marquardt, J., assigned.	[ -80, -20, -39, -36, 8, -95, -98, 40, 123, -95, 103, 83, -19, -18, -111, 107, -15, 61, 81, 121, -57, -77, 86, -64, 76, -5, -71, -43, -79, 95, -26, -33, 72, 48, -126, -11, 70, 2, 87, 24, -98, 8, 9, -31, -33, -64, -80, 107, 86, 13, 49, 62, -77, 42, 61, 107, 72, 104, -1, 105, -47, -111, -85, -107, 122, 87, -94, 4, -112, -57, 80, 47, 92, 57, -96, -24, 51, -74, 18, 116, 91, -119, 77, 98, 98, -94, -103, -27, -80, -104, 15, -79, -115, -122, -110, 81, 67, 8, -74, -98, 116, 68, 11, -4, -28, 4, 15, -84, 6, -113, -44, -111, 14, 119, -116, -117, -10, 39, 34, 81, -118, -90, 95, -57, 120, 27, -98, -14 ]
The opinion of the court was delivered by Davis, J.: Levi Love, Jr., appeals from the district court’s denial of his pro se motion to correct an illegal sentence without appointing counsel or conducting a hearing. He contends the district court illegally imposed a harsher sentence upon him after sentencing by issuing a nunc pro tunc order stating that his sentence for crimes committed in the current case were to run consecutive to a previous felony conviction for which the defendant was serving parole on the date of the offenses in this case. We affirm. On November 5, 1997, defendant, Levi Love, Jr. was convicted of first-degree murder and attempted murder. His convictions were affirmed by this court on appeal in State v. Love, 267 Kan. 600, 986 P.2d 358 (1999). At the December 19, 1997, sentencing hearing, the defendant was sentenced to life imprisonment for the murder conviction to run concurrent with an 816-month prison term for the attempted murder conviction. On December 24,1997, the State filed a motion for an order nunc pro tunc asking the court to run the sentence in this case consecutive to an earlier felony sentence imposed in 90CR1488 for which the defendant was on parole on the date of the offenses in this case. See K.S.A. 1996 Supp. 21-4603d. After notice was given, a hearing was held on the State’s motion with appointed defense counsel present. The State argued: “Lm not sure if Nunc Pro Tunc is the right terminology to apply here but at the time of sentencing when the Court imposed sentence here the presentence report recited a prior [felony] conviction which had an unsatisfied sentence and it recites that a mandatory consecutive sentence is in order. Nobody brought that to the Court’s attention on the record at the time of sentencing and so the record was silent as to whether the Court was imposing the sentence in this case consecutive to what the State suggested is the mandatory consecutive sentence for the old [offense]. So I brought it to the Court’s attention and suggest the presentence report that is prepared accurately recite that the statute control 21-4608(b) and 21-4603(d).” Defense counsel acknowledged that it was mandatory that the new offenses be run consecutive to the offense for which the defendant was on parole unless the court found that running the sentences consecutively would result in manifest injustice under K.S.A. 1996 Supp. 21-4720(a). After stating that the difference was about a year, defense counsel told the court: “With the time he’s got, I don’t honestly — I don’t know how I can even bring a manifest injustice with the time he already has.” After hearing oral argument, the court ruled from the bench: “I set this for a hearing to make sure it was properly a matter for Nunc Pro Tunc. The original presentence report indicated that he was on — the current offense was committed while he was on probation and parole and the sentence should run consecutive to the sentence in 90-CR-1488, which is shown in the criminal history for which he was on parole, postrelease supervision, whatever, when he went on parole, I believe. The Journal Entry entered here was — is our standard sentencing minutes. The sentences were imposed, his life sentence, and these other sentences would run concurrent and it says the foregoing sentence to run concurrent to sentence imposed to case number blank. Well, that number isn’t in the Journal Entry, which should be 90-CR-1488. That’s an omission in the forms. Like anything, it’s a form, you got to have an idiot to fill it out and this one didn’t so under K.S.A. 21-4608(c) he was on parole and that was an established fact and it’s required to be consecutive unless the Court, pursuant to K.S.A. 21-4720(a), makes a finding of manifest injustice. I did not make that finding, could not make that finding, so the silence of the record under those circumstances should have, without the absence of the finding of manifest injustice, should have provided for a consecutive sentence. But I agree, the Journal Entry should be corrected and it’s proper for a Nunc Pro Tunc and the district attorney be directed to prepare a correct Journal Entry.” On April 16, 2003, the defendant filed a pro se motion to correct an illegal sentence and a motion for the personal presence of defendant at the sentencing hearing to correct the illegal sentence. The defendant argued that the district court intended to run the sentences in this case for murder and attempted murder concurrent with defendant’s previous felony in case number 90CR1488 rather than consecutively at the time the court sentenced the defendant on the murder and attempted murder convictions. Thus, according to defendant the matter was not “inadvertently omitted” from the journal entiy so as to be corrected by a nunc pro tunc order. The defendant argued that the nunc pro tunc order illegally imposed a harsher sentence than the original sentence imposed December 17, 1997. The district court denied the defendant’s motion in an August 15, 2003, memorandum opinion and order without holding a hearing or appointing counsel, reasoning that the matter raised was a question of law and the sentence was not illegal. The court explained in relevant part: “In this case, the sentence in 90CR1448 was imposed by another court long previously and his status under it — prison or parole — was under the jurisdiction of the parole board, not this Court. Had this Court specifically ordered his new sentences imposed in the present case to run concurrent with 90CR1448 without a K.S.A. 21-4720(a) finding of ‘manifest injustice,’ then truly an illegal sentence would have occurred.” The defendant timely appealed and appellate counsel was appointed. The defendant contends on appeal: (1) that the trial court abused its discretion by denying his pro se motion to correct an illegal sentence without conducting a hearing or appointing counsel; and (2) the trial court failed to create an adequate and proper record for review. (1) Denial of Motion K.S.A. 22-3504(1) provides: “(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.” We recently discussed our standard of review concerning the right to a hearing and appointment of counsel under this statute in State v. Mebane, 278 Kan. 131, 138, 91 P.3d 1175 (2004): “This court has interpreted K.S.A. 22-3504 not to require a full hearing upon the filing of every motion to correct an illegal sentence. Rather, when a defendant files such a motion, the district court has a duty to make a prehminary examination of the motion to determine if substantial issues of law or fact are raised. If there are none, the court may summarily dismiss the motion. Only if the court finds that the motion raises substantial issues of law or fact must the court then hold a hearing in the presence of the defendant with defense counsel.” Additionally, we note that motions attacking a sentence filed under K.S.A. 22-3504 are treated no differently than those filed under K.S.A. 60-1507. State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). The provisions of K.S.A. 60-1507 require the sentencing court to set tihe prisoner’s motion for hearing with notice and appointment of counsel “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” K.S.A. 60-1507(b). Procedurally, this court has approached 60-1507 motions as outlined in Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000): “There are three avenues of approach for the district court faced with a K.S.A. 60-1507 motion. First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner’s motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a prehminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the petitioner. If the issue or issues are substantial and involve events in which the petitioner participated, the court must proceed with a hearing involving the presence of the petitioner.” The question we must resolve is whether the defendant’s motion, files, and records of his case conclusively show that the petitioner is entitled to no relief. The determination of whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard. State v. Kirby, 272 Kan. 1170, 1194, 39 P.3d 1 (2002). Whether a sentence is illegal is a question of law providing an appellate court with unlimited review. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). The offenses for which the defendant was sentenced in this case took place in March 1997. The controlling penalty provisions are those in effect at the time the offense was committed. State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995). K.S.A. 1996 Supp. 21-4603d(a) (now [f]) provided: “When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto . . . .” Prior to 1982, the imposition of concurrent and consecutive sentences was within the discretion of the court. The 1982 amendment to K.S.A. 21-4608 required mandatory consecutive sentences if certain crimes were committed while a defendant was on release for a felony. State v. Reed, 237 Kan. 685, 687-88, 703 P.2d 756 (1985). K.S.A. 21-4608(c) provides: “(c) Any person who is convicted and sentenced for a crime committed while on probation, assigned to a communily correctional services program, on parole, on conditional release or on a postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.” (Emphasis added.) K.S.A. 1996 Supp. 21-4720(a) provides: “(a) The provisions of subsections (a), (b), (c), (d), (e) and (h) of K.S.A. 21-4608 and amendments thereto regarding multiple sentences shall apply to the sentencing of offenders for crimes committed on or after July 1, 1993, pursuant to the sentencing guidelines system as provided in this act. The mandatory consecutive requirements contained in subsections (c), (d) and (e) shall not apply if such application would result in a manifest injustice.” (Emphasis added.) We note at the outset that the facts of this case are not in dispute. The record of defendant’s sentencing wherein the trial judge imposed his sentences on the murder and attempted murder convictions is silent on the issue we are asked to review. The trial court imposed the sentences for murder and attempted murder to run concurrently. The defendant had been convicted of a previous felony for which he was on parole at the time the murder and attempted murder were committed, and the law at the time required a trial judge to impose the sentences for murder and attempted murder consecutive to his previous felony sentence. The only discretion possessed by the trial judge involved his or her finding that to impose a consecutive sentence would result in manifest injustice. See K.S.A. 1996 Supp. 21-4720(a). Ample evidence in the record supports the fact that there was no manifest injustice by running the murder and attempted murder sentences consecutive to defendant’s previous felony sentence. The inescapable conclusion is that failing to impose the present sentence consecutive to the defendant’s previous felony sentence was an oversight by the trial judge. Nevertheless, the defendant argues that the district court intended to run the current sentence in this case concurrent with his previous felony in case number 90CR1488 rather than consecutively. At the sentencing hearing, the trial judge did not state whether the sentences in both cases were to be run concurrently or consecutively; however, the judge partially filled out a journal entiy that indicated that the sentence in this case was to run concurrent with_(blank) without filling in a case number. At the nunc pro tunc hearing, the judge explained that the blank in the journal entry should have been 90CR1488, the case for which he was on parole. The court described it as an omission in the form, and found that the silence of the record regarding a finding of “manifest injustice” would require that the cases be run consecutively. The defendant’s argument ignores the fact that the judgment in a criminal case is effective upon its pronouncement from the bench, as the court’s judgment and sentence in a criminal case does not derive its effectiveness from the journal entry. See State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 (1997) (district court’s silence at sentencing hearing mandated that sentences be served concurrently despite subsequent journal entry indicating they should be served consecutively). At the sentencing hearing in this case, as indicated above, the record was silent as to whether the sentences in this case were to run consecutive to or concurrent with defendant’s previous felony conviction and sentence. Ample evidence supports this conclusion. The defendant further argues that when the record is silent, there is a presumption that the sentences are concurrent. See State v. Thornton, 224 Kan. 127, 577 P.2d 1190 (1978). This argument is flawed and has no merit for three reasons. First, K.S.A. 21-4608(c) required that defendant’s sentences for murder and attempted murder run consecutive to defendant’s previous felony sentence. Thus, the legislature ensured that the above concurrent sentence presumption would not result in an illegal sentence. Second, the “concurrent if silent” presumption relates to the statutory language found in K.S.A. 21-4608(a), which provides: “(a) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same elate, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as provided in subsections (c), (d) and (e).” (Emphasis addéd.) In this case, the defendant had already received his sentence for his past felony and the court was sentencing the defendant only on his murder and attempted murder convictions. As such, the presumption that the sentences in the two cases would run concurrently would not apply. Cf State v. Abod, No. 91,289, unpublished opinion filed Oct. 1, 2004, rev. denied 279 Kan. 1007 (2005) (no statutory authority that legislature intended concurrent if silent rule to apply to sentences imposed on different days in different jurisdictions stemming from different events). Finally, application of this presumption to this case runs contraiy to the purpose of the consecutive sentencing statute, which is “to continue the legislature’s policy of providing enhancement of sentence in cases where prior felonies have been committed by a defendant.” State v. Ashley, 236 Kan. 551, 553, 693 P.2d 1168 (1985). Several Kansas Court of Appeals’ cases have dealt with this presumption under similar facts and concluded that the resulting sentences were properly corrected by nunc pro tunc orders. In Brooks v. State, 25 Kan. App. 2d 466, 966 P.2d 686 (1998), the defendant pled guilty to aggravated robbery and was sentenced to an indefinite term of 6 to 20 years. Six months later the district court entered an order nunc pro tunc providing that his sentence was to be served consecutive to a sentence imposed in an earlier case. By way of a 60-1507 motion, the defendant argued that the district court imposed an illegal sentence under the nunc pro tunc journal entry, reasoning that “ ‘[o]nce a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence.’ ” 25 Kan. App. 2d at 468 (quoting State v. Royse, 252 Kan. 394, Syl. ¶ 4, 845 P.2d 44 [1993]). The court rejected this argument, reasoning: “Brooks misses the point. The sentence first imposed by the district court was contrary to K.S.A. 1987 Supp. 21-4608(3), which required consecutive sentences. Because the district court initially imposed an unlawful sentence, it had the power and the duty to subsequently correct its error and impose a lawful sentence. See State v. Kerley, 236 Kan. 863, 865, 696 P.2d 975 (1985).” 252 Kan. at 468. See also Brooks v. State., No. 90,515 unpublished opinion filed April 23, 2004 (“In Brooks I, this court determined the nunc pro tunc journal entry ordering consecutive sentences was lawful.”). In Griffin v. Kansas Parole Bd., No. 91,759, unpublished opinion filed Sept. 10, 2004, rev. denied 278 Kan. 844 (2004), the defendant’s sentence for a crime committed while he was on parole did not indicate whether it was to be served concurrent with or consecutive to his prior sentence. The court found that sentences are deemed to be concurrent if the trial court fails to designate concurrent or consecutive terms on the record, based on Royse. How ever, the trial court has the power and duty to correct its error and impose the lawful sentence mandated under K.S.A. 21-4608(c) in a nunc pro tunc journal entry under Brooks. In Luarks v. Kansas Dept. of Corrections, No. 91,223, unpublished opinion filed May 21, 2004, the journal entry was silent as to whether the defendant’s sentence for a felony committed while on parole ran consecutive to or concurrent with his previous sentence. The Kansas Department of Corrections (KDOC) subsequently recalculated the defendant’s sentences, reasoning that a new court order was unnecessary due to the mandatory consecutive sentence requirements of K.S.A. 1982 Supp. 21-4608. The Court of Appeals found that although KDOC’s interpretation of the statute was correct, the proper procedure was for the trial court to file a nunc pro tunc order applying the correct sentence pursuant to K.S.A. 1982 Supp. 21-4608(3), reasoning in part: “When the trial court imposes a concurrent sentence contrary to K.S.A. 1982 Supp. 21-4608(3), an illegal sentence has been imposed. State v. Kerley, 236 Kan. 863, 865, 696 P.2d 975 (1985); see State v. Ashley, 236 Kan. 551, 553-54, 693 P.2d 1168 (1985). In such cases, the trial court had the power and the duty to subsequently correct its error and impose a lawful sentence. The correction for a mandatory sentence can be accomplished with a nunc pro tunc journal entry. Brooks, 25 Kan. App. 2d at 468.” With a silent record in this case, the presumption would be that the defendant’s sentencing in the murder and attempted murder convictions would be consecutive to his prior felony sentence absent any discussion or findings by the trial court that a consecutive sentence would result in manifest injustice under K.S.A. 1996 Supp 21-4720(a). See K.S.A. 21-4608(a). However, the trial court did not complete the section of the journal entiy regarding how the sentences in 97CR878 would run in relation to 90CR1448. The proper remedy was to correct the journal entry with a nunc pro tunc order. See K.S.A. 22-3504(2) (“Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”); see also State v. Lyon, 207 Kan. 378, 380, 485 P.2d 332 (1971) (“[Wjhere a journal entiy fails to reflect accurately the judgment which was actually rendered, it becomes the duty of the trial court to make it speak the truth.”). Although the trial court did not rely on this precise reasoning, its conclusion can be upheld as right for the wrong reason. See Montoy v. State, 278 Kan. 765, 768, 102 P.3d 1158 (2005). In conclusion, the method chosen by the prosecutor and the resulting nunc pro tunc order entered by the trial court constituted the appropriate remedy to use under the facts of this case. The defendant’s current felony convictions were required by law to run consecutive to a prior felony conviction for which he was on parole. There is no evidence that imposition of a consecutive sentence would result in manifest injustice under K.S.A. 1996 Supp. 21-4720(a) and the record of sentencing is silent on this point. Under these circumstances, a district court may act upon a nunc pro tunc motion to impose the present felony sentences consecutive to defendant’s prior felony conviction for which he was on parole. The files and records of this case conclusively show that the petitioner is entitled to no relief. Thus, the summary denial of petitioner’s motion did not constitute an abuse of discretion on the part of the trial court. (2) Adequate and Proper Record for Review “Pursuant to Supreme Court Rule 183(j) (2004 Kan. Ct. R. Annot. 213), the district court is required to make findings of fact and conclusions of law on all of the movant’s issues, either orally on the record or in a written journal entry. Without such findings of fact and conclusions of law, an appellate court cannot conduct a meaningful review of the district court’s decision.” Gaudina v. State, 278 Kan. 103, Syl. ¶ 5, 92 P.3d 574 (2004). Accord Harris v. State, 31 Kan. App. 2d 237, 62 P.3d 672 (2003). The defendant argues his case should be remanded for further findings of fact and conclusions of law because the district court did not address his argument concerning whether the district court could alter his sentence with a nunc pro tunc order in the August 15, 2003, memorandum opinion and order. This argument is without merit. The district court clearly articulated its reasons for denying the defendant’s motion to correct an illegal sentence, and we have concluded that the nunc pro tunc order was properly utilized by the district court. As such, no need arises to remand for further findings of fact and conclusions of law. Affirmed. Luckert, J., not participating. Larson, S.J., assigned.	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In a letter dated October 17, 2005, addressed to the Clerk of the Appellate Courts, respondent Bernard E. Whalen, of Good-land, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2004 Kan. Ct. R. Annot. 296). At the time the respondent surrendered his license, a three-count complaint was pending before the Kansas Board for the Discipline of Attorneys alleging that the respondent lacked competence, assisted clients in the violation of the Kansas Securities Act, engaged in misrepresentation, breached a fiduciary duty, engaged in a conflict of interest, and engaged in the unauthorized practice of law. In previous disciplinary proceedings the respondent was publicly censured for violations of MRPC 1.8, 1.9 and 8.4. In re Whalen, 256 Kan. 944, 888 P.2d 395 (1995). In addition, the respondent received an informal admonition in 2004. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred. It Is Therefore Ordered that Bernard E. Whalen be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Bernard E. Whalen from the roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301). Dated this 25th day of October, 2005.	[ -80, -22, -36, 61, 42, -96, 50, 61, 89, -45, 119, 83, -19, -38, 4, 123, -48, 109, -111, 123, -59, -74, 126, -64, 38, -5, -47, -44, -71, 79, -26, -67, 73, 48, 74, -43, 6, -118, -55, -36, -122, 4, 9, -4, -40, -63, -76, 9, 19, 11, 49, 62, -13, 46, 63, 73, -72, 108, -5, 73, 81, -111, -103, 21, 111, 65, -77, 37, 28, 7, 80, -81, -104, 59, 9, -23, 114, 38, 14, -12, 79, -7, 8, 103, 114, 33, 49, -89, -68, -88, 47, 120, -99, -29, -111, 88, 107, -120, -106, -99, 113, 16, 7, -4, -26, 4, 31, -20, 27, -49, -44, -77, -113, 87, -50, -101, -1, -57, 16, 81, -107, -28, 78, 111, 48, 31, -50, -11 ]
Per Curiam: This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Amy R. Mitchell, a Kansas attorney whose last registration address with the Clerk of the Appellate Courts of Kansas is Olathe, Kansas. Mitchell was admitted to the practice of law in the state of Kansas in 1999. The alleged misconduct arises from four complaints, DA8682, DA8683, DA8699, and DA9047, which regard the respondent’s representation of clients Shawn Brown, Kelly Anderson, Daniel Markowitz, and Jan Godfrey, respectively. On October 9, 2003, the Disciplinary Administrator filed a formal complaint. The respondent answered, denying several of the factual allegations. On June 25, 2004, the Disciplinary Administrator filed a second formal complaint. The respondent again denied several of the factual allegations. A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on September 30, 2004. At the hearing, the respondent stipulated to violations of KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) (competence); KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 8.1 (2004 Kan. Ct. R. Annot. 480) (bar admission and disciplinary matters); KRPC 8.4(c) (2004 Kan, Ct. R. Annot. 485) (misconduct); and Kansas Supreme Court Rule 207(b) (2004 Kan. Ct. R. Annot. 261) (duty to provide information). The panel later prepared a report containing its findings of fact, conclusions of law, and recommendations for discipline. The respondent filed no exceptions to the hearing panel’s report. The underlying facts found by the panel concerning these violations are summarized as follows: FINDINGS OF FACT Complaint of Shawm, Brown (DA8682) On approximately November 9, 1999, Shawn Brown retained the respondent to represent him regarding a “slip and fall” accident which occurred at a Hardee’s Restaurant on July 28, 1999. On November 29, 1999, Mr. Brown and the respondent entered into a contingent fee contract. On July 27, 2001, the last day of the statute of limitations, the respondent filed suit on behalf of Mr. Brown. The respondent had not previously handled a “slip and fall” case and did not possess the requisite knowledge necessary to handle such a case. After the respondent filed suit, she failed to even attempt to achieve service of process on the defendant. She took no action on Mr. Brown’s behalf following the filing of the law suit. On October 7, 2001, the respondent went on maternity leave. On October 25, 2001, the court reviewed the lawsuit. The respondent did not appear in behalf of Mr. Brown. No one from her firm, Speer, Holliday & Veatch, appeared in behalf of Mr. Brown. The court continued the case to November 19, 2001. At that time, again, no one appeared in behalf of Mr. Brown. Because the respondent failed to achieve service and because no one appeared in behalf of Mr. Brown, on November 19, 2001, the court dismissed Mr. Brown’s case. In November 2001, while on maternity leave, the respondent left the employment of Speer, Holliday & Veatch. The respondent failed to communicate with Mr. Brown regarding the status of his case. Although Mr. Brown learned on his own that the case had been dismissed, the respondent never informed Mr. Brown of that fact. According to Mr. Brown, he owed $15,000 in outstanding medical bills due to his injury from his fall at Hardee’s. In September 2002, Mr. Brown filed a complaint with the Disciplinary Administrator’s office. Thereafter, on October 22, 2002, the respondent filed a written response to tire initial complaint. Complaint of Kelly Anderson (DA 8683) On July 20, 2002, Kelly R. Anderson and her husband, Coxy S. Anderson, met with the respondent regarding a potential stepparent adoption proceeding regarding Mrs. Anderson’s 13-year-old daughter. Thereafter, on August 1, 2002, Mr. and Mrs. Anderson retained the respondent to file a stepparent adoption in behalf of Mr. Anderson. The respondent explained after the petition was filed and notice was published in the newspaper, an adoption hearing would be held. She quoted Mr. and Mrs. Anderson a fee of $750 for an uncontested adoption. Mr. and Mrs. Anderson paid the respondent $750 for attorney fees. On August 2, 2002, the respondent filed a Petition for Adoption in the District Court of Johnson County, Kansas, and scheduled a hearing for September 12, 2002, at 9:30 a.m. In anticipation of the adoption hearing, the Anderson family planned an adoption party to celebrate the adoption by Mr. Anderson. In order to prepare for the adoption hearing, Mrs. Anderson called the respondent’s office a number of times. However, the respondent failed to return Mrs. Anderson’s calls. By September 9, 2002, the respondent knew that the adoption hearing could not be held because proper service by publication had not been obtained. However, she did not call Mr. or Mrs. Anderson. On September 11, 2002, at 5 p.m., the respondent called Mr. Anderson on his cellular telephone and notified him that the hearing would have to be continued to another date because proper service had not been obtained. She told Mr. Anderson that it was best to communicate with the respondent by electronic mail. On September 13, 2002, Mrs. Anderson sent the respondent an electronic message. The respondent did not respond to Mrs. An derson’s message. After sending the electronic message, Mrs. Anderson called the respondent and left numerous messages. The respondent did not return Mrs. Anderson’s calls. On September 19, 2002, Mrs. Anderson filed a complaint with the Disciplinary Administrator’s office. On October 22, 2002, the respondent provided a written response to Mrs. Anderson’s complaint. On October 29, 2002, November 5, 2002, and November 12, 2002, notice of the adoption proceeding was published in The Legal Record. On November 18, 2002, the court held the adoption hearing and entered a Decree of Adoption. Complaint of Daniel Markowitz (DA8699) On August 19, 2002, William Humbird retained the respondent to represent him in a child support action and paid the respondent $500 for attorney fees. Mr. Humbird fives in Illinois. A hearing was scheduled for September 17, 2002. Prior to the September 17, 2002, hearing, the respondent assured Mr. Humbird that she would appear in his behalf and that he did not need to appear. However, she failed to appear in court on September 17, 2002. Mr. Humbird called the respondent numerous times to determine the outcome of the hearing. The respondent failed to return his calls. However, on September 19,2002, Mr. Humbird was able to reach the respondent. She falsely told Mr. Humbird that she attended the hearing, that the hearing went well, and that the court took the matter under advisement. Because no one appeared in behalf of Mr. Humbird, the hearing officer entered a default ruling against Mr. Humbird and recommended that the court increase his child support obligation. Shortly thereafter, Mr. Humbird contacted the Johnson County Trustee’s office and learned that the respondent had not appeared at the hearing, that the matter had not been taken under advisement, that the hearing officer had entered a default ruling against Mr. Humbird, and that the case was forwarded to Judge Leben for entry of an order increasing child support. On September 25,2002, Mr. Humbird called Daniel J. Markowitz, an attorney practicing in Overland Park and explained the situation. On that same date, Mr. Markowitz entered his appearance in the child support case. On September 26, 2002, Mr. Markowitz wrote to the respondent, set out Mr. Humbird’s accusations in summary form, and demanded that she return Mr. Humbird’s retainer. On September 30, 2002, Mr. Markowitz received a letter from the respondent with a certified check in the amount of $500 payable to Mr. Humbird. On October 9, 2002, the court entered its Journal Entry of Judgment regarding this matter. Thereafter, on October 21, 2002, Mr. Markowitz filed a motion to set aside judgment. On October 16, 2002, Mr. Markowitz filed a complaint with the Disciplinary Administrator’s office regarding the respondent. Thomas J. Bath, Jr. was assigned to investigate the complaint. At the time, Jonathan Becker was representing the respondent regarding the disciplinary complaints and filed a written response on her behalf. On December 2, 2002, Mr. Bath wrote to the respondent, acknowledged receipt of the response from Mr. Becker, and requested that she provide a written response to the complaint. Additionally, Mr. Bath requested that her response include certain information. The respondent failed to provide a written response to the initial complaint and failed to provide the specific information requested by Mr. Bath. On January 31, 2003, Mr. Bath again wrote to the respondent requesting that she comply with his requests made on December 2, 2002. Again, the respondent failed to respond or comply with Mr. Bath’s requests. Complaint of Jan Godfrey (DA9047) In December 2002, Jan Godfrey retained the respondent to represent her in an action for divorce. Ms. Godfrey placed a number of telephone calls to the respondent which, for the most part, the respondent failed to return. On April 18, 2003, the respondent filed the decree of divorce and property settlement agreement in behalf of Ms. Godfrey in the District Court of Johnson County, Kansas. On May 6,2003, the respondent forwarded a proposed Qualified Domestic Relations Order (QDRO) to CUNA Mutual Group, the administrator of Mr. Godfrey s IRA account. However, because of a problem, the funds in the IRA account were not distributed. During the summer of 2003, Ms. Godfrey placed a number of telephone calls to the respondent. The respondent failed to keep Ms. Godfrey informed regarding the status of the QDRO. Because so much time passed without having the IRA funds distributed and because the respondent failed to keep Ms. Godfrey informed regarding the status of the QDRO, on August 29, 2003, Ms. Godfrey filed a complaint against her with the Disciplinary Administrator’s office. On September 8, 2003, Alexander M. Walczak wrote to the respondent and asked her to provide him with a written response to the complaint within 15 days. She failed to respond to the letter. Accordingly, Mr. Walczak docketed the complaint for investigation. Thereafter, John M. Parisi was appointed to investigate Ms. Godfrey’s complaint. On November 20, 2003, Mr. Parisi wrote to the respondent, reminded her that she had not provided a written response as requested by Mr. Walczak, and requested that she provide a written response within 7 days. She did not comply with Mr. Parisi’s request. On December 2, 2003, Mr. Parisi again wrote to the respondent. He informed her that he must have her written response by December 15, 2003, or he would submit his report without her input. On December 16, 2003, Mr. Parisi received her hand-delivered written response to the initial complaint. After receiving the respondent’s written response, on January 5, 2004, Mr. Parisi wrote to her and asked for additional information. Specifically, he asked her to provide (1) a copy of the facsimile transmission sheet regarding the July 2003 correspondence from CUNA, (2) a copy of any documentation that she scheduled and confirmed an appointment with Ms. Godfrey, (3) a copy of any correspondence or documentation that would confirm that she had contacted Mr. Godfrey requesting a copy of his most recent IRA statement, (4) a copy of any documentation or communications she had with Ms. Godfrey regarding the delay in resolving the QDRO, and (5) a copy of the transmittal letter to CUNA from August 2003 when she forwarded a revised QDRO. The respondent did not respond to Mr. Parisi’s January 5, 2004, letter, nor did she provide Mr. Parisi with the requested documentation. PANEL’S CONCLUSIONS OF LAW Based upon the findings of fact, the hearing panel concluded, as a matter of law, that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.1, KRPC 8.4(c), and Kansas Supreme Court Rule 207(b), as detailed below. KRPC 1.1 Lawyers must provide competent representation to their clients. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” KRPC 1.1 (2004 Kan. Ct. R. Annot. 342). The respondent failed to competently represent Mr. Brown when she failed to obtain service of process and prosecute the personal injury case. Accordingly, the hearing panel concluded that the respondent violated KRPC 1.1. KRPC 1.3 Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the respondent failed to provide diligent representation to Mr. Brown when she failed to obtain service of process on the defendant and failed to prosecute the case. Additionally, the respondent failed to diligently represent Mr. Anderson when she failed to obtain proper service by publication prior to the September 12, 2002, hearing date. The respondent also failed to provide diligent representation to Mr. Humbird when she failed to enter her appearance and appear at the September 17, 2002, hearing. Because the respondent failed to act with reasonable diligence and promptness in representing Mr. Brown, Mr. Anderson, and Mr. Humbird, the hearing panel concluded that the respondent violated KRPC 1.3. KRPC 1.4 KRPC 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” (2004 Kan Ct. R. Annot. 367.) In this case, the respondent violated KRPC 1.4(a) when she failed to keep Mr. Brown informed regarding the status, including the dismissal of his case. The respondent also violated KRPC 1.4(a) when she failed to return Mrs. Anderson’s telephone calls regarding the status of the adoption hearing. Additionally, the respondent failed to provide adequate communication to Mr. Humbird when she failed to return his telephone calls. Finally, the respondent violated KRPC 1.4(a) when she failed to keep Ms. Godfrey informed regarding the status of the QDRO. Accordingly, the hearing panel concluded that the respondent violated KRPC 1.4(a). KRPC 8.4(c) “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” KRPC 8.4(c). The respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when she falsely informed Mr. Humbird that she attended the September 17, 2002, hearing and that the court took the matter under advisement. The hearing panel concluded that the respondent violated KRPC 8.4(c). KRPC 8.1(b) and Supreme Court Rule 207(b) Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kansas Supreme Court Rule 207(b) provide the requirement in this regard. KRPC 8.1(b) provides: “[A] lawyer in connection with a . . . disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority.” (2004 Kan. Ct. R. Annot. 480.) Supreme Court Rule 207 (b) provides: “It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.” (2004 Kan. Ct. R. Annot. 261.) In this case, the respondent failed to cooperate in the investigation of Mr. Markowitz’ complaint and Ms. Godfrey’s complaint. Because the respondent knowingly failed to properly cooperate in the disciplinary investigations, the hearing panel concluded that the respondent violated KRPC 8.1(b) and Kansas Supreme Court Rule 207(b). PANEL’S RECOMMENDATION The hearing panel next considered factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duties violated, the lawyer’s mental state, tire potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors. On the subjects of Duties Violated and Mental State, the respondent knowingly violated her duty to her clients to provide competent and diligent representation. She also violated her duty to her clients to provide adequate communication and to the legal profession to maintain personal integrity. Finally, the respondent violated her duty to the legal profession to cooperate in disciplinary proceedings. On the subject of Injury, as a result of the respondent’s misconduct, she caused actual and potential harm to her clients and the legal profession. On the subject of Aggravating Factors, several were present. In regard to Dishonest or Selfish Motive, the respondent lied to Mr. Humbird regarding the September 17, 2002, hearing. Regarding a Pattern of Misconduct, included in this case are four complaints. Some of the complaints involve similar misconduct. Accordingly, the respondent engaged in a pattern of misconduct. Regarding Multiple Offenses, the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 8.1(b), KRPC 8.4(c), and Supreme Court Rule 207(b). As such, the respondent committed multiple offenses. Several Mitigating circumstances were also present. In regard to the Absence of a Prior Disciplinary Record, the respondent has not previously been disciplined. On the subject of Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct, after the respondent retained Mr. Ambrosio to represent her in the disciplinary case, he directed the respondent to submit to a psychological evaluation by William Albott, Ph.D., a psychologist. According to Dr. Albott, Ms. Mitchell has experienced severe symptoms of anxiety and depression and the “personality and psychological issues identified . . . seem to have led into behaviors which ultimately brought forth the complaints filed.” Regarding respondent’s Inexperience in the Practice of Law, the Kansas Supreme Court admitted the respondent to practice law in 1999. At the time she engaged in misconduct, she had been practicing law for a period of 2 years. Accordingly, the hearing panel concludes that she was inexperienced in the practice of law at the time she engaged in the misconduct. Regarding Previous Good Character and Reputation in the Community Including any Letter from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney, the respondent is an active and productive member of the bar in Johnson County, Kansas. She enjoys the respect of her peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel. On the topic of Remorse, at the hearing on the Formal Complaint, the respondent expressed genuine remorse. In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following Standards: “Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.” Standard 4.42. “Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.” Standard 4.43. “Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.” Standard 4.52. “Reprimand is generally appropriate when a lawyer: (a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injuiy to a client.” Standard 4.53. “Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injuiy to the client.” Standard 4.62. At the hearing, the respondent recommended that she be placed on probation, subject to the terms and conditions contained in her proposed plan of probation. The panel determined that in order to recommend that a respondent be placed on probation, it must malee specific findings. In that regard, it acknowledged that Supreme Court Rule 211(g) (2004 Kan. Ct. R. Annot. 277) provides, in pertinent part, as follows: “(g) Requirements of Probation “(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. “(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan. “(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless: “(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint; “(ii) itlre Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan; “(iii) at the hearing on tire Formal Complaint, the Respondent presents evidence that the case involves unique circumstances (unique circumstances are circumstances from which it could be inferred that the Respondent’s misconduct was a one time response to adversity and that it would be highly unlikely that the Respondent would repeat the mistake); “(iv) the misconduct can be corrected by probation; and “(v) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.” In this case, the respondent provided each member of the hearing panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation. The plan contained adequate safeguards designed to protect the public and ensure the respondent’s full compliance with the disciplinary rules and orders of tire Supreme Court. See Kansas Supreme Court Rule 211(g)(1). The respondent immediately and prior to the hearing on the formal complaint put the plan of probation into effect by complying with the terms and conditions of the plan. See Kansas Supreme Court Rule 211(g)(2). The respondent presented evidence that the case involves unique circumstances, the misconduct can be corrected by probation, and placing the respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. See Kansas Supreme Court Rule 211(g)(3). The hearing panel was impressed with the respondent’s testimony regarding the weeks leading up to the hearing on the formal complaint. The respondent testified about the impact that the evaluation has had on her fife. Based upon the testimony of the witnesses, the exhibits admitted into evidence, findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommended that the respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. The hearing panel further recommended that the respondent be placed on probation subject to the following terms and conditions: “1. Respondent will continue her treatment for depression and anxiety with a Psychologist or Social Worker approved by Dr. William Albott. This treatment shall continue throughout the period of supervised probation unless the treating Doctor and Dr. Albott deem treatment is no longer necessaiy. The treating mental health worker shall notify the Disciplinary Administrator in the event that Respondent discontinues treatment against the recommendation of the mental health specialist. The Respondent shall provide the treating mental health worker with any appropriate release of information necessary to allow the professional to provide such information to die Disciplinary Administrator. “2. In the event it becomes necessary for die Respondent to take medication, the Respondent shall have regular contact with a qualified medical professional regarding said medication. The Respondent shall follow the qualified medical professional’s recommendation regarding any medications prescribed. “3. The treating mental health professional shall make periodic reports to the Disciplinary Administrator’s Office. Said reports shall update the Disciplinary Administrator on the need for treatment and the current treatment modality. “4. The Respondent’s practice shall consist of criminal defense, domestic relations and any other cases related to criminal defense, i.e., drivers license suspension cases, drug tax cases, etc. Further, the Respondent may continue her practice as prosecutor in Ci1y Court. The Respondent shall not engage in the representation of clients in civil matters, including personal injury cases. “5. The Respondent’s practice will be supervised by Nancy Orrick, a licensed attorney in good standing, in Kansas City, Kansas. The Respondent shall allow Ms. Orrick access to her files, calendar, operating account and trust account records. The Respondent shall comply with any request made by the supervising attorney. During the first year of supervision, the Respondent shall meet with the supervising attorney weekly. During the final six months of the probation period, the Respondent shall meet with Ms. Orrick per her direction. Ms. Orrick shall prepare a detailed monthly report to the Disciplinary Administrator regarding Respondent’s status on probation. “6. Ms. Orrick shall conduct an immediate and detailed audit of Respondent’s files. Six months after the completion of the first audit, Ms. Orrick shah conduct a second audit. At the completion of the supervised probation, Ms. Orrick shall conduct a third audit. After each audit Ms. Orrick shall malee a report regarding same. If Ms. Orrick discovers any violations of the Kansas Rules of Professional Conduct, she shall include such information in her report. Ms. Orrick shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Ms. Orrick’s periodic audit reports. “7. The Supervisor shall determine if the office procedures and diary procedures for Respondent are appropriate. The Supervising Attorney shall cause Respondent to have a diary or calendaring system, letters for client contact, letters for notices to clients of hearings and scheduled meetings, and a method to track all phone messages and phone contacts from clients and the responses thereto. “8. Procedures shall be commenced wherein all phone contacts and phone messages are handled on a daily basis, unless a trial schedule prevents phone contacts with clients. No phone message, request or entreaty from a client shall go more than three days without Respondent contacting the client. “9. Respondent shall, at the weekly meetings with Supervisor, review all new retained and appointed cases. Further, Respondent shall present the Supervisor with diary and calendar information and appropriate fee information. Additionally, at that meeting, Respondent and the Supervisor shall review the following week’s schedule in order to assure notice has been sent to the appropriate parties, appropriate preparation has been carried out and all updates to the files have been completed. “10. The Supervisor shall do a monthly report in regard to the weekly meetings and submit same to the Disciplinary Administrator. “11. Ms. Nancy Orrick will be acting as an officer and an agent of the Court while supervising the probation and monitoring the legal practice of the Respondent. The supervisor shall be afforded all immunities granted by Supreme Court Rule 223 [2004 Kan. Ct. R. Annot. 323] during the course of her activities pursuant to this Order. “12. Within ten days of the panel decision, the Respondent shall file with the Disciplinary Administrator written office procedures designed to monitor tire status, deadlines and Court appearances of all matters in which she has undertaken representation. The Respondent shall modify that procedure if directed to do so by the Disciplinary Administrator. “13. The Respondent shall follow all written office procedures. “14. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requires any further information, the Respondent shall timely provide such information. “15. The Respondent shall continue to maintain professional liability insurance. “16. The Respondent shall not violate the terms of her probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of her probation or any of the provisions of the Kansas Rules of Professional Conduct during the probationary period, the Respondent shall immediately report such violations to her supervisor and to the Disciplinary Administrator. “17. Respondent shall follow the dictates of Supreme Court Rule 211(g).” The hearing panel also favorably noted the impact of the participation of respondent’s attorney, John Ambrosio, in the case: “Mr. Ambrosio submitted new answers to the formal complaints. He directed the Respondent to meet with William Albott, Ph.D. and submit to a thorough psychological evaluation. He developed a substantial, detailed, and workable plan of probation. He located a qualified attorney to supervise the Respondent’s practice. And, he assisted the Respondent in putting the plan of probation into effect. The Hearing Panel is certain that its recommendation would have been different had the steps taken by Mr. Ambrosio not been taken.” Additionally, the hearing panel concluded that costs should be assessed against the respondent in an amount to be certified by the office of the Disciplinary Administrator. DISCUSSION To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275); In re Rathbun, 275 Kan. 920, 929, 69 P.3d 537 (2003). A hearing panel’s report is deemed admitted under Rule 212(c) and (d) (2004 Kan. Ct. R. Annot. 285) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003). In the present case, since the respondent filed no exceptions to the panel’s report, we conclude that the panel’s findings of fact are supported by clear and convincing evidence and that tire facts established support the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions. The panel recommended a 1-year suspension and supervised probation, but did not specify the term of probation. The Disciplinary Administrator recommends a 2-year period from the date of this court’s order. We agree with the Disciplinary Administrator’s recommendation. It Is Therefore Ordered that Amy R. Mitchell be suspended from the practice of law in the state of Kansas for a period of 1 year effective as of the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2004 Kan. Ct. R. Annot. 237). Her suspension is stayed and she is placed on supervised probation for a period of 2 years effective as of the date of this opinion under the conditions recommended by tire hearing panel which are set forth in the opinion. If she complies with each condition throughout the period of probation, she may proceed with discharge from probation in accordance with Supreme Court Rule 211(g) (7) (2004 Kan. Ct. R. Annot. 275). It Is Further Ordered that if Mitchell fails to abide by the conditions set out herein, a show cause order shall issue to Mitchell, and this court shall take whatever disciplinary actions it deems just and proper, without further formal proceedings. It Is Further Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings. Lockett, J., Retired, assigned.	[ -80, -24, -51, -19, -116, -31, 58, 56, 121, -111, 119, 83, -19, -62, -115, 123, -47, 109, 81, 107, 67, -78, 118, -64, -26, -1, -8, 85, -78, 111, -28, -3, 73, 48, -126, -43, 6, -62, -63, 28, -86, 2, -120, -28, -39, -63, -76, 105, 22, 15, 49, 63, -77, 44, 21, 67, 40, 44, -5, 109, 83, -47, -125, 21, 122, 18, -93, -124, -98, -122, -40, 59, -104, -72, 41, -88, 49, -106, 2, -12, 79, -119, 13, 39, 98, 38, -119, -91, -68, -100, 47, 17, 29, -90, -103, 72, 105, 13, -74, -99, 116, 22, 35, 120, -31, 69, 27, 108, 14, -53, -44, -79, 31, 36, -50, -117, -17, -105, 16, 69, 15, -26, 94, -57, 50, 27, -38, -73 ]
On October 18, 2001, the petitioner, Daniel H. Phillips, was indefinitely suspended from the practice of law in Kansas, ordered to pay the costs of the disciplinary proceeding, and ordered to comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301). In re Phillips, 272 Kan. 200, 32 P.3d 704 (2001). On July 12, 2004, Phillips filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312). On May 17, 2005, a hearing was held before a panel of the disciplinary board. On August 18, 2005, the panel filed its report setting out the circumstances leading to Phillips’ suspension, a summary of the evidence presented, and the panel’s findings and recommendations. Phillips’ addiction to crack cocaine, causing him to neglect his law practice, was the primary reason for this court’s sanctioning him in 1996. He was placed upon supervised probation for 3 years, conditioned in part on his abstaining from using cocaine and submitting to monthly urinalysis. In re Phillips, 260 Kan. 909, 925 P.2d 435 (1996). His failure to abide by that condition resulted in the indefinite suspension order on October 18,2001. The panel is convinced that Phillips has rehabilitated himself, noting that he has completed outpatient and inpatient drug treatment, regularly attended Narcotics Anonymous, maintained regular employment, and remained drug free since December 2001. The panel unanimously recommended that Phillips’ petition for reinstatement to the practice of law in Kansas be granted. The panel further recommended that Phillips’ reinstatement be subject to his continuing to submit to random drug testing for a period of 1 year following his reinstatement and that the court waive the requirement that petitioner complete twice the regular annual CLE hours. Since the panel report recommends reinstatement, no response is required by petitioner, and pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court. Dated this 6th day of October, 2005. The court, after carefully considering tire record, accepts the findings and recommendation of the panel that petitioner be reinstated to the practice of law' in Kansas. It Is Therefore Ordered that Daniel H. Phillips be reinstated to the practice of law in the state of Kansas and that the requirement of Rule 807(b)(3) (2004 Kan. Ct. R. Annot. 617) is waived. The Clerk of the Appellate Courts is directed to enter petitioner s name upon the roster of attorneys engaged in the practice of law in Kansas. It Is Further Ordered that petitioner shall submit to random drug testing, as directed by the Disciplinary Administrator, for a period of 1 year from the date of this order. In the event petitioner tests positive for the presence of illegal drugs, a show cause order may issue to the petitioner, and the' court may take whatever disciplinary action, including disbarment, it deems just and proper without further formal proceedings. It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the petitioner.	[ -112, -23, -33, 31, 27, 65, 62, 22, 89, -9, 103, 115, 45, -14, 5, 115, -56, 109, 112, 107, -43, -73, 66, -64, -26, -1, -8, -44, -7, 79, -12, -11, 13, 56, -126, -43, 6, 72, -39, 92, -122, 5, 9, -63, 83, -63, 38, 40, 23, 31, 49, -108, -61, 12, 25, -49, 73, 56, 89, -83, 24, -32, -103, 23, 111, 20, -95, 21, 20, -121, -40, 47, -100, -70, 0, -24, -13, 22, -126, 80, 75, -39, -91, 101, 98, 33, 17, -83, -68, -88, 63, -80, -99, -122, -103, 88, 67, -115, -108, 28, 100, 20, 42, -8, -12, -115, 23, 44, 5, -54, -104, -79, 95, 113, -58, 89, -21, 3, 48, 119, -111, -10, 92, -42, 122, 27, -38, -108 ]
The opinion of the court was delivered by Beier, J.: This appeal represents the next generation in what has become a long line of descendants from this court’s identical offense ruling in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). Defendant James C. Wendler entered a no contest plea to several drug-related offenses, including one count of manufacture of methamphetamine, one count of attempted manufacture of methamphetamine, and two counts of possession of ephedrine or pseudoephedrine. The district judge sentenced him to 158 months’ imprisonment on the manufacturing count, 140 months on the attempted manufacture count, and 146 months on each of the possession counts. Based on the Court of Appeals’ decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), the district court resentenced Wendler to 11 months on each possession count. The State appealed, challenging Frazier, which held that possession of pseudoephedrine under K.S.A. 65-7006(a) and possession of paraphernalia under K.S.A. 65-4152(a)(3) could be identical crimes and that, when they are identical under the facts of a given case, a defendant convicted under K.S.A. 65-7006(a) can be sentenced only under the lesser penalty provision of K.S.A. 65-4152(a)(3). Frazier, 30 Kan. App. 2d at 404-06. Wendler did not cross-appeal. While the State’s Frazier appeal was pending, this court decided McAdam, 277 Kan. 136. In McAdam, we applied the identical offense doctrine to hold that a defendant convicted of a methamphetamine manufacturing offense under K.S.A. 65-4159 could be sentenced only under the lesser penalty provision applicable to convictions for a stimulant compounding offense under K.S.A. 65-4161. McAdam, 277 Kan. at 145-47. After we issued the McAdam decision, Wendler filed a motion to correct an illegal sentence in the Court of Appeals, seeking downward adjustments of his manufacturing and attempted manufacture sentences. His counsel also filed a Rule 6.09(b) (2005 Kan. Ct. R. Annot. 44) letter with the Court of Appeals, seeking the same relief. The Court of Appeals rejected the State’s appeal and affirmed Wendler’s resentencing under Frazier, but it did not address the McAdam issue raised by Wendler’s motion and his counsel’s letter. Wendler comes before us now on his petition for review, still seeking relief under the McAdam decision. In State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004), a direct appeal, we remanded for resentencing under McAdam because the direct appeal was still pending by the time McAdam was decided. Barnes, 278 Kan. at 129. There is no question that a direct appeal is still pending in this case as well, and McAdam has been decided. The only issue before us is whether it should make any difference that this appeal was taken originally hy the State rather than hy the defendant. We first, of necessity, address jurisdiction. The right to appeal is purely statutory, and an appellate court has a duty to question jurisdiction on its own initiative. If the record indicates that jurisdiction does not exist, an appeal must be dismissed. State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). The issue of appellate jurisdiction is one of law over which this court has unlimited, de novo review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003). The State appealed from “the sentencing decision” of the trial court “pursuant to K.S.A. 22-3602(b)(3) and/or K.S.A. 21-4721.” K.S.A. 2004 Supp. 22-3602(b) lists the limited types of appeals that may be taken by the prosecution from cases before a district judge. K.S.A. 2004 Supp. 22-3602(b)(3) reserves the prosecution s right to appeal “upon a question reserved.” K.S.A. 2004 Supp. 22-3602(f) further provides that an appeal by the prosecution or the defendant relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq., shall be as provided in K.S.A. 21-4721. That statute, in subsection (e)(3), provides: “[I]n any appeal, the appellate court may review a claim that . . . the sentencing court erred in ranking the crime severity level of the current crime.” K.S.A. 21-4721(e)(3). These statutes properly conferred jurisdiction on the Court of Appeals for the State’s appeal in this case. The State preserved its Frazier question for appeal by objecting to the district court’s re-sentencing of Wendler. Whether jurisdiction existed to entertain Wendler’s later Motion to Correct an Illegal Sentence filed in the Court of Appeals requires additional discussion. Wendler’s sentence was not “illegal.” See Barnes, 278 Kan. at 123-24 (underlying sentence attacked under identical offense doctrine as applied in McAdam not “illegal”); see also United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979) (no constitutional right to lesser penalty when two applicable statutes proscribe identical conduct). However, as noted above, this court may, in any appeal, entertain a claim that the sentencing court erred in ranking the crime severity level of the current crime. K.S.A. 21-4721(e)(3). This statute conferred jurisdiction on the Court of Appeals; although Wendler s motion was captioned “Motion to Correct an Illegal Sentence,” its substantive claim was that the sentencing court erred in ranking the crime severity level of the manufacture and attempted manufacture offenses. Furthermore, the Court of Appeals’ failure to address the McAdam issue does not prevent this court from taking that issue up on petition for review, because it was properly raised before the Court of Appeals. See Supreme Court Rule 8.03(g)(1) (2005 Kan. Ct. R. Annot. 61); see also State v. Ross, No. 88,469, unpublished opinion filed June 25, 2004 (defendant raised sentencing issue in reply brief before Court of Appeals; Court of Appeals did not address issue in its opinion; issue nevertheless properly before both courts; case remanded for resentencing under McAdam). Wendler’s counsel argued when he appeared before us that it would be a “neat trick” if the Court of Appeals could avoid review by this court merely by refusing to address an issue properly raised and within its jurisdiction. We doubt such a “neat trick” was intended by the Court of Appeals here, and, in any event, it would not deprive this court of jurisdiction to decide an otherwise cognizable claim. On the merits, we see no reason why Wendler should not be resentenced on the manufacture and attempted manufacture counts under McAdam. When any party takes an appeal in any case, that party implicitly accepts the known risk that the law could change or evolve in a manner advantageous to the opponent before the appeal is finally adjudicated. Wendler’s case remains on direct appeal at this time, and the McAdam decision has become part of the common law of Kansas that governs disposition of the matter. The Court of Appeals and the district court are affirmed as to Frazier resentencing; sentences for manufacture of methamphetamine and attempted manufacture of methamphetamine are va cated and the case is remanded for resentencing on those two counts in keeping with McAdam, 277 Kan. 136.	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The opinion of the court was delivered by ALLEGRUCCI, J.: Shawnttis Franklin appeals her jury convictions for attempted first-degree murder and aggravated burglary. Franklin was sentenced to concurrent terms of 267 and 34 months. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c). Franklin claims: (1) the trial court abused its discretion in admitting cellular telephone text messages into evidence; (2) the trial court abused its discretion in admitting eyewitness identification evidence; (3) the eyewitness identification instruction to the jury was erroneous; (4) the evidence of aggravated burglary was insufficient to support defendant’s conviction; (5) the trial court’s refusal to strike jurors for cause prejudiced the defendant; and (6) the trial court erred in sentencing defendant by not requiring the jury to determine her criminal history beyond a reasonable doubt. FACTS During the early morning hours of March 14, 2003, Robert Coleman, Mesia Green (Coleman’s girlfriend), and Ebony Williams (Coleman’s sister) were all sleeping in various rooms in the same house. Williams was awakened by a loud noise in the living room. Upon investigation, Williams observed two people run out the door with Green in pursuit. After discovering that Green had been stabbed, Williams called the police. At 1:54 a.m. Wichita police officers were dispatched to 1143 N. Terrace in response to Williams’ call. Officers Carr and Menges found Green lying in bed on her stomach with multiple stab wounds in her back. Green told the officers that Shawnttis Franldin had stabbed her. Williams told the officers that she had seen a girl named “Pooky” running out of the house and identified “Pooky” as Shawnttis Franklin’s nickname. Officer Carr asked Green if she was identifying the Shawnttis Franldin that lived at 1132 N. Green Street, and Green stated that she was referring to the Shawnttis Franldin who lived at that address. Green informed the officers that Coleman had previously dated Franldin and that Franklin was jealous that Green was seeing Coleman. Green was taken by ambulance to the hospital and treated for nine stab wounds in her back, blood in her chest cavity, and a collapsed lung. Green survived the attack. Franldin was charged with one count of aggravated burglary, one count of attempted first-degree premeditated murder, and, in the alternative, one count of aggravated battery. At trial, Robert Coleman testified that he had lived with the defendant for approximately a year and a half. After an argument in the beginning of March 2003, they separated. Coleman stated that he was having a “fling” with Mesia Green at the time he and the defendant were arguing. Coleman showed a Wichita police detective text messages on his telephone. Coleman told the detective that he received the text messages from the telephone number he knew belonged to the defendant. The first text message was received at 5:20 a.m. on March 14, the day of the stabbing, and stated: “I whupped that bitch and served her to let her know I ain’t the one I told you what I did and didn’t do you know me I tell you everything so stay down for her then you know.” The second text message was received at 10:52 a.m. on March 14, and stated: “You betta get her out of WK for she be dead.” The third text message was received at 10:57 a.m. on March 14, and stated: “I got my pistol let me hear she still down here on Blood gang we finna smoke that bitch.” Robert Coleman’s aunt, Patricia Bell, received a telephone call from the defendant between 10:00 and 11:30 a.m. on March 14 or 15. The defendant stated to her that she had stabbed Mesia Green and would do it again if she saw her that day, and that she was going to kill Mesia. At trial, the defendant presented an alibi defense. Franklin testified that she was staying with friends in Arkansas City the night of March 13-14 and that her mother and sister had driven from Wichita for a brief visit. Defendant denied making calls on her cellular telephone on March 14. She explained that her telephone did not work in Arkansas City and, in addition, she had left her telephone with her cousin, Ishmael Agnew. Several witnesses, including friends from Arkansas City and her mother and sister, testified and corroborated defendant’s alibi for the night of March 13-14. There was also evidence rebutting defendant’s alibi. Defendant’s mother had told a police officer that she saw defendant in Arkansas City on the night of March 14-15. One of the Arkansas City friends, who was supposed to have been present when defendant’s mother visited her in Arkansas City, had informed the police that the last time he saw defendant’s mother was 2 to 3 weeks before March 14. Defendant had the cellular telephone when arrested in Arkansas City on March 18. ADMISSION OF CELLULAR TELEPHONE TEXT MESSAGES Defendant filed a motion in limine to prohibit the State from introducing the cellular telephone text messages into evidence, as serting that the text messages were hearsay and were protected from disclosure by marital privilege. The district court found that the text messages were not to be offered to prove the truth of the statements and, thus, were not hearsay. The district court further ruled that a common-law marriage had not been established so the marital privilege did not apply, and that the State would be required to lay a proper foundation at trial before introducing the text messages at trial. When the State sought to introduce evidence of the text mes-, sages at trial, defense counsel objected, arguing that the foundation had not been established. Defendant’s counsel further argued that the statements were hearsay and, if not hearsay, the statements were more prejudicial than probative. The objection was.overruled. The State presented the evidence. Defense counsel twice objected by stating, “Same objection.” Defense counsel did not assert that the text messages were protected by marital privilege at trial. On appeal, defendant additionally argues that the text messages were inadmissible hearsay, because the identity of the sender was not established, and the messages were protected by the marital privilege. We note that when a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001). Because Franklin failed to object claiming marital privilege, that question is not preserved. An appellate court’s first consideration when examining a challenge to a district court’s admission of evidence is relevance. “Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). The district court concluded that none of the text messages were offered for the truth of the matter asserted and, thus, were not hearsay. Hearsay is defined as evidence of “a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 2004 Supp. 60-460. Hearsay evidence is excluded unless it fits within specific statutory exceptions. K.S.A. 2004 Supp. 60-460. Accordingly, the admission of out-of-court statements (if hearsay, i.e., to prove truth of matter asserted) is controlled by statute and requires the interpretation of a statute. This court reviews the interpretation of a statute as a question of law, using a de novo standard. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). Two of the text messages were threats of future action not acted on: “You betta get her out of WK for she be dead,” and “I got my pistol let me hear she still down here on Blood gang we finna smoke that bitch.” These messages were relevant to establish defendant’s intent when she stabbed Green. Defendant was charged with attempted first-degree murder and, in the alternative, aggravated battery. These text messages show that defendant intended to kill Green rather than just injure her. Although the messages involve future action, they were offered to prove the truth of the matter •— that defendant wanted to kill Green. ' The third message, which began with the statement, “I whupped the bitch,” was relevant to establish defendant’s recognition of what she had done. The State argues that the statement was not offered to prove the truth of that statement, but to show the defendant’s state of mind. This argument is without merit. The message is a simple declaration of what the sender had done. Although the jury could have inferred that the sender was boasting, the actual content of the statement concerns what the sender had done rather than what she thought about it. Thus, the third text message was admitted into evidence to prove that the sender had “whupped the bitch,” and was hearsay. The district court’s conclusion that the third text message was not hearsay was in error. Nevertheless, the State argues that even if the message was hearsay, it was admissible as the previous statement of a person who was present in the courtroom pursuant to K.S.A. 2004 Supp. 60-460(a), which allows an exception to the admission of hearsay for a statement “previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.” Even though the defendant was in the courtroom and had testified, the defendant contends that 60-460(a) does not apply because the sender of the text message is unknown and, therefore, it could not be determined whether the message was made by a person present in the courtroom. The State asserts that there was sufficient evidence to show that the sender of the text message was the defendant. The State points to evidence which showed, among other things, that the content of the text messages parallels the evidence of defendant’s activities and statements: Mesia Green was stabbed, and she identified defendant as one of two people who ran out the door after the attack. Robert Coleman testified that, although he did not remember what he and defendant were arguing about when they separated on the first of March 2003, he conceded that they were probably arguing about Green. Green had stated to one of the first police officers on the scene that the defendant had stabbed her because defendant was angry that Green was seeing Coleman. In addition, defendant told Patricia Bell that she had stabbed Green and that she was going to kill Green. Defendant stated to Krista Nichols that she “cut that bitch up” because of Coleman. Defendant testified that she and Coleman sometimes communicated by text messages. The text messages at issue came from defendant’s cellular telephone. Contrary to defendant’s claim of leaving her cellular telephone in Wichita, defendant’s cellular phone was taken from her when she was arrested in Arkansas City on March 18. Contrary to Franklin’s claim, this evidence reasonably implies that she sent the text messages to Coleman. Accordingly, K.S.A. 2004 Supp. 60-460(a) and (g) (admissions by parries) apply, and the text message may be admitted as an exception to the rule precluding the admission of hearsay. If the trial court’s ruling is correct, it will be upheld, even if the trial court relied upon the wrong reason. State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004). ADMISSION OF EYEWITNESS IDENTIFICATION EVIDENCE Defendant filed a motion in limine seeking to exclude testimony of Mesia Green’s identification of defendant, claiming it was un reliable. One of the grounds for the motion was that Detective Gulliver showed Green only a photograph of defendant, rather than a photo array of several similar individuals. We note that the district judge applied the analysis for eyewitness identification from State v. Hunt, 275 Kan. 811, 817-18, 69 P.3d 571 (2003), and had concluded that, under the circumstances, the procedure was not unnecessarily suggestive. In addition, at trial, defense counsel did not object to Mesia Green s testimony identifying defendant as her attacker. Nor did defense counsel object to Detective Gulliver’s testimony that he showed Green a photograph of defendant, which Green identified as the person who stabbed her. Instead, during the trial, defense counsel acquainted the jury with police procedure for photo identification while cross-examining Detective Gulliver: “Q. Well, do you think it’s good police procedure to just sort of take a picture of one person and set it in front of an eyewitness and say, Is that — say, Do you recognize this picture? “A. Oh, we wouldn’t if she had not identified her as the individual who committed die crime. It’s common practice that, if an individual identifies someone as committing a crime, that we do show them a single picture; not for identification purposes but just to assure that the same people — person that the victim is talking about is the same person that we’re thinking of. “Q. Why is that a better procedure than using a photo array, if you wanna be sure it’s the same person? “A. It’s not for identification purposes. It’s simply to assure that we have the same person that the victim is identifying. Just in case there was another Shawnttis Franklin who goes by the name of Pooky out there, we would want to assure that she was the one that we were thinking of.” On appeal, defendant argues that showing Green only one photograph was unduly suggestive and there was a substantial likelihood of a mistaken identification. The procedure used by police in the present case is significantly different from the procedure described in Hunt. Here, Mesia Green told an officer who was dispatched to the crime scene that a black female named Shawnttis stabbed her. The officer recognized the name and asked if it was Shawnttis Franklin of Green Street. Green said it was. Ebony Williams also told the officer that she saw Shawnttis Franklin hurrying out of the house. On March 17, after Green’s condition had improved, Detective Gulliver visited her in the hospital to obtain a statement from her and, to “make sure that the suspect she identified initially was in fact the suspect in the case,” he showed her a photograph of the defendant and asked if she recognized the person. Green identified the person as her assailant. Defendant argues that Gulliver’s showing the photograph to Green was a one-person line-up and cites cases, including Hunt, disfavoring that procedure. The State cites State v. Tucker, 2004 WL 2251800 (Ohio App. 2004) (unpublished opinion), in which an identification procedure similar to the one in the present case was at the center of an issue of ineffective assistance of counsel. In that case, 1 month after the victim was shot dead outside a bar, the woman who was with the victim the night of the shooting first spoke with police. She knew the name of the shooter, she gave police his name, and then police showed her “a photograph of that man to confirm who you were talking about.” 2004 WL 2251800, 2. The victim’s companion had had a good long look at defendant before and during the shooting. When driving her home, one of the victim’s friends told her the shooter’s name and she then matched defendant’s name with a photograph of him posted on the internet. In these circumstances, the Ohio Court of Appeals concluded that defendant was not deprived of effective assistance of counsel because the identification was sufficiently reliable to be admissible. 2004 WL 2251800, 2. We note that the reliability of the identification in the present case is greater than in Tucker. Green not only saw the defendant at the crime scene, Green also identified her assailant by name and knew defendant’s address. Under the circumstances, showing Green a photograph of the defendant a few days later to make certain that Green and the police had the same person in mind was not an impermissibly suggestive lineup. EYEWITNESS IDENTIFICATION INSTRUCTION Defendant requested an eyewitness identification instruction that combined features of the pattern instruction, Hunt factors, and an admonition that “eyewitness testimony can be unreliable.” The trial judge refused defendant’s instruction. Instead, the trial court gave the pattern instruction for eyewitness identification, PIK Crim. 3d 52.20. Defendant complains that the instruction was erroneous because the factors do not coincide with those outlined in Hunt. Green knew her assailant’s identity and told police her assailant’s name. The detective showed Green a picture of the defendant to confirm that he and Green were talking about the same person. This type of identification is not implicated by Hunt. Thus, an identification instruction pursuant to Hunt is not warranted by the facts of this case, and the defendant’s claim of error has no merit. SUFFICIENCY OF THE EVIDENCE FOR AGGRAVATED BURGLARY The elements of aggravated burglary in this case were (1) knowingly entering a house (2) without authority (3) with the intent to commit a felony therein (4) when there was a human being in the house. PIK Crim. 3d 59.18. Defendant contends that the State failed to prove that she did not have authority to enter the Coleman house. When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004). Defendant testified that she had permission from Robert and his mother to be in the Coleman residence. The State did not rebut this testimony. Defendant also testified that she owned a car that was in the garage of the Coleman residence and she had clothes in the house because she and Ebony Williams wore each other’s clothes. The State relied on the following circumstantial evidence to prove aggravated burglary: the attack occurred at 1:54 a.m. when the occupants of the house were sleeping; the defendant did not speak to anyone in the house during the attack; defendant had not been seeing Robert Coleman for several weeks before the attack; defendant had not been in the house since she had broken off her relationship with Coleman; and Coleman was involved with another woman at the time of the attack. The State argues that, even though the front door of the house was unlocked, there was evidence that it was difficult to shut tire door so that it locked. Here, there is no evidence that defendant lacked authority to enter the house. Even viewed in the light most favorable to the prosecution, the State’s circumstantial evidence pales next to defendant’s testimony that she had authority to enter the house, coupled with the circumstantial evidence of her car in the garage and her clothing in the house. Defendant’s conviction for aggravated burglary is set aside. REFUSAL TO STRIKE JURORS FOR CAUSE Defendant contends that the trial court abused its discretion in refusing to remove Prospective Juror 30 when questioned. That prospective juror said that approximately 3 years earlier a teen client had stolen money from her and approximately 10 years earlier a third party had tried to get someone to murder her mother. In response to the question “[A]re you gonna let those experiences impact at all on your ability to be fair to both sides in this case?” the prospective juror said, “I would say that — the second part with my mom would be difficult. I really didn’t think about it till now. But I’m thinking right now it’s difficult.” Then she was asked “whether or not that experience is gonna make it impossible for you to be fair in this case,” and she answered, “I would say it’d be extremely hard.” Defense counsel requested that Prospective Juror 30 be excused for cause. The trial judge refused. We have previously stated that the trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. Challenges for cause are, therefore, reviewed on appeal under the abuse of discretion standard. State v. Manning, 270 Kan. 674, 691, 19 P.3d 84 (2001). The failure to excuse a juror for cause is not a ground for reversal unless the defendant was prejudiced as a result. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998). Defendant asserts this standard does not apply because she was required to use a peremptory strike to remove Prospective Juror 30. By using her first peremptory challenge on Prospective Juror 30, defendant used all of her peremptory challenges. Peremptory challenges are a means to achieve an impartial jury, and as long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not violate the Sixth Amendment. Heath, 264 Kan. 557, Syl. ¶ 17. Error is premised on defendant’s assertion that “she may have removed another juror but one of her peremptory challenges was used on the prospective juror who was admittedly not fit to sit on the jury.” The State points out there was no proffer by defendant that she was unable to remove a questionable juror for lack of peremptory challenges. Therefore, defendant has shown neither an abuse of discretion in the trial judge’s refusal to excuse Prospective Juror 30 for cause nor prejudice from a jury that was not impartial. FAILURE TO HAVE THE JURY DETERMINE HER CRIMINAL HISTORY BEYOND A REASONABLE DOUBT Defendant’s overall criminal history classification was found by the trial court to be D. Defendant argues that her sentence should not have been increased based on her prior criminal history. We rejected this argument in State v. Ivory, 273 Kan. 44, Syl. ¶ 1, 41 P.3d 781 (2002), holding that “Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), does not apply where the sentence imposed was based in part upon a defendant’s criminal history score under K.S.A. 2001 Supp. 21-4704 of the Kansas Sentencing Guidelines Act.” Franklin argues that Ivory was wrongly decided and urges the court to revisit the issue. We find there is no sound legal basis for a review of Ivory. Affirmed in part and reversed in part. Lockett, J., Retired, assigned.	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The opinion of the court was delivered by Davis, J.: Greg and Linda Fisher filed a claim for the death of their son Jeremy before the Kansas Crime Victims Compensation Board. Twenty-five percent of the allowed compensation was withheld by the Board based upon “the contributory misconduct” of Jeremy. See K.S.A. 2004 Supp. 74-7305(c)(2). The district court affirmed the Board’s determination. The question, one of first impression in this state, is whether Jeremy’s conduct on the morning of the accident contributed to his death under the provisions of K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8. We hold that his conduct did not contribute to his death, reverse the district court, and remand with directions. Fifteen-year-old Jeremy Fisher collided with an automobile in his own lane of traffic at approximately 8 a.m. on December 7, 2002. Donny Taylor was driving the other automobile and also died as a result of the collision. Although there were no eyewitnesses, officers were able to determine that the vehicle driven by Taylor in the northbound lane of U.S. Highway 281 crossed the center line into the southbound lane and struck Jeremy’s vehicle head-on. Blood samples taken at the scene revealed that Taylor had a blood alcohol concentration (BAC) of .15 grams per 100 milliliters of blood (which exceeds the legal limit) and Jeremy had a BAC of .05 grams per 100 milliliters of blood (which exceeds the .02 legal limit for a person under the age of 21). Further investigation revealed that Taylor had been drinking heavily the night before and that Jeremy had been out with friends the previous night until 12:30 a.m. On September 25, 2003, Jeremy’s parents, Greg and Linda Fisher, filed an application for crime victims compensation in the amount of $5,000 for funeral expenses. After reviewing the claim at its regular meeting on January 16, 2004, the Board initially denied the claim, finding that the victim’s action leading up to the incident was a factor that contributed to his injuries in its January 21, 2004, summary proceeding order: “The claimant or victim was involved in ‘contributory misconduct’ with regard to the incident which gave rise to the claim, as provided in K.S.A. 2001 Supp. 74-7305(c)(2), and K.A.R. 20-2-8.” The Fishers appealed this ruling, and a hearing was set for March 12, 2004, at the Board’s offices. At the hearing, the Fishers were represented by counsel and provided testimony, exhibits, and statements. No transcript of this hearing is in the record on appeal even though K.A.R. 20-3-2(e) provides that “a record of the proceedings may be transcribed.” Counsel submitted written argument contending that Jeremy’s blood alcohol level did not constitute “contributory misconduct.” As “contributory misconduct” is not defined, the Fishers urged the Board to apply the principles of “comparative fault,” including proximate cause, in its interpretation. They argued that no evidence was presented that Jeremy’s blood alcohol level caused or contributed to this accident or to his death. Part of the agency record before the Board included the Crime Victims Compensation Board Law Enforcement Verification Form prepared by the responding officer, David Golden. It provides in relevant part: “5a) Was the victim assisting, attempting or committing a criminal act at the time of the crime? No_Yes X If yes, please explain. Victim’s blood alcohol level at the time of the crash was .05. The legal limit for a person his age is .02. “5b) If the victim was committing a criminal act, was the victimization a direct result of the criminal act being committed? No_Yes-If yes, please explain. I cannot determine that.” On March 15, 2004, the Board issued a summary proceeding order which provided that the Board approved the application for compensation. The order further provided: ‘Tour claim was di minished by 25% for contributory misconduct. The Board determined that the victim’s action leading up to the incident was a contributing factor in the incident as provided in K.S.A. 2001 Supp. 74-7305(c)(2) and K.A.R. 20-2-8.” In its March 17, 2004, final order, the Board first explained its earlier ruling: “3. The Law Enforcement Report indicated that the victim’s Blood Alcohol Level was .05 which was over the legal .02 limit for the victim’s age. Therefore, Jeremy was unlawfully operating a motor vehicle upon the highway. For this reason, the Board diminished the claim 100% due to contributory misconduct by the victim.” However, after the hearing on appeal, the Board partially approved the claim but reduced it by 25% ($3,750) “due to the underage alcohol level of the victim.” The Fishers filed a petition for judicial review arguing that the Board misapplied K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8 in finding Jeremy’s actions constituted contributory misconduct. In support, the Fishers noted that there had been no evidence that Jeremy’s conduct (specifically, having a BAC of .05) was a contributing factor in his death. In its November 9, 2004, memorandum decision and order, the district court affirmed the Board’s final order. The district court found substantial evidence supported a finding that Jeremy was driving in violation of the law at the time of the accident by having a BAC of .05 the morning after having been out with his friends until 12:30 a.m. and that the Board took this into account as contributory misconduct. The court rejected the Fishers’ argument that the Board misapplied and erroneously interpreted the law because their argument did not take into account the great judicial deference given to the agency’s interpretation of the statute: “It cannot be said that there is no rational basis for the [Crime Victims Compensation Board] CVCB’s interpretation of the statute. The evidence in the record reveals that Mr. Fisher was driving in violation of the law. Furthermore, abuse of alcohol or drugs is specifically listed as being a factor that may signify contributory misconduct. Given the deference the CVCB is entitled to, and the fact that there is no case-law support of the Petitioner’s position of equating contributory misconduct to contributory negligence, this Court cannot find that the interpretation of the law was erroneous or that the law was misapplied. “Petitioners also contend that the Final Order is unreasonable, arbitrary, or capricious. However, this contention is belied by the record. The Final Order is supported by substantial evidence, and there is a rational basis for the CVCB’s interpretation of the statute. Again, there is evidence that Mr. Fisher was engaged in illegal conduct prior to the accident, and there is no authority for the interpreting the statute as requiring a proximate cause type finding. Simply because the CVCB did not find entirely in the Petitioner’s favor, instead interpreting the statue in a different way, does not make the decision unreasonable, arbitrary or capricious.” The Fishers appealed from the memorandum decision, and this court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(c). Standard of Review The facts are not in dispute. The question presented is one of law involving the interpretation of “contributory misconduct” in K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8. Our standard of review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). Both the Board and the district court acknowledged this standard but relied heavily upon the judicial deference to be given to the administrative agency charged with the responsibility of enforcing the statute to be interpreted. Ultimately, however, it is the appellate court applying a de novo standard of review that interprets the statute in question: “The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference and is called the doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999). Moreover, the parents of Jeremy after exhausting their administrative remedies before the Board appealed to the district court under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., and then to this court. The standards applied in an appeal from the district court provide: “When an administrative agency action is appealed to tire district court pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., and then appealed from the district court to this court, we review the agency’s decision as though tire appeal had been made directly to this court, and we are subject to the same limitations of review as the district court.” In re Doe, 277 Kan. 795, Syl. ¶ 1, 90 P.3d 940 (2004). The party asserting an agency’s action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(1). Relevant to this case, K.S.A. 77-621(c) provides: “(c) The court shall grant relief only if it determines any one or more of the following: (4) the agency has erroneously interpreted or applied the law; (7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or (8) the agency action is otherwise unreasonable, arbitrary or capricious.” Interpretation of “Contributory Misconduct” under K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8(a)(3) The Kansas Crime Victims Compensation Board was established by the legislature in 1978 “to take care of those people who had no where else to turn,” Minutes, House Comm, on Federal and State Affairs, February 4, 1977, by “establishing] a state-financed program of reparations to crime victims or their dependents who suffer personal injury or death as a result of criminal acts.” Minutes, Senate Comm, on Federal and State Affairs, March 15, 1978. The Board awards compensation to claimants for economic loss arising from criminal conduct if satisfied by a preponderance of the evidence that the requirements for compensation have been met. K.S.A. 2004 Supp. 74-7302(a). However, K.S.A. 2004 Supp. 74-7305(c)(2) provides: “(c) Compensation otherwise payable to a claimant shall be diminished: ... (2) to the extent, if any, that the board deems reasonable because of the contributory misconduct of the claimant or of a victim through whom the claimant claims.” K.S.A. 74-7304(c) grants the Board power to adopt rules and regulations to cariy out the provisions of tire Act. K.A.R. 20-2-8, which addresses contributory misconduct, provides in relevant part: “(a) An award of compensation may be reduced if the board finds that the claimant or the victim through whom the claimant makes the claim has contributed to the injury for which the claim is made. The following acts or behavior may signify contributory misconduct: (1) Consent, provocation or incitement, including the use of fighting words or obscene gestures; (2) willing presence in a vehicle operated by a person who is known to be under the influence of alcohol or an illegal controlled substance; (3) abuse of alcohol or an illegal substance; (4) failure to retreat or withdraw from a threatening situation when an option to do so is readily available; or (5) failure to act as a prudent person.” The Fishers argue the Board’s reduction of their compensation was based on a misapplication of the term “contributory misconduct” found in K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8. The Fishers argue that because no Kansas cases have interpreted the term “contributory misconduct,” case law construing the doctrine of comparative fault adopted by Kansas in 1974 provides the most useful basis for determining whether Jeremy’s wrongful act was a contributing factor in the accident. Under the comparative fault theory, “[a] party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.” See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 269, 43 P.3d 799 (2002); PIK Civ. 3d 105.01. The Fishers cite Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), where this court found that the failure to give a proximate cause instruction on the issue of intoxication in a car accident comparative negligence case was not reversible where the instructions in their entirety made “it clear that the intoxication of defendant had to cause or contribute to the accident before the jury could assess liability on that basis.” 224 Kan. at 289. The Fishers further urge the court to apply a proximate cause analysis in interpreting “contributory misconduct.” They cite authority that a person cannot be found negligent unless his or her conduct was the proximate cause of the injury in question, and the proximate cause of an injury is a cause which “ ‘in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of wrongful act.’ ” Burns v. Benedict, 827 F. Supp. 1545, 1549 (D. Kan. 1993). The Fishers argue that being hit head-on by a drunk driver who crossed the center line of the highway was not the “ ‘natural and probable consequence’ of Jeremy’s actions.” However, the Fishers fail to recognize that this court has more recently recognized that “[wjith the adoption of comparative fault, Kansas has moved beyond the concept of proximate cause in negligence,” and the nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation. Reynolds, 273 Kan. at 269. The Board responds that the Crime Victims Compensation Board was established by the Kansas Legislature in 1978 pursuant to K.S.A. 74-7301. As the doctrine of comparative fault was established in Kansas in 1974, the legislature had the opportunity to equate contributory misconduct with the term or principles of comparative fault but did not do so. As such, it contends no support exists for the Fishers’ contention that contributory misconduct is akin to the doctrine of comparative fault and more specificallyproximate cause. The Board argues it had a rational basis for its interpretation of “contributory misconduct,” i.e., “to prevent unlawful conduct or to recognize the same and promote lawful conduct” by reducing “awards, or not make awards at all if there is evidence of unlawful conduct.” Although no Kansas case has specifically addressed this issue, a similar situation arose in Jones v. Kansas State University, 279 Kan. 128, 106 P.3d 10 (2005), where the Kansas State Civil Service Board upheld the termination of a police officer after finding that he engaged in “gross misconduct” and “conduct grossly unbecoming a state officer or employee,” and the Court of Appeals reversed on appeal. On petition for review, this court determined that the Court of Appeals erroneously defined “gross misconduct” and “conduct grossly unbecoming a state officer or employee” under the Civil Service Act by applying the definition of gross misconduct found in employment security law. We declined to adopt a single definition for the terms, reasoning that although this definition might be one factor to consider, the terms are best defined by their dictionary meanings, within the context of the civil service statute, by reviewing other cases interpreting similar terms, and by examining the totality of circumstances. We concluded that an appointing authority must decide on a case-by-case basis whether the particular misconduct was “gross.” 279 Kan. 128, Syl. ¶ 10. As no Kansas case discusses or interprets “contributory misconduct,” and the legislative history provides no further definition, we examine all of the resources set forth in Jones in resolving this issue. No question exists that Jeremy engaged in misconduct by driving with a BAC of .05 in this case; rather, the critical issue is whether the misconduct was “contributory.” Not only must the misconduct be “contributory,” but it also must have “contributed to the injury for which the claim is made.” K.A.R. 20-2-8. The vast majority of cases discussing “contributory misconduct” arising in a crime victims reparations context are from North Carolina and Ohio. Both states have interpreted “contributory misconduct” as including a proximate cause or causal relationship element. The North Carolina Court of Appeals interprets “contributory misconduct” under the North Carolina Crime Victims Compensation Act as follows: “ ‘Misconduct’ is behavior that is ‘unlawful or . . . breach[es] the standard of conduct acceptable to a reasonable person.’ [Citation omitted.] Further, ‘in order for [a] claimant’s misconduct to be contributory [under the Act] it must combine with criminal action on the part of another to become a “real, efficient and proximate cause of the injury.” McCrimmon v. Crime Victims Compensation Comm., 121 N.C. App. 144, 147, 465 S.E.2d 28 (1995). In McCrimmon, the court found the claimant’s theft of money from a convenience store customer was the proximate cause of a store owner shooting the claimant in the back as he attempted to flee and, therefore, was “contributory misconduct” within the meaning of the statute permitting denial of the claim. 121 N.C. App. at 147-49. In contrast, in Evans v. N.C. Dept. of Crime Control, 101 N.C. App. 108, 118, 398 S.E.2d 880 (1990), the North Carolina Court of Appeals found substantial evidence did not support the commission’s finding that the victim engaged in “contributory misconduct” because the victim’s injuries were not reasonably foreseeable when he left a bar with two women to go dancing at another bar and was stabbed by one of the women. Ohio defines “contributory misconduct” by statute as “any conduct of the claimant or of the victim through whom the claimant claims an award of reparations that is unlawful or intentionally tortious and that, without regard to the conduct’s proximity in time or space to the criminally injurious conduct, has a causal relationship to the criminally injurious conduct that is the basis of the claim.” Ohio Rev. Code Ann. § 2743.51(M) (West 1994). In In re McNeil, 6 Ohio Misc. 2d 12, 453 N.E.2d 1309 (1983), the Ohio Court of Claims upheld the denial of crime victim reparations where the victim solicited a prostitute to his home and was subsequently stabbed and killed by the prostitute because the victim was involved in “contributory misconduct.” Of note in this case, one explanation of contributory misconduct was as follows: “ ‘A victim does not have to be innocent of all misconduct, but only that misconduct which can reasonably be said to have caused or contributed to the injury. Contributory misconduct connotes a finding that the misconduct is “a” or “the” proximate cause, but for which the injury would not have occurred.’ ” 6 Ohio Misc. 2d at 14 (quoting In re Williams, Court of Claims No. 79-004, unpublished opinion filed March 21, 1979). In In re Sotak, 61 Ohio Misc. 2d 808, 585 N.E.2d 580 (1990), the claimant was injured in an automobile accident where he was a passenger in a car in which the driver was driving under the influence. The attorney general recommended denying reparations because the claimant’s failure to wear a seat belt in violation of Ohio law constituted contributory misconduct. The Ohio Court of Claims disagreed on appeal, reasoning: “Although Sotalc’s failure to wear a seat belt may have been unlawful and may bear some causal relationship to the fact that she sustained personal injury, her conduct did not bear any causal relationship to the offender’s decision to drive while under the influence of alcohol. The essence of contributory misconduct is the causal connection between the injured party’s conduct and the offender’s conduct rather than the injuries arising from that conduct. Put simply, the offender’s decision to drive drunk was not motivated or instigated by the applicant’s decision not to wear a seat belt. Therefore, the applicant’s claim will be granted.” 61 Ohio Misc. 2d at 809-10. See also In re Damiano, 91 Ohio Misc. 2d 162, 698 N.E.2d 141 (Ct. Cl. 1997) (tavern patron who voluntary engaged in physical altercation engaged in contributory misconduct warranting a reduction in reparations); In re Svoboda, 91 Ohio Misc. 2d 166, 698 N.E.2d 144 (1997) (applicant for reparations who did not initiate confrontation engaged in “contributory misconduct” by throwing offender to ground and repeatedly striking offender’s head against sidewalk justifying reduction of award). But see In re Howard, 127 Ohio Misc. 2d 61, 805 N.E.2d 616 (2004) (statutory presumption that felony conduct by crime victim contributed to the criminally injurious conduct, thus requiring a complete denial of the claim for reparations, is consistent with definition of contributory misconduct in terms of causal relationship to the criminally injurious conduct that is the basis of the claim). In Howard, the court upheld the denial of reparations where a gunshot victim’s toxicology report showed evidence of a felonious drug history but did not establish “ ‘how the victim’s allegedly having ingested cocaine caused the criminally injurious conduct.’ ” 127 Ohio Misc. 2d at 64. Although the Michigan Crime Victims Reparations Act does not use the term “contributory misconduct,” its interpretation of “contributed to the infliction of his injury” provides further guidance in this case, as K.A.R. 20-2-8 provides the claim may be reduced if the claimant “has contributed to the injury for which the claim is made.” In McMillan v. Crime Victims Compensation Bd., 155 Mich. App. 358, 399 N.W.2d 515 (1986), the claimant was shot in the leg, while in an unlicenced bar (a misdemeanor), after he asked a woman to dance and commented on the obscene language her husband used in response to his request. The Michigan Court of Appeals considered whether the claimant’s actions provided a basis for the board’s denial of his claim because he “contributed to the infliction of his injury.” Of note to this case, the court specifically rejected the Board’s interpretation of this language as holding “that anytime a claimant violates any criminal statute and the violation of the criminal statute is in any way a cause in fact of the claimant’s injury, the claimant has ‘contributed to the infliction of his injury.’ Such an interpretation would lead, in some situations, to results which would appear contrary to the Legislature’s intent to aid certain crime victims who are not blameworthy in causing their injuries.” 155 Mich. App. at 364. The court decided that the determination of whether a victim contributed to the infliction of his or her injury involves an assessment of the particular factual situation similar to that which is used in determining whether a defendant’s negligent acts were a proximate cause of a plaintiff s injuries. The court found that if the risk that the victim’s injuiy would result from a particular criminal statute violation is foreseeable and not too remote, then the board should be allowed to deny or reduce his or her award under the statute. However, if the risk of injury due to the violation is veiy remote and unforeseeable, the board cannot deny or reduce his or her award under the statute. 155 Mich. App. at 365-66. Under the facts of McMillan, the court concluded that the claimant’s criminal violation merely involved his knowing presence in an unlicenced bar and the risk of being shot while merely present in an unlicenced bar was too remote and unforeseeable to hold him blameworthy for his injuries. The court found that the obvious, proximate cause of the claimant’s injuiy was being shot by the husband, reasoning: “While it is trae that claimant would not have been injured ‘but for’ having gone to the ‘blind pig,’ it can be said his presence there was no more tire cause of his injury than would his presence on a public street have been the cause if he had been shot by [the husband] on a public street. There is no apparent basis for saying that presence in a blind pig makes one more likely to be shot than presence on a public street at 2:30 a.m. in die morning. Thus, these analogies would seem to indicate that claimant’s mere presence in tire blind pig did not contribute to his injuiy.” 155 Mich. App. at 366. In making its decision, the Michigan Court of Appeals distinguished the main case relied upon by the board in reaching its decision, In re McNeil, 6 Ohio Misc. 2d 12, 453 N.E.2d 1309 (1983), because the victim in McNeil was actively engaged in prostitution activity and “the Ohio provision differs from the Michigan statute in that it does not require the victim to 'contribute to the infliction of his injuiy,’ but merely requires him to engage in ‘contributory misconduct.’ ” 155 Mich. App. at 367. In this case, the Board did not specifically define “contributory misconduct” but found that Jeremy engaged in contributory misconduct by “unlawfully operating a motor vehicle upon the highway” with a BAC over the legal limit for a person under the age of 21. The Board’s conclusion can be interpreted in two ways. First, this conclusion suggests that the simple fact that Jeremy violated the driving under the influence statute for a person under the age of 21, without any further explanation of how it contributed to the accident, was per se contributory misconduct warranting a reduction of compensation. However, this interpretation focuses only on the term “misconduct” and completely ignores the term “contributory.” This interpretation runs contrary to the presumption that the legislature does not intend to enact useless or meaningless legislation and the obligation to inteipret a statute in such a way that part of it does not become surplusage. See State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004). Second, as no evidence was presented that Jeremy was speeding or driving erratically, the Board seems to have held that “but for” Jeremy’s unlawful presence on the road he would not have been killed. This is precisely the argument rejected by the Michigan Court of Appeals in McMillan in its discussion of the effect of the claimant’s stabbing while he was unlawfully present in the bar as opposed to simply being stabbed in a lawful place. As the Board has abandoned that portion of its brief citing reports and studies concerning the effect of BAC on driving ability, no evidence was presented in this case that Jeremy’s blood alcohol level made it more likely that he would have been hit by a drunk driver. In the same vein, the Fishers’ argument that the legislature did not believe that a minor’s ability to drive safely was impaired when driving with a BAC of .02 to .08 because it only assesses administrative rather than criminal penalties is not persuasive. See K.S.A. 8-1567a. The Fishers reason that under K.S.A. 2004 Supp. 8-1567, being under the influence of alcohol “means that the operator’s physical or mental function is so impaired by the consumption of alcohol that he or she is incapable of safely driving a vehicle.” State v. Blair, 26 Kan. App. 2d 7, 8, 974 P.2d 121 (1999). The problem with this argument is that simply because K.S.A. 8-1567a does not impose criminal penalties does not suggest that no impairment exists which might have contributed to the accident in this case. Rather, the crux of the issue in this case is whether any evidence was presented that Jeremy’s BAC of .05 contributed to the accident which took his life. Thus, under either interpretation of the Board’s application of the term “contributory misconduct,” we find that “[s]uch an interpretation would lead, in some situations to results that would appear contrary to the Legislature’s intent to aid certain crime victims who are not blameworthy in causing their injuries” and would erroneously render a portion of the statute superfluous. McMillan, 155 Mich. App. at 364. In its brief, the Board explains that its interpretation of “contributory misconduct” was to reduce or deny awards if there is evidence of unlawful conduct. Although this rationale makes sense in theory, its broad application without reference to whether the unlawful misconduct is “contributory” runs contrary to the regulation adopted by the Board itself: “An award of compensation may be reduced if the board finds that the claimant or the victim through whom the claimant makes the claim has contributed to the injury for which the claim is made.” (Emphasis added.) K.A.R. 20-2-8(a). The regulation clearly provides that the misconduct, even if unlawful, must contribute to the injury. Further, “abuse of alcohol or an illegal substance” is specifically listed as an act which may, not shall, signify contributory misconduct. This act, along with the others listed, i.e., consent, provocation, or incitement, including the use of fighting words or obscene gestures; willing presence in a vehicle operated by someone known to be under the influence; failure to retreat or withdraw from a situation when an option to do so is readily available; and failure to act as a prudent person, are broad in nature and may encompass many different factual situations, which may or may not contribute to the injury. While the Board certainly has the discretion to determine that a minor’s abuse of alcohol contributed to his or her injury if the evidence would support such a conclusion, the problem in this case is that no evidence was presented to support the conclusion that Jeremy’s misconduct “contributed to the injury for which the claim [was] made.” K.A.R. 20-2-8. The Board is correct that it was in no way bound to apply either a “comparative fault” or “proximate cause” analysis in awarding crime victims compensation, and nothing in the plain language of the statute or the legislative history suggests that these tort analyses were expected or intended to be utilized by the Board in awarding crime victims compensation. However, it is important to note that the regulation provides that the “contributory misconduct” must have “contributed to the injury.” This is essentially half of the comparative fault jury instruction. See PIK Civ. 3d 105.01, Comparative Fault Theoiy and Effect (“A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.”). Regardless, the Board needed to apply the statute and regulation so as to give some meaning to the term “contributory,” and these definitions provide some guidance in this regard. When construing a statute, the court must give words in common usage their natural and ordinary meaning. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005) (quoting Sawyer v. Oldham’s Farm Sausage Co., 246 Kan. 327, 331, 787 P.2d 697 [1990]). Statutes providing for an award of compensation to crime victims are remedial in nature. “A legislative act remedial in nature is to be liberally construed to effectuate the purpose for which it was enacted.” Smith v. Marshall, 225 Kan. 70, Syl ¶ 1, 587 P.2d 320 (1978). Black’s Law Dictionary 353 (8th ed. 2004) defines “contributory” as “[t]ending to bring about a result” or “[a] contributing factor.” Webster’s defines “contributory” as “of, relating to, or forming a contribution,” and “contribute” is defined as “to give or supply in common with others” or “to play a significant part in bringing about an end or result.” Webster’s New Collegiate Dictionary 245 (1980). Application of the dictionary definitions, the above case law, and the legislative history, and an examination of the statute and reg ulation, all support our conclusion that the Board erroneously interpreted and applied the term “contributory misconduct” in this case. In all of the cases discussed above, “contributory misconduct” or “contributed to the infliction of his injuiy” was only found in cases where the claimant’s misconduct caused, contributed, or was the proximate cause of the injuiy. Although the Board is granted great deference in the interpretation of its statutes and regulations, we conclude that the Board’s application of the term “contributory misconduct” to the facts of this case disregards the meaning of “contributory” and the regulation’s requirement that the misconduct “contributed to the injury for which the claim is made.” Although Jones counsels that this court need not adopt a definition of the term “contributory misconduct,” the statute and the regulation make it clear that “contributory misconduct” must have “contributed to the injury.” See K.S.A. 2004 Supp. 74-7305(c)(2); K.A.R. 20-2-8. At the very least, when applying the common meaning to the term, Jeremy’s misconduct needed to play some part in bringing about the end result of his fatal injuries. Under the facts of this case, the Board misapplied K.S.A. 2004 Supp. 74-7305(c)(2) and K.A.R. 20-2-8 by concluding that Jeremy’s conduct constituted “contributory misconduct” warranting a reduction of compensation. At oral argument, counsel for the Fishers made a request for attorney fees and expenses under K.S.A. 74-7311, which provides: “As part of any order, the board shall determine and award a reasonable attorney’s fee, commensurate with services rendered, to be paid by the state to the attorney representing the claimant. Additional attorneys’ fees may be awarded by a court in the event of review, and attorneys’ fees may be denied on a finding that the claim or appeal is frivolous. Awards of attorneys’ fees shall be in addition to awards of compensation and may be made whether or not compensation is awarded. It shall be unlawful for an attorney to contract for or receive any larger sum than the amount allowed pursuant to this section.” Review of the record reveals that the Fishers’ sole request for attorney fees and expenses prior to oral argument was in their petition for judicial review before the district court. The issue of attorney fees was not raised before the Board. We recognize that K.S.A. 74-7311 makes a distinction that the Board shall order at tomey fees for services rendered during proceedings before the Board while the courts may order attorney fees for services rendered on appeal. As such, the determination and award of attorney fees must be made at each step of the proceedings. Cf. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 265, 815 P.2d 550 (1991) (Court of Appeals erred in remanding case to district court for determination of appellate attorney fees as “[mjotions for attorney fees incurred before the Court of Appeals should be determined by the Court of Appeals.”). In this case, although K.S.A. 74-7311 would permit this court to award such fees and expenses for services rendered on appeal to this court, we note that counsel has failed to comply with Kansas Supreme Court Rule 7.07(b) (2004 Kan. Ct. R. Annot. 53) by filing a motion with the clerk of the appellate courts within 15 days of oral argument which complies with Supreme Court Rule 5.01 (2004 Kan. Ct. R. Annot. 30) and contains an affidavit specifying the nature and extent of the services rendered, the time expended on the appeal, and the factors considered in determining die reasonableness of the fee. The failure to comply with diese rules prevents this court from awarding attorney fees and expenses authorized by statute. See Smith v. McKune, 31 Kan. App. 2d 984, 963, 78 P.3d 1174, rev. denied 277 Kan. 925 (2003) (citing Conner v. Janes, 267 Kan. 427, 430, 981 P.2d 1169 [1999]). However, as a request was made for attorney fees and expenses at the district court level, we remand the case to the district court for a determination of whether attorney fees and expenses were appropriate for services rendered on appeal to the district court in light of our reversal of the district court’s decision affirming the Board’s reduction of benefits based upon contributoiy misconduct. Additionally, we note that the parties are not precluded from revisiting the issue of attorney fees before the Board in light of this opinion, particularly as K.S.A. 74-7311 mandates that the Board shall award attorney fees for the services rendered by appellant’s counsel before the Board. 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The opinion of the court was delivered by Beier, J.: This is a direct appeal from defendant Jearl Adams’ conviction of first-degree felony murder and his resulting life sentence for the death of 11-month-old Hailey O’Roke. Adams raises seven issues: (1) whether the district judge erred in rejecting his motion for new trial; (2) whether the district judge erred in refusing to admit evidence of earlier child abuse allegations made against the victim’s mother; (3) whether the district judge erred in allowing use of a PowerPoint exhibit as a demonstrative exhibit explaining Shaken Baby Syndrome without giving a cautionary jury instruction; (4) whether the district judge erred by failing to instruct on the lesser included offenses of second-degree murder and involuntary manslaughter; (5) whether the district judge erred in admitting autopsy photographs depicting Hailey’s injuries; (6) whether the admission of Adams’ confession at trial violated his Sixth Amendment right to confrontation; and (7) whether cumulative error deprived him of a fair trial. We affirm. Factual Background Adams was the husband of Hailey s daycare provider. Hailey was bom on June 5, 2001. She was declared dead early on the morning of May 11, 2002, after being brought to the hospital the previous afternoon from the daycare site. On May 9, 2002, Hailey’s mother, Lori, had taken Hailey to the doctor because of vomiting and slight lethargy. The doctor diagnosed mild dehydration and noted that Hailey would need to be admitted to the hospital for fluid replacement if her condition did not improve within the next 24 hours. The next day, Hailey arrived at daycare at Adams’ home at approximately 9:45 a.m. Adams’ wife, Rosie, described Hailey’s behavior during that day as fussy, listless, clingy, and generally not like herself. Rosie was aware of Hailey’s dehydration and tried to coax Hailey to drink and eat at various times; Hailey showed little interest in doing either. At approximately 2:30 p.m., Rosie gave Hailey liquid ibuprofen and laid her down on the floor of the hving room. When another daycare client arrived a short time later to pick up her child, she witnessed Adams holding and attempting to comfort Hailey, who was crying. When the client approached to pat Hailey on the back, Adams commented that Hailey did not like him (Adams) very much. A short while later, Rosie went into a nearby laundry room with two of her children, leaving Adams, Hailey, and Adams’ 3-year-old son in the living room. Shortly thereafter, Adams called out to his wife, saying something was wrong with Hailey. When Rosie entered the living room, Hailey was lying on the couch with Adams standing beside her. Hailey was not responsive and did not appear to be breathing, so Rosie instructed Adams to call 911. When emergency medical technicians arrived at Adams’ home, Hailey was not breathing and her heartbeat could not be detected. The technicians noticed no bruising on Hailey’s head or face. They assessed her condition as cardiac arrest, inserted a breathing tube, and transported her to the hospital. Adams asked to ride with Hailey in the ambulance. Hailey was declared dead at 3:01 a.m. the next day. Dr. Keith Kerr, who treated Hailey in the pediatric intensive care unit when she reached St. Francis Hospital in Wichita, ordered a CT scan. The results of the scan were “grossly abnormal,” showing blood in several areas of brain matter. Kerr also found evidence of retinal hemorrhages in Hailey’s eyes. A prominent bruise had developed on Hailey’s forehead, and her pupils were fixed and dilated. Dr. Kerr testified that Hailey “probably either was very close to it or was brain dead on arrival” at the hospital. The coroner later ruled Hailey’s cause of death a homicide by blunt force trauma and noted evidence of acceleration and deceleration of the brain, typically associated with severe shaking. According to the coroner, Hailey’s death was “not due to any accidental injury.” The coroner ultimately testified that Hailey’s injuries occurred approximately 12 hours before she was declared dead and that the injuries would have made her unconscious immediately after their infliction. Dr. Michael Handler, a forensic neuropathologist who examined Hailey’s body after her death, opined that Hailey’s injuries were 10 hours to 14 hours old at the time she was declared dead, noting that “[t]he symptomology in this case would have immediately followed the assault” with “no conscious interval.” Dr. Handler found no evidence of a “significant preexisting injury,” and he said that dehydration could not have led to the conditions he observed. Adams first told officials that, before the 911 call, Hailey had not been coughing or screaming; had not fallen, bumped, or run into anything; and had not been pushed, stepped on, or thrown. In his initial interview with Butler County Sheriff s officers early on May 11, before Hailey was pronounced dead, Adams said that, because Hailey had been lying on the floor near where his son was playing, Adams decided to pick her up and lay her on the couch. At about that moment, Hailey’s head fell back; her eyes rolled backward; and she went limp, prompting him to call out for his wife. Officers attempted to make a video recording of a second interview with Adams the evening after Hailey was declared dead, but a technical malfunction meant the interview was not recorded as planned. The officers ultimately testified Adams said that evening that he did not know what had happened to Hailey. On May 14, 2002, Kansas Bureau of Investigation (KBI) Agent Ricky Atteberiy interviewed Adams. During that interview, which was successfully recorded, Adams told Atteberiy that a remote-controlled toy car operated by one of Adams’ children may have hit Hailey in the head. Adams said he then picked up Hailey and accidentally dropped her. He then picked her up again and shook her to get her attention, because she was not responding and had a stariy look in her eyes. Adams wrote out this sequence of events in a statement signed by himself and Atteberry. The portion of the statement having to do with shaking Hailey was added at the end of the statement; Atteberry acknowledged he may have told Adams that Adams must have shaken Hailey, something Adams eventually acknowledged having done. Approximately an hour after the written statement was finished, Adams gave KBI officials another statement. In this statement, Adams said Hailey had been ciying on the floor when he picked her up. Hailey’s crying had made Adams mad; so he held her approximately level with his head and threw her hard onto the floor. He said he then picked her up and shook her to get her attention; then he called for his wife. Adams demonstrated this final version of events several times for the KBI officials. Atteberiy testified that Adams’ reason for throwing Hailey to the floor was to malee the infant “mind.” The district judge ruled pretrial that Adams’ statements to law enforcement were freely and voluntarily given and thus admissible at trial. Just before the start of Adams’ trial, the prosecutor met with each of Hailey’s parents, Jerry and Lori O’Roke. The prosecutor had been in contact with both of them at various times before that point regarding Hailey’s death and the progress of the case, and whether her office had provided victims’ counseling, notice of hearings, and information about victims’ compensation. The prosecu tor’s conversations with Hailey’s parents just before trial, however, concerned her knowledge that Jerry had been at the courthouse to file a restraining order against Lori, and that Lori, in response, had come to the courthouse to file a restraining order against Jerry. In her conversation with Jerry, the prosecutor learned that the couple had been in conflict since Hailey’s death. Neither Jerry nor Lori had accused the other of physical abuse. The prosecutor briefly looked over a Protection from Abuse Act (PFA) petition Jerry had filled out. The petition stated Lori had placed Jerzy in fear of imminent bodily injury and that Lori had been “acting crazy,” lying to family and friends, making threats to kill herself, screaming, and acting physically aggressive towards her husband. The prosecutor told both Jerry and Lori that they needed to focus their attention on the upcoming trial. She also said that a restraining order could pose logistical problems, because the couple would not be able to be together in certain instances. She advised the O’Rokes of their options, encouraged them to seek counseling, and told them it was their choice as to whether they would continue to pursue the restraining orders. Yet, after talking to Jerzy and Lori, the prosecutor told a court clerk that Jerzy’s petition might be withdrawn. It eventually was. Before Adams’ trial began, the defense was aware of Jerzy’s PFA petition and knew of its withdrawal. The defense was not aware the prosecutor had discussed the PFA filings with Jerzy and Lori, and defense counsel made no effort to introduce evidence of the couple’s conflict or Jerry’s PFA petition during trial. Several years before Hailey was bom, Lori had been married to another man, with whom she had three children. One of Lori’s daughters from that union had made allegations that Lori was physically, emotionally, and sexually abusive toward her children. Custody of the three children had been awarded to the children’s father in the divorce decree, with Lori granted only supervised visitation. Evidence pertaining to the custody arrangements and the abuse allegations was proffered by the defense, but the district judge refused to admit it during Adams’ trial. The defense also was unsuccessful in preventing use of a demonstrative PowerPoint presentation explaining Shaken Baby Syndrome as well as admission of autopsy photographs. After the trial was concluded and defense counsel learned of the prosecutor s conversations with Hailey’s parents about the PFA filings, Adams filed a motion for a new trial. The district judge denied the motion, ruling the prosecution’s failure to disclose the conversations pretrial did not result in a Brady violation. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In the district judge’s view, the fact that Jeriy withdrew his PFA petition after talking with the prosecutor was neither material nor exculpatory. Motion for New Trial Adams first contends that he should have been granted a new trial because the State’s failure to disclose evidence of the prosecutor’s conversations about the PFA filings with Hailey’s parents left the defense without key information for Lori’s cross-examination. Adams argues that his defense was to cast suspicion on Lori and that, had his defense counsel known of the. prosecutor’s pos.sible role in persuading Jerry to dismiss his PFA filing, counsel would have questioned Lori about the PFA allegations. In Adams’ view, the actual circumstances surrounding dismissal of the PFA filing would have carried more weight with the jury than if it simply had been dismissed without interaction between the prosecutor and Jerry. Thus, he argues, the prosecution’s failure to disclose the conversations violated Brady v. Maryland, 373 U.S. at 87, and the undisclosed information met the standard for newly discovered evidence meriting a new trial under K.S.A. 22-3501. The State argues the district judge correctly found the communications between the prosecutor and Hailey’s parents were not exculpatory. In addition, the State argues that there was no bad-faith suppression of the information and it was not material enough to make it, even in hindsight, worthy of disclosure. Finally, the State also asserts the defense had knowledge of the PFA petition and thus had sufficient notice to investigate the circumstances of its filing and withdrawal. The standard of review of an order denying a motion for a new trial based on newly discovered evidence is “whether the district court abused its discretion.” State v. Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002). A decision will not be reversed on appeal “if a reasonable person could agree with the district court’s decision.” Moncla, 273 Kan. at 861. In reviewing the lower court’s decision, the party asserting the claim has the burden of proving the lower court abused its discretion. State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002). Brady holds that the prosecution may not suppress, either in good or bad faith, evidence favorable to the defendant and material to guilt or punishment without violating the defendant’s due process rights. Brady, 373 U.S. at 87. There are three scenarios in which Brady applies. United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Our formulation of those scenarios is: “(1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could have not escaped the prosecutor’s attention; (2) where there is a deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment, irrespective of the prosecutor’s good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that it was so material that the defense could have put the evidence to significant use.” State v. Kelly, 216 Kan. 31, 34, 531 P.2d 60 (1975). This formulation requires the State to disclose evidence that could be exculpatory to a defendant even when no request for the disclosure has been made. Kelly, 216 Kan. at 34. According to the formulation’s sliding scale, the required degree of the evidence’s materiality to the defendant’s case increases as the classification of the level of intent supporting the State’s conduct decreases. The first category requires a fairly low showing of materiality, and the third category requires that “the evidence withheld must have a high degree of materiality relating to a defendant’s guilt or punishment if the conviction is to be found constitutionally infirm.” Kelly, 216 Kan. at 34. In this case, there is no evidence that the prosecution deliberately withheld the information of the meeting between the prosecutor and the parents of Hailey, and there was no request by the defense for such evidence. Thus any failure to disclose evidence here falls into the third category governing the least serious prosecutorial oversight. In order to grant a new trial based on such conduct, “the evidence must be clearly exculpatory, and the evidence must be material so that its suppression was clearly prejudicial to the defendant.” State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997). To qualify as exculpatory, evidence must tend “to disprove a fact in issue which is material to guilt or punishment,” State v. Carmichael, 240 Kan. 149, 153, 727 P.2d 918 (1986), or “[create] reasonable doubt and [affect] the outcome of the trial.” Aikins, 261 Kan. at 383. Evidence going to the credibility of a witness can be considered exculpatory. Kelly, 216 Kan. at 37. “Clearly prejudicial” evidence must hamstring a defendant’s ability to respond to the charges. Aikins, 261 Kan. at 384 (citing State v. Humphrey, 258 Kan. 351, 355-56, 905 P.2d 664 [1995]). The undisclosed information about the prosecutor’s pretrial conversations with Hailey’s parents was not clearly exculpatoiy; neither was it so material that its nondisclosure was clearly prejudicial. Even if we assume the prosecutor encouraged the withdrawal of Jerry’s PFA petition, which she testified she stopped short of doing, the fact of that encouragement would not have added anything of substance to the knowledge the defense already possessed. The defense was aware of the PFA filing. If it did not possess a copy of the petition, with its reference to Lori lying, it could have obtained one. Had the defense wanted to capitalize on the PFA petition to question Lori’s credibility, it could have done so. The circumstances surrounding its withdrawal would have added little. The information also was not so vital that the defense was prevented from answering the charges against Adams. Even if Lori was threatening toward her husband or lying to him or others after Hailey’s death, these behaviors did not make it more likely that she, rather than Adams, committed the murder. There was no Brady violation necessitating reversal. To the extent Adams supplements his Brady argument with an argument that the information about the prosecutor s conversations constituted newly discovered evidence necessitating a new trial under K.S.A. 22-3501, he must demonstrate “that the evidence is in fact new’ and could not have been produced at trial with reasonable diligence.” State v. Henry, 263 Kan. 118, 132-33, 947 P.2d 1020 (1997). The undisclosed evidence must also be of “such materiality that a reasonable probability exists that it would result in a different outcome at trial.” Henry, 263 Kan. at 132-33. Adams cannot meet this standard. Again, defense counsel knew of Jerry’s PFA petition and its withdrawal. Minimal investigation into the allegations and why they were withdrawn would have led the defense to the fact that the petition was withdrawn shortly after Jerry met with the prosecutor. Under these circumstances, Adams did not meet his burden to demonstrate the undisclosed information was “new.” We have already discussed in the context of Brady that it was not so material that it would have given rise to another outcome. The trial judge did not abuse his discretion when he denied Adams’ motion for a new trial. Reasonable persons could agree with the judge that neither Brady nor K.S.A. 22-3501 required a new trial. Admission of Child Abuse Allegations and Divorce Decree Adams proffered notes from a family clinic containing allegations that Lori had physically, emotionally, and sexually abused one of her daughters from her previous marriage, and a divorce decree granting Lori only supervised visits with the children of that marriage. According to Adams, this evidence — along with admitted evidence that Hailey was fussy and lethargic on the day she died and evidence that Lori had been seen acting aggressively toward Hailey weeks before — was integral to his theory that Lori, rather than he, abused Hailey and caused her death. Although the State recognizes the right of a criminal defendant to offer evidence in support of his or her theory of the case, it argues that the right to present evidence of a third party’s guilt is not absolute. In the State’s view, the direct evidence against Ad ams, including his confession and demonstration, meant the proffered evidence merely suggesting Lori could have had a role in Hailey’s death was inadmissible. The State also argues that the medical testimony about when Hailey’s fatal injuries occurred warranted the exclusion of the evidence proffered by the defense. Our first consideration when examining appellate challenges to a district court’s admission of or refusal to admit evidence is relevance. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004) (citing State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 [2004]). Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. Carter, 278 Kan. at 77. It is also true that an evidentiary decision based on an erroneous interpretation of the law can be equivalent to an abuse of discretion. See Koon v. United States, 515 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996) (abuse of discretion standard includes consideration of whether exercise of discretion rested on error of law). A district judge’s decision under the third-party evidence rule at the heart of the evidentiary question before us here is subject to an abuse of discretion standard of review on appeal. See State v. Marsh, 278 Kan. 520, 531, 102 P.3d 445 (2004) (“sound exercise of judicial discretion dependent on the totality of facts and circumstances in a given case”), rev’d on other grounds 548 U.S__, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006). Discretion is abused when “judicial action is arbitrary, fanciful, or unreasonable.” State v. Shelby, 277 Kan. 668, 677, 89 P.3d 558 (2004). If a reasonable person could have taken the view adopted by the district judge, then no abuse of discretion has occurred. This standard of review places the burden of proof on appeal on the party alleging that such an abuse of discretion occurred. Meeks, 277 Kan. at 618. This court’s most recent discussion of the third-party evidence rule appears in State v. Marsh, 278 Kan. at 531-34. Although as of this writing, Marsh’s holding striking down the state’s death penalty statute will soon be argued before the United States Supreme Court, and thus our mandate has not yet issued, we discuss our clarification of Kansas’ third-party evidence rule in Marsh because that portion of the opinion will not be subject to further review. In Marsh, defense counsel attempted to introduce evidence concerning the culpability of Eric Pusch, the husband and father of the two victims. Specifically the defense wanted to put on evidence of Pusch’s motive and opportunity to commit the crimes, as well as his potential connection to a murder weapon. The district court refused to admit the evidence, interpreting the Kansas third-party evidence rule to forbid introduction of circumstantial evidence of a third party’s guilt when the State had presented direct evidence of the defendant’s guilt. Marsh, 278 Kan. at 526-27. We made clear that admission of third-party evidence did not turn on the sometimes hazy distinction between direct and circumstantial evidence. Rather, we said, a district judge must evaluate the totality of facts and circumstances in a given case to determine whether the defense’s proffered evidence effectively connects the third party to the crime charged. Marsh, 278 Kan. at 531. In addition, we said, “[W]hile evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime.” Marsh, 278 Kan. at 531. With the rule thus enunciated, we held that the exclusion of the defendant’s proffered evidence was reversible error. Marsh had proffered more than mere evidence Pusch had a motive. For example, there was direct evidence that Pusch’s blood as well as the blood of a victim appeared on Marsh’s shoes. Marsh, 278 Kan. at 527. Adams directs our attention to State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003), in which we wrote: “Circumstantial evidence that would be admissible and support a conviction if introduced by the State cannot be excluded by a court when offered by the defendant to prove his or her defense that another killed the victim.” We also noted in Evans that, although this court recognizes “no distinction between direct and circumstantial evidence in terms of probative value,” the exclusion of evidence establishing “nothing more than mere speculation and conjecture to connect the third party to the crime” is not error. Evans, 275 Kan. at 104-05. In Evans, the defendant attempted to admit circumstantial evidence that another individual was seen holding the murder weapon immediately after the fatal shot was fired. There also was evidence that the other individual subsequently admitted to shooting the victim and dumping his body. Evans, 275 Kan. at 97, 101. We held that this evidence should have been admitted; it directly linked the other person to commission of the crime. Evans, 275 Kan. at 106. As such, its exclusion was “inconsistent with substantial justice.” Evans, 275 Kan. at 106. We reached a different result in State v. Hooker, 271 Kan. 52, 21 P.3d 964 (2001). In that case, the State presented evidence that the defendant broke into the residence of the victim and his girlfriend, asked about money, struggled with the victim, and shot him in the back. A burgundy Cadillac had been seen in the parking lot at the time of the shooting; three days later, the girlfriend of the victim saw a burgundy Cadillac at a gas station and recognized the defendant as the man who had broken in and shot her boyfriend. She wrote down the license plate number and called the police, who picked up the defendant later that day. In response, the defendant sought to introduce evidence that two other persons had threatened the victim. He conceded that the proffered evidence was hearsay based on rumors. We held the evidence was irrelevant in the absence of other evidence to connect either of the two persons to the victim’s death. Hooker, 271 Kan. at 65-66. The situation here is closer to that in Hooker than to that in Marsh or Evans. The State had a wealth of evidence against Adams, both direct and circumstantial. He confessed to the crime, demonstrating for law enforcement how he threw Hailey down and shook her. Expert medical testimony established that Hailey’s injuries occurred approximately 10 to 14 hours before she was declared dead and that the injuries would have made her unconscious immediately. Adams was with her in the relevant time period, while Lori was not. When Hailey arrived at daycare, and for several hours thereafter, she was not gravely injured or unconscious. Neither of the pieces of evidence Adams proffered could place Lori at the crime scene at the pertinent time and thus link her to Hailey s fatal injuries. The same was true of the other pieces of evidence that were admitted — Hailey’s fussiness and lethargy on the day of the crime and Lori’s aggressive behavior from weeks earlier. Defendant’s theory of the case lacked a critical element— medical evidence that injuries inflicted at a time when Lori was with Hailey could have caused Hailey’s death. Without competing evidence on the mechanism and timing of the fatal injuries, Adams’ effort to pin blame on Lori amounted to baseless innuendo. In such a situation, the district judge’s decision to exclude the family clinic record and the divorce decree did not qualify as an abuse of discretion. Demonstrative Exhibit on Shaken Baby Syndrome Adams next challenges the State’s use of a demonstrative PowerPoint exhibit to illustrate Shaken Baby Syndrome. Adams argues that the presentation purported to re-create the crime in a manner wholly unsupported by the evidence, a situation that, at a minimum, should have been explained through a cautionary jury instruction. Adams sought no such instruction at trial, although he did object to the State’s use of the demonstrative exhibit. Our standard of review on appellate challenges to the admission or exclusion of evidence is stated above. Our first question is relevance. Despite Adams’ argument that the exhibit varied from the facts of this case, we have no hesitation in holding that the demonstrative exhibit illustrating Shaken Baby Syndrome was relevant. The syndrome was a prominent feature of the medical testimony, and the mechanism of and injuries inflicted by the syndrome are not matters about which the average lay juror has knowledge. Our recent decision in State v. Torres, 280 Kan. 309, 121 P.3d 429 (2005), addressed a nearly identical issue. As in that case, we see no error in the district judge’s decision here. The PowerPoint demonstrative aide fairly and accurately represented Shaken Baby Syndrome and assisted in explaining the medical testimony. Regarding the absence of a cautionary instruction: “ ‘No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the juiy retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous [K.S.A. 2002 Supp. 22-3414].’ The failure to give an instruction ‘ “ ‘is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.’ ” ’[Citation omitted.]” State v. Boone, 277 Kan. 208, 220, 83 P.3d 195 (2005). Applying the clearly erroneous standard here, we see no real possibility Adams’ jury would have returned a different verdict had a cautionary instruction on the Shaken Baby Syndrome exhibit been given. The jury saw a videotape of Adams’ demonstration of his extremely rough handling of Hailey. The violence depicted in that demonstration easily exceeded the violence of the demonstrative PowerPoint exhibit. A cautionary instruction regarding the PowerPoint exhibit would not have protected Adams from the jury’s ultimate decision. Lesser Included Offense Instructions Adams’ next argument is that the district court erred by failing to instruct on lesser included offenses. He asserts that the jury could have concluded, based on the first statement he gave, that the trauma Hailey suffered in her fall caused her death. The defense did not object to the omission of the lesser included offense instructions at trial. In fact, Adams’ lawyer said he “presume[d]” an instruction on involuntary manslaughter would not be given, and it “was probably clearly implied” that it would be inappropriate to instruct on any lesser included offenses. As mentioned above in relation to the cautionary instruction on the PowerPoint exhibit, the controlling standard of review when a criminal defendant has not objected to a certain jury instruction given or has failed to offer a certain jury instructions not given is the clearly erroneous standard. K.S.A. 2001 Supp. 22-3414(3). This holds true even in a felony-murder case, although we have also said that no lesser included offense instructions need be given unless the evidence of the underlying felony is weak, inconclusive, or confusing. See State v. Calvin, 279 Kan. 193, 201, 105 P.3d 710 (2005); State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001). Regardless of the specific charged crime, the clearly erroneous standard remains the touchstone. See Torres, 280 Kan. at 326 (Branning analysis unnecessary in felony-murder case when lesser included offense instruction not requested); see also State v. Engelhardt, 280 Kan. 113, Syl. ¶ 7, 119 P.3d 1148 (2005) (in premeditated first-degree murder case, clearly erroneous standard cannot be met when evidence would not permit rational factfinder to find defendant guilty of lesser included offenses). In a felony-murder case, an appellate court may or may not need to determine whether the evidence supporting the underlying felony was weak, inconclusive, or confusing in order to determine whether the absence of lesser included instructions was clearly erroneous. Regardless, Adams cannot surmount the clearly erroneous standard here. The intent level required for felony murder based on child abuse is only that the actor intend the act of hitting or hurting the child, with no requirement that injury be intended. State v. Heath, 264 Kan. 557, 572, 57 P.2d 449 (1998). This court has found that injuries of a certain nature and severity negate the possibility that they could have been inflicted other than by child abuse. Heath, 264 Kan. at 572. In this case, the medical testimony and Adams’ own statements and demonstration make it virtually impossible that any jury could have convicted him of a lesser offense, had an instruction on that offense been given. The coroner’s testimony was that the injuries were not consistent with accidental injury, and Adams admitted to purposely throwing and shaking Hailey. There was additional testimony that Hailey was so severely injured that there could have been no conscious interval after her injuries were inflicted. One doctor testified that she was probably brain dead upon arrival at the hospital. Under these circumstances, the district judge did not err when he did not give lesser included offense instructions. Admission of Autopsy Photographs Adams next argues that the district court erred by admitting autopsy photographs.. The photographs at issue — Exhibits 29,31, 32,36, 38, and 39— were, as Adams suggests, bloody and disturbing. But they were certainly relevant, our first consideration. See Torres, 280 Kan. at 327. They also aided the jury in understanding Hailey s injuries, providing context for the testimony of the coroner. “ ‘The admission of photographs in a homicide case is a matter within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent the showing of an abuse of that discretion.’ [Citation omitted.]” State v. Green, 274 Kan. 145, 147, 48 P.3d 1276 (2002) (quoting State v. Bell, 273 Kan. 49, 52, 41 P.3d 783 [2001]). That discretion has been abused “ ‘when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice.’ ” Green, 274 Kan. at 147 (quoting Bell, 273 Kan. at 52). Further, “ ‘[p]hotographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. [Citation omitted.] Photographs which are relevant and material in assisting the juiy’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. [Citation omitted.] Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible. [Citation omitted.]’ ” Green, 274 Kan. at 147 (quoting Bell, 273 Kan. at 53). We have also noted that “[g]ruesome crimes result in gruesome photographs.” Green, 274 Kan. at 148. In this case, the photographs were carefully selected to explain the coroner’s testimony about Hailey’s injuries and cause of death. This was a valid purpose. Any prejudice was not undue. The trial court did not abuse its discretion. Admission of Adams’ Confession Adams’ sixth issue questions the admission of his confession under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Adams argues for the first time on appeal that he was faced with a Hobson’s choice: Either allow the statements he made to police to go unchallenged, or surrender his constitutional right not to testify. Adams asserts he should not have to forego one constitutional right to preserve another. Issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution raise questions of law, and our standard of review is de novo. See State v. Johnson-Howell, 255 Kan. 928, 938, 881 P.2d 1288 (1994). However, as a general rule, issues that were not raised before the trial court are not eligible to be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). This court has recognized several exceptions to this general rule: “ ‘(1) the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. [Citations omitted.]’ ” State v. Wiegand, 275 Kan. 841, 844-45, 69 P.3d 627 (2003) (quoting State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 [1998]). Adams contends that this issue falls within either the first or the second category of exceptions. Because Adams’ right not to be compelled to testify against himself and his right to confront witnesses are at stake, we address the merits of this issue under the second exception. In State v. Meeks, 277 Kan. 609, 614, 88 P.3d 789 (2004), this court held that Crawford v. Washington stood for the proposition that “witnesses’ out-of-court statements that are testimonial are barred under the Confrontation Clause unless (1) the witnesses are unavailable and (2) the defendants had [a] prior opportunity to cross-examine those witnesses.” We rejected this argument in Torres, 280 Kan. at 319-20. We see no reason to depart from that ruling here. Cumulative Error Adam’s final argument is that, even if none of the individual claims addressed above warrants reversal of his conviction, the cumulative effect of the errors he alleges demands reversal. Having held that there was no error; we also hold that the cumulative error rule is inapplicable to Adams. Affirmed. Lockett, J., Retired, assigned.	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On January 22, 1999, the petitioner, Bryan A. Rickman, was indefinitely suspended from the practice of law in Kansas, ordered to pay the costs of the disciplinary proceeding, and ordered to comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301). In re Rickman, 266 Kan. 658, 972 P.2d 759 (1999). On November 17, 2003, Rickman filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312). On April 5, 2005, a hearing was held before a panel of the disciplinary board. On July 5, 2005, the panel filed its report setting out the circumstances leading to Rickman’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel concluded that Rickman has fully complied with the orders of the Kansas Supreme Court and has met the burden of proof establishing his fitness to practice law. The panel unanimously recommended that Rickman’s petition for reinstatement to the practice of law in Kansas be granted. Since the panel report recommends reinstatement, no response is required by petitioner, and pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court. The court, after carefully considering the record, accepts the findings and recommendation of the panel that petitioner be reinstated to the practice of law in Kansas. It Is Therefore Ordered that Biyan A. Rickman be reinstated to the practice of law in the state of Kansas, and the Clerk of the Appellate Courts is directed to enter petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas. Dated this 6th day of October, 2005. It Is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the petitioner.	[ -112, -23, -12, 94, 27, 96, -70, -74, 113, -45, 103, 115, -19, -38, 5, 103, 64, 121, 85, 105, -59, -73, 86, -64, -122, -13, -47, -47, -7, 79, -12, -67, 76, 120, -118, -107, 6, -55, -47, 28, -82, 6, 41, -59, 88, -63, -76, 41, 23, 11, 17, -42, -29, 40, 17, -33, 8, 40, 91, -19, 81, -111, -111, 21, 109, 80, -95, 4, 28, 7, 120, 62, -120, 24, 8, -20, -109, -46, -126, 116, 11, -39, 9, 102, 114, 50, 21, -74, -68, -84, 47, 112, 29, -90, -111, 88, 67, 5, -105, -99, 119, 20, 35, 124, -26, -123, -99, -20, 7, -54, -106, -77, 95, 54, -120, -117, -17, 11, 48, 117, -107, -10, 92, 86, 122, -101, -38, -28 ]
The opinion of the court was delivered by Rosen, J.: Charles Brown was convicted of first-degree premeditated murder in 1996 and sentenced to life in prison with no possibility of parole for 25 years. He directly appealed his conviction and sentence, and this court affirmed them. State v. Brown, 266 Kan. 563, 579, 973 P.2d 773 (1999). In November 2002, Brown filed a motion to correct an illegal sentence, alleging that K.S.A. 21-3401 is unconstitutional. The district court denied Brown’s motion without a hearing. . Brown appeals the district court’s denial of his motion to correct an illegal sentence, claiming that (1) K.S.A. 21-3401 is unconstitutionally vague because the legislature eliminated the word “malice” from the statute; (2) the absence of the word “malice” shifts the burden of proof to the defendant; and (3) the trial court should have instructed the jury regarding the element of malice. Brown claims that the district court lacked jurisdiction for his conviction because the statute for first-degree murder is unconstitutionally vague due to the ehmination of the term “malice” from the statute in 1993. See L. 1992, ch. 298, sec. 3 (legislature eliminated the word “maliciously” from K.S.A. 21-3401). “Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. [Citations omitted.] ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duly to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt.’ [Citation omitted.]” State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000). Brown’s sole argument is that a person who executes a convicted murderer pursuant to the death penalty statutes would be guilty of first-degree murder pursuant to K.S.A. 21-3401 because there is no requirement for malice. However, a party cannot challenge the constitutionality of the government’s action by invoking the rights of others. State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (rejecting defendant’s claim that the sodomy statute was unconstitutional because the defendant, who was charged with forcible sodomy, did not have standing to argue that statute discriminated against consensual homosexual acts). Accordingly, Brown has no standing to argue that K.S.A. 21-3401 is vague as applied to potential state executioners. In State v. McCown, 264 Kan. 655, 661-63, 957 P.2d 401 (1998), we concluded that the removal of the term “malicious” from the second-degree murder statute, K.S.A. 1997 Supp. 21-3402, did not render the statute unconstitutionally vague. Noting that the State must prove “[d]eath of a human being, intent to kill, and causation” as the facts necessary to establish second-degree murder, the McCown court held that these elements were not vague. 264 Kan. at 663. Prior to July 1,1992, K.S.A. 21-3401(b) defined first-degree premeditated murder as “the killing of a human being committed ma liciously, willfully, deliberately and with premeditation.” K.S.A. 21-3401(a), the present version and the one under which the defendant was convicted, defines first-degree premeditated murder as the killing of a human being committed “[i]ntentionally and with premeditation.” The only difference between second-degree intentional murder in K.S.A. 21-3402(a) and first-degree premeditated murder in K.S.A. 21-3401(a) is the element of premeditation. Premeditation means to “ ‘have thought over the matter beforehand.’ ” State v. Navarro, 272 Kan. 573, 578, 35 P.3d 802 (2001). “ ‘Premeditation is a “state of mind” relating to a person’s reasons and motives for acting as he or she did.’ ” Navarro, 272 Kan. at 578. “Malicious” has been defined as “ ‘ “willfully doing a wrongful act without just cause or excuse.” State v. Stone, 253 Kan. 105, 108, 853 P.2d 662 (1993). Thus, the terms “maliciously” and “premeditation” have different meanings and were not used synonymously by the legislature to define first-degree murder. Because the term “premeditation” as used in K.S.A. 21-3401 is not the same as the term “maliciously” previously used in K.S.A. 21-3401 and because the term “premeditation” is the only difference between first-degree murder and second-degree intentional murder, the McCown court’s analysis is controlling. The ehmination of the term “maliciously” from the first-degree murder statute does not make the statute unconstitutionally vague. See McCown, 264 Kan. at 663. Next, Brown argues that K.S.A. 21-3401(a) is unconstitutional because the removal of the word “maliciously” shifts the burden of proof to the defendant. The constitutionality of a statute is a question of law subject to de novo review. Whitesell, 270 Kan. at 268. Like his argument in the first issue, Brown relies on factual circumstances not implicated by the facts of his case. Specifically, Brown points to a state executioner and a police officer who kills someone in the line of duty. Brown has no standing to raise the constitutionality of the statute based on facts that are not implicated by his case. See Thompson, 221 Kan. at 172. Accordingly, this argument is without merit. In McCown, this court held that the ehmination of the term “malicious” from the second-degree murder statute did not shift the burden of proof to the defendant. 264 Kan. at 662-64. Brown argues that McCown should be overruled but cites no authority to support his argument. The addition of premeditation as an element to distinguish first-degree murder from second-degree murder does not invalidate the McCown court’s analysis on this issue. Thus, it is controlling in this case, and Brown’s claim has no merit. Finally, Brown claims that his conviction must be reversed because the trial court improperly denied his request for a jury instruction regarding the element of malice. This issue is not properly before us. Brown filed a motion in the district court to correct an illegal sentence. A defendant may file a motion to correct an illegal sentence at any time. K.S.A. 22-3504(1). An illegal sentence is “ ‘a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” State v. Barnes, 278 Kan. 121, 123-24, 92 P.3d 578 (2004). Brown claims that his sentence was illegally imposed by a court that lacked jurisdiction because K.S.A. 21-3401(a) was unconstitutional. Brown’s claim that the trial court erroneously instructed the jury raises an issue of trial error. Although trial errors may warrant reversing a conviction, they do not deprive courts of jurisdiction. In a criminal case, the district court acquires jurisdiction upon the filing of a complaint, indictment, or information. State v. Trudell, 243 Kan. 29, 39, 755 P.2d 511 (1988). As long as the complaint, indictment, or information alleges the elements of the offense intended to be charged, sufficiently apprises the defendant of the facts he or she must be prepared to meet, and is specific enough to determine a subsequent plea of double jeopardy, the district court has subject matter jurisdiction. State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993). The district court’s jurisdiction “is not limited to the power to decide a matter rightly but includes the power to decide the matter wrongly.” Sims, 254 Kan. at 9. Because a trial error does not de prive the district court of jurisdiction, trial errors cannot be raised to support a motion to correct an illegal sentence. Accordingly, the district court lacked jurisdiction to determine whether the trial court erred in instructing Brown’s jury, and we are without jurisdiction to analyze this issue. We affirm the district court’s denial of Brown’s motion to correct an illegal sentence.	[ 48, -22, -7, -65, 41, -96, 11, -104, 112, -95, 100, 83, 111, -33, 68, 123, -77, -75, 85, 105, 84, -105, 7, -63, -74, -77, -48, -41, -77, -37, -2, -66, 12, 112, 2, 117, 70, 106, -27, -36, -82, -121, -120, -16, -62, 4, 52, 42, 82, 15, -15, -97, -29, 58, 18, -61, -119, 40, -37, -81, 40, -103, -97, -113, 104, 3, -93, -92, -100, -89, 112, 44, 88, 57, 2, -24, -9, -122, -122, 84, 111, -119, -84, 102, 98, 33, 41, -49, -96, -103, 15, 110, -83, -90, -102, 64, 67, 12, -106, -35, 116, 116, 14, 120, -25, -108, 31, 60, -109, -53, -112, -77, -55, 124, 6, -29, -5, -121, 48, 113, -49, -58, 94, -29, 89, 91, -50, -12 ]
The opinion of the court was delivered by Fatzer, J.: The Kansas Turnpike Authority has appealed from an order of the district court of Wyandotte County, division No. 4, to pay $19,770.40 to Wyandotte Township Sewer District No. 9, hereafter referred to as the district, as the balance due and owing under the appraisement and award of the commissioners filed September 7, 1955, in a condemnation proceeding. On July 27, 1955, the Authority instituted eminent domain proceedings in the district court of Wyandotte County, Division No. 4, to acquire land for right of way purposes, among which were 40 lots owned by the Kansas Homes Development Company, Inc., hereafter referred to as the owner, in its Stony Point South subdivision located approximately four and one-half miles west of Kansas City, Kansas. Commissioners were duly appointed who gave notice to the owner and to the lien holders of record, one being the district which previously had issued its general obligation bonds for the construction of a main sewer line and a sewage disposal plant to furnish sewer facilities to homes to be erected in Stony Point South subdivision and those erected by the owner, or its grantees, in the owner’s Stony Point Heights subdivision located immediately north of Stony Point South. The sewer bonds issued by the district were to mature in approximately equal amounts over a 25-year period, to be retired primarily by special assessments levied annually by the district against each parcel or lot within Stony Point Heights and Stony Point South subdivisions. The total bond debt was approximately $158,000, and when spread against each parcel or lot in both subdivisions, originally constituted a lien of $285.65, but with interest computed over the life of the bonds, the total assessed benefits amounted to $494.26 to each lot. The commissioners in their report of appraisement awarded the owner $24,000 for the land taken and $36,000 damages for the land remaining in Stony Point South subdivision, or a total of $60,000, “Subject to the unpaid taxes for sewers in Wyandotte Sewage District No. 9 in Wyandotte County, Kansas.” Aggrieved with the appraisement and award, the owner appealed to the district court, but neither the Authority nor the district appealed. The owner’s appeal was assigned for trial in the Second division of the district court and was tried by a jury, commencing January 9, 1956. Evidence was received from every witness offered by the owner and the Authority, but the district was not permitted to offer evidence of the value of the land taken or to show its enhancement in value, if any, by the construction of the main sewer line and the sewage disposal plant. However, counsel for the district participated fully in the trial and was permitted to cross-examine every witness offered by the owner and the Authority. On January 16, 1956, the jury answered special questions and returned its verdict fixing the value of the land taken and damages to the land remaining in the amount of $61,800. The owner and the district filed various post trial motions, including motions and amended motions for a new trial; the district also filed its motion to be awarded a portion of the amount allowed by the jury, as damages incurred by it as a result of the condemnation proceedings. On March 26,1956, the district court set aside the jury’s verdict and granted a new trial upon two specific grounds, not here material, from which order the Authority appealed to this court, see appeal No. 40,410, Kansas Homes Development Co. v. Kansas Turnpike Authority, 181 Kan. 885, 317 P. 2d 789, this day decided. Following the appeal of the Authority to this court on May 22,1956 (appeal No. 40,410), the owner and the district commenced an action in mandamus in the original condemnation proceedings (division No. 4 of the district court) to compel the payment in a lump sum of the amount of the bond lien on each of the lots acquired by the condemnation. An alternative writ was issued directing the commissioners to be reconvened and to supplement their report by fixing the amount of the special assessments to be levied against each lot; further, if the court found the award, as amended, to be sufficient on its face, to order the Authority to pay such amount to the clerk of the district court for the benefit of the district. On May 28, 1956, the Authority’s motion to quash the alternative writ was sustained. No appeal was taken from that order. On June 16, 1956, the proceedings out of which this appeal arises were commenced by the owner and the district filing a motion in the original condemnation proceedings (division No. 4 of the district court) for an order directing the Authority to pay the balance of the commissioners’ appraisement and award entered September 7, 1955. The motion which had attached the affidavit of the commissioners, alleged the total amount of the award was $79,770.40 and that the Authority had paid only $60,000, leaving an unpaid balance of $19,770.40 due and owing the district. All of the court files in all related proceedings were offered by the Authority and received in evidence. In view of our conclusions later stated, it is not necessary to summarize the affidavit of the commissioners set ting forth reasons why .their report did not show the total amount of the special assessments to be levied on each lot acquired, and also why that report stated: “Subject to the unpaid taxes for sewers in Wyandotte Sewage District No. 9 in Wyandotte County, Kansas.” On June 21, 1956, the district court sustained the owner’s and the district’s motion; found the sum of $19,770.40 to be due and unpaid under the commissioners’ appraisement and award of September 7, 1955, and ordered the Authority to pay that amount to the clerk of the district court for the use and benefit of the district. It is from that order that the Authority perfected the instant appeal. We first direct our attention to appellees’ motion to dismiss this appeal. It is argued that appellate jurisdiction has not been acquired since, it is contended, the Authority is attempting to appeal directly to the supreme court from an award of commissioners in condemnation. The record does not support the contention. This appeal is from an order of the judge of the district court directing the Authority to pay $19,770.40 to the district in addition to the payment of $60,000 — the amount the commissioners ascertained was the value of the land taken and damages to that remaining. Furthermore, the order directing the payment of $19,770.40 was a final order (G. S. 1949, 60-3308) and is subject to appellate review. The motion to dismiss is denied. We are of the opinion that the order entered June 21, 1956, directing the Authority to pay to the clerk of the district court $19,770.40 is void. That order was made long after the owner appealed from the appraisement and award of the commissioners and after that appeal was tried by a jury in the Second division. The taking of an appeal from the appraisement and award of commissioners in condemnation brings to the district court in its entirety the sole question of the sufficiency of the award to be tried as a single action (Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384; Collingwood v. Kansas Turnpike Authority, 181 Kan. 838, 317 P. 2d 400; Jenkins v. Kansas Turnpike Authority, 181 Kan. 862, 317 P. 2d 401). The judge of the district court before whom condemnation proceedings are instituted is required to examine the petition and determine whether the petitioner has the power of eminent domain and whether the land sought to be acquired is necessary to its lawful and corporate purpose, and, if found in the affirmative, to enter such finding of record and to appoint commissioners to view the land and determine the amount the condemning party should pay for the property taken, and the amount of damages, if any, to the land remaining (G. S. 1949, 26-101). This proceeding is in the nature of an inquest (State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872; Glover v. State Highway Comm., 147 Kan. 279, 286, 77 P. 2d 189; Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72; State v. Boicourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395). While the judge of the inquisition court might, under proper circumstances, direct that the commissioners be reconvened to correct, modify or amend their appraisement and award prior to the taking of an appeal by the petitioner, owner, lien holder or other interested parties, it is clear that following such an appeal to the district court by any one or all of such parties, the judge of the inquisition court is divested of power to make orders with respect to the commissioners’ appraisement and award. The question of the sufficiency of the award is before the district court on appeal and all parties having an interest in the land, including the district as in the instant case, should assert their interest in the action pending in the district court, and their rights, if any, may be established in that action. (Moore v. Kansas Turnpike Authority, supra; Collingwood v. Kansas Turnpike Authority, supra; Jenkins v. Kansas Turnpike Authority, supra.) The condemnation proceedings in this controversy divested the owner, lien holders and all other interested parties of all title to the land acquired and vested it in the Authority upon payment of the commissioners’ appraisement and award of $60,000 (G. S. 1955 Supp. 68-2006) free and clear of any liens or encumbrances whatsoever (Federal Land Bank v. State Highway Comm., supra), but it did not have the effect of discharging the obligation of paying the liens or encumbrances of record. The land acquired by the Authority was released from those liens and encumbrances, but not so with respect to money arising out of the award of the commissioners, or, on appeal, the amount fixed by the jury as the value of land acquired and damages, if any, to that remaining. The effect of the condemnation proceedings was to transfer the lien from the land to the money which was awarded as the equivalent of the land by virtue of the condemnation proceedings. The order of June 21, 1956, is reversed with directions to the district court to set it aside in its entirety. It is so ordered.	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The opinion of the court was delivered by Schroeder, J.: This is an appeal from an order of the district court of Scott County, Kansas, overruling the appellant’s (defendant’s) demurrer to appellee’s (plaintiff’s) petition. The petition in substance alleges that one Donald Breithaupt was employed as the cashier and managing officer of the defendant, The Modoc State Bank, a banking corporation at Modoc, Kansas, on January 1, 1952, and was employed continuously in that capacity until on and after March 9, 1954; that plaintiff and Breithaupt had business transactions involving plaintiff and defendant and also involving plaintiff and Breithaupt; that the relationship between plaintiff and Breithaupt was strained and angry; that Breithaupt had threatened bodily harm to the plaintiff; that once when plaintiff had gone to the defendant bank to transact business with defendant, Breithaupt had assaulted him; that the violence and antagonism of Breithaupt grew so great that plaintiff could not in safety go to the defendant bank to transact business but was compelled to do so by mail, all of which facts were known and understood by the defendant; that plaintiff was indebted to the defendant; that on or about the 9th day of March, 1954, plaintiff attempted to transact business with the defendant by mail, particularly the depositing of checks to his personal account; that Breithaupt telephonically requested plaintiff to come to the defendant bank to discuss the transaction with him, but that plaintiff declined to do so; that thereafter and on the 9th day of March, 1954, Breithaupt went to plaintiff’s home and demanded to see the plaintiff; that plaintiff went onto the porch of his home to see Breithaupt; that Breithaupt demanded that plaintiff deposit said checks as he, Breithaupt, directed and further demanded that plaintiff execute and deliver to the defendant a prop erty statement for the benefit of defendant; that plaintiff declined to forthwith comply with said demand, whereupon Breithaupt jerked plaintiff from the porch, struck him with his fists, threw him to the ground, and fell upon him, inflicting upon the plaintiff the injuries complained of. The petition then specifically alleges: “IX. “That said injuries complained of were caused by and as a direct result of the negligence of the defendant in the following particulars, without which negligence the injuries would not have occurred, to wit: “1. In permitting the aforementioned Donald Breithaupt to manage and conduct the affairs of said defendant with this plaintiff. “2. In permitting said Donald Breithaupt to go to the home of this plaintiff to conduct business with this plaintiff on the part of this defendant. “3. In continuing the aforenamed Donald Breithaupt in its employ after having notice, or when it should have had notice, of his violent, aggressive, and antagonistic disposition toward this plaintiff. “4. In directing and permitting said Donald Breithaupt to transact business with this plaintiff when it knew, or by the exercise of reasonable care, should have known, that such would reasonably result in an assault on and injury to this plaintiff. “5. In permitting a person, particularly Donald Breithaupt, to manage the affairs of said defendant when it knew or should have known that such management would result in injuries with those with whom he came in contact, particularly, this plaintiff. “6. In allowing the managing officer to go to the home of this plaintiff for the purpose of transacting the business of defendant with this plaintiff, when it knew or should have known that such managing officer might inflict personal injury upon this plaintiff. “X “That as a result of the acts committed by this defendant, this plaintiff suffered a broken left leg, a comminuted fracture involving the upper left tibia, and a comminuted fracture of the proximal end of the left tibia, one of the fracture lines entering the mid portion of the articular surface of the tibia at the left knee. That such break caused, a puncture wound below the tibial tuberosity; that this plaintiff suffered a fracture of the left fibula, all of which necessitated an open reduction of said fractures and breaks, the removal of both menisci, the placement of a tibial bolt across the upper tibia with plates along both sides of the upper tibia, and the alignment and fixation of the fracture fragments by means of wire, metal bolts and two metal plates.” The petition further sets up the various items for which the plaintiff seeks damages and prays judgment for $65,822.00 and costs. Breithaupt was not joined in the action. The petition was filed on March 8, 1956. The defendant filed a demurrer to the petition of the plaintiff on the ground that the petition failed to state a cause of action in favor of the plaintiff and against this defendant. After hearing argument the district court overruled the demurrer. The defendant appeals and specifies as error the overruling of defendant’s demurrer to the plaintiff’s petition. It will be observed that the cause of action arose on the 9th day of March, 1952, and the petition was filed March 8, 1954, which was one day less than two years. The first question considered is whether or not the plaintiff’s cause of action is outlawed by the statute of limitations (G. S. 1949, 60-306, Fourth). The defendant argues that this is simply a case of assault and battery and that if an action had been brought against the servant, Breithaupt, or if the servant had been joined as a party defendant in this action, the case could have been nothing more than assault and ^battery. The defendant asks: Can the plaintiff, therefore, enlarge or change the cause of action into something else by suing only the master and alleging only negligence? Admittedly, if this petition is construed as one charging the defendant with the assault and battery committed by Breithaupt, the managing officer of the bank, the one-year limitation under G. S. 1949, 60-306, Fourth, bars recovery by the plaintiff in that the face of the petition discloses the action was filed more than one year after the cause of action arose. However, if the petition is construed as one alleging actionable negligence against the bank, then a two-year limitation under G. S. 1949, 60-306, Third, applies and the plaintiff’s right to maintain the action is not barred under the statute of limitations. The defendant argues that the injury of which the plaintiff complains was occasioned and caused by the assault and battery, and his attempt to change the cause of action into a negligence action by alleging the negligence of the defendant in hiring and retaining a cashier and general manager with known violent, quarrelsome and antagonistic tendencies, is an effort to circumvent the statute of limitations. The defendant relies on two early Kansas cases, Laurent v. Bernier, 1 Kan. 428, and Byrum v. Edwards, 66 Kan. 96, 71 Pac. 250. In the Laurent case this court held that the injuring of the plaintiff by the negligent discharge of a gun was a battery, and the action was barred by the one-year statute of limitations. In the Byrum. case this court held that an action against the sheriff and his bondsmen for shooting the plaintiff by the 'undersheriff was barred, if such cause of action ever existed, within one year after the injuries. These cases have been carefully analyzed in Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 62 P. 2d 545, where the court pointed out that the shooting in the Byrum case was in fact intentional. Subsequent to the early decisions in the Laurent and Byrum cases, this court has concluded that an intention to injure is a prerequisite in battery cases. This is clearly disclosed in Eckerd v. Weve, 85 Kan. 752, 118 Pac. 870. This subject has been thoroughly discussed in earlier decisions of this court and the law is now clear that the fundamental distinction between assault and battery, on the one hand, and negligence, on the other, is that the former is intentional and the latter is unintentional. (Hershey v. Peake, 115 Kan. 562, 223 Pac. 1113, and Hackenberger v. Travelers Mutual Cas. Co., supra.) In McMillen v. Summunduwot Lodge, 143 Kan. 502, 54 P. 2d 985, this court quoted with approval from 45 C. J. 631, defining actionable negligence as follows: “ ‘To constitute actionable negligence there must be not only a lack of care, but such lack of care must involve a breach of some duty owed to a person who is injured in consequence of such breach. ... In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant. When these elements are brought together, they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient. A judicial definition bringing out with admirable conciseness the elements of actionable negligence is as follows: “Negligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred.” ’ ” (p. 509.) It is not a necessary element of negligence that the defendant anticipate the precise injury sustained. (Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296.), The Restatement of Law, Torts, § 284, pp. 744, 745, defines “negligent conduct” thus: “Negligent conduct may be either: “(o) an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another, or “(b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.” The defendant cites Welch v. Shepherd, 169 Kan. 363, 219 P. 2d 444, and refers to the foregoing quotation: “. . . The facts pleaded are more consonant with a claim of false imprisonment or malicious prosecution, and if so construed, the action would be barred under G. S. 1935, 60-306, Fourth. But simply because that might be the result does not mean the petition is to be construed as stating a cause of action on some other theory so that the cause of action is not barred. . . .” (p. 367.) While in the foregoing case the petition was construed to bar a cause of action, the rule stated is in reality a double-edged sword, and should the petition in the instant case be construed to state a .cause of action which is not barred, the fact that a construction on some other theory might avoid such result is impotent as a persuasive reason. The statute of limitations has been advanced as a sound reason for construing the plaintiff’s petition as one which is in substance an assault and battery and thereby barred. It must be remembered that the statutes of limitation affect only the remedy and do not in any other way affect a cause of action. (Newell v. Harrison Engineering & Const. Corp., 149 Kan. 838, 89 P. 2d 869.) It cannot be asserted as a substantive reason to defeat an action otherwise valid. The fact that a statute bars recovery against a debtor does not extinguish the debt. (Bomud Co. v. Jockey Oil Co., 180 Kan. 109, 299 P. 2d 72.) Were the construction of a petition dependent upon an ultimate result which sought to deny the remedy, the practice would be tantamount to prejudging a case or deciding it without valid reason and thus leave the logic of the law floundering at sea. The statute of limitations has frequently been asserted in cases which are essentially malpractice actions. In such cases various theories have been advanced to defeat a cause of action or to maintain one under the statute. Among them are assault and battery and contract. In Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955, this court said: “The law of this state is realistic. Substance prevails over form. It is perfectly manifest that, nowithstanding tire form given to the petition, the gravamen of the action was malpractice, which is a tort, and the action was barred by the two-year statute of limitations.” (p. 285.) The precise point before this court for decision is a matter of first impression. Simply stated, the question is whether a master may be held liable for injuries to a third person proximately resulting from the incompetence or unfitness of his servant, where the master was negligent in selecting or retaining an incompetent or unfit servant. The question here presented is not without difficulty. Other jurisdictions have split on this point. The defendant relies on Trimming v. Howard, 52 Ida. 412, 16 P. 2d 661, where the Supreme Court of Idaho said: “. . . The original injury, be it caused by carelessness, negligence, misconduct or whatnot, remains the sole cause of action; and the action is one in tort and not for a breach of contract . . . The appropriate statute of limitations is determined by the substance, not the form, of the action. . . . (p. 416.) The defendant recognizes that many cases in other jurisdictions seem to support the view that a master may be liable for the act of a servant because of negligence in the hiring and retaining a known incompetent, minor, or quarrelsome and dangerous person in his employ, but argues that none of those cases involve the statute of limitations. The defendant relies on a statement of the law cited in 35 Am. Jur., Master and Servant, § 548, pp. 978 and 979. The plaintiffs position, on the contrary, is supported by a statement of the law as it appears in 57 C. J. S., Master and Servant, § 559, pp. 270 and 271. This opinion could be burdened indefinitely by a review of decisions in other jurisdictions on both sides of the question here presented, all to no avail for the reader. An extensive annotation appears in 34 A. L. R. 2d 372 to 446, incl., in which the various phases of an assault by a servant of the master are treated. The plaintiff relies on two particular sections of the above annotation, i. e., § 7, pp. 384 to 388, inch, pertaining to the duty of an employer to protect his business invitee as against assaults committed upon the latter by an employee, where liability of the employer for such assaults arises out of the contractual relationship; and § 9, pp. 390 to 395, inch, pertaining to negligence in the selection or retention of an employee of vicious propensities. Under this theory, the employer is bound to take notice of the character and propensities of the employee, and is charged with knowledge which he had or should have had concerning the likelihood that such employee would resort to violence in the discharge of his duties. The plaintiff presents the argument hereinafter set forth: It is fundamental that the relationship between a patron and a bank is founded on contract. The bank to which the patron goes has an obligation imposed upon it by such contract to use vigilance and care for the protection of the patron invitee. In the instant case the patron received a specific telephonic invitation to visit the bank and refused. Thereafter, the bank, in the guise of its managing officer went to the home of the patron. There, armed with the requisite papers of the bank, he invited the patron onto the porch to transact the bank’s business. The patron was as much within the portals of the bank as if he stood before the cashier’s window. The invitation of the bank to transact business with a person known to the bank as being a person of mean and angry disposition was not only extended the patron, it was thrust upon him. The petition filed in the instant case was not attacked by motion. It is thus entitled to a liberal construction most favorable to the pleader. Allegations to the plaintiff’s detriment are excluded. The petition does not allege a cause of action under the doctrine of respondeat superior. Fairly construed, the petition alleges a cause of action in negligence against the bank and not a tort by its servant or agent. The allegations of the petition meet all the requirements for actionable negligence. (McMillen v. Summunduwot Lodge, supra.) We hold that the doctrine of respondeat superior is not involved in the instant case. Construing the pleading most favorably to the petitioner as we must, the issue presented is whether the employer, The Modoc State Bank, was negligent in retaining its managing officer, Breithaupt, who had propensities toward violence. What the evidence will disclose upon trial of the case we are not at liberty to speculate. A line of authorities for this point in other jurisdictions is clearly reviewed in 34 A. L. R. 2d, § 9, supra. Some of the cases in which it was held there was sufficient showing that a master was negligent in keeping his servant in employment are: Duckworth v. Appostalis, 208 Fed. 936, where a guest sued to recover for injuries inflicted by an employee known by the master to have made previous assaults on guests; Crawford v. Exposition Cotton Mills, 63 Ga. App. 458, 11 S. E. 2d 234, where a customer of a store sued to recover for injuries by a servant known by the master to have an unusual and abnormal high temper; Priest v. Woolworth Five and Ten Cent Store, 228 Mo. App. 23, 62 S. W. 2d 926, where a customer sought recovery for injuries inflicted by a servant while he was engaged in an act of horseplay and who was known by the manager to have been guilty of previous acts; and Hall v. Smathers, 240 N. Y. 486, 148 N. E. 654, where a tenant of an apartment house sought to recover as against the master for injuries by a servant known by the master to be a drunkard and incompetent and dangerous. The following jurisdictions have expressly or impliedly indicated that an employer may be primarily liable for a personal assault by an employee upon a customer, patron, or other invitee, if he has failed to exercise due care to avoid the selection or retention of employees who will assault such invitees: California, Dakota, Georgia, Kentucky, Massachusetts, Michigan, Missouri, Mississippi, Nebraska, New York, Ohio, Pennsylvania, Washington, and several federal districts. Of more importance is the consideration heretofore given by this court to cases somewhat similar. In the case of Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153, a full discussion of Kansas cases as they appeared in the official reports at that time was undertaken. It is most helpful in presenting the issue. Porter, J., speaking for the court in 1917, recognized the specific question which we now have and cited a Texas case on the point, Missouri, K. & T. Ry. Co. of Texas v. Day, 104 Tex. 237. He pointed out that the Roebuck case was distinguishable from the Texas case for the reason that it was brought pursuant to the federal employers’ liability act and was not a common law action of negligence, but a case under the law of Master and Servant. In the Roebuck case an employee, Negreta, assaulted a fellow employee, Roebuck, killing him. The victim had knowledge of the dangerous disposition of the actor and requested the employer to discharge him, but the employer reassured the victim that he would be protected, and notwithstanding such knowledge continued Negreta in its employ. The petition charged the employer with negligence in that it did not furnish Roebuck a safe place to work by retaining Negreta in its employ in the gang which Roebuck was employed to boss. The court held that the act must come within the scope of employment to permit recovery. The facts in the Day case (Texas case cited) are that a foreman and his straw boss were simultaneously giving orders which were conflicting. A workman assaulted the straw boss. The Texas court charging the master with actionable negligence held the master liable to the injured fellow servant without determining the scope of employment. This court in the Roebuck case said at pages 553 and 554: “If this were a common-law action, wholly independent of the federal employers’ liability act, the case decided by the Texas court would be very much in point as to the facts. We should then have squarely before us the question whether the express notice given to defendant by plaintiff’s intestate touching the reputation of Negreta as a turbulent, vicious and dangerous person; the fear Roebuck expressed to defendant that Negreta, if retained as a workman under him, would seek a quarrel and do the very thing it subsequently turned out Negreta did; the refusal of the defendant, when notified of Negreta’s dangerous proclivities, to discharge him or find employment for him elsewhere; whether or not all these facts and circumstances are sufficient to entitle plaintiff to recover. / “Plaintiff’s intestate, however, was an employee, and the action is brought against the employer to recover for death alleged to have been caused by the employer’s negligence; and since it is brought under the federal employers’ liability act, it can be maintained only upon the ground that the negligence consisted of the employer’s failure to perform some duty or obligation owing to the employee under the law which applies to master and servant; not necessarily as this court would determine that question in a common-law action here, but as the federal courts would determine it . . .” (Emphasis added.) The reader is referred to the Roebuck case for its enlightening discussion as supplemental hereto. Other cases have been presented to this court in which the plaintiff alleged negligence on the part of the master in keeping a servant in his employ. In Zamora v. Wilson & Co., 129 Kan. 285, 282 Pac. 719, the widow of a deceased employee of the defendant sought to recover damages for the death of her husband caused by the tortious act of another employee of the defendant in using a meat cleaver. It was alleged that the assailant was a dangerous, turbulent and bloodthirsty man given to commencing quarrels and brutally assaulting other persons and the employees of the defendant while in and upon defendant’s premises, and had assaulted and dangerously injured plaintiff’s deceased on another occasion, all of which facts were known to the defendant. With very little discussion in the opinion the court held pursuant to Roebuck v. Railway Co., supra, that the petition failed to state a cause of action on the .ground that the master was not hable for the tortious act of one employee against a fellow employee where the act was not done in the promotion of the masters business or as a part of the employee’s duties. Similarly, in the case of Gabbard v. Sharp, 167 Kan. 354, 205 P. 2d 960, a woman plaintiff employed as a waitress in a restaurant, was assaulted by a fellow male employee who was alleged to be in an intoxicated condition and enraged as a result of his thwarted advances toward her, all of which was known to the defendant employer. Plaintiff further alleged that the defendant knew of her assailant’s disposition toward this plaintiff and other women and his habits in and about the premises in an intoxicated condition during the hours that plaintiff worked. Recovery was sought on the ground that the defendant was negligent in his omission to perform a duty toward this plaintiff which caused and contributed toward her injuries. This court held that the petition failed to state a cause of action, following Zamora v. Wilson & Co., supra. The reason advanced in the Gabbard case was that the assault was committed at a time when the employee had stepped beyond the scope of his employment and was engaged in a personal venture of his own. It may be added that a fair presentation was not there made to this court on the part of the plaintiff. The court at page 356 said: “Before proceeding to give consideration to the merits of this appeal we feel compelled, because of the state of the record, to comment that if appellee has any confidence in the propriety of the ruling on the involved demurrer there has been no indication of that fact. She filed no brief and made no appearance when the cause was argued. On that account our decision must be reached without any information as to the theory on which the trial court concluded the amended petition stated a cause of action or any citations of authorities supporting its decision.” Thiele, J., speaking for the court in Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P. 2d 623, used language which appears on the surface to be directly in point, though not necessary to a decision in the case. There, a bellboy employed by the defendant shot and injured the plaintiff who was alleged to be a guest of the defendant hotel. The plaintiff was also a bellboy who roomed at the hotel and paid for his room. He was in the hotel but not working at the time of the assault. The third cause of action was alleged on the theory that the hotel, a corporation, was negligent under the circumstances in keeping the assailant as an employee. The case proceeded to trial on this cause of action. A demurrer was sustained to the evidence by the lower court and affirmed on appeal to this court on the ground that there was no evidence that the previous course o£ conduct of the assailant prior to the assault was known to the defendant. The fourth syllabus in the opinion reads: “A master may b.e liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.” In the opinion of the Balin case at page 530 it was said: “If it be assumed, as plaintiff contends, that at the time of the shooting he was not then in the relation of servant to the master the corporation, and that the rule is that a master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant, either where he was negligent in employing him or in retaining him when the master knew or should have known of such incompetence or unfitness, and we need not expand on that rule (see 57 C. J. S. 270, 35 Am. Jur. 978), the evidence now under consideration does not show that the master corporation hired an incompetent or unfit servant or employee, or that it retained him in employment after it knew or should have known of his incompetence or unfitness — it does not even show the servant incompetent or unfit. If it be assumed that plaintiff at the time of the shooting was in the employ of the corporation and not a mere third person or guest, the rule as to fellow servants comes into operation. It is too clear to be debated that the act of shooting which caused plaintiff’s injuries was not authorized by the master corporation or was not done by its servant and employee Wood to advance its interests, and in such circumstances the rule is that master corporation is not liable in damages to one servant for injuries inflicted on him by the act of his fellow servant. See Zamora v. Wilson & Co., 129 Kan. 285, 282 Pac. 719; Gabbard v. Sharp, 167 Kan. 354, 205 P. 2d 960, and cases cited.” See, also, the case of Kiser v. Skelly Oil Co., 136 Kan. 812, 18 P. 2d 181, where this court affirmed a judgment in favor of the plaintiff who brought an action for damages charging negligence on the part of the defendant in employing a youthful, heedless and irresponsible employee to wait on customers. Plaintiff also charged that the door of a filling station was defective in various respects. The case was tried to a jury and the jury found that the employer was negligent “By maintaining incompetent help and insufficient door equipment,” where a door was slammed by an employee against a customer at a filling station and the glass broke injuring the customer. Other Kansas cases in which the master was sought to be held liable for the acts of the servant in which the negligence of the employer was not pleaded, argued or urged, are: Kastrup v. Yel low Cab and Baggage Co., 129 Kan. 398, 282 Pac. 742; Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386; and Brown v. Railroad Co., 111 Kan. 338, 207 Pac. 196. These cases hinge on the general proposition that a master is hable for assaults committed by his servant upon a customer, patron, or other invitee where such assault is committed by the servant while acting within the scope of his employment. There is general agreement that where an assault is purely personal to the servant, having no real connection with the masters business, the doctrine of respondeat superior is inapplicable to fasten liability on the master. These cases are not applicable here. • A general reading of the cases on this subject makes it clear that an employee who is a quarrelsome and dangerous person is an “unfit” person within the meaning of that term. In conclusion, we hold that the plaintiff has alleged a cause of action against The Modoc State Bank on the theory of negligence. 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The opinion of the court was delivered by Parker, C. J.: This was an action to recover damages to person and property sustained by the plaintiff in a collision between two motor vehicles on a public highway. The plaintiff appeals from an adverse judgment. The pleadings are not involved and need only be detailed for the purpose of defining the issues. For present purposes it suffices to say the petition charges divers acts of negligence of the defendant Robert Ernzen, while driving a milk truck in the course of his duties as an employee of the defendants, Warren McMeins, Wayne Mc-Meins and Clifford Van Tyle, a co-partnership, d/b/a McMeins Eros., in overtaking and colliding with plaintiff’s farm truck on a public highway were the proximate cause of the damages sustained by him as the result of the collision of the two vehicles; that the answer, after denying material allegations of the petition, states all injuries and property damages sustained by plaintiff in the collision resulted from his own acts of negligence; and that the reply denies allegations of the answer inconsistent with the petition and, in substance, alleges the defendant truck driver, by the exercise of ordinary care, could have seen plaintiff in a position of peril from which he could not extricate himself in time to have avoided the collision. On issues thus joined the cause came on for trial by a jury which, after introduction of evidence by the parties, was given written instructions and ultimately returned a general verdict for the plaintiff along with its answers to nine special questions submitted by the court. Following action as above indicated plaintiff, who was dissatisfied with the amount of the verdict, filed a motion for a new trial and a motion to set aside answers made by the jury to three special questions relating to negligence on his part. When these motions were overruled defendants filed a motion for judgment upon the special findings of the jury notwithstanding the general verdict. This motion was sustained and the trial court then set aside the general verdict and rendered judgment in favor of defendants and against plaintiff upon the special findings for costs of the action. Thereupon plaintiff gave notice he was appealing from the rulings on all post-trial motions and the judgment. Since it is conceded Ernzen was the employee of all other defendants and engaged in the performance of his duties as such employee at the time of the accident we shall throughout the course of this opinion, in the interest of brevity, make no further mention of the employer defendants and refer to defendant Ernzen as appellee and the plaintiff as the appellant. Strange as it may seem, this is one case where even the counsel for the parties involved concede there is little dispute in the testimony with respect to pertinent and material facts of record. Even so, in order to properly understand the issues, it will be necessary to briefly outline the evidence on which the rights of the parties depend. This will be done by stating the facts about which there is no controversy and by giving our version of the evidence respecting the one or two points about which there is any dispute. At about 10:30 a. m. on the morning of October 15, 1954, appellant was driving his one-ton farm truck east on U. S. Highway 73 just east of Shannon, Kansas. The highway at this point was blacktop, eighteen to twenty feet wide with shoulders forty to fifty feet from bank to bank. Approaching the place where the accident occurred from the west the road comes up over a hill, the top of which is some 300 to 315 feet west of a farm driveway into which appellant was attempting to turn, when the collision occurred. At the top of this hill is a gravel road going south. As the appellant, accompanied by a passenger named Murray who was riding in the right front seat, approached the scene of the collision he was driving approximately thirty miles per hour. His truck was just under eight feet wide, between nine and ten feet high, with a red stockrack and with cab painted yellow. To the east from the top of the hill the slope was downward and clear for a distance of approximately one-half mile. As appellant approached the top of the hill he noticed a truck some quarter mile behind him, traveling in the same direction. As he reached the top of the hill he rolled down the left window of his truck and put out his hand as a signal of his intention of turning left to the north at a farm driveway, located some 300 feet to the east down the road, and continued signaling until just before attempting to turn his truck into such driveway. At or about the same time he put on his brakes and reduced his speed to perhaps twenty miles per hour. Appellee in the meantime had topped the hill and appellant saw his vehicle at the top of such hill when appellant was about 150 feet down the hill, i. e.: one-half way between the top of the hill and the place of his intended turn. Thereafter appellant made no attempt to look to the rear again and was oblivious of appellee and the oncoming milk truck until the moment he prepared to turn into the driveway. Just as appellant started such turn to the left or north he became aware of the roar of the motor of appellee’s milk truck which was then in the process of passing him. At that time the front end of appellant’s truck was north of the center line of the highway. He immediately attempted to turn back into tibe right-hand lane of traffic but the heavily loaded milk truck struck his farm truck at its left front door with the result the accident occurred, both trucks were severely damaged and appellant was seriously injured. The submitted special questions and the answers made thereto by the jury complement the foregoing factual statement and are so highly important to the appellant issues involved they must be quoted at length. They read: 1. “Q. Did the plaintiff give an arm signal of his intention to turn left into the private drive continuously during the last 100 feet traveled by his truck before toning toward the private drive? A. Yes. 2. “Q. Just before the plaintiff started to make his turn into the left lane to enter a private drive, was there anything to obstruct his vision to the west along tire highway upon which the defendant’s truck was approaching? A. No. 3. “Q. After the plaintiff looked in his rear vision mirror and saw the defendant’s truck about 150 feet away and approaching plaintiff’s car, did the plaintiff, immediately before he actually commenced to make his turn, again look to see whether any vehicle was coming behind him from the west? A. No. 4. “Q. At the time the plaintiff commenced to turn his truck to the left so that it crossed the center line of the highway, was the defendant’s truck so close thereto that the turn could not be made with reasonable safety? A. Yes. 5. “Q. Was the defendant in the process of passing the plaintiff’s truck when the plaintiff made his ton to the left with the intention of entering the private drive? A. Yes. 6. “Q. If you find a verdict in favor of the plaintiff, state each and every act of negligence of which you find the defendant, Ernzen guilty. A. His failure to see hand signal and stop light. 7. “Q. Was the plaintiff guilty of any act of negligence which directly contributed to the collision? A. Yes. 8. “Q. Was the collision the result of an unavoidable accident as defined by the Court’s instruction? A. No. 9. “Q. Did the plaintiff turn his truck to the left from a direct course on the highway at a time when such movement could not be made with reasonable safety? A. Yes.” The first and, we may add, the principal question advanced by appellant is that special questions 4 and 9 should not have been submitted to the jury. In passing we note there is some quibble between the parties as to whether objection was made by appellant to these questions prior to their submission. Although the record is not clear on the point we resolve that controversy in his favor and proceed accordingly. In approaching this question it must be remembered that under the pleadings one of the issues in this case was whether appellant was guilty of negligence because he had turned his vehicle from a direct course upon the highway without first determining whether such movement could be made with reasonable safety; that the appellee’s demurrer to appellant’s evidence, based on grounds that evidence showed he had done so and was therefore guilty of negligence precluding his recovery, had been overruled by the trial court and such issue had been permitted to go to the jury as a question of fact; and that by its Instruction No. 13, which was unobjected to and therefore became the law of the case, the court instructed the jury on the pertinent statute involved, i. e., G. S. 1949, 8-547, as follows: “(a) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement, or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. (b) A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning . . .” Appellant’s first contention on the subject now under consideration is that both questions asked the same thing only in different language. From our analysis of the questions we do not think their language is so duplicitous that it can be held the court abused its discretion in giving them. Neither do we believe, as appellant contends, that the answer called for by each question is a legal conclusion. Nor do we agree with contentions to the effect such questions are complex in nature and therefore objectionable. Indeed our view is both questions properly sought the jury’s decision, on what the court had previously determined was a factual question under the evidence, as to whether the express terms of the provisions of G. S. 1949, 8-547, requiring that no person shall turn a vehicle from a direct course upon the highway unless and until such movement can be made with reasonable safety, were being violated by appellant at the time of the accident. Appellant frankly concedes the next question raised, i. e., that the court should have sustained his motion to set aside the answers to special questions, is predicated upon his theory special questions 4 and 9 should not have been submitted and therefore are not to be considered as a part of the special findings. Having heretofore determined that issue contrary to his position this contention requires no further consideration. The next claims of error advanced by appellant are based on the premise the trial court erred in sustaining the appellee’s motion for judgment on the special findings notwithstanding the general verdict. First it is urged the answers to special questions do not compel a finding of contributory negligence. In the face of findings 4 and 9 this argument cannot be upheld. The rule of this jurisdiction, so well-established as to require no citation of the authorities supporting it, is that violation of a statute — in this case G. S. 1949, 8-547 (a) —which is found by the triers of fact to be one of the direct and proximate causes of an accident constitutes contributory negligence and bars recovery in an action such as is here involved. Next, impliedly conceding if not actually admitting that the findings in question are consistent with each other, and we may add full and complete, it is argued it is impossible to reconcile such findings with the general verdict, hence the court should have granted appellant a new trial instead of rendering judgment on the findings notwithstanding the verdict. Our decisions are to the contrary. See Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869, where it is held: “In an action for damages for personal injuries, the jury returned a verdict for plaintiff and answered special questions, clearly finding plaintiff guilty of negligence which caused or contributed to his injury. Held, under our statute (G. S. 1935, 60-2918) it is the duty of the court to sustain defendant’s motion for judgment in its favor on the answers to the special questions notwithstanding the general verdict; and where the court in effect approved the answers to the special questions it had no authority to grant a new trial upon the ground a conflict existed between the general verdict for plaintiff, which had inherent in it a finding that plaintiff was not guilty of contributory negligence, and the answers to the special questions clearly showing his negligence.” (Syl. ¶6.) For more recent decisions of like import see Fralick v. Kansas City Public Ser. Co., 168 Kan. 134, 211 P. 2d 443; Metzinger v. Subera, 175 Kan. 542, 266 P. 2d 287; Franklin v. Kansas City Public Service Co., 175 Kan. 626, 265 P. 2d 1031. We turn now to questions raised by appellant in support of his position the trial court erred in overruling his motion for a new trial. On voir dire examination two prospective jurors admitted one of appellant’s counsel was involved in litigation adverse to their respective interests. Each such juror was challenged for cause. These challenges were overruled on the ground neither juror had admitted prejudice against the appellant. Thereafter both such jurors were excused on peremptory challenges and subsequently no ob jection was made to the qualifications of any of the jurors who participated in the trial. In the face of what has just been related we are unable to agree with appellant’s contention the trial court abused its discretion or committed reversible error in refusing to disqualify the jurors in question. See Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288, where it is held: “Whether a prospective juror is qualified is addressed to the sound discretion of the trial court on the juror’s voir dire, and the trial court’s determination will not be disturbed unless it appears it abused its discretion.” (Syl. f 1.) And Bailey v. McLeod, 143 Kan. 638, 56 P. 2d 460, which reads: “. . . More than that, Olson did not sit as a juror in the trial of this case, defendants having excused him by a peremptory challenge; hence the error, if any, of the court’s ruling on the challenge for cause becomes of but little importance, since no complaint is made of the qualifications of any juror who participated in the trial. (State v. Hooper, 140 Kan. 481, 502, 37 P. 2d 52.)” (p. 640.) See, also, State v. Springer, 172 Kan. 239, 239 P. 2d 944, where it is said: “The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is: Was the jury which tried defendant composed of impartial members? In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.” (p.245.) Complaint is made of the trial court’s refusal to give certain requested instructions. Nothing would be gained by discussion of arguments advanced in support of this complaint. It suffices to say we find nothing in the record as presented which makes it affirmatively appear the trial court committed error in refusing to give such requested instructions. Although appellant concedes that no objections were made to an instruction given by the court covering the subject of a quotient verdict he now contends that instruction was so clearly erroneous in law that he was not required to object to it in order to rely on it as grounds for the granting of a new trial. Assuming, as appellant contends and without deciding the question, there was something wrong with this instruction the fact it was given affords no sound ground for reversal of the judgment. Ry its answers to the special questions, to which we have heretofore referred, the jury made it impossible for appellant to recover judgment because of his own contributory negligence. Under our statute (G. S. 1949, 60-3317) error complained of which does not prejudice the substantial rights of a party affords no sound basis for reversal of a judgment and must be disregarded. This rule, it is to be noted, is applicable where errors or defects in instructions become nonprejudicial by reason of special findings. See, e. g., Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 91, 98 P. 2d 162; Simeon v. Schroeder, 170 Kan. 471, 474, 227 P. 2d 153. Finding nothing in the record or in the errors assigned which either requires, warrants or permits a reversal of the judgment it must be and is affirmed. It is so ordered.	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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 wrongful death action. Gillie C. Rupe, the plaintiff and appellee in this action, filed a suit for wrongful death against Phyllis Maurene Smith and O. D. Smith, her father and natural guardian, defendants and appellants herein. After proper allegations on capacity to sue, the plaintiff alleged that the defendant Phyllis Maurene Smith is unmarried and under the age of 21 years and that on the thirteenth day of October, 1955, Margaret Sue Rupe, daughter of plaintiff, was killed while riding in an automobile driven by defendant and owned by her father, O. D. Smith. The petition then alleges as follows: “4. That prior to her death, the deceased and the Defendant were close personal friends who shared their incomes and their pleasures. The deceased and the Defendant before and up to the time of deceased’s demise put their individual income's into a joint checking account in the Southwest National Bank in Wichita, Kansas. That from this joint account all expenses of both girls either individually or jointly were paid by check, or by cash taken from this account. That the expenses of operating the automobile in which deceased died were paid from these joint funds. “5. That late in the evening of October 13, 1955, deceased was riding in tire automobile driven and controlled by Defendant, which said automobile was owned by O. D. Smith. These two girls were enroute to Wichita, Kansas, on Kansas Highway No. 14 in Barber County at or near the town of Hazelton. That at this time, deceased was in the front seat with the defendant and was asleep. That when the automobile driven by tire defendant reached a point on said highway about 1.4 miles east of said town of Hazelton on a level stretch of road, it was driven off the road by defendant into a concrete embankment, the severe impact of which caused the almost immediate death of the deceased. That the said automobile driven by Defendant was a 1950 Ford Coach which had no apparent defects. That the road on which the parties were driving was straight and visibility unlimited. Said road was black-topped, had a dry surface and had no defects. That Plaintiff has no knowledge as to how or why the fatal accident occurred.” The defendants moved the court to strike paragraph 4 for the reason that the allegations therein contained were incompetent and immaterial; and to make paragraph 5 definite and certain by setting forth with particularity the alleged act or acts of negligence. The court overruled the motion to strike and to make definite and certain. The defendants then demurred generally to the petition and the court overruled the demurrer. The single specification of error before this court is the order of the trial court overruling the defendants’ demurrer to the plaintifE’s petition. The plaintiff brought this wrongful death action on the theory the decedent, Margaret Sue Rupe, was a “paying passenger” in the automobile driven by defendant, Phyllis Maurene Smith, and thus she was not a “guest” under the Kansas guest statute (G. S. 1949, 8-122b). The guest statute (G. S. 1949, 8-122b) provides: “That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” (Italics ours.) On this theory plaintiff alleges ordinary negligence and not gross and wanton negligence. In the allegations of negligence, plaintiff also invokes the doctrine of res ipsa loquitur. These allegations are in paragraph 5 of the petition. The defendants contend that the decedent, Margaret Sue Rupe, was not a “paying passenger” but a “guest” under G. S. 1949, 8-122b, and as such plaintiff must plead gross and wanton negligence to escape the limitations of the statute. The defendants also contend that since the doctrine of res ipsa loquitur cannot be invoked to establish gross and wanton negligence it has no application to this case. To substantiate the contention that the decedent was a guest without payment for such transportation, defendants submit that two recent decisions of this court should govern the disposition of their appeal. Defendants rely on Bedenbender v. Walls, 177 Kan. 531, 280 P. 2d 630; and In re Estate of Dikeman, 178 Kan. 188, 284 P. 2d 622. These are recent and leading cases' under the guest statute. In the Bedenbender case the plaintiffs and defendants were social and personal friends and often went on hunting excursions together, alternating in the use of their automobiles. They had an understanding and agreement to the effect that when they drove defendants’ car the plaintiff husband would pay for gas, oil and meals for the four of them and vice versa. The parties decided to go on a pheasant hunting trip to Nebraska. It was mutually understood and agreed that they would adhere to their past agreement in the matter of paying expenses. They started out in defendants’ car. At noon they stopped for lunch. Plaintiff husband paid for it. Later on they stopped for gas and plaintiff husband paid for it. Shortly thereafter the car was involved in a one car automobile collision. At the conclusion of plaintiffs’ evidence the defendants’ demurrer was sustained on the ground plaintiffs were “guests” and that since the evidence established only ordinary negligence they were precluded from recovery. The court held: “Under the guest statute (G. S. 1949, 8-122b) one who is transported by the owner or operator of a motor vehicle as his guest, ‘without payment for such transportation,’ does not have a cause of action for damages against the owner or operator for injuries, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence on the part of such operator. (Syl. ¶ 1.) “When the nature of the trip is purely for social purposes and mutual pleasure and enjoyment of the parties, payment of expenses, such as for gasoline, oil and meals, by the one being transported, does not constitute ‘payment for such transportation’ within the meaning of the statute.” (Syl. If 6.) In the Dikeman case the facts were essentially as follows: Randal Dikeman, the appellant, and other persons were members of the Order of the Eastern Star, a fraternal organization, and as members of such Order they had been chosen as delegates and representatives of their local chapter to attend the Grand Chapter meeting in Topeka. In contemplation of the trip, appellant and Dikeman orally agreed that appellant would pay him a reasonable sum for transportation to Topeka and back from Pratt. Pursuant to this agreement, Dikeman transported appellant, along with others not here involved, to Topeka. The purpose of the trip was to attend the Grand Chapter meeting of the Order. While at the meeting, Dikeman, the appellant, and others accompanying them on the trip, discussed what each would pay Dikeman for transportation. They decided the amount should be fixed upon completion of the trip. Thereafter they left Topeka in Dikeman’s automobile for the return to Pratt. An accident occurred at a railroad crossing near Pratt resulting in the death of Dikeman and his wife. The appellant suffered serious injuries and brought this suit against the estate of Dikeman. After disposing of motions to make definite and certain the district court sustained a demurrer to appellant’s petition. Appeal was then taken on the demurrer. The court said: “Thus we come to the all decisive question in this case. Succinctly stated it is — under the facts, conditions and circumstances set forth in the petition, was appellant a guest within the meaning of the guest statute (G. S. 1949, 8-122b) as construed by our decisions? . . .” (p. 197.) The court followed the Bedenbender case and held that while the Dikeman case could be distinguished from the Bedenbender case in some respects it could not be distinguished on the grounds that it was a business trip rather than a social trip; hence it was squarely within the decision of the Bedenbender case. The court held: “Resort to the opinion in the foregoing decision and the record in the case at bar discloses only three material distinguishing features, one being procedural and the other two factual. As to the procedural feature it is to be noted we were there dealing with a demurrer to evidence and here a demurrer to the petition. This affords no ground for distinguishing the two cases for it must be conceded that if the facts pleaded by appellant in her petition come within the purview of the guest statute or preclude recovery because of its terms the question involved on a demurrer to that pleading would be no different than the one involved on a demurrer to her evidence. The first of the factual features mentioned springs from the fact that there the agreement in question called for pay by two of the persons being transported in an automobile for all expenses — in the nature of gasoline, oil and meals — incurred by the owner and operator of tire automobile and his wife, while here the agreement relied on calls for the payment of a reasonable sum for transporting appellant. Again the difference affords no sound basis for distinguishing the cases. Our decisions (See Sparks v. Geiz, 170 Kan. 287, 289, 225 P. 2d 106, and cases there cited) make no distinction in types of payment for transportation under the guest statute. Payment may be in money or compensation resulting in some other substantial benefit. The second of the two factual differences referred to arises from the nature of the trips involved. There the payment relied on was for transportation on a hunting trip. Here it is for transportation to a meeting of a fraternal organization. It cannot be denied this last feature presents some difference from a factual standpoint. But does that difference make the two cases distinguishable when it comes to application of the principles governing whether appellant was a guest in the Dikeman automobile? “. . . we believe the question last posed finds its answer in what is said at page 538 of the opinion in Bedenbender v. Walls, supra, . . . “Having determined what is said and held in Bedenbender v. Walls, supra, is decisive of the sole question involved in this lawsuit we are constrained to conclude that under the facts as pleaded in the instant petition the trial court did not err in sustaining the demurrer to that pleading. “In reaching the conclusion just announced we have not been unmindful of arguments advanced by appellant to the effect the Bedenbender case is distinguishable because an automobile trip to and from a lodge meeting is to be regarded as having business rather than social aspects. . . .” (pp. 198, 199, 200.) Before considering the point at hand, a rule of construction must be disposed of. Since a motion to make more definite and certain was filed and overruled as to paragraph 5 of the petition, appellants contend that the petition should be strictly construed. We believe the petition comes under the rule of liberal construction for the reason that the court properly overruled the motion and paragraph 5 fairly apprised the appellants of appellee’s claim and brought the petition within the rule of Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508, which was cited with approval in Noel v. McCaig, 174 Kan. 677, 258 P. 2d 234, where the court said: “The ultimate question, therefore, is whether material portions of petitions challenged by motions to make definite and certain fairly apprised defendants of the nature of plaintiffs’ claim. If they did the motions were properly overruled and plaintiffs are entitled to have the third amended petition liberally construed in their favor . . .” (p. 112.) Under this rule of construction we now consider the appellants’ contentions in this case. While analogous in many respects the allegations of paragraph 4 of plaintiff’s petition are distinguishable from the Redenbender and Dikeman cases. The point of distinction is simply that there is nothing in paragraph 4 or in the petition as a whole that the decedent, Margaret Sue Rupe, and the appellant, Phyllis Maurene Smith, were engaged in a “social enterprise.” To the contrary, the allegations state that the parties shared their income and pleasures; they kept their money in a joint checking account and from this account paid all expenses in operating the automobile in which the decedent died. The allegations are carefully drawn to show the parties were engaged in more than mere social enterprise for their mutual pleasure. The petition properly alleges the ultimate facts that the decedent was transported by the operator of the motor vehicle with payment for such transportation. The allegations are good as against demurrer. The evidence may or may not vary from the allegations but on demurrer to a petition this court cannot indulge in premature and unwarranted inferences as to what the evidence will show. We cannot read into a petition something that is not there. We hold the plaintiff’s petition good as against demurrer under the guest statute. What now of the matter of negligence? Under these circumstances it is only necessary to plead ordinary negligence. Since we are dealing with a “paying passenger” under the statute we are not concerned with gross and wanton negligence. However, under the allegations of paragraph 5 of the petition we have an additional problem. Plaintiff alleges ordinary negligence and invokes the doctrine of res ipsa loquitur. While the doctrine of res ipsa loquitur has been long recognized in this state the plaintiff concedes that it has not heretofore been extended to an ordinary automobile negligence case. On the point, this is a case of first impression. Under the allegations of paragraph 5 the plaintiff’s theory of the application of res ipsa loquitur is simply that the decedent at the time of the accident was asleep in the front seat of the automobile which was driven by and under the control of the defendant; that there were no apparent defects in the car; the road was level, straight, black-topped and dry with no defects and unlimited visibility and that under these circumstances the defendant drove off the road and into a concrete embankment. The plaintiff had no knowledge how or why the fatal accident occurred and this knowledge lay only with the defendant. Of course, res ipsa loquitur is simply a rule of evidence and the result of the application of the doctrine in a case such as this would shift the burden to the defendant of going forward with the evidence on the question of negligence. The general doctrine of res ipsa loquitur has long been recognized in this state. One of the most recent cases was Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387. The court said: “We have no difficulty with the doctrine of res ipsa loquitur. It is this: When a thing which causes injury without fault of the injured person is shown to be under the management and control of the defendant or his servants, and the injury is such as in the ordinary course of things does not occur if the one having such management or control uses proper care, it asserts reasonable evidence in the absence of an explanation, the injury arose from the defendant’s want of care. (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 76, 58 P. 2d 77; Starks Food Markets, Inc. v. El Dorado Refining Co., 156 Kan. 577, 582, 134 P. 2d 1102; Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; Sipe v. Helgerson, 159 Kan. 290, 291, 153 P. 2d 934; Waterbury v. Riss & Company, 169 Kan. 271, 288, 219 P. 2d 673; Nichols v. Nold, 174 Kan. 613, 621, 258 P. 2d 317; Waddle v. Rrodbeck, 176 Kan. 583, 272 P. 2d 1066; Shain, Res Ipsa Loquitur, p. 1.) “The doctrine of res ipsa loquitur, which means ‘the thing speaks for itself,’ is a rule of evidence and is not of substantive law. Cases dealing with the doctrine as a rule of evidence are authority on the question of pleading, and for a petition to be sufficient as against a demurrer, it must contain allegations of fact, which, if proved, would authorize application of the doctrine. (Mayes v. Kansas City Power & Light Co., supra; Stroud v. Sinclair Refining Co., supra; Starks Food Markets, Inc., v. El Dorado Refining Co., supra; Sipe v. Helgerson, supra; 65 C. J. S. Negligence, § 220 [3], p. 993.) “The difficulty courts often encounter is the application of the doctrine to the situation disclosed by the facts and circumstances alleged in the petition or by the evidence adduced in the event of trial. It is settled in Kansas that the fact an injury occurs is not sufficient to establish liability; that negligence is never presumed but must be established by proof; that in cases where the doctrine is applicable and direct proof is lacking, proof is made, if at all, by circumstantial evidence: that is, proof of injury and of the circumstances surrounding its occurrence are such as to leave no reasonable conclusion to be drawn other than that the injury occurred because of defendant’s want of care. (Mayes v. Kansas City Power & Light Co., supra; Starks Food Markets, Inc. v. El Dorado Refining Co., supra; Sipe v. Helgerson, supra; Waddell v. Woods, supra; Nichols v. Nold, supra; Waddle v. Brodbeck, supra; 38 Am. Jur. Negligence, § 300, p. 996; 65 C. J. S., Negligence, §220 [8], p. 1014.) The doctrine is based in part on the consideration that where the management and control of the thing which produced the injury is vested in the defendant, it is within his power to produce evidence of tire actual cause that produced the injury, which the plaintiff is unable to present. It is not the injury that permits application of the doctrine, but the manner and circumstances of the injury that justifies its application and the inference of negligence. The application of the doctrine presents principally the question of the sufficiency of circumstantial evidence, here, a reasonable conclusion, to establish or to justify the injury in inferring, the existence of the principal fact in issue, the defendant’s negligence. The attending circumstances must warrant a reasonable conclusion that something other than defendant’s negligence caused the injury to make the doctrine inapplicable. (Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252.)” This court has previously allowed the doctrine to be invoked in cases against common carriers (Clarke v. Cardinal Stage Lines, 139 Kan. 280, 31 P. 2d 1; and Misner v. Hawthorne, 168 Kan. 279, 212 P. 2d 336). In the Clarke case the court said: “Where defendant’s passenger bus was traveling in the daytime on a good road, and without known external cause broke down and injured the plaintiff, the character and circumstances of such an accident, being so clearly at variance with common experience, were sufficient to take the case to the jury under the rule of res ipsa loquitur and to place the burden on defendant to rebut the inference of negligence deducible therefrom.” (Syl. 3.) Likewise in the Misner case the court said: “A passenger for hire upon a bus operated as a common carrier of passengers, injured when the bus was driven into the side of a bridge, who sued and relied upon the doctrine of res ipsa loquitur to establish negligence, cannot be defeated by the fact that the bus company did not have exclusive control of the bridge.” (Syl. 2.) While this court has never expressed its approval or disapproval of the application of the doctrine in an ordinary automobile negligence case, a great number of jurisdictions in this country hold the doctrine applicable, particularly as to passengers where an auto mobile leaves the traveled portion of the highway and causes injuries or damage. The general rule is stated by Cyclopedia of Automobile Law and Practice, Blashfield 9B, § 6049: “If a guest’s action is grounded upon a charge of ordinary negligence, it is inaccurate to say generally that the res ipsa loquitur doctrine does or does not apply. Since the unexplained conditions surrounding the accident, the exclusive control of the machine in the defendant, and the state of the pleadings, rather than the relation of the parties, constitutes the test, the same rules are followed in determining its application in a guest’s action as in other tort actions. Applying the usual test, courts have given effect to the doctrine in such cases when the pleadings and surrounding circumstances justified it; and they have refused to recognize it in other guest cases. “When an automobile and the operation thereof are exclusively within a host’s control, and it is not reasonably within the power of the injured guest to prove the cause of the accident, which is one not commonly incident to the operation of the automobile, the occurrence itself, although unexplained, is prima facie evidence of the host’s negligence. . . .” The supreme court of the United States denied certiorari in Lindsey v. Williams, 260 S. W. 2d 472, 347 U. S. 904, 98 L. ed. 1063, 74 S. Ct. 428, where the doctrine was invoked by a guest in defendant’s automobile. In that case the court said at page 475 of the reporter: “. . . The inferable negligence in this case is the loss of or failure to control the movement of the car; the striking of the tree is only an incident of that negligence. . . .” The cases where the doctrine has been applied are annotated in 93 A. L. R. 1102 and 33 A. L. R. 2d 818. The facts alleged in this case under paragraph 5 are very similar to those in the above authorities where the doctrine has been applied. The fact that the decedent was asleep at the time of the accident is a much stronger factual situation than in many of the above cases. This court long ago held that a guest was not guilty of contributory negligence as a matter of law because he was asleep at the beginning of the mishap resulting in his injury (Howse v. Weinrich, 133 Kan. 132, 298 Pac. 766). Restatement of the Law, Torts, § 495 comments on the general rule: “Save in exceptional situations, a guest or passenger in a vehicle is not required to keep a constant lookout or to see to it that he shall be in a condition to do so. Thus, a plaintiff riding in the front seat may take his attention off the road to look at the scenery or may turn around to speak to a friend in the back or he may go to sleep or read a book without being guilty of contributory negligence if the driver commits some negligent act which the plaintiff, had he been on the alert, might have had the opportunity to prevent. Appellants object strenuously to the application of res ipsa loquitur in this case but argue the point only on the grounds that res ipsa loquitur cannot be invoiced to establish gross negligence or willful misconduct. We have no quarrel on this point. The doctrine may not be so invoked but we are not dealing with gross and wanton negligence. We are dealing with ordinary negligence where the doctrine may be applied. Following the Lamb case and the above general authorities we think the petition contains allegations of fact which, if proved, authorizes the application of the doctrine of res ipsa loquitur. The district court was correct in holding the petition good as against demurrer. The judgment is affirmed. Parker, C. J., and Price and Schroeder, JJ., dissent.	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The opinion of the court was delivered by Hall, J.: This is an appeal from an order overruling a motion for new trial on the basis of newly discovered evidence and the refusal of the court to set aside a criminal verdict. Although the facts of this appeal are unusual the legal questions involved are not of first impression in Kansas or other jurisdictions. The defendant, Lee Roscoe Looney, was tried and convicted in the district court of Sedgwick County, Kansas, of the crime of robbery in the first degree. The verdict was returned on April 5,1956. Thereafter the defendant filed a motion for a new trial which was heard and overruled on April 12, 1956. Defendant was sentenced to serve 10 to 21 years in the State Penitentiary at Lansing, Kansas, and duly committed to said institution. After beginning his sentence, the defendant became acquainted with another prisoner by the name of Aaron Edwin Warren. Warren wrote a confession that he committed the crime of robbery on which the defendant had been convicted. On May 29, 1956, the defendant filed a second motion for new trial based upon newly discovered evidence. The alleged new evidence was the written confession under oath of Aaron Edwin Warren. The defendant and Warren were brought from the penitentiary before the district court in Wichita, June 18, 1956, for the hearing of defendant’s motion for new trial based on newly discovered evidence and oral motion to set aside the verdict. It should be specially noted that these motions were made within the term of court of defendant’s conviction and sentence. Upon the hearing of the motions the court allowed Aaron Edwin Warren to be called and examined. The court also admitted his written confession. The court overruled the motions for lack of jurisdiction following State v. Carte, 157 Kan. 139, 138 P. 2d 429. This judgment is specified as error. The rule is well settled in this state that when a valid judgment and sentence has been rendered in a criminal case the court has no jurisdiction after the sentence has been executed, in whole or in part, to set it aside and impose a new sentence, even though the sentence be reduced and the court acts within the term, following Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586; State v. Carte, supra; State v. Nichols, 167 Kan. 565, 207 P. 2d 469. In the Carte case the court said: “Following Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586: When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and impose a new sentence, even though this be done at the same term of court.” (Syl. 3.) See, also, In re Beck, 63 Kan. 57, 64 Pac. 971; The State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 LRANS 90, Ann. Cas. 1913C 278; Parks v. Amrine, supra; State v. Carte, supra; In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331; State v. O’Keith, 136 Kan. 283, 15 P. 2d 443. In this respect Kansas follows the weight of authority among the states (15 Am. Jur., Criminal Law, §§ 473-476; 24 C. J. S. Criminal Law §§ 1588 and 1589; 168 A. L. R. 706). The federal courts, following United States v. Benz, 282 U. S. 304, 75 L. ed. 354, 51 S. Ct. 113, and a few state courts permit the alteration of a valid sentence, during the term in which it is pronounced, for the purpose of decreasing or mitigating it. Practically all courts allow substitution of a valid sentence for one that is void. (State v. O’Keith, supra.) The reason for the rule which denies the trial court the right to change a criminal sentence, after the person convicted has been committed and has entered upon the execution thereof, varies among the jurisdictions. Insofar as an attempt to increase a sentence is concerned, the constitutional guarantees of protection of persons from -double punishment and for being put twice in jeopardy for the same offense are applicable. Where the sentence is decreased after imposed and partially executed, some jurisdictions hold the change to be an invasion of the executive pardoning power or power of commutation. The real basis for the rule, however, appears to be that the jurisdiction of the trial court comes to an end when the person convicted is committed to jail or prison pursuant to the sentence imposed and enters upon the execution thereof. The Kansas cases generally follow this reasoning. The Carte case held that there is no reason to distinguish between a new sentence which increases or diminishes an old sentence. The court simply lacks jurisdiction to act. In the case at bar, the court correctly held that it should follow State v. Carte, supra. It had no jurisdiction to set aside the verdict against the defendant. For a similar rule which our court follows in habeas corpus cases see Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791. Defendant also takes the position that the question in this appeal is not alone the matter of whether the court had jurisdiction to bring the defendant back from the penitentiary and impose a new and different punishment, but more important, whether the court retained jurisdiction to grant a new trial based on newly discovered evidence, citing State v. Keleher, 74 Kan. 631, 87 Pac. 738; and The State v. Meyer, supra. Defendant further contends that a motion for new trial is an exception to the general rule discussed in this opinion citing 24 C. J. S. Criminal Law § 1588. Defendant also cites G. S. 1949, 62-1414 which provides: “Verdicts may be set aside and new trials awarded on the application of the defendant; . . .” And G. S. 1949, 62-1603 which provides: “The court may grant a new trial for the following causes, or any of them: “First . . . for newly discovered evidence.” Under these authorities and sections of the code of criminal procedure, the defendant had every right to apply for a new trial on the ground of newly discovered evidence. However, the defendant’s position overlooks G. S. 1949, 62-1604 which provides as follows: “The application for a new trial must be made before judgment.” In this case, defendant filed his first motion for new trial before judgment but this appeal is based upon his subsequent and second motion for new trial filed May 29, 1956, after judgment and sentence on April 12, 1956. Under these circumstances G. S. 1949, 62-1604 must apply. Thereafter the court neither retained nor had jurisdiction for the purpose of granting a new trial upon newly discovered evidence or any other ground (State v. Carte, supra; State v. Nichols, supra). The judgment is affirmed.	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The opinion of the court was delivered by Robb, J.: This is an appeal in a workmen’s compensation case. The trial court affirmed but modified the award of the commissioner. The claimant appealed from the modification of the award and the respondent cross-appealed from the allowance of any award. The respondent freight transportation company carried on its business exclusively by leasing trucks, tractors, and trailers. It hired about fifty truck drivers. Some owned their own trucks and some drove trucks owned by third parties. Claimant was an owner-driver and prior to the day in question, between April 26, 1955, and July 12, 1955, he had made nine trips for respondent for which he had received $728.52. Each of these trips was based on a one-way lease contract whereby claimant leased his truck to respondent and furnished his services as a driver thereof. For this he received 70% of the gross freight charges, from which 15% was paid for trailer rental to some independent trailer-renting concern. He was paid directly by respondent. Other truck owners could, and in some instances did, hire drivers who were paid 20% of the aforementioned 70% of the gross freight charges. All shipments were governed and controlled by regulations of the Interstate Commerce Commission or the Kansas Corporation Commission under permits issued to respondent and the only authority by which claimant hauled freight for respondent was by and through these permits. Respondent required each truck to carry a sign reading, “Leased To Grain Eelt Transportation Company.” All road mileage, transportation tax, public liability, property and cargo insurance costs were paid by respondent. Claimant carried only a $250.00 deductible policy of insurance on his truck. Respondent did not deduct any withholding tax or social security from moneys which it paid direct to a driver. Money was advanced to each driver, including claimant, by respondent before a trip started. A driver could refuse a load but he could not pick or choose what load he would take. On July 25, 1955, the day in question, respondent had a shipment of oil field pipe to be delivered from Kansas City, Kansas, to Hays, Kansas. Claimant, with his truck-tractor, went to respondent’s yard, picked up an empty trailer, and proceeded to the shipper’s place of business, where the pipe was loaded. Thereafter claimant returned to respondent’s yard where respondent inspected the equipment and claimant, after receiving his clearance papers, checked out. This was the regular routine procedure before any load was permitted to start out on the highway. Delivery of the oil field pipe was to be made the next morning in Hays, Kansas. At about 6:00 p. m. on July 25, 1955, while claimant was traveling on highway No. 10 near Sunflower, Kansas, the motor of his truck became overheated and he pulled off the road to allow it to cool. He touched the brakes and they, locked. This caused the load of pipe to come forward through the cab of the tractor and claimant’s back was injured, for which injury compensation is sought. There is no dispute about accidental injury, filing -of notice, or making written claim. It is an undisputed fact that a truck owner in return for hauling a load of freight received 55% of the gross payment made to respondent by the shipper or consignee. The trial court determined the relationship of employer and workman existed under G. S. 1949, Chap. 44, Art. 5, and G. S. 1955 Supp. Chap. 44, Art. 5; it determined the accidental injury suffered by claimant was compensable thereunder; and in conformance therewith, it computed the compensation of claimant for his services to respondent on 20% of the gross revenue. The overall award was for 145 weeks at the rate of $1.75 per week. Claimant contends this court should decide the proper method for determining his weekly wage and his resulting compensation, but this is not possible on the record before us. The record does not reflect the elements of the expenses on the truck driven by claimant and we are unable to adopt the computation of weekly wage suggested by claimant in his brief. He cites Workman v. Kansas City Bridge Co., 144 Kan. 139, 58 P. 2d 90. There the employee’s wage was definitely ascertainable, which makes the case inapplicable here. The more recent case of Borchardt v. City of Leawood, 178 Kan. 705, 290 P. 2d 811, involving a part time policeman, is also cited by him. It did not present the same situation that we have. Another case called to our attention is Leslie v. Reynolds, 179 Kan. 422, 295 P. 2d 1076, but likewise that case is no help to us in answering the questions presented by claimant. We are committed to the often-repeated rule of this court that an appeal in a workmen’s compensation case is limited to matters of law. We cannot weigh evidence whereby a different conclusion as to the facts involved could be reached than that reached by the trial court. (G. S. 1949, 44-556; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 388,139 P. 2d 854; Copenhaver v. Sykes, 160 Kan. 238, 239, 160 P. 2d 235; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 181, 211 P. 2d 89. While claimant assigns five specifications of error, they all affect the one question involving the trial court’s computation of the weekly wage and the award based thereon. We shall not disturb that computation and award because there is substantial evidence in the record to justify both. (Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 207 P. 2d 1179; Bender v. Salina Roofing Co., 179 Kan. 415, 417, 295 P. 2d 662; Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681.) On the cross-appeal there are two specifications of error relating to the trial court’s findings. First, that the relationship of employer and workman existed, and, second, that the parties are governed by our workmen’s compensation act. Without repeating the evidence, we are convinced there was substantial and sufficient evidence to justify the trial court’s finding that the relationship of employer and workman existed between respondent and claimant and We will not disturb that finding. (Shay v. Hill, 133 Kan. 157, 163, 164, 299 Pac. 263.) The authorities cited by respondent, in support of its contention that because of the lease contract claimant was an independent contractor, present entirely different factual situations from the one we are now considering upon which the trial court made its findings. We think it unnecessary to detail those authorities and we are not inclined to disturb the trial court’s finding on this phase of the case. It was shown by respondent’s own witness that its second contention has no merit because that evidence showed far more than five employees were engaged in its transportation business in the month preceding the accident and we would be forced to conclude, under our long line of decisions, that here again there was substantial and competent evidence for the trial court to find as it did. (Walker v. Finney County Water Users Ass'n, 150 Kan. 254, 257, 258, 92 P. 2d 11.) The appeal herein was filed and docketed as case No. 40,393 and subsequently the cross-appeal was filed and docketed as case No. 40,400, but there is actually only one case. The trial court was correct in its determination of the entire matter. The judgment is affirmed.	[ 80, -22, -8, -99, 10, 74, 51, 24, 116, -31, 39, 83, -51, -42, 21, 105, -9, 29, 81, 106, -9, -93, 7, -5, -109, 51, -5, -52, -68, 75, -92, 86, 79, 48, 10, -107, -90, -64, 68, 28, -50, 4, -87, -20, 89, 0, 56, 106, 50, 75, 17, -114, 123, 40, 24, -61, 45, 46, 123, 40, -47, -15, -22, 13, 119, 5, 48, 4, -100, 13, 88, 47, -112, 49, 40, -56, 90, -90, -124, -12, 43, -103, 8, 38, 99, 33, 21, -51, -20, -72, 14, -38, -97, -57, -112, 24, 11, 67, -108, 29, 114, 22, 6, -4, -8, 21, 31, 109, 3, -113, -80, -78, -115, -32, -116, -102, -17, -123, -78, 113, -52, -94, 92, 71, 122, 27, -121, -110 ]
The opinion of the court was delivered by Hall, J.: This is a condemnation appeal. The Kansas Turnpike Authority instituted an eminent domain proceeding by virtue of its authority under G. S. 1949, 26-102, et seq., as amended by G. S. 1955 Supp., 26-102. The proceeding involved several contiguous tracts of land comprising a single parcel of some 85 acres owned by appellee Georgia B. Jenkins, subject to certain tenancies of Mike Gregar, Joe Gregar, Thomas Gooch and Kansas Industries, Inc., formerly Mineral Products Company. Thomas Gooch was a tenant in a house located on the property. Mike Gregar and Joe Gregar had agreements with the landowner, Georgia B. Jenkins, and were doing small scale quarrying of rock on the property. The Kansas Industries, Inc., had a royalty lease on the entire acreage for the mining and excavating of clay which it used for making an aggregate in the manufacture of light-weight building blocks in a plant located nearby. Appraisers were appointed by the court who made their report of appraisement. Thereafter, and within the time provided by statute, the Kansas Turnpike Authority, Georgia B. Jenkins, Kansas Industries, Inc., Joe Gregar and Mike Gregar filed separate notices of appeal. Thomas Gooch did not appeal. Thereafter, one Glen H. Price filed an application for leave to intervene and a petition of interplea in the Georgia B. Jenkins docketed action. He alleged he had a pasture lease on the land under condemnation but was not named as a party because his lease was not of record. The appeals were docketed separately with numbers 93250-A, 93263-A and 93284-A. On the opening of court all parties announced themselves ready for trial and the Kansas Turnpike Authority then filed its motion to consolidate all of the appeals for the purpose of trial for the reason that all of the parties who appealed had a claimed estate or interest in and to the same parcel or tract of land, to wit: The 85 acres under condemnation. The Kansas Turnpike Authority also moved to dismiss the intervening petition and petition of interplea of Glen H. Price. The trial court overruled the motion to consolidate, allowed the petition to intervene and the petition of interplea of Glen H. Price and ordered the same be docketed as a separate action. The Kansas Turnpike Authority now appeals from the trial court’s order overruling its motion to consolidate the appeals of Georgia R. Jenkins, the Kansas Turnpike Authority and Kansas Industries, Ino, The court dismissed the appeals of Mike and Joe Gregar and the Kansas Turnpike Authority’s appeals as to them for the reason that a dispute no longer existed between them. The appeals were dismissed without prejudice. Upon motion of Mike and Joe Gregar the court also ordered the distribution of $3,808.80 to each out of the funds deposited by the Kansas Turnpike Authority. The case was argued before this court in the May session. It was conceded by the parties to the appeal that the Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, decision on which a motion for rehearing was pending, would be determinative of the case. Following Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384, this day decided on rehearing: (1) The question before the district court on the motion of the Authority was not whether the separate appeals of the landowner, the tenants, 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; and (3) under the facts and circumstances of this case the court should now consolidate the separately docketed appeals for trial as a single action. No question regarding the compromise and dismissal of the Mike and Joe Gregar appeals is raised by the parties here. In their counter abstract the appellees include the motions and orders of the court relating thereto, and make mention of them in their brief, but no cross appeal is taken. While not technically before us it must be stated that under the Moore decision, any appeal by the landowner, lien holder or interested party brings to the district court the determination of the total sufficiency of the award of all interests in the tract or parcel of land under condemnation. Until there has been a final award and a determination of the value of the interests of all persons entitled to share therein, as of the date of the taking, matters pertaining to the rights of parties who, prior to or after the appeal, have bargained away, by compromise or otherwise, their rights to share in the proceeds of the proportionate interest to which they might otherwise have been entitled, are not subject to appellate review. The same is true of those who have acquired such interest. The judgment of the district court of Wyandotte County is reversed and the case remanded with directions to consolidate the separately docketed appeals and proceed with trial of all appeals as a single action to determine the sufficiency of the award. Price, J., dissenting.	[ -48, 106, -67, 125, -119, -30, 56, -103, 105, -13, -91, 83, -113, -118, 0, 57, -9, 61, 101, 123, -25, -77, 91, -46, -42, -5, -47, -35, 123, 77, -26, -41, 76, 112, 66, 21, -58, -118, 77, 92, -114, 6, -103, -56, -63, 0, 58, 107, 118, 75, 17, -114, -13, 44, 25, -61, 104, 44, 107, -19, 17, -8, -85, -43, 95, 23, 32, 36, -100, -125, -40, 11, -112, -71, 1, -24, 115, 38, -42, -12, 7, -101, 8, -90, 98, 35, 17, -57, -24, -72, 14, -48, -115, -89, -112, 88, 66, -96, -97, -99, 116, 18, 97, -2, -18, 4, 91, -20, -127, -117, -12, -77, 15, 125, -102, 25, -21, -123, 49, 33, -49, -26, 92, 71, 112, -65, 31, -112 ]
The opinion of the court was delivered by Parker, C. J.: This is another appeal from a judgment in a condemnation proceeding. In 1955 the Kansas Turnpike Authority, as authorized by G. S. 1955 Supp., 68-2006, instituted a proceeding under the provisions of G. S. 1949, 26-101, in the district court of Rutler County, to condemn land, belonging to the estate of Guy Shreve, deceased, for turnpike purposes. Pursuant to this proceeding the Authority took a strip of land, consisting of 46.71 acres, running in an easterly and westerly direction through the center of the southeast quarter of section 22, township 26, range 4, in Rutler County. This left the estate with two tracts of land in such quarter section, one consisting of 69.29 acres to the north and the other of 45 acres to the south of the condemned tract. A timely appeal, as permitted by G. S. 1955 Supp., 26-102, was taken to the district court from the award of the appraisers by the landowners, who are conceded to be the heirs-at-law of Guy Shreve. The action resulting from the appeal was docketed in the district court and came on for trial in due course. During the trial the evidence adduced by the parties, respecting the value of the involved real estate, both before and after the taking, was extremely conflict ing. However, no question is raised with regard to qualifications of the witnesses who testified with respect thereto. Five witnesses testified for the landowners on this subject and five for the Authority. Their testimony, since it is highly important to a disposition of appellate issues involved, will be briefly summarized, without reference to names or specific values placed on the property by any witness. Witnesses for the landowners testified the fair and reasonable market value of (1) the entire 160 acres, before the taking, on May 26,1955, was from $32,000 to $40,000; (2) the 46.71 acres taken was from $9,400 to $11,677.50; (3) the 113.29 acres remaining, before the taking, was from $22,600 to $28,250; and (4) the 113.29 acres remaining, immediately after the taking, was from $8,475 to $11,700. On the other hand witnesses for the Authority testified that the fair and reasonable market value of (1) the entire 160 acres, before the taking, was from $16,000 to $20,000; (2) the 46.71 acres taken was from $4,671 to $5,875; (3) the 113.29 acres remaining, before the taking, was from $11,329 to $14,161; and (4) the 113.29 acres remaining, immediately after the taking, was from $5,664 to $10,175. With evidence of values, as heretofore related, the court gave written instructions, to which no objections were made, and then submitted the cause to a jury which ultimately .returned a general verdict in favor of the landowners in the sum of $21,736.80 along with its answers to special questions, submitted by the court, which read: “Q. No. 1. What do you find to be the highest and best use of the Shreve property before the taking as of May 26, 1955. Answer: Live stock and general fanning. “Q. No. 2. What do you find to be the fair and reasonable market value of the entire 160 acres before the taking as of May 26, 1955? Answer: $30,800.00. “Q. No. 3. What do you find to be the fair and reasonable market value of the 46.71 acres taken for turnpike purposes as of May 26, 1955? Answer: $8,991.68. “Q. No. 4. What do you find to be the fair and reasonable market value of the 113.29 acres remaining before the taking on May 26, 1955? Answer: $21,808.32. “Q. No. 5. What do you find to be the fair and reasonable market value of the 113.29 acres remaining immediately after the taking on May 26, 1955? Answer: $9,063.20.” Following the return of the jury the prevailing parties moved for judgment. The court took this motion under consideration and advised counsel it would not enter judgment until the time for the filing of a motion for a new trial had expired and in the event such a motion was filed would first hear arguments thereon. Thereafter, the Authority filed a motion for a new trial, based on all statutory grounds, which was presented, heard and overruled. Subsequently the court approved the general verdict and rendered judgment in accord therewith. Thereupon the Authority gave notice of appeal and brought the case to this court, under specifications of error, charging that the trial court erred in overruling its motion for a new trial. The first error assigned by appellant is that the trial court should have granted it a new trial for the reason it erred in overruling its motion for a mistrial, based on inflammatory remarks made by one of the counsel for appellees, during the cross-examination of one of appellant’s witnesses, in the presence of the jury. We have searched tire record on this point and find nothing in the remarks made by counsel to the witness in question which would warrant any such conclusion. It is true, the record discloses, counsel did ask some leading questions with respect to the answer made by the involved witness to a previous question, to which appellant made no objection, in an effort to obtain a more favorable response from the witness to the prior question. However, when appellant objected to this fine of questioning and moved for a mistrial because of it the court admonished the juiy that the statements made by counsel for appellees were not to be considered by it as any evidence in the case and were to be disregarded. We believe the trial court did all that was required under the existing circumstances. Of a certainty, it did not err in refusing to declare a mistrial on appellant’s assumption such statements had inflamed the jury and thereby precluded it from having a fair trial. Another contention advanced is that the statements made by one of appellees’ counsel during his final argument to the jury were prejudicial and thus afford sound ground for holding that the trial court erred in overruling the motion for a new trial. We are not disposed to labor this contention. The record discloses that appellant made no> objection to such argument when it was being made, that it asked for no ruling by the trial court with respect thereto, and requested no instruction to the jury concerning it. In that’situation misconduct of counsel in argument to the jury is not available as a basis for reversal of the judgment. See Mai v. City of Garden City, 177 Kan. 179, 277 P. 2d 636, which holds: “Rule followed that misconduct of counsel in argument to the jury is not available as ground for reversal where no objection was made to it and no request was made for ruling thereon or for an instruction to the jury concerning it.” (Syl. f 6.) Finally it is urged that the verdict was so excessive as to show bias and prejudice on the part of the jury and so patently excessive as to shock the conscience of this court. It is for that reason we have heretofore summarized the widely varied testimony of the witnesses of the respective parties regarding the value of the property and quoted at length the findings of the jury which clearly show that the general verdict was well within the realm of the evidence. Indeed, in oral argument, counsel for appellant, with commendable candor, was frank enough to so concede. Based on our careful and painstaking examination of the entire record, it appears the cold, hard and inescapable facts are that the jury, as it had a right to do, believed the testimony of appellees’ witnesses with respect to the fair and reasonable market value of the involved property and rejected the testimony of appellant’s witnesses on that subject. Moreover it further appears, that while sitting as the thirteenth juror for purposes of ruling on the motion for a new trial, the judge of the district court who, like the jurors and unlike this court, had an opportunity to observe the candor and fairness of the witnesses as they testified, reached a similar conclusion as to the weight to be given the testimony. In the face of all these facts and circumstances it is asking too much of this court to hold that the verdict of the jury was the result of passion and prejudice or reach a conclusion such verdict was so patently excessive as to shock its conscience. The judgment is affirmed.	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The opinion of the court was delivered by Parker, C. J.: This appeal requires construction of a will and a review of rulings made by the trial court with respect to the same subject on an appeal from probate court. On November 2, 1950, Fred Weidman and Julia Mannel Weidman, who were at that time and since June 19, 1924, had been husband and wife and had no children, joined in the execution of a will which, including its attestation clause, reads: “In The Name Of God: Amen “We, Fred Weidman and wife Julia Mannel Weidman, of Lincoln, County of Lincoln, State of Kansas, being of sound mind and memory and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be our Last Will and Testament. “First: We order and direct that our executor herein after named, pay all our just debts and funeral expenses as soon after our deceasing as conveniently may be. “Second: We give, devise and bequeath to our beloved brothers and sisters the balance of our property, real, personal and mixed of what nature where so ever the same may be at the time of our death. “Third: We order and direct Walter Weidman, of Sylvan Grove, Kansas, as our legal executor. He is to serve without bond. “Fourth: This division of property is to be equally divided, One half to the legal Mannel Heirs. One-half to the legal Weidman heirs. “The legal Mannel heirs are Louise Mannel, Anna Mannel, Adam Mannel and Chas. Mannel. “The legal Weidman heirs are Anna Weidman, John Weidman, Regina Weidman, Emma Weidman, Lena Weidman. The heirs of Clara Weidman deceased, Henry Weidman and Carrie Weidman. “If any of the above named heirs are deceased, then their part may be legally received by their legal heirs. “Fifth: In the event any of the above named heirs or their spouses disagree and shall cause any undue trouble, the same shall be automatically discharged as a legal heir or heirs and will forfeit their legal rights as heirs in this case. “In Witness Whereof, We hereunto subscribe our names and affix our seal this second day of November, One thousand nine hundred and fifty. /s/ Fred Weidman /s/ Julia Weidman “This instrument was on the day of the date thereof, signed, published and declared by the said testators Fred Weidman and Julia Mannel Weidman to be their Last Will and Testament in our presence who at their request have subscribed our names as witnesses in their presence and in the presence of each other. “Name Address /s/ Mrs. Erna Feldkamp Lincoln, Kansas /s/ W. C. Feldkamp Lincoln, Kansas.” Fred Weidman died on March 7, 1955. At that time he was approximately seventy-eight years of age and his wife was approximately sixty-nine. Within a few days after Fred’s death Walter Weidman filed a petition in probate court, to which he attached the foregoing will, asking that such instrument be admitted to probate as the decedent’s last will and testament. By order of the probate court, dated April 8, 1955, this petition was granted, the will was admitted to probate and Walter was appointed executor to serve without bond. Thereafter the executor caused an inventory and appraisement of the estate to be made which, when returned by the appraisers, showed the assets of such estate consisted of real estate, valued at $22,500, and personal property, valued at $7,605.81. On May 5, 1955, Julia Weidman filed an instrument in probate court whereby, as widow, she elected to take and abide by the terms of her deceased husband’s last will and testament. Eleven months later, on April 10, 1956, the executor filed his petition for final settlement wherein, so far as the record shows, it became apparent that he was claiming for the first time that the will, although jointly executed, was either Fred’s separate will or that, in any event, his widow took nothing under its terms and provisions. It suffices to say such petition recited that Julia, as the wife of decedent, was the only person who would inherit from him under the laws of intestate succession and that she had consented in writing to such will and had filed her election to accept the provisions thereof; charged that the persons specifically named in the will as the brothers and sisters of Fred and Julia were the only legatees and devisees under the will, and under its terms, were entitled to have assigned to them all property, both real and personal, owned by such decedent on the date of his death; and prayed for final settlement of his estate, that the court determine the heirs, devisees and legatees entitled thereto to be the persons named in the petition, that it assign the assets of the estate, including the remaining cash, personal property and real estate, to such persons in accord with the terms of the will, and that upon the filing of receipts showing disbursements and distribution to such persons the petitioner be finally discharged as executor. May 4, 1956, Julia filed a written defense to the petition for final settlement wherein, among other things, she alleged (1) that under the terms of the will it was the intent of the testator that she was to have a fife estate in all of his property, personal, real and mixed, and (2) that her name to such will was not consent thereto but intended to show the intent of the testator and herself that the instrument, as executed, was to be the mutual will of the two testators therein named, not the separate will of either of them, and not, therefore, to pass any property, except vested interest, to the brothers and sisters specifically named therein; and prayed that the probate court construe the will in its entirety, give effect to its meaning, and that she be determined to have a life estate in all property owned by Fred on the date of his death. The probate court disposed of Julia’s written defense and the petition for final settlement on the same day. For all purposes here important it may be stated its journal entry of final settlement discloses that it heard evidence on both matters and then, after construing the will, found (1) that Julia had consented to the will and filed her election to accept the provisions thereof; (2) that it was not the intention of the testator to create a life estate in his property in favor of Julia and that the terms of such will did not create a life estate in her favor; and (3) that under the terms of that instrument the persons therein identified as the legal Mannel and Weidman heirs (naming them) were the sole devisees and legatees of Fred and entitled to all property owned by him at the time of his death. Thereupon, based upon such findings, it assigned all real and personal property inventoried as a part of his estate to such persons and directed that all cash remaining in the hands of the executor be distributed to them according to their respective interests. In due time Julia appealed from the decree of final settlement to the district court, specifying in her notice of appeal that she was appealing from all orders, judgments and decrees and decisions of the probate court wherein that court interpreted the will of the decedent testator and ordered final settlement of his estate. When the case reached the district court the executor moved for judgment on the pleadings. Julia then moved to strike such motion from the files. Upon the sustaining of this last motion and a subsequent order striking the executor s motion for judgment from the files the parties in open court, by oral stipulation and agreement, submitted the cause to the district court upon the merits of all matters appealed from and upon the transcript and record of all previous proceedings had in the involved estate in probate court. Subsequently, and after having taken the cause under advisement, the trial court rendered its judgment which, according to the journal entry and so far as here pertinent, reads: “The District Court has given careful consideration to the facts disclosed by the transcript, to the oral arguments and written briefs of the respective parties and to the authorities cited by each therein, and from the evidence before it considers, orders, adjudges and decrees that the last will and testament involved in this matter and disclosed by said transcript is a joint and mutual will of Fred Weidman, now deceased, and of Julia Mannel Weidman, his wife, who is the present appellant. It is by the court further considered, ordered, adjudged and decreed that by the terms, provisions and plain intendments of said will, the survivor, after payment of debts and funeral expenses of the spouse dying first, takes a life estate in the estate of the deceased, with power of disposition, and at the death of such survivor, after the payment of his or her debts and funeral expenses, then that the balance, if any there be, shall be equally divided, one-half to the legal Mannel heirs and one-half to the legal Weidman heirs, as provided in paragraph 4 of the will in question. The court further considers, orders, adjudges and decrees that the appellant, Julia Mannel Weidman, surviving spouse of tire decedent, Fred Weidman, under and by virtue of said will and in accordance with its terms, takes a life estate in the estate of Fred Weidman, deceased, with power of disposition, subject only to the payment out of said estate of the debts and funeral expenses of such decedent, and at her death any balance of said estate remaining after payment of her debts and funeral expenses is to be equally divided, one-half to the legal Mannel heirs and one-half to the legal Weidman heirs, as in paragraph numbered 4 in such will provided. “Accordingly, the judgment and orders of the Probate Court of Lincoln County, Kansas, as appealed from herein, are vacated and ordered reversed; and the Clerk of the District Court of Lincoln County, Kansas, is ordered to certify to said Probate Court a transcript of the judgment and proceedings of this court had in such matter; and said Probate Court of Lincoln County, Kansas, is ordered forthwith to proceed to final settlement of said estate in accordance herewith. Costs of appeal are taxed to the Executor.” Following rendition of the foregoing judgment Walter Weidman, as executor, and other aggrieved parties filed a motion for a new trial and an amended motion for a new trial. Thereafter Julia filed a motion to strike such motions from the files. This motion was sustained. Thereupon the executor and all of the legal Weidman heirs gave notice they were appealing from the district court’s judgment wherein it interpreted and construed the last will and testament of Fred Weidman, deceased, and granted a life estate with power of disposition to Julia Mannel Weidman in all of the property of such decedent, both real and personal, and from all other adverse rulings. Appellants’ specifications of error will be disposed of in inverse order. So considered the first error assigned is that the court erred in assessing the costs against the executor. In other words against the estate. The answer to this claim is to be found at page 30 of the opinion in In re Estate of Ellis, 168 Kan. 11, 30, 210 P. 2d 417, where, in rejecting a similar contention, it is said that under our code of civil procedure in actions for the recovery of money only or for the recovery of specific real or personal property, costs are allowed as a matter of course to the prevailing party, but in other cases the court may apportion the costs as in its discretion it may think right and equitable. (G. S. 1935, 60-3704, 3705, 3706.) It may be added that under the facts and circumstances of this case we would not be disposed to hold the trial court abused its discretion in assessing the costs against the estate, even if its construction of the will had resulted in a contrary judgment. Next it is urged the trial court erred in sustaining Julia’s motion to strike appellants’ motion and their amended motion for a new trial. Since it is conceded that by oral stipulation and agreement of the parties this cause was submitted and disposed of by the trial court upon the transcript and record of all previous proceedings had in such estate in the probate court, this claim of error cannot be upheld. The long established rule of this jurisdiction is that where an action is submitted to the district court for judgment upon the transcript and record of a lower court a motion for a new trial is neither necessary, proper nor essential to a review of the judgment. See, e. g., In re Estate of Pardun, 176 Kan. 658, 272 P. 2d 1051; Colyer v. Wood, 178 Kan. 5, 283 P. 2d 398. See, also Hamilton v. Binger, 162 Kan. 415, 418, 176 P. 2d 553, and cases therein cited, where the foregoing rule is discussed and applied and it is stated that under such circumstances no trial errors, making a motion for a new trial necessary or proper, are contemplated and the only function of the trial court is to determine questions of law. The next error assigned is that the trial court erroneously sustained Julia’s motion to strike the executor’s motion for judgment on the pleadings from the files. In connection with this claim it is to be noted the motion last mentioned was directed against the defense filed by Julia in the probate court, not against the sufficiency of any pleadings filed in district court pursuant to G. S. 1949, 59-2408, providing that on appeal the district court shall allow and may require pleadings to be filed or amended. Stated in another way, such motion was directed against the sufficiency of a pleading filed in probate court on the ground it constituted no defense to the petition for final settlement. Conceding, that the trial court might well have overruled this motion for judgment instead of striking it from the files, we think there are at least three sound reasons why its action with respect thereto cannot be disturbed. First, under the order made by the probate court on final settlement Julia, as widow, was a person aggrieved and, under existing provisions of the probate code (G. S. 1949, 59-2401, 2404), had a right to appeal from such order even though she had made no appearance and filed no defense in probate court. Second, her written defense, to which reference is made early in this opinion, is sufficient to require a construction of the will in question and constitute a defense to the petition for final settlement. Third, the probate code (G. S. 1949, 59-2201), dealing expressly with pleadings in probate court, provides in clear and unequivocal language that no defect in form shall impair substantial rights. Although not specified as error appellants’ next contention is that the district court was without jurisdiction to entertain the appeal from probate court. This presents a question which must be reviewed and decided even though it was not raised in the court below. (In re Estate of Demoret, 169 Kan. 171, 177, 218 P. 2d 225.) The gist of all claims advanced on the point now under consideration is that the rights of Julia under her written defense are those of a person contesting a will or making a claim or demand against an estate hence, since she did not appeal from the order admitting the will to probate or file a claim against the estate within the time prescribed by G. S. 1949, 59-2289, the district court’s judgment should be set aside and the case dismissed. The difficulty from appellants’ standpoint is that the record does not sustain their position respecting the nature of the involved controversy. Under the undisputed facts Julia is relying on the will, not contesting it, and her claims with respect thereto are in no sense to be regarded as a claim or demand against the estate, within the meaning of that term as used in 59-2239, supra. Indeed the real issues, in fact the only controverted issues, involved in probate court in connection with the final settlement of the estate were the construction to be given the will and the determination of persons entitled to share in the estate under its terms and provisions. Under our decisions appellants’ claim the district court had no jurisdiction to hear and dispose of the appeal from the decision made by the probate court with respect to such issues on final settlement of the estate lacks merit and must be denied. See Bindley v. Mitchell, 170 Kan. 653, 228 P. 2d 689, where it is held: “At the final settlement of the estate of a testate decedent the probate court has not only the authority but the duty of interpreting or construing the will and determining the respective beneficiaries of the estate named in the will and assigning to each the share of the property bequeathed or devised by the will. “The method provided by statute for correcting any error the court might make interpreting or construing the will and determining the respective shares of the beneficiaries named therein is by an appeal from the order of final distribution.” (Syl. tiff 1, 2.) The final and most important claim of error made by appellants is that the trial court erred in its interpretation and construction of the will in question, wherein it granted a life estate with power of disposition to Julia in all of the property of decedent, both real and personal. Appellants devote much of their brief to a contention that this was Fred’s separate will, notwithstanding Julia joined in its execution. In connection with this contention our attention is directed to Allen v. Allen, 28 Kan. (2nd Ed.) 18, and Moore v. Samuelson, 107 Kan. 744, 193 Pac. 369, holding in substance that where a husband and wife joined in the execution of what is in form a joint will, but which only disposes of property belonging to the husband, the will is to be considered as the will of the husband, and the joinder of the wife in the making of the devises is to be disregarded as mere surplusage. In seeking to bring this case within the rule of such decisions appellants assume Fred owned all the property and Julia none at the time of the making of the will. The trouble from their standpoint comes from the fact that appellees produce excerpts from a brief, which they allege and appellants do not deny was submitted to the district court, wherein one of appellants’ counsel made admissions which, in our opinion, when considered in connection with the language of the will and its attestation clause, completely refute all arguments now advanced by appellants to the effect (1) that on the date of the execution of that instrument Fred owned all of the property and Julia owned no separate estate on which the will could operate; (2) that such instrument was Fred’s separate will; and (3) that the rule of the decisions on which appellants rely has any application under the existing facts and circumstances. (Zabel v. Stewart, 153 Kan. 272, 277, 109 P. 2d 177.) Indeed when viewed in the light of the same facts and circumstances we are convinced the will was contractual in nature and was the joint and mutual will of Fred and Julia. To concede, as appellants point out, the record discloses no express evidence to the effect the parties ever entered into a contract to execute such instrument does not require a contrary conclusion. In Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421, we said: “. . . The defendant says that there was no evidence to show that T. W. Lewis and Betsy A. Lewis ever entered into any contract to make the will, and that there was no finding of the court that such a contract was made. How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The wfil itself, its terms, and its execution, are evidence that such a contract was made. (Nelson v. Schoonover, 89 Kan. 388, 392, 131 Pac. 147; Baker v. Syfritt, 147 Iowa 49; Bower v. Daniel, 198 Mo. 289, 320; Frazier v. Patterson, 243 Ill. 80; Campbell v. Dunkelberger, 172 Iowa 385, 390; Larrabee v. Potter, 166 S. W. 395 [Tex. Civ. App. 1914].)” (p. 273.) Nor does it follow, as appellants suggest, that such will could not be admitted to probate as Fred’s last will and testament. See In re Estate of Adkins, 161 Kan. 239, 167 P. 2d 618, and Zabel v. Stewart, Syl. ¶ 2, supra. Neither is it important that for some reason, not disclosed by the record, Julia was induced or permitted to elect to take and abide by the terms of the will after it had been so admitted. That action was neither necessary nor required in order for her to make claim as a beneficiary under its terms and, under the circumstances, the most that can be said for it is that it furnishes some indicia of her belief and understanding she was entitled to share in the benefits and/or burdens contemplated by the terms of the will as jointly executed. Having determined how the will should be classified the next, and we may add the final, question presented for appellate review calls for a construction of the will itself to determine what disposi tion the parties made oí their property under its terms and provisions. This, since we have no difficulty in concluding its terms are ambiguous, requires that we construe the instant will in the light of rules long since established by this court in cases where the terms and provisions of other wills have been regarded as indefinite and uncertain. Therefore, without attempting to exhaust the field, we shall make brief reference to just a few of our decisions where the rules applicable under facts and circumstances such as are here involved are stated and discussed. In Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, we held: “The rules of construction applied to wills by this court in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language this court must, as far as possible, put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator’s family and his estate, and from all the facts and circumstances find what his intention was. (Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082; Hurst v. Weaver, 75 Kan. 758, 762, 90 Pac. 297.)” (Syl. ¶ 1.) To the same effect is In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707, holding that: “Where construction of a will is necessary the court must put itself in the situation of the testator when he made his will and from a consideration of the language used in the entire will determine as best it can the intention he endeavored to convey, the cardinal rule being that the intention of the testator as gathered from the whole will must control unless contrary to settled rules of law.” (Syl. If 3.) See, also, Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276, a recent declaration respecting the paramount rule for construction of wills, where, repeating and reapproving the principle announced in the early case of Brown v. Brown, 101 Kan. 335, 166 Pac. 499, we held: “A rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.” (Syl. ¶ 1.) And in the opinion stated: “. . . In construing a will, the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. (Lawrence National Bank v. Shirk, 173 Kan. 76, 244 P. 2d 179; 5 Hatcher’s Kansas Digest [Rev. Ed.], Wills, § 101; West’s Kansas Digest, Wills, §§ 439, 440 and 441.)” (p. 356.) Roiled down appellees’ position on the point now to be considered is that under and by virtue of the terms of the will, particularly paragraph two thereof, Julia takes a life estate, with power of disposition, in all property owned by Fred on the date of his death. On the other hand appellants take the position that if, as we have held, the will was the joint and mutual will of Fred and Julia then, and in that event, Julia takes a life estate only in such property. Mindful that each will must be construed by its own terms and when ambiguous in accord with the intention of the particular individual and/or individuals executing, the instrument, we see no necessity for prolonging this opinion by an extended statement of reasons responsible for the conclusions we have reached regarding the interpretation to be given the will now under consideration. It suffices to say that when we place ourselves in the situation Fred and Julia were in at the time they made their will and then read that instrument in the light of the limited facts of record, for which both appellants and appellees must assume responsibility, presented to this court on appellate review the best we can do under the particular facts and circumstances of this case is to conclude and hold that what they intended to accomplish by their- will was to give each a life estate in the- property of the other and at the same time make certain that the corpus of all property owned by both at the time of the death of whichever died first should go one-half to the Weidman heirs (Fred’s brothers and sisters) and one-half to the Mannel heirs (Julia’s brothers and sisters) subject to such life estate. With the will construed as above indicated the trial court erred in holding that Julia Weidman takes a life estate, with power of disposition, in the estate of Fred Weidman, deceased. Therefore its action in that respect is reversed with directions to render judgment holding that under the terms of the will she takes a life estate in the estate of her deceased husband without power of disposition. It is so ordered.	[ 113, 44, -4, 28, 24, 96, -118, -38, 114, -41, 39, 83, -17, -37, 69, 111, -13, 45, 53, 105, -35, -77, 6, -128, 82, -13, -79, -43, 49, 124, -75, -41, 76, 34, 42, -107, 70, -121, 71, 80, -116, 64, -55, -28, 91, 34, 48, 43, 86, 70, -43, 62, -13, 43, 60, -26, -88, 46, 91, 32, -40, -104, -117, -123, -17, 19, -126, 5, -102, -89, 120, -82, -100, 48, 32, -24, 51, -74, 6, 116, 99, 41, 8, 118, 98, 17, -59, -19, -72, -102, 14, 99, -99, -121, -78, 24, -87, 5, -76, -103, 125, 52, 11, 126, -26, 21, 60, -20, -108, -117, -42, -79, 11, 126, -104, 26, -22, 3, 50, 113, -54, 96, 93, 71, 57, 49, -106, -79 ]
The opinion of the court was delivered by Wertz, J.: This is a proceeding in the nature of quo warranto brought in the name of the state of Kansas on relation of the county attorney of Wyandotte county against the city of Kansas City, a municipal corporation, and the mayor and city commissioners thereof, to question the validity of city ordinance No. 40,220, whereby the city sought to annex a tract of land within Quindaro township. This tract consists of approximately 2300 acres adjacent to the city and is generally referred to as Fairfax Industrial District. This court appointed Mr. Milton Zacharias of Wichita as commissioner to hear the evidence. The commissioner, in his advisory capacity (State, ex rel., v. Zale Jewelry Co., 179 Kan. 628, 298 P. 2d 283), made findings of fact and conclusions of law and declared that the ordinance in question was invalid and that defendants (hereinafter referred to as the city or defendant city) should be ousted of all authority in the Fairfax area. The facts, as found by the commissioner, are largely undisputed. Kansas City is a city of the first class with a population of less than 165,000. The Fairfax Industrial District sought to be annexed consists of approximately 2300 acres of land in Wyandotte county, situated between the northeast boundary line of the city and the Missouri river. Of the district’s total perimeter of 40,790 feet, 16,040 feet form a common boundary with Kansas City. A small portion of the boundary adjoins Quindaro township in Wyandotte county, while the remainder of the perimeter is formed by the Missouri river which bends around the district. To visualize the situation more clearly, reference is made to a drawing of the entire district in relation to the city, found in State, ex rel., v. City of Kansas City, 169 Kan. 702, 222 P. 2d 714. The district is an urban area with restrictive provisions in the warranty deeds granted by its developers limiting use of the land to manufacturing plants, warehouses and other types of businesses requiring railroad facilities. All but a hundred acres of the district has been sold to industrial firms and developed. Many of the employees of the industries located in Fairfax live in Kansas City. Streets in the district are constructed and connect generally to the public streets of Kansas City, with the exception of a connection across the Fairfax bridge to Platte county, Missouri. Kansas City has constructed various approaches to the district’s roads. The district has its own sewers and dikes, and municipally owned utilities in Kansas City sell electricity and water to the Fair-fax industries. Quindaro township and the industries within the district provide fire protection, although the Kansas City fire department has supplemented this service. On .these facts the commissioner concluded that there were substantial economic and sociological ties between the Fairfax area and Kansas City, and that “The existence of the district and the recognition thereof by the city have been mutually advantageous to both.” On June 2, 1925, a purported plat of the Fairfax Drainage District, signed by representatives of the Kansas City Industrial Land Company, early developers of the industrial district, was filed with the office of the register of deeds of Wyandotte county. The plat, expressly filed for record “for taxation purposes,” embraced 1282 acres of the 2300 acres of the industrial district. It indicated the ownership of various parcels of land but did not describe the prop erty by blocks and lots. Conveyances within the industrial district, both before and after filing of this plat, were by metes and bounds and the land was carried on the county clerk’s books by tract numbers, not by block and lot numbers. Ordinance No. 40,220, here in question, sought to incorporate the area by reference to metes and bounds, rather than by description of a subdivision platted into blocks and lots. The city’s attempt to annex a portion of the industrial district in ordinance No. 35,841, enacted April 4, 1949, was struck down by this court in State, ex rel., v. City of Karisas City, supra. The statutory authority here invoked is found in G. S. 1949, 13-1602 and 13-1602a, and G. S. 1955 Supp., 13-1602a. The provisions of these statutes applicable here are identical and, in effect, set forth requirements which must be met by a city for four types of annexation. G. S. 1955 Supp., 13-1602a provides: [1] “Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or [2] whenever any unplatted piece of land lies within (or mainly within) any city, or [3] any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed ... [4] In adding territory to any city, if it shall become necessary for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does hot exceed twenty acres . . .” The commissioner concluded that the statute contained four limited grants of authority and that the city failed to meet the requirements of any of them. He found that the purported plat, discussed supra, was not a subdivision into blocks and lots for purposes of applying the first section of the statute. He concluded that the area sought to be annexed was not within or mainly within Kansas City within the meaning of the statute and that the statutory requirements were in geographical terms and precluded consideration of economic and sociological factors. He noted that neither of the last two sections quoted, supra, was applicable, inasmuch as the area sought to be annexed was larger than twenty acres and was not sought for the purpose of making the city’s boundary straight or harmonious. Finally, he concluded that the denial of the writ of quo warranto on grounds of hardship and inequity was not justified. Following the announcement of the commissioner’s report, plaintiff filed motions to confirm these findings and for judgment of ouster. Defendant city filed its motion to modify certain findings of fact and conclusions of law and for additional findings, as well as a motion for a new trial. The commissioner, upon hearing the motions, sustained plaintiff’s motion for judgment and overruled defendant’s motions, filing his report, together with transcript of the evidence and the exhibits, with this court. The case was regularly set for argument and was heard upon the briefs and oral arguments of the parties. In this appeal, we are confronted with the construction and interpretation of the following two provisions of G. S. 1955 Supp., 13-1602a: [1] “Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or [2] whenever any unplatted piece of land lies within (or mainly within) any city, . . . said lands . . . may be . . . taken into . . . such city by ordinance duly passed.” At the outset, with relation to contentions later considered, it may be stated that the advisability of enlarging the territorial limits of the city is a legislative function which cannot be delegated to the court and if an ordinance annexing territory is attacked, the court’s duty is only to determine whether under the facts the city has statutory authority to enact the ordinance. (Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456; State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901; State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714.) Cities are creations of the legislature and can exercise only the powers conferred by law; they take no power by implication and the only powers they acquire in addition to those expressly granted are those necessary to make effective the power expressly conferred. (State, ex rel., v. City of Topeka, supra; State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270; Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P. 2d 544.) Defendant city contends that a part of the territory sought to be annexed was subdivided into blocks and lots within the meaning of the statute. Plaintiff contends that the purported plat did not meet the statutory qualifications. It is noted that the statute appears to define platted lands as land subdivided into “blocks and lots.” Whether the Fairfax Industrial District or any part was so subdivided is a crucial question when determining the validity of this plat. The facts reveal that the proffered plat is not a complete representation of the industrial district but covers only some 1282 acres of the Fairfax Drainage District. The plat was never used for conveyance purposes. The ordinance did not attempt to annex the property as a subdivision. Transfers of property were always made by metes and bounds description. The plat was filed in 1925 and its use was specifically limited to facilitating description of acreage for taxation purposes. It discloses four roads within the entire district. The plat does not show blocks, streets and alleys which conform to those of adjoining Kansas City. It was not filed without reservation. It shows that the Kansas City Industrial Land Company did not dedicate for public use any streets, alleys or public highways, except as indicated thereon. Other forms of way were private property and were held by the company for its own use. It cannot be said that the plat complies with the provisions of G. S. 1949, 13-1413 in relation to platting and subdividing a tract of land. It further appears from the plat that there were embraced therein some fifteen tracts of land of assorted shapes which ranged in size from one to 161.38 acres and some of which were not bound by any road or street. The plat discloses no lots or blocks but only tracts by number. We have interpreted the word “block” to mean a space in a city usually rectangular in shape, enclosed by streets and used or intended to be used for building purposes. While blocks do not have to be any particular size or shape, there are certain standards to which a lot or block must in some measure conform. It cannot be said that the tracts of the size, shape and area disclosed on the purported plat could be construed as “blocks.” Courts apply to words the definitions already given them by common usage. According to all dictionaries and the popular understanding everywhere, a “block” is a portion of a city surrounded by streets. In common practice, city plats are made to conform with this understanding and the legislature had in mind blocks so constituted and not tracts arbitrarily designated as such by the donor of a plat. (Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438.) For a compilation of cases on this subject, see Berndt v. City of Ottawa, 179 Kan. 749, 298 P. 2d 262. We agree with our commissioner that the area sought to be annexed had not been subdivided into lots and blocks within the meaning of the statute in question. Next, it must be decided if this unplatted land is “within or mainly within” the city so as to be annexable. There has been little litigation on this point, but the context of the statute indicates that “within” must be equivalent to “surrounded by” the city. It would be natural, for example, to provide for annexation where the city has grown around unannexed unplatted lands. The word “within” has been defined as “being inside the limits of.” (Ballentine’s Law Dictionary, 2nd Ed., p. 1367; 97 C. J. S. Within, p. 330.) The word “mainly” has been defined as “principally,” “chiefly,” “in the main.” (38 C. J. Mainly, p. 334; 54 C. J. S. Mainly, p. 897.) If “within” means surrounded, “mainly within” a city would mean that a common perimeter of more than fifty per cent was present. To impute any other meaning would obliterate any distinction between the test for annexing platted (such as adjoining or touching) and unplatted lands. Unquestionably, the legislature intended a distinction. As we have discussed the statute, physical connection is the test of what is “within or mainly within” a city. In the instant case, only forty per cent of Fairfax’s total perimeter adjoins defendant city’s boundary. Since the city cannot grow into the Missouri river and surround the district any farther, it contends (1) that the Missouri river should be counted as city boundary, or at least (2) that the city has surrounded Fairfax Industrial District as much as possible and thus Fairfax is “within or mainly within” the city. We cannot agree with either contention. It must be presumed that the legislature was completely aware of this situation and chose to make no exceptions to the plain terms of the statute. This court is not justified in adding additional words and, as a consequence, giving a new meaning to the statute. Since the legislature imposed a requirement which must read in strictly mathematical terms and since it made no exceptions, this court would be usurping legislative functions if it allowed an exception to be carved out of the statute because of the peculiar geographical situation involved in this case. Our cases dealing with unplatted lands assume that more than one-half of the perimeter of the unplatted land sought to be annexed must have a common boundary with the city. (See State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; State, ex rel., v. City of Hutchinson, 109 Kan. 484, 207 Pac. 440; State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714.) Several arguments may be made to show that the statute imposes a geographical requirement, rather than an economic and sociologi cal one. G. S. 1949, 12-501, et seq. provides a method for annexation of adjacent land by city petition to the board of county commissioners which may grant the petition if it finds that annexation is advisable. It is clear that in determining advisability, factors of economic interaction and mutual benefit must be considered. Where the legislature intended such factors to be considered, it declared this intention specifically. In 13-1602a, it indicated no such purpose. Also, the holding of this court in State, ex rel., v. City of Topeka, 172 Kan. 745, 243 P. 2d 218, that a city of the first class with a commission form of government may annex under either 13-1602a or 12-501, et seq. indicates that 13-1602a does not supersede 12-501, et seq. and in effect provides different and alternative requirements. Furthermore, use of an economic and sociological test would bring the court into the realm of deciding questions of the advisability or prudence of the extension of a city’s boundaries, a function which this court has expressly declared to be legislative in nature. (Ruland v. City of Augusta, supra.) The terms of 13-1602a are clear and definite. They should not and cannot be enlarged or extended by this court with the aid of inferences, implication and strained interpretations. The language of the statute cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purposes for which the statute was enacted. The policy of legislative enactment is for the legislature and not for the courts. (State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 760, 258 P. 2d 225.) We agree with our commissioner that the area sought to be annexed does not lie “within or mainly within” the city as contemplated by 13-1602a. It is further urged by the city that the court should deny in its discretion the writ of quo warranto on the ground that it is inequitable and unjust, that a failure to so deny would work a hardship on the city. This same contention was made in the case of State, ex rel., v. City of Kansas City, 169 Kan. 702, 717, 222 P. 2d 714, wherein we said: “It is true the court has a measure of discretion in quo warranto proceedings. (See, State, ex rel., v. Allen County Comm’rs, 143 Kan. 898, 57 P. 2d 450, syl. 3, and the cases collected at page 902; also, Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584; State, ex rel., v. Grenola Rural High School Dist., 157 Kan. 614, 142 P. 2d 695, and cases collected in the American Digest System, Quo Warranto, Key No. 6.) This is a judicial dis cretion. It is not to be used without reason and does not authorize a court to ignore a valid applicable statute which has been promptly invoked.” In the instant case timely action was taken to question the validity of the ordinance and it would be inequitable to deny the writ under the circumstances of this case. From an examination of the entire record, we are of the opinion that the defendant city had no authority under the statute (G. S. 1955 Supp., 13-1602a) to enact the ordinance. As a result, judgment must be rendered for plaintiff, holding the ordinance in question to be invalid. It is so ordered.	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The opinion of the court was delivered by Schroeder, J.: The question presented in this appeal is whether the operation of a municipal airport is a governmental function affording the municipality governmental immunity from tort liability in such operations. This action comes before the court on appeal from a ruling of the lower court striking the defense of governmental immunity from the answer of the defendant, which the defendant contends is a meritorious defense. In Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806, this court held that an order sustaining a motion to strike is appealable as a final order if it in effect deprives the defendant of a meritorious defense which, if supported by evidence, would defeat all or part of plaintiff’s cause of action. (See, also, Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; and Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296.) Leo Wendler, appellee, will be referred to as the plaintiff, and the City of Great Bend, Kansas, appellant, will be referred to as the defendant. The plaintiff was the owner of a Steerman aircraft, equipped with engine, spray tank and spray unit. He seeks to recover for the destruction of his aircraft in a fire on January 5, 1954, which destroyed Hangar No. 5 on the Great Bend Municipal Airport and the aircraft therein. Plaintiff’s aircraft had been placed for shelter in the hangar on the airport, which was operated and maintained by the City of Great Bend. Th plaintiff seeks recovery from the defendant on the ground of negligence alleging in his cause of action all of the necessary elements of the doctrine of res ipsa loquitur. Plaintiff alleged that he paid a good and valuable consideration and fee for the storage of his aircraft in Hangar No. 5. The sole question presented to this court for determination by the parties must be decided on the basis of the pleadings. The judgment of the trial court was invoked on questions of law as applied to the well pleaded facts attacked by the motion to strike. For this purpose the well pleaded facts alleged must be taken as true and a court is not justified in reaching out to make additional facts a part of the pleadings under attack. (White v. Thompson, 181 Kan. 485, 312 P. 2d 612; see, also, Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731; and Wahl v. Walsh, 177 Kan. 176, 277 P. 2d 623.) The defendant contends that the stricken paragraphs of the answer alleged facts concerning the acquisition and operation of the municipal airport which establish that the City was operating the airport in its governmental, as distinguished from its proprietary, capacity on January 5, 1954, when the hangar was destroyed by fire. The following facts are relied upon by the defendant, all of which have been stricken, from the answer by the ruling of the trial court. The City of Great Bend acquired its airport by a deed dated December 15, 1947, from the United States of America, acting by and through the War Assets Administrator, under and pursuant to executive order and statutory authority and regulations. (50 U. S. C. A. App. Sup. [1944], § 1622 [g]; 11 F. R. 7427. The City’s authority is found in G. S. 1949, 3-113.) The deed specifically provided that the transfer of the property was subject to the following restrictions, which run with the land: "(1) That all of the property transferred hereby, hereafter in this instrument called the ‘airport,’ shall be used for public airport purposes, and only for such purposes, on reasonable terms and without unjust discrimination and without grant or exercise of an exclusive right for use of the airport within the meaning of Section 303 of the Civil Aeronautics Act of 1938 . . . “(2) That the entire landing area, as defined in WAA Regulation 16, dated June 26, 1946, and all structures, improvements, facilities and equipment of the airport shall be maintained at all times in good and serviceable condition to assure its efficient operation, . . .” By the acceptance of the deed (a photostatic copy of which was incorporated in the answer by reference) or any rights thereunder the City further assumed additional reservations and restrictions providing in substance as follows: That no portion of the facilities transferred would be used in such a way as would be a hazard to the usefulness of the airport for airport purposes; that aircraft of the United States of America would at all times have the right to use the airport in common with others; and that during the existence of any emergency declared by the President of the United States or Congress the Government would have the right to take over the entire airport. Further provisions of the deed provided that a breach of any of the reservations, restrictions or conditions therein contained may result in a forfeiture of the rights transferred at the option of the Government. The WAA Regulation heretofore cited provides in part as follows: “It is hereby declared that the national interest requires the disposal of surplus airport property in such a manner and upon such terms and conditions as will encourage and foster the development of civil aviation and provide and preserve for civil aviation and national defense purposes a strong, efficient, and properly maintained nationwide system of public airports, and will insure competition and will not result in monopoly. It is further declared that in making such disposals of surplus airport property the benefits which the public and the Nation will derive therefrom must be the principal consideration and the financial return to the Government a secondary consideration. Airports which are surplus to the needs of owning agencies may be essential to the common defense of the Nation or valuable in the maintenance of an adequate and economical national transportation system. In such cases and in accordance with the rules established herein such airports may be disposed of to State or local governments for considerations other than cash. . . .” (WAA Regulation 16 dated June 26, 1946, 11 F. R. 7427.) The City of Great Bend paid no actual moneys to the United States of America for the acquisition of the airport. The primary consideration for the transfer was the continued use, maintenance and operation of the airport and the facilities thereon for airport purposes for the use and benefit of the public at large and the Nation. The airport acquired by the City has been controlled and operated by it as an agent of the State of Kansas for the public and governmental uses of the citizens of this State and Nation, without regard to residence, and the operation of the airport as a whole, including the operation of the hangar which was destroyed by fire, was not for gain or profit to the defendant municipality or for the gain, profit or use primarily of the citizens and residents of the municipality. It was alleged that the defendant has operated the airport in accordance with the terms and conditions of the grant to it by the United States Government for public purposes in the interest of fostering air commerce, both intrastate and interstate, and for the benefit of the public at large; that private, commercial, public and military aircraft have continually used the airport, and the facilities have been open to the public generally; and that since 1951 facilities of the airport have been available to Continental Airlines, which has operated regularly scheduled commercial flights to and from Great Bend, originating in Denver, Colorado, and Kansas City, Missouri, with connecting flights to Tulsa and Oklahoma City, Oklahoma. In the operation, care and maintenance of said airport defendant made no charge for landing, parking, tie-down service or daytime sheltering of aircraft in the hangar destroyed by fire, and made only the following nominal charges for continuous sheltering of aircraft: $15.00 per month for all single engine aircraft; $22.50 per month for a twin engine Cessna aircraft, and nightly sheltering charges of $1.00 for single engine aircraft, $2.50 for twin engine Cessna and Beech type aircraft, and $5.00 for twin engine Lodestar and Douglas DC3 type aircraft. In addition, a charge of $10.00 per month was made for single engine aircraft placed in dead storage. Since the inception of the operation of the airport the City operated and maintained it at a loss. The deficit had been met by the levying and collection of a tax from the citizens of the defendant municipality, and the defendant did not during the time in question, and at no other time, acquire, own or carry any insurance protection against loss by fire, either for the benefit of itself or any third party with respect to operation of said airport. The last allegation was made to negative any contention that the defendant may have waived its immunity in the maintenance and operation of the airport and hangar as one of its alleged governmental functions. (See, Bailey v. City of Knoxville, 113 F. Supp. 3 [D. C. E. D. Tenn., 1953]; also, G. S. 1955 Supp., 12-2603.) All of the foregoing facts recited were alleged in the answer and stricken by the trial court. The question of liability of local governmental units for their torts has its origin in the common law of England. Since the time when Lord Kenyon and his fellow judges decided the case of Russell v. The Men Dwelling in The County of Devon, 2 T. R. 667, 100 Eng. Rep. 359 (K. B. 1788) Willes, 74, 16 East, 305, sustaining a demurrer in an action on the case brought against the Men of Devon for damages to the plaintiff’s wagon by reason of a defective bridge, thousands of decisions have been made casting lawyers and judges into a sea of utter confusion. The underlying philosophy suggested by Lord Kenyon was that “If this experiment (i. e., an action against the county) had succeeded, it would have been productive of an infinity of action. And though the fear of introducing so much litigation ought not to prevent the plaintiff’s recovering, if by law he is entitled, yet it ought to have considerable weight in a case where it is admitted that there is no precedent of such an action having been before attempted. . . .” Thus, on such slender grounds have rested thousands of decisions. Shadowy distinctions between “governmental” functions and “proprietary” affairs, between acts of the servants and acts of public corporate entities, between revenue-producing enterprises and those of a strictly gratuitous nature, have been used to decide cases, all without much rhyme or reason. Also of ancient origin is the doctrine that immunizes the state itself from liability — the King can do no wrong; he cannot be sum moned to appear before himself in his own courts — a doctrine which was transplanted in modified form from the common law of England to this country. Textwriters and even some jurists have expressed bewilderment that this country should adopt the doctrine of sovereign immunity, particularly in view of the history of this Nation and recitals contained in the Declaration of Independence, where in America there is no king, where the chief of State was never sovereign, where from the beginning sovereign power resided in tire people, and where the rights of the individuals against the State are fundamental legal principles. (See, 29 N. Y. U. L. Rev. 1321 [1954] — a Symposium of Governmental Tort Liability by E. Blythe Stason, Dean of Michigan Law School.) Regardless of the origin and development of the principle of governmental immunity, it is clear that our courts have almost from the beginning denied tort immunity to municipal governments performing “proprietary” or “permissive” functions. (Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437 [1941]; Repko, American Legal Commentary on the Doctrines of Municipal Tort Liability, 9 Law & Contemp. Prob. 214 [1942]; Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Va. L. Rev. 910 [1936]; Smith, Municipal Tort Liability, 48 Mich. L. Rev. 41 [1949]; and Tooke, The Extension of Municipal Liability in Tort, 19 Va. L. Rev. 97 [1932].) The State is usually deemed immune regardless of the kind of function it is performing. What justifies the difference between the State and its municipal subdivisions is baffling. The decisions seem to result from accident rather than from reason, and tend to make one question the entire rationale of the principle. For example: Consider the liability of a city to a pedestrian injured by the negligence of a city employee operating a pick-up truck under the supervision of the Water Department, and the non-liability of a city on the same facts where the truck is under the supervision of the Fire Department. Generally, municipal corporations are not liable for negligent acts while in the discharge of their political or governmental functions as branches of the State or sovereign power, but they are liable for their negligence while exercising their private, proprietary or corporate right, the true test of liability being not the nature of the tort, or the relationship existing between the City and the person injured, or whether the City was engaged in the management of tangible property, but in what capacity the City was acting at the time. We therefore regard the nature of the operation, rather than the manner in which the Great Bend airport facility was acquired, as controlling in the instant case. This question has not only been prolific of litigation in the United States but in the State of Kansas as well. In Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667, Justice Wedell, speaking for the court, 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.) It must be conceded that Kansas has firmly adopted the doctrine of governmental immunity where the functions of a municipality are performed in its sovereign capacity, yet the historical origin of the rule has led this court to recognize that the trend of judicial decisions generally is to restrict rather than to expand the doctrine of municipal immunity. (Krantz v. City of Hutchinson, et al,, 165 Kan. 449, 196 P. 2d 227.) As a preface to further discussion herein, specific reference is made to the opinion of this court speaking through Justice Hoch in the Krantz case. There, many cases were circumvented by setting forth various text rules in an effort to show some consistency in the law on the subject, where conflict of authority on the proposition was readily conceded. An attempt to further elaborate thereon would be futile. It should be emphasized that the carefully worded opinion in Krantz does not lay down any one rule which the court recognizes as the guide or distinguishing characteristic or test to determine whether a given activity of a municipality is governmental or proprietary. Note particularly Syllabus No. 4 which reads as follows: “One distinction frequently stated is that governmental functions of a municipality are performed for the general public, with respect to the common welfare and for the exercise of which it receives no compensation or particular benefit, while its proprietary functions are exercised for some specific benefit or advantage to the corporation or those comprising the local urban community.” (Emphasis added.) In the Krantz opinion the court said: “In its public or governmental capacity, the municipality partakes of the sovereignty of the state. It acts as a sort of arm of the state, and as such exercises the limited governmental powers granted to it by the state. “Among typical governmental functions of a municipality may be mentioned: Assessment and collection of its proportion of the state tax, police regulations, suppression of crime, protection of the public health, the exercise of eminent domain, operating a fire department, administration of justice. “In 43 C. J. 182, 183, it is said that: “ ‘When properly applied the term “governmental functions” should be limited to legal duties imposed by the state upon its creature, which it may not omit with impunity but must perform at its peril.’ (Italics supplied.) “and that these governmental functions are those that are exercised for the public good, generally, and ‘for the exercise of which the municipality receives no compensation or particular benefit.’ (Italics supplied.)” (p. 454.) The defendant in an effort to establish immunity relies on the theory that the City is operating as an arm or agent of the State and the test set out in Syllabus No. 4 of Krantz — citing Shoemaker v. City of Parsons, 154 Kan. 387, 118 P. 2d 508; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123; Krantz v. City of Hutchinson, et al., supra; Perry v. City of Wichita, supra; and Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348. While it is true that under a given set of facts and circumstances the test relied upon by the defendant has been given as controlling in a particular decision, a reading of all of the foregoing cases cited together with the cases cited therein does not indicate an absolute reliance by this court upon any single test or rule. The plaintiff, on the other hand, relies upon a more general test, namely, whether the municipality is performing a “permissive” or a “mandatory” function of government. The issue before this court is one of first impression. Persuasive is the fact that we have found no decision, and the defendant has cited none, in which any court of last resort in this country has held the operation and maintenance of an airport by a municipality to be a governmental function affording the municipality governmental immunity from tort liability in such operations, except where the municipality has been expressly exempt from such liability by statute. Express exemption by statute was considered in Brown v. City of Sioux City, 242 Ia. 1196, 49 N. W. 2d 853; Van Gilder v. City of Morgantoum, 68 S. E. 2d 746 (W. Va. App. 1949); and Stocker v. City of Nashville, 174 Tenn. 483, 126 S. W. 2d 339 (1939). The State of Georgia in Mayor & of Savannah v. Lyons, 54 Ga. App. 661, 189 S. E. 63 (1936), held the operation of a municipal airport to be a governmental institution in the nature of a park under the Uniform Airports Act, but later reversed itself in Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S. E. 2d 126 (1952). One of the earlier decisions concerning this question, frequently cited as well-reasoned, is Coleman v. City of Oakland, 110 Cal. App. 715, 295 Pac. 59 (1930). The court there held the City liable for injuries resulting from the negligent operation of a truck in connection with the maintenance and improvement of a municipal airport, saying: “. . . Under the theory of the common law, that the municipality is protected from liability only while exercising the delegated functions of sovereignty,' the governmental powers of a city are those pertaining to the making and enforcing of police regulations, to prevent crime, to preserve the public helath, to prevent fires, the caring for the poor and the education of the young; and in the performance of tírese functions all buildings and instrumentalities connected therewith come under the application of the principle (City of Kokomo v. Loy, 185 Ind. 18 [112 N. E. 994]). “But it is of course true that modern cities and towns enter upon many forms of activity, operate utilities for the benefit of the inhabitants, and provide many means for tire easing or improving of the condition of the people that were never dreamed of at common law. Nevertheless the uniform holding as to all such activities, on principle manifestly just to the people themselves, is that no matter how beneficial they may be in a general sense to the inhabitants of the municipality, unless they are governmental in essence, the municipality’s conduct in managing them is controlled by the same rules of liability that apply to an individual. . . . “We have no hesitancy in deciding that in the conduct of an air port the municipality is acting in a proprietary capacity. An air port falls naturally into the same classification as such public utilities as electric light, gas, water, and transportation systems, which are universally classed as proprietary. Its nearest analogy is perhaps found in docks and wharves. . . .” (pp. 719, 720.) Cases in other jurisdictions holding the operation of an airport by a municipality to be in its proprietary capacity are: Peavey v. City of Miami, 146 Fla. 629, 1 So. 2d 614 (1941); City of Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257 (1930); Brummett v. City of Jackson, 211 Miss. 116, 51 So. 2d 52 (1951); Godfrey v. City of Flint, 284 Mich. 291, 279 N. W. 516 (1938); Johnson v. City of Corpus Christi, 243 S. W. 2d 273 (Tex. Civ. App. 1951); City of Blackwell v. Lee, 178 Okla. 338, 62 P. 2d 1219 (1936); Mayor and City Council v. Crown Cork & Seal Co., 122 F. 2d 385 (4th Cir. 1941); Mollencop v. City of Salem, 139 Ore. 137, 8 P. 2d 783 (1932); Department of Treasury v. City of Evansville, 223 Ind. 435, 60 N. E. 2d 952 (1945); Patton v. Administrator of Civil Aeronautics, 112 F. Supp. 817 (D. C. Alaska, 4th Div. 1953); Heitman v. City of Lake City, 225 Minn. 117, 30 N. W. 2d 18 (1947); Behnke v. City of Moberly, 243 S. W. 2d 549 (Mo. App. 1951); Rhodes v. Asheville, 230 N. C. 184, 52 S. E. 2d 371 (1949); Granite Oil v. Douglas County, 67 Nev. 388, 219 P. 2d 191 (1950); Caroway v. City of Atlanta, supra; and McLaughlin v. Chattanooga, 180 Tenn. 638, 177 S.W. 2d 823 (1944). Many cases have drawn the analogy between an airport and wharves and docks, which have been held to be proprietary. In Concordia-Arrow Flying Service Corp. v. City of Concordia, 131 Kan. 247, 289 Pac. 955, this court condoned the subletting of the Concordia Municipal Airport, stating that it was clearly for a “public” (but the court does not state “governmental”) purpose, and then classifies the airport with activities held to be proprietary, saying at page 251: “. . . and the airport is to be to air transportation and communication what breakwaters, harbors, docks, wharves and other water frontage facilities are to commerce by the sea. . . .” The State of Alabama in City of Mobile v. Lartigue, supra, in holding the operation of an airport to be a corporate activity of the city and thus proprietary quoted extensively from City of Wichita v. Clapp, 125 Kan. 100, 263 Pac. 12, to the effect that “airports” are landing and taking off places for airplanes which traverse air instead of land, and are essentially and primarily an incident to transportation facilities maintained by a city. In the Clapp case this court said: “. . . The maintenance of airports, however, comes legitimately within the scope of the municipality in much the same manner as docks and harbor facilities for marine shipping. Airports are said to be as important to commerce as are terminals to railroads or harbors to navigation . . . The possession of the airport by the modem city is essential if it desires opportunities for increased prosperity to be secured through air commerce. . . .” (p. 105.) The Alabama court in the Lartigue case then said: “. . . An airport is a true analogy to a railway station, or a bus terminal. It bears no longer, if it ever bore, any of the essential characteristics of a public playground or recreation park. “In respect of its purely business relations (as here) as distinguished from those that are governmental, a municipal corporation is held to the same standard of just dealing that the law prescribes for private individuals or corporations. Then (now) the municipality acts for the private advantage of the inhabitants of the city, and to a certain extent for the city itself.” (p. 483.) This court has often declared the liability of a municipality equal to that of private persons when the City is acting in its “private,” “proprietary” or “permissive” character, such as operating waterworks facilities (McGinley v. City of Cherryvale, 141 Kan. 155, 40 P. 2d 377), and electric light plant facilities (Gilmore v. Kansas City, 157 Kan. 552, 142 P. 2d 699), among others. Concerning the proprietary functions actual pecuniary profit or gain has been discarded as a test by this court. (Krantz v. City of Hutchinson, et al., supra.) Of more significance among the permissive functions of a municipality is whether the activity is commercial in nature. (Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014; Caroway v. City of Atlanta, supra; and Mollencop v. City of Salem, supra.) In Stolp v. City of Arkansas City, supra, this court said: “It is also included in the general rule covering the dual capacity of cities and towns that when there is an activity or function in a private or proprietary capacity for the special or immediate profit, benefit, or advantage of the city or town, or the people who compose it, rather than for the public at large, then the city or town is in competition with private enterprise and is accountable for the torts of its employees the same as any other private corporation or individual. . . .” (Emphasis added.) (pp. 202, 203.) (For opinion on rehearing see Stolp v. City of Arkansas City, 181 Kan. 225, 310 P. 2d 888, affirming previous decision.) If a function undertaken by a municipal corporation is commercial in its nature, the corporation is not exonerated from liability by the fact that its operations are not, or cannot be, profitable. (See, City of Mobile v. Lartigue, supra.) We axe convinced and hold that the airport in the instant case is essentially a part of the City’s system of transportation facilities. The art of getting from place to place is now exercised by passage through the air as well as along the surface of the earth and on the waters of the earth. An airport is a true analogy to a railway station, a bus terminal and docks and wharves. The airport no longer bears any of the essential characteristics of a public playground or recreation park. We are of the opinion that the defendant, City of Great Bend, in acquiring and operating the airport in question, displayed a commendable degree of foresight and spirit of progress, but in its operation it is engaged in a purely corporate capacity. The various commercial transactions of the City of Great Bend in the operation of the airport are only in part indicative of its commercial nature. An airport is essential to a modern city which desires opportunities for increased prosperity to be secured through air commerce. These desires are commercial in nature and the benefit or advantage to the City and the citizens of Great Bend is the motivating force. By reason of the manner in which the airport was acquired, consideration also flows to the public at large and the Nation. This does not alter the nature of the operation. We are not unmindful of the fact that the Government during World War II has constructed many large air bases throughout the State of Kansas, expending vast sums of money in their acquisition, construction, maintenance and operation. In fact, these bases are so large and extended that the operation and maintenance of such bases which have been acquired by adjacent municipalities as local airports are burdensome on the local taxpayers. In this respect the decision before us is not without difficulty. (See Van Gilder v. City of Morgantown, supra.) Having determined that the operation of a municipal airport is a proprietary function of a municipality, we need not be further concerned with legislative enactments that waive immunity from liability for the performance of governmental functions. (See Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172.) Has the Kansas legislature granted immunity from tort liability to a city in the operation of an airport, which is proprietary in nature? G. S. 1949, 3-113, states in part as follows: “That whenever in the opinion of the governing body in any city in the state of Kansas, the public safety, service and -welfare can be advanced thereby, such governing body of such city may acquire within or without the city limits, by purchase, lease, or otherwise, and equip, improve, operate, maintain and regulate a municipal airport or a municipal field for aviation purposes, . . . the expense thereof to be paid out of the general funds of the city or out of funds raised by the tax levy hereinafter authorized. Such airport or field may be used for the service of all aircraft and pilots desiring to use the same, subject, however, to such regulations not in conflict with state laws as may be imposed by ordinance of the city controlling the municipal airport or field. For all purpose of purchase, lease, development and equipping municipal airports and field for aviation purposes, and all things incidental thereto, the governing body of any city may issue bonds after an election as provided by law, . . .” (Emphasis added.) The defendant claims that the words “public safety, service and welfare” in the above statute are peculiarly applicable to governmental as distinguished from proprietary functions inasmuch as the language speaks of benefit to the public at large, as distinguished from the local inhabitants of the city. To this we cannot agree. The title to the foregoing statute which was enacted by the legislative session of 1943 was “An Act relating to municipal airports and the issuance of bonds therefor, and amending section 3-113 of the Supplemental Statutes, and repealing said original section.” (L. 1943, ch. 6, §1.) It is obvious that the legislature could not have authorized the acquisition by the City of an airport for “private safety, service and welfare” and have constitutionally authorized the use of general tax funds. The use of the word “public” was intended as a declaration and justification of the powers granted, and in no way a declaration of municipal tort immunity. This construction of the statutory terms is implied in Concordia-Arrow Flying Service Corp. v. City of Concordia, supra, in which the public purpose of tire statute was attacked and upheld. This court has held taxation for “private” enterprises to be void. (National Bank v. City of Iola, 9 Kan. 689; City of Geneseo v. Gas Co., 55 Kan. 358, 40 Pac. 655; and C. B. U. P. RLd. Co. v. Smith, Treasurer, &, 23 Kan. 745.) It is clear that the legislature wisely used the term “public” as a necessary denotation to make subsequent municipal bond issues valid. The words “governmental” and “public” are not synonymous. Clearly, the authorized acts of all cities are public acts. The fact that the functions or activities of a city are referred to as “public” does not necessarily make them governmental. In the sense that the terms have been used in this opinion, all “proprietary” functions as well as “governmental” functions of a city are “public.” In Leavenworth Co. v. Miller, 7 Kan. 479, the issuance of bonds by a municipality for the purpose of granting aid to railroads was upheld on the ground that the object was in its nature a public purpose. In State, ex rel., v. Kansas City, 140 Kan. 471, 37 P. 2d 18, the court in validating a bond issue for the improvement of a wharf acknowledged the public character of certain activities which this court has designated as “governmental,” and in the same sentence also acknowledged the public character of activities which this court has designated as “proprietary.” Other courts have gone even further in construction of the Uniform Airports Act, or variations thereof. The act in substance declares the operation of an airport by a municipality to be a public, governmental and municipal function exercised for a public purpose and matters of public necessity. In Rhodes v. Asheville, supra, the North Carolina court held the statute not to exempt municipalities from tort liability in connection with the ownership and operation of airports in spite of the use of the term “governmental” in the statute. On rehearing in the Rhodes case (230 N. C. 759, 53 S. E. 2d 313), the court said the distinction between a governmental and proprietary function of a municipal corporation is a judicial and not a legislative question, and legislative declaration as to the nature of the authority delegated by the statute is not controlling. Similarly, in Granite Oil v. Douglas County, supra, the Nevada court held such statute not to be equivalent to a declaration of immunity. (See, Van Gilder v. City of Morgantown, supra, contra — holding that the legislature can declare what a governmental function is.) The defendant relies upon City of Wichita v. Clapp, supra. In 1927 the City of Wichita acquired land outside of the city limits, 70% of which was to be used for airport and 30% to be used for other park purposes. The airport act at that time did not specifically provide that airports could be acquired outside of city limits. To validate the acquisition of this airport, the court held that the city could properly acquire the airport and maintain it as a part of a municipal park, based upon other statutory authority. This court held in Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, that the maintenance of a park was clearly a governmental function. The defendant maintains that by reason thereof the operation of a municipal airport is a “governmental” function. The Clapp case, must be narrowly construed since use of the park statute was imperative to sustain the Park Commissioners’ action to acquire land beyond the corporate limits for an airport. The decision itself was not concerned with the issue in the instant case. The defendant in its over-all attempt to show the legislative intent to grant immunity cites G. S. 1949, 3-114, where the Board of Park Commissioners is given control of municipal airports in cities of the first class over 65,000 in population. This argument, however, is answered by G. S. 1949, 3-126, which places control of municipal airports in the Board of Public Utilities in cities having a population of more than 100,000. Furthermore, immediately after the Clapp case the legislature acted by amending the airport statute to permit the condemnation of land for municipal airport purposes outside the city limits. This was in direct response to the Clapp case, and if the statute has not in effect overruled that decision, it has removed the necessity for its application. Although the talk of an airport as being a part of a park seems absurd today, in 1927 such talk was not too far removed from the times. In 1927 airplanes were in a sense toys for the daring or foolish men. Flying circuses were common, and it was not unusual to take the family out to see some “dern fool” risk his neck in a flying machine. With the passing of time the grown-up boy’s toy of yesteryear has become a gigantic industry and air travel has taken its proper place in the field of transportation and commerce. Cases heretofore referred to as the earlier cases were decided in the late twenties and the early thirties in this century. The defendant relies on G. S. 1949, 3-115, which provides: “All cities are hereby granted the same rights, privileges and immunities, and are charged with the same obligations, responsibilities and duties toward municipal airports and municipal fields for aviation purposes located outside of the limits of any city as now exist for any property now located .within the limits of any city, including the right of eminent domain.” (Emphasis added.) The defendant argues the only immunities to which the legislature could have referred were immunity from tort liability for the operation of a governmental function and immunity from taxation. The defendant contends that immunity from taxation is not referred to by the legislature as an “immunity” but as an “exemption,” and therefore, concludes that the only immunity intended by the legislature was immunity from liability. It is fundamental that water cannot rise above its source. Therefore, unless the legislature had expressly granted immunity from liability to a municipality in the operation of an airport prior to the enactment of 3-115, supra, in 1929 the act itself did not confer immunity. If no immunities existed prior to the act none were created by it. The State of Kansas has seen fit, in some instances, to permit the waiving of governmental immunity by the purchase of liability insurance. The 1955 session of the legislature in Chapter 248 authorized municipalities to purchase motor vehicle liability insurance, and such statute provides that to the extent that such municipality has insurance it is considered as having waived its governmental immunity from liability. (G. S. 1955 Supp., 12-2603.) This legislation is indicative of the fact that the Kansas legislature is capable of speaking with clarity when it desires to do so. The Kansas legislature is free to change the situation at will whenever it chooses to grant immunity to municipalities for the operation of airports. It has not done so. The ruling of the trial court is affirmed. Parker, C. J., Price and Fatzer, JJ., dissent.	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The opinion of the court was delivered by Hall, J.: This is an appeal from an order sustaining demurrers to the evidence against the plaintiff in an automobile negligence action. This negligence action arose out of a collision between plaintiff’s car and a school bus at a country intersection in which the plaintiff prayed for recovery of damages and the defendant cross petitioned .against the plaintiff for damages. The plaintiff was employed at an aircraft plant in Wichita and had lived in the vicinity for a number of years. This accident occurred while driving his automobile from the plant to his home. From his place of work, the plaintiff followed a blacktop highway south for two miles until the highway turned west. Plaintiff’s home was south so he did not turn west on the blacktop highway but went straight south on a gravel road known as Gilda Street. From this point to the intersection of 55th Street, another gravel road where the accident occurred, was a distance of about one-third of a city block more or less. Along the north side of 55th Street, going east and west, and east of Gilda Street was a shelterbelt. This shelterbelt was located 10 feet north of the north line of 55th Street and ended about 15 to 20 feet east of Gilda Street. On the day of the accident, the weather was clear and dry. There were no traffic signs of any kind at the intersection. The accident occurred as the plaintiff crossed the intersection. At the conclusion of plaintiff’s case, defendants demurred to plaintiff’s evidence and the court sustained the demurrers. Plaintiff specifies as error the sustaining of the demurrers to his evidence and the ruling that the testimony of the plaintiff showed him guilty of contributory negligence as a matter of law. The only evidence in the case was the plaintiff’s testimony. On direct examination he testified: “. . . I had passed the intersection frequently for a couple of years. “Before I entered the intersection, I don’t know how fast I was going. I wasn’t going too fast. I slowed down, I guess around 40 miles per hour. I was not going 50 or 60. '. . . “. . . There is a shelter belt at this intersection on the east side of the road and you can’t see anybody until it is fairly close. . . . “. . . As I approached the intersection, I looked east, then I looked west and that is the last I knew. In my judgment, I could see 30 or 40 feet east on 55th Street. I looked east; I didn’t see anything coming. There was no car in the intersection itself as I entered. The road was clear. After I looked east, I looked west. I didn’t see anything coming from the west. The road was clear to the south and that is the last I remember. “. . . I can’t tell you where my car was when it was struck. The last I remember, she had just started into the intersection, and everything just blacked out. As I entered the intersection, there were no other vehicles in it. It was clear of other traffic. I never did see the bus that struck me. Fifty-fifth Street right there is about 35 feet wide. I think Gilda Street is narrower. Both of them are dirt and gravel.” On re-direct examination, the plaintiff testified: “. . . When Mr. Foulston asked me if it was a blind corner, I said yes. It would be blind to a certain extent. . . . “It is about 83£ miles from the entrance of the Prospect Plant to the intersection. . . . It is about one-third of a block to the blacktop going south till you hit this corner where the accident happened. ... As you hit the corner of the shelter belt, you could see east 30 or 40 feet. . . . No stop signs were there at the time of the accident. The front of my car was about due west of the shelter belt when I looked east. The driver’s seat is about five feet back from the front end of the car and I could see 30 to 40 feet east on 55th Street at that time. I looked east and nothing was there. Then I looked back west. At the time I looked east, I was about 15 feet north of the east line' of 55th Street where I was sitting in my car.” In presenting this appeal, appellant states: “There is nothing new about the question involved in this appeal. . . . In sustaining the demurrers of the defendants, the trial court followed the case of Green v. Higbee, 176 Kan. 596. We think the case at bar has the same distinguishable features as it relates to the facts that this Court set out in Page 600 of the opinion when this Court differentiated Green v. Higbee, from prior decisions of this Court.” Plaintiff relies upon this court’s decisions in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909. These were the cases distinguished by the court in Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084. Defendants contend the district court was correct in following Green v. Higbee, supra. In Green v. Higbee, supra, the plaintiff appealed from an order sustaining a demurrer to his evidence in an action involving a collision in a rural intersection. The court examined the plaintiff’s evidence and held that the demurrer was properly sustained. Green v. Higbee, supra, is recognized as a leading automobile negligence case in this jurisdiction and has been followed with approval in more recent cases (Koch v. Suttle, 180 Kan. 603, 306 P. 2d 123). The court wrote the following syllabus which is particularly applicable to accidents occurring at blind intersections of rural roads. “A blind intersection of rural roads, without stop signs or traffic signals, presents a highly dangerous place which all motorists, in the exercise of due care, should approach with caution commensurate with the hazards involved, and this is especially true where it is known that for some distance near the intersection it is so completely blind that, when vehicles approach at right angles, neither motorist can see the other’s vehicle until it is entering or has entered the intersection. (Syl. 1.) “Stop and right-of-way statutes pertaining to intersections at through highways are not controlling with respect to conduct at intersections such as that described in paragraph 1, following Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538. (Syl. 2.) “The right of way at an intersection such as that described in paragraph 1 is not an absolute and inflexible right but a relative right. Its main purpose is to demand care of motorists commensurate with the danger of collision. (Syl. 3.) “The right of way and the right to assume absence of negligence by others does not absolve the possessor of the prior right of the consequence of his own independent negligent acts. Such rights may not be invoked by one who has violated the rules of the road himself by recklessly driving through a known blind intersection, such as that described in paragraph 1, without previously maintaining a lookout, from places where he might have seen an approaching vehicle, at a speed which admittedly renders it entirely impossible to avoid injury to himself and others, after reaching the intersection, and without sounding a warning of his approach. (Syl. 4.) “Where the only evidence involved consists of admissions by a party which plainly convict him of negligence which contributed to an injury advantage may be taken thereof by demurrer. (Syl. 5.) “Whether an act, or acts, constitute negligence, or a contributing cause of injury, is ordinarily a question for the jury but where all the evidence upon which a party relies for recovery consists of his own admissions which clearly disclose the injury was the direct result of the concurrent negligence of two motorists a question of law is properly presented for determination of the court.” (Syl. 6.) After a thorough review of this case we agree with the district court that the law of Green v. Higbee, supra, should be controlling. We are unable to make any material distinction of fact between the two cases. In reviewing the plaintiff’s evidence, we have followed the elementary rule that on demurrer the plaintiff is entitled to have his evidence considered in the light most favorable to him. On the other hand, we have also adhered to an equally well established rule that a party is bound by his own plain unequivocal admissions. This rule is especially applicable where the plaintiff’s case stands solely on his own testimony and no physical or other facts are in dispute. Here we need not speculate concerning plaintiff’s evidence. Ry his own admission, he entered a blind rural country intersection at about 40 miles an hour and did not see what was plainly to be seen. In the instant case all of the essential facts of contributory negligence as a matter of law are established by plaintiff’s admissions. Following Green v. Higbee, supra, the demurrer was properly sustained. The judgment is affirmed.	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The opinion of the court was delivered by Benson, J.: An objection to testimony under the petition on the ground that it did not state facts sufficient to constitute a cause of action was sustained and the action dismissed. The plaintiff appeals. The petition contained statements of which the following is a summary: The plaintiff and defendant entered into a written contract on August 13, 1909, whereby the defendant agreed to sell and convey to the plaintiff land described in the contract as lots 2, 3, 4, 5 and 6 of Exhibit B, Kelley’s Addition to Garden City. A conveyance of the property, described in the same manner, was made on the same day. In negotiating for the sale the defendant’s agent showed the plaintiff a tract enclosed by a fence and stated that it was the land so offered for sale, and that the enclosure contained twenty acres. Afterward when the contract and deed were written and signed the defendant and his agent said that the land as described in both instruments was the land so shown and pointed out to the plaintiff and which he had agreed to purchase. The plaintiff believed these statements. The description in the contract and deed did not include all the land in the tract so shown, for lot 1 of the same subdivision, consisting of one acre, was also situated in the enclosure, but was not owned by the defendant and did not and could not pass by the instruments referred to, although the plaintiff understood and believed that the description covered the entire tract so pointed out to him. The tract as enclosed and offered for sale did not contain twenty acres as represented, but only thirteen acres, a fact of which plaintiff had no knolwedge and did not discover until May 1, 1910. Before discovering that all the land in the enclosed tract was not included in the description and that the tract'contained only thirteen acres, the plaintiff made improvements upon lot 1, which he must remove, causing a loss of $450. Lot 1 without the improvements made by the plaintiff is worth $300, and the other land in the tract is worth $250 per acre. The petition contains statements of the foregoing facts pleaded in three causes of action separately stated and numbered, and damages were claimed upon each as already stated, that is, for the value of lot 1, $300; for loss in improvements made upon it, $450; and for deficiency in the tract, $1500. The prayer was for the recovery of the aggregate amount of $2250. Treating the objection to evidence as a general demurrer to the petition, the defendant’s contention is that no cause of action was stated in the petition because there was no allegation of fraud or mistake without which the terms of the written instruments could not be varied by parol evidence. The principle relied upon is stated in Hopkins v. St. Louis & S. F. Rly. Co., 29 Kan. 544, as follows: “Oral evidence is not competent, in the absence of fraud or mistake, to show that the parties to a written contract stipulated before the execution of the writing for something contrary to what is there expressed, or to what is legally implied.” (Syl.) It will be observed that this principle does not apply where fraud or mistake is pleaded. The question therefore is whether the petition, construed liberally as it must be upon an objection to evidence, tenders either of these issues. It can not be successfully claimed that the use of the words “fraud” or “deceit,” or words of like import, are necessary, if the facts stated fairly imply fraudulent conduct. The term “fraud” is a legal epithet applied to facts narrated in stating the conduct of a party in a transaction complained of and is a conclusion from facts stated. The word or an equivalent one need not be.used if the facts appear showing a fraudulent transaction. (Bliss on Code Pleading, 3d ed., § 211.) It is not necessary to label a cause of action. Its nature is determined by the facts stated. (L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kan. 169; The State, ex. rel., v. Williams, 39 Kan. 517, 18 Pac. 727; Cockrell v. Henderson, 81 Kan. 335, 105 Pac. 443; 20 Cyc. 97.) It has been held that: “False representations are actionable when made fraudulently — that is, to induce another to part with his money or property — if believed and acted upon and made with knowledge of their falsity, or when made for such purpose by one who has no knowledge upon the subject but who intends to convey, and does convey, the impression that he does have actual knowledge that they are true, and thereby deceives the other to his injury.” (Bank v. Hart, 82 Kan. 398, syl. ¶ 1, 108 Pac. 818.) The allegations of the petition were sufficient to admit proof that the representations as stated were made; that the defendant believed them to be true and was induced thereby to enter into the contract and accept the deed; that they were false and that the defendant was thereby deceived to his injury. Such proof would entitle him to recover resulting damages. The objection should therefore have been overruled and the evidence admitted. v Whether the pleading was also sufficient to admit proof of a mutual mistake need not be considered. No argument is made concerning the measure of damages. No valid objection, however, is perceived to a recovery upon the several items as pleaded, to the extent that may be warranted by evidence. Whether the facts pleaded disclose three causes of action, or only one with three grounds of damages, is not discussed in the briefs and need not be decided. In any event the defendant could not be prejudiced by the separate statements. The judgment is reversed with directions to proceed with the cause.	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The opinion of the court was delivered by Benson, J.: This appeal is from a j udgment awarding damages for injuries suffered in a collision of an electric interurban car with an automobile. The right of way of the railway adjoins and is parallel to a public, road extending north and south. A hedge row stood upon the line between the road and the right of way. A cross road extended east and west across the north-and-south road and through a gap in the hedge and over the right of way and track of the defendant. At the time of the collision the hedge was about fifteen feet ,in height and its branches extended about seven feet on each side. The gap was fifty feet in width. The east rail of the railway track is about sixteen feet from the center line of the hedge. The track is five feet wide, measuring to the outer sides of the rails, and the car was nine feet wide. The plaintiff, driving an automobile in which his wife and daughter were seated., drove north upon the road first referred to and turned west upon the cross road. He stopped at the turn near or in the gap in the hedge to look and listen for a car. From his seat five .and one-half feet from the front of the automobile he could see the track for a distance of only fifty feet north and south of the crossing, because of the projecting branches of the hedge. He'aring no whistle and not hearing or seeing any indication .of-an approaching car, he proceeded at low speed, running at the rate of three miles an hour, until the front of the automobile was at or very near the east rail, when he saw a car fifty feet away coming from the north. He immediately reversed his machine arid started backward, but the car struck the radiator and hood, causing the injuries complained of. The car was running at the rate of twenty miles an hour. The obstruction of the view of- the track continued until the plaintiff was within seven feet of the east rail of the track. At that point he might have seen the approaching car eighty rods away. The principal contention of the defendant is that contributory negligence of the plaintiff is conclusively shown by the evidence because he did not stop after passing through the hedge and again look and listen. It is insisted that from the undisputed facts the court should declare as matter of law that the plaintiff was negligent, although the jury in answering special questions found that he was not. If only one conclusion can be drawn from undisputed facts, the question of negligence is one of law. (Railway Co. v. Hanson, 67 Kan. 256, 72 Pac. 773; Johnson v. Railroad Co., 80 Kan. 456, 459, 103 Pac. 90.) If reasonable minds might differ upon that question the jury must decide. (Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Westine v. Railway Co., 84 Kan. 213, 219, 114. Pac. 219.) The plaintiff knew that he was approaching the track. He saw it in turning west and stopped at the turn accordingly. If the whistle upon the car was sounded he did not hear it. He could not see the car at that point, because the hedge obstructed his view. Passing by the obstruction and when first within the zone of clear vision the front of his automobile was within about eighteen inches of the track. Taking into consideration the overhang of the car, he was right at the point of danger. It is true that a situation may be such that ordinary prudence will require a person seated in a vehicle approaching a crossing not only to stop, but if necessary to alight, or leave his seat, or change his position in order to take observations, but ordinarily such a duty can not be declared as a matter of law; it must be determined by the jury as a question of fact. In this case the nature of the vehicle; the place and duty of the driver in managing it; the location of the steering wheel directly in front of him; the space between his seat and the front of the car; the distance from the side of the hedge to the track; the speed at which he was driving; his duty to look in both directions, and every other circumstance revealed by the evidence must be considered in determining whether the driver acted with reasonable prudence. Upon a careful consideration of these matters it can not be held as matter of law that the plaintiff was negligent. The question of contributory negligence was one of fact for the jury. One of the instructions was obj ected to on the ground that it authorized a verdict based upon any one of the acts of negligence charged in the petition. One of these specifications was the failure of the defendant to construct the crossing in the manner required by the statute. A special finding, however, was returned that the defendant’s negligence consisted in handling the car in a careless manner. A more particular finding was not requested. It is true that no liability could be founded on the defective crossing alone, for it was not a cause of the injury, but this finding of the jury makes any discussion of the alleged error unnecessary. The judgment is affirmed.	[ -16, 122, -40, -82, 26, 98, 58, 90, 117, -91, -27, -45, -81, -53, -107, 51, -10, -1, -48, 43, 117, -77, 7, -93, -78, -77, -13, -51, -99, -54, 103, 118, 76, 48, -54, -43, 102, 72, 69, 86, -50, 6, -85, 109, 25, 114, -76, 120, 84, 15, 49, -97, -125, 46, 24, -57, 105, 40, 107, -95, -128, -8, -116, 7, 95, 2, -77, 4, -98, -89, -8, 24, -104, -79, 32, -8, 114, -90, -108, -12, 105, -103, 8, -30, 103, 0, 85, 39, -4, -104, 46, -22, 15, -90, 54, 24, -119, 7, -105, -97, 122, 48, 12, 126, -1, 93, 91, 100, 1, -117, -80, -111, -17, 112, 30, 66, -21, -95, 50, 113, -54, -2, 92, 37, 22, -101, -33, -122 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action by Joseph B. Stalker against D. D. Drake to recover damages for alleged willful, wanton and malicious oppression. The record discloses that the appellant was a money lender and had a chain of offices over the country with headquarters at Kansas City, the Kansas City office being managed by an agent named Van Zandt. Drake’s residence appears to have been at Delaware Water Gap, Pa. The appellee was a railway employee, and had been employed by a number of railway companies in various capacities, as freight brakeman, conductor, switchman and yardmaster. In May, 1903, while employed by the St. Louis & San Francisco Railroad Company as conductor the appellee applied to the office of Drake, managed by Van Zandt, for a loan of $25. He signed two papers without reading either of them. One was a note and the other an assignment of his wages. The loan was to run for a period of one month and Stalker was to pay $2.50 for the use of the money. He renewed the note the following month on the payment of an additional $2.50. He endeavored to again renew it in July, a day or two after it became due, and was informed that the matter had been placed in the hands of an attorney and that it would cost him $10 more to straighten the matter out. -Under protest this amount was added to. the amount of the note and another $2.50 paid-by Stalker as interest. • In September, when the loan again became due, Stalker had not received his pay check, and upon inquiry was told that an extension of a few days would be given and when the pay check was received he was then informed that another $10 from him would be necessary to get the matter out of the hands of another attorney with whom the noté had been placed, and' after considerable controversy he signed- a noté for $45, paid $3.50 as interest, and agreed to pay $4.50 for the next month. In October, on account of the derailment of a train, Stalker was'a few days late in tendering payment of the interest,, and he was then informed that the claim was- in the hands of an- attorney .and that suit -had been, brought upon it, but Van Zandt would not give him. the name of the attorney or of the court. They insisted on adding $10 for attorneys’ fees and $5 for court costs and the note was thereby increased to $60. He continued to pay $6 a month on this amount until February, 1905. In the meantime he had- borrowed $30 additional and this amount was repaid-at the end of the . month, including interest thereon at ten per cent per month. In February, 1905, Van-Zandt notified Stalker that the account would have to be finally settled the following month. Stalker not being able to pay the claim and thus protect his railroad record resigned his position with the railroad company.-' Later, and about May - or June, 1905, he secured employment- from the Chicago & Alton Railroad Company as night yardmaster. The controversy with Van Zandt .as to the payment of the loan still proceeded, and being pressed for payment-of all that was claimed Stalker filed a voluntary petition in bankruptcy,- which resulted in a discharge, and in the proceeding the debi to-Drake Was' scheduled at $66. In February, 1906, one of the blank assignments which Stalker had signed when the loans weré renewed was filled out by Van Zandt and filed with the Chicago & Alton Railroad Company at Chicago, and thereafter the payment of Stalker’s wages was withheld. A suit was begun there by Drakejto recover on his claim, which had suddenly grown to $140, and Stalker, to protect his interests, made several trips to Chicago, and finally a nonsuit was taken. This, however, did not operate to release Stalker’s wages because of the assignment which had been filed. He was reduced from the position of yardmaster to that of foreman and from that of foreman to helper, and in November, 1909, he felt compelled to resign his position. Stalker, at that time, had received the original loan of $25 and $30 at another time and had already paid Drake $145.50, but only $30 of the amount paid had been credited on the principal indebtedness, and Stalker had therefore paid $115.50 for the use of $25 from May, 1903, to February, 1905. On September 6, 1906, Drake brought a second action in Chicago and this time he asked judgment for $200 on what had been a $25 loan. Several continuances were had at the instance of Drake which necessitated several trips to Chicago by Stalker. A trial was finally had and a judgment in favor of Stalker was rendered. No appeal was taken from this judgment by Drake, and although judgment had been rendered against him for the costs of the depositions taken by Stalker, a demand for the payment of this amount was refused. Another of the blank assignments that had been given before the judgment against Drake was rendered was filled out and filed with the railroad company in Chicago. On its face it purported to have been given after the judgment and constituted a new claim against Stalker’s wages. Stalker then brought this action, in which Drake and Van Zandt were both named as defendants, but Van Zandt died and an amended petition was filed against Drake alone in which these and other facts were stated at length. It is alleged that the illegal and oppressive measures were used by Drake in and out of court through a spirit of malice and revenge, with a view of coercing and making Stalker pay illegal demands, and that Stalker had thereby been deprived of his wages, had suffered for the necessities of life and been compelled to pay sums of money for lawyers’ fees, expenses of litigation and other purposes, and he therefore asked for both actual and exemplary damages. The trial resulted in a verdict in favor of Stalker for $1000 as actual and $5000 as punitive damages. It is contended that no recovery can be had because of the lack of legal evidence of conspiracy. The appellant assumes that the action is one to recover damages for a conspiracy between appellant and his agents, and that as there is a lack of proof to show combination, concert of action, a unity of design and a common purpose of all to do the unlawful acts, no recovery can be had. There is nothing substantial in this contention. The action is not grounded on the conspiracy of Drake and his agents as tort-feasors, but is the ordinary one, asserting a liability for the wrongs of appellant accomplished by himself directly and through his agents.. The word “conspiracy” is used in the petition where it is alleged that Drake, knowing that appellee was dependent, upon his salary, and that the filing of an assignment with the railroad company and the beginning of suits against appellee would stop the payment of his wages, prevent promotion in the railroad service, and jeopardize his position, and knowing also that the claim against appellee was illegal and extortionate and could not be collected by legal means, that he and his agent brought suits away from Kansas City and in Chicago, remote from appellee’s residence, filing assignments, obtaining continuances and resorting to other dilatory tactics, and when a final adjudication was rendered against appellant that he still continued to file assignments and to make threats of other litigation, and that all these acts were parts of one systematic scheme, plan and conspiracy of oppression and fraud carried out by appellant and his agents to coerce appellee into paying a fraudulent claim. It was evidently the purpose of the pleader to state a liability of appellant for wrongs done by him through his agents, as well as by himself, and not to assert a liability against the agents as tortfeasors and coconspirators. The word “conspiracy”' was manifestly used in the sense of scheme or system of wrongdoing devised and carried out by appellant, and the recovery is only sought on the ground that he is responsible for acts done by himself and also by his agents within the scope of their agency. The argument that ,a cause of action is not stated in the petition can hardly be seriously made. It certainly states good ground for recovery for both actual and punitive damages, and it would be a reproach upon the law if it did not afford a remedy for the willful and malicious acts of oppression and coercion recited in the petition. It is also contended that the award of $1000 as actual damages is not supported by the evidence nor yet by the special findings. The injuries about which testimony was given would have afforded a basis for a much larger award, but there are reasons for the contention that the findings do not warrant the amount awarded as actual damages. In answer to special questions, the jury found that appellee was entitled to recover $75 for loss of time, $20 for attorneys’ fees in the first suit brought before a justice of the peace in Chicago, $18 for the expense of depositions, $25 for attorneys’ fees in the second suit at Chicago, $100 for attorneys’ fees in a suit at Kansas City, and $10 for procuring surety bonds in the litigation with appellant. Then the question is asked, “If you allow any other sum as actual damages, state for what said actual damages are allowed,” and it is answered, “Railroad, hotel and incidental expenses, $200.00.” The items of damage, ex- eluding the last one mentioned, amount to $248, and the sum of all other actual damages is placed by the jury at $200. This last sum, together with those first hamed, amounts to $448, and under the language of the findings that must be the limit of recovery for actual damages. A much larger allowance might have been made for attorneys’ fees, as there was testimony that for certain litigation growing out of the wrongs of appellant $200 would have been reasonable for the services rendered. However, it is not included in the findings of the jury, and the form of the findings is such as to negative an intention to include it in the general verdict. The injury to the standing of appellee with his employer and coemployees, the humiliation, worry and loss occasioned by the withholding of his wages and the distress and loss resulting from the nagging, coercive measures and litigation brought against him which is disclosed by the evidence, and if the witnesses had named the pecuniary loss sustained by appeliee for these causes a much larger award would have been warranted. There is abundant evidence, we think, to sustain the award of the items first mentioned as actual damages. Some complaint is made, however, that the evidence does not sustain the finding of the award of $200 for railroad, hotel and incidental expenses. The term “incidental” as ordinarily used and applied to expenses includes a variety of things.' No request was made to have the jury specify or definitely state the things included in the term, and in the absence of such request we are not disposed to place any narrow construction upon the finding. •' It is urged that there is no ground for the allowance of exemplary damages, and that, in any event, the award is so large as to indicate passion and prejudice on the part of the jury. The punitive damages were fixed at the sum of $5000. It is argued by appellant that this award was necessarily the result of unreasoning hostility of the jurors against usury and their re sentment against appellant as a usurer. The charges made for the use of the money, although extortionate and unconscionable, are not the grounds upon which punitive damages were allowed. Appellee may not be entitled to much sympathy for the excessive rate of interest which he paid, because when the loan was effected he voluntarily undertook to pay a rate of ten per cent per month. . In his behalf it is said that he-was a stranger in Kansas City, unacquainted with appellant’s system, and in his ignorance found it necessary to pay what the appellant demanded. The interest, although one hundred and twenty per cent per annum, is only a small part of the unlawful claim which appellee was pressed to pay. The loan was increased, as the testimony shows, by various devices, such as fabricated attorneys’ fees and pretended court costs, so that in a few months a loan of $25 had become a claim for $200, notwithstanding that the appellee in the meantime had paid appellant $115.50 in an effort to discharge the debt. The means used to enforce the payment of the unconscionable demand betrayed wantonness and malice. Appellant knew of the straightened circumstances of appellee, and of the rule of the railway company that an assignment of an employee’s wages was a ground for his discharge from service, and having secured a number of blank assignments from appellee, held them over his head, driving him to the signing of notes for larger sums and the payment of $6 per month for the use of the $25 loan. These assignments, being executed in blank, were filled in by appellant for such times and amounts as he saw fit. When appellee’s necessities were great and he concluded to raise and pay the amount of the last note, although extortionate, in order to release his wages which had been tied up by an assignment, his offer was met by demand of appellant for the payment of $140, and Van Zandt, the agent of appellant, said to him that if his baby was in a dangerous condition, as appellee-had represented, he should pay the $140 and obtain a release of his wages. When appellee protested against such an exorbitant demand, Van Zandt replied that appellee had caused appellant (who was a millionaire and employed attorneys by the year) a great deal of trouble, and that app'ellant was going to make an example of appellee. When reminded that appellee had obtained a. discharge in ■ bankruptcy, and also that the claim of appellant was not enforceable because of usury,. Van Zandt said he understood these' points, but that they proposed to go ahead in the use of the methods they had been employing to compel payment. On another occasion he said to an attorney of appellee that they had appellee tied up, that a man of his means could not afford to fight, that continuances would be taken and costs made which appellee could not meet, and urged these reasons to the attorney why appellee should pay the demand. The shifting from state to state, the use of -the machinery of the courts, and the abuse of its process in the effort to enforce the demand, the bringing of the actions in distant places, and the use of dilatory tactics in such litigation, all calculated to exhaust the resources of appellee and force him to pay the unjust demand, afforded abundant grounds for the award of punitive damages. Such damages are allowable not because of any special merit in the plaintiff’s case, but are imposed by way of punishing the defendant for malicious, vindictive or a willful and wanton invasion of the plaintiff’s rights, the purpose being to restrain him and deter others from the commission of like wrongs. Such damages are only given where malice, fraud or a willful and wanton disregard of the rights of others enter into the case. The elements justifying such an award are certainly present in this case, and having in mind the purpose for which they are-allowed, we can not say that the award is excessive or that it indicates passion and prejudice on the part of the jury. -. We find no error in the instructions of the court, nor any ground for reversal, but the j udgment of the trial court will be modified, awarding actual damages in the sum of $448, making the total award for both purposes $5448. The judgment, so modified, is affirmed.	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The opinion of the court whs delivered by Porter, J.: The only question to be determined is whether the trial court rightly denied the plaintiff any relief on the ground that his cause of action grew out of and was based upon an unlawful conspiracy and upon transactions between plaintiff and defendant in violation of the antitrust laws. The question is largely one of procedure. , R. M. Patterson, the plaintiff, sued the Imperial Window Glass Company • to recover the sum of $34,946.48 damages for breach of a written contract entered into between himself as lessor of the Osage Window Glass Company and the defendant. Certain property was attached as belonging to the defendant. The Caney Window Glass Company filed an interplea setting up a claim to the attached property, and alleged, among other things, that Patterson yras a stockholder in the'Imperial Window Glass Company; that it w$s a corporation organized in the state of West Virginia for the purpose of controlling the price and products of window glass factories and preventing-competition in that class of merchandise; that the contract upon which 'the plaintiff sought to recover grew out of transactions between himself and the defendant which were in violation of the provisions of chapter 81, General Statutes 1909, against. monopolies and unlawful combinations. The cause came on for trial before the court on the interplea. Over the objections of plaintiff the court admitted in evidence an exemplified copy of an indictment and the record of proceedings thereunder filed April 7, 1910, in the district' court of the United States for the western district of Pennsylvania against the Imperial Window Glass Company and other defendants. There was endorsed on the exemplified copy the statement that on November 11, 1910, the several defendants in open court severally waived arraignment and entered a plea of nolo contendere. The name of R. M. Patterson did not appear in the record, but the Osage Window Glass Company, of which he was the lessee, was mentioned in the indictment as one of the corporations with which the Imperial Company had entered into an unlawfül combination in restraint of trade. The plaintiff and defendant separately demurred to the interpleader’s evidence. The court sustained the. demurrers, and at the same time held that all the parties were invoking the aid of the court in furtherance of an unlawful conspiracy, and that the court should not aid either of them, but leave them where it found them. In stating the reasons for the decision the court held that the demurrer of the plaintiff to the evidence of the interpleader should be carried back to the plaintiff’s petition. The plaintiff complains of this ruling, and insists that it is contrary to the rules of practice and of orderly procedure; that he has not had his day in court, and should have been permitted to introduce evidence. While we are not aware of any rule which would authorize a demurrer to evidence to be employed to search the whole record or to be carried back and sustained against a pleading, we think the procedure by which the court denied the plaintiff relief is of little importance. When at any stage of the proceedings it was established to the satisfaction of the court that the cause of action upon which the plaintiff sought ,to recover arose out of a transaction in violation of the antitrust laws, it became at once the duty of the court to refuse to aid either party to profit by the iniquitous agreement. Ordinarily the procedure would be to dismiss the action at the cost of the party bringing it. In this case the court taxed the costs against the plaintiff, and the name given to the procedure is of no consequence if the action of the court was rightly taken. In the contract upon which his cause of action is based, plaintiff agreed to manufacture glass upon the orders of the Imperial Window Glass Company, and to sell to that company the entire output of his factory for a certain period. He was to be paid a-certain price when the product was delivered, but it was understood that there were to be semiannual adjustments of prices, by which he was to be paid any difference between the first price and the average price received by the Imperial Company from its customers. With respect to prices, there was this further provision : “In the event that the wages of skilled labor employed in the manfacture of window glass shall be increased or decreased, from the scale upon which these discounts are based, the above prices shall be governed thereby, and shall be increased or decreased, as the case may be, in proportion to the relative increase or decrease of the scale of such wages as understood by window glass manufacturers.” ■Severe penalties were imposed for his failure to sell all of his output to the Imperial Company. He was obliged to make daily reports of his business to that company, and it was to be permitted to audit his books and to examine his premises at any time to ascertain whether he had manufactured or sold any glass in violation of the contract. Patterson agreed that the brand of the Osage Window Glass Company should be placed on the boxes in which his product was shipped, but that the Imperial Company should give to its customers, as far as convenient and practicable, the brands of glass they had been accustomed to purchasing prior to the making of the agreement. Plaintiff was to subscribe for stock in the Imperial Company to the extent of $8,000. The concluding paragraph of the contract provides that this stock was to be paid for by the Imperial Company and donated to the plaintiff, and likewise contains other provisions which throw additional light upon the character of the agreement. .It reads: “This contract shall become inoperative at such time as lease of the Osage Glass Company’s plant at Independence, Kansas, terminates. Percentage of cost to conduct Imperial Window Glass Company’s business shall be based on duration of said lease and final settlement with lessee shall be made within thirty days from termination of same, and stock subscribed for, amounting to three thousand dollars shall be paid for by Imperial Window Glass Company at final settlement.” The contract was signed by Patterson as lessee of the Osage Window Glass Company, party of the first part, and by Myron L. Case as president of the Imperial Window Glass Company, party of the second part. The extent to which the Imperial Company controlled the market did not appear from the contract; but there was considerable oral evidence introduced on the hearing of the interplea from which it was shown that the company by means of similar contracts sought to control to a large extent the output and price of window-glass factories throughout the country. The president of the Imperial Window Glass Company testified that the principal owners of the stock of the company. were individuals, most of whom were directly or indirectly interested in window-glass manufacturing plants, holding stock in the company for their plants which were located in Pennsylvania, New York, West Virginia, Ohio, Indiana, Illinois and Kansas; that these were the principal glass-producing states at that time; that the Imperial had but one contract with each company, usually a separate agreement, a stock subscription, which included a contract for the purchase of glass. F: E. Wear, who was interested in other glass manufacturing plants, as well as in the Imperial Company, testified that the Imperial Company continued in business for about one year, and that it controlled forty or fifty per cent of the window-glass trade. While the plaintiff objected to 'the introduction in evidence of the record of the indictment, no objection was interposed to the oral testimony showing quite fully the nature and extent of the business conducted by the Imperial Company. If, at the stage of the proceedings where the court indicated an intention to deny the plaintiff any relief, the plaintiff had offered or suggested that he had or could procure evidence to show that the contract had not been entered into for an unlawful purpose, or evidence in rebuttal of the oral testimony, it would have been the duty of the court to hear the evidence, and doubtless the court would have done so in this case. But no offer of that kind was made. The plaintiff objected to the judgment upon two grounds; first, that the court had no right to carry back to the petition a demurrer to evidence and sustain it; and second, that the court had no right to make the ruling without permitting him to introduce evidence in support of his cause of action. It appears, moreover, that instead of dismissing plaintiff’s action at once, the learned trial judge proceeded with the utmost .caution and deliberation, stating that while he would at once sustain the demurrer interposed by the plaintiff to the interplea, and believed he ought to carry the demurrer back to the petition" and sustain it against the plaintiff because he was satisfied that all the parties were seeking the aid of the court in furtherance of an unlawful- controversy and that it would be the duty of the court to leave them where it found" them in their controversy, “but not being sufficiently advised in the premises, the court reserves its judgment upon the -demurrer to plaintiff’s said cause of action until a later adjourned date of the present term of this court.” That, was on the 19th day of June. On the 20th day of July following, and at the same term, the parties again appeared and the court for the reasons stated made the ruling complained of. The plaintiff can hardly claim to have been surprised or prejudiced by the manner in which the ruling was made. It seems that he had ample time to have procured testimony if he desired to satisfy the court that the transaction upon which he was seeking to recover was not unlawful or that the contract itself had not been entered into in restraint of trade. If the ruling were reversed it would be merely for the purpose of giving to the plaintiff an opportunity first to offer proof to satisfy the trial court that he is not seeking the court’s aid in furtherance of an unlawful transaction. It was the intention of the antitrust act of 1889 (Laws 1889, ch. 257, and the acts amendatory thereto) that the courts should not be used to enforce any agreement or contract entered into in violation of that law. In Barton v. Mulvane, 59 Kan. 313, 317, 52 Pac. 883, it was said: “Obviously the legislature intended that parties engaged in .such an unlawful combination or trust should not use the law and its machinery to promote the unlawful combination or conspiracy, nor to enforce any agreement or contract growing out of it.” (p. 317.) There is no room for the plaintiff’s contention that the contract upon which he sought to recover was collateral to and independent of the unlawful combination. The doctrine of Connolly v. Union Sewer Pipe Company, 184 U. S. 540, 46 L. Ed., 679, therefore, has no application. There the action was on a note for goods sold by the pipe company in the ordinary course of trade. Connolly, the purchaser, was not a member of the unlawful combination and in no way connected with it; and it was held that the fact that the plaintiff was a member of an unlawful trust and combination was not available'as a defense. A recent case in point is that of Cont’l Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 226, 53 L. Ed., 486. The authorities are reviewed in the opinion and it is held that a contract made with direct reference to and in execution of a combination- intended to restrain and monopolize trade is a violation of the federal antitrust act. It is unnecessary to inquire whether the record of the indictment against the defendant was properly admitted in evidence at the hearing of the interplea, or to determine whether a plea of nolo contendere may be given the same effect as a plea of guilty. From an examination of the contract, we have no hesitation in holding that it is one prohibited by the federal act (26 U. S. Stat. at. Large, p. 209, ch. 647, 3 U. S. Comp. Stat. 1901, p. 3200), and likewise by the provisions of chapter 257 of the Laws of 1889 and the acts amendatory thereto. The court therefore had sufficient evidence without either the exemplified copy of the indictment or the oral testimony to authorize it to refuse the plaintiff any relief and to render judgment against him for costs. “Every regularly constituted court, has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and to prevent any abuse of its process.” (8 A. & E. Encycl. of L. 28.) In Coppell v. Hall, 74 U. S. 542, 19 L. Ed. 244, it was said: “Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal_ to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection, would be tainted with the vice of the original contract, and void for the same reasons.- Wherever the contamination reaches, it destroys. The principle to be extracted from all the. cases is, that the law will not.lend its support to a claim founded upon its violation.” (p. 558.) Eeferring to the public policy upon which this rule of law is founded, Mr. Justice Peckham,' in the course of an opinion, said: “To refuse to grant either party to an illegal contract j udicial aid for' the enforcement of his alleged rights under it tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that when they enter into contracts of this nature they place themselves outside the protection of the law, so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law.” (McMullen v. Hoffman, 174 U. S. 639, 669, 43 L. Ed., 1117, 1129.) The court’s ruling amounted to the same thing as dismissing the action at the costs of the plaintiff. The latter was not hurt by the name given to the procedure, and has no right to complain of the judgment denying him the aid of the court in furtherance of an unlawful transaction. The judgment will be affirmed.	[ -80, 120, -4, -115, 10, 96, 32, -70, 88, -29, -91, -45, -87, 71, 20, 57, -89, 91, -48, 107, 85, -13, 18, 66, -46, -45, -13, -51, -71, -50, -28, 126, 77, 32, 14, 21, -58, -62, -59, 30, -62, 5, 58, -28, -15, 80, 48, 26, 116, 75, 65, -100, -29, 38, 28, -53, 109, 44, -7, 45, -47, 121, -126, -113, 93, 20, 0, 32, -104, -89, -38, 14, -104, 49, 3, -23, 115, -90, -124, -12, 1, -103, 13, 38, 99, 35, 1, -81, -4, -100, 44, -1, -113, -89, 16, 104, 35, 65, -66, -99, 114, 82, -121, 124, -6, -107, 23, 125, 2, -117, -74, -93, 47, 118, -98, 6, -17, -95, 49, 112, -49, 56, 92, 114, 59, -101, -113, -108 ]
The opinion of the court was delivered by Mason, J.: The board of county commissioners of Wyandotte county offered a reward for the “arrest and conviction” of the person who had committed a murder. J. W. Elkins brought action against the county for the amount, asserting that he had met the conditions. H. T. Zimmer set up a conflicting claim, which he sought to enforce by interpleading. The county admitted its liability to one or the other of the claimants. Upon a trial the court sustained a demurrer to the evidence of Elkins and rendered judgment for Zijjimer, which was reversed on appeal. (Elkins v. Wyandotte County, 86 Kan. 305, 120 Pac. 542, annotated in 46 L. R. A., n. s., 662.) Upon a new trial judgment was again rendered in favor of Zimmer, and Elkins again appeals. There was evidence tending to establish these facts: Elkins, learning of the offer of the reward, began an investigation of the case. By talking with one James McMahon he induced him to produce and turn: over some articles, including a gun, which were hidden in a cornfield. He told the sheriff of this, stating that McMahon was the guilty person. The sheriff directed the undersheriff and Zimmer to send and get him. McMahon was arrested, and on being confronted with the articles found in the field, confessed. Elkins was at the time a “special and non-pay” deputy sheriff. The description of Elkins as a “special and non-pay” deputy seems fairly to imply that while he held a commission as a deputy sheriff his activities in that connection were limited to serving such papers as might be delivered to him, or performing such other acts.as might be specifically directed. Clearly he was under no obligation to devote time to the investigation of criminal offenses. This was evidently the view of the trial court, for the mere fact of Elkins’ official character was not held to prevent his recovering the reward. A reversal is asked because of an instruction to the effect that it was the duty of any one seeking to earn the reward to do all he legally had a right to do towards the arrest of the murderer; that if Elkins was a deputy sheriff he had a legal right to arrest McMahon upon discovering him to be the murderer; and that if, having the right and the opportunity to make such arrest, he voluntarily chose riot to do so, and Zimmer, acting for his own benefit and for himself, arrested McMahon, then Zimmer was entitled to the reward. Public policy forbids an officer to claim a reward for merely doing his duty, but that is the extent to which his official character affects the matter. (Marsh v. Express Co., 88 Kan. 538, 129 Pac. 168; see, also, 24 A. & E. Encycl. of L. 953; 34 Cyc. 1753; Note, Ann. Cas. 1912 C, 1294; Note, 43 L. R. A., n. s., 131; Hartley v. Inhabitants of Granville, [Mass. 1913] 102 N. E. 942.) If Elkins is entitled to the reward it is because of voluntary investigations, not required by his office, which resulted in discoveries leading to the arrest and conviction of McMahon. His official character can hardly enter into the matter, because as a private citizen he had authority to make the arrest. (The State v. Mowry, 37 Kan. 369, 377, 15 Pac. 282; Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005; 5 Ene. L. & P. 484; 3 Cyc. 885.) If in order to gain the reward he was required to do all he legally could toward the arrest, his omission to make the arrest would be equally fatal to his recovery whether he was an officer or a private citizen. In some circumstances the person actually making an arrest might obviously be entitled to the reward — for instance, where a known and unconcealed murderer was at large, and the difficulty in enforcing the law lay in taking him into custody. The present case does not appear to be one to which that rule applies. The jury may have found that the only real difficulty in the affair was to ascertain by whom the murder was committed, and by what evidence this could be proved; that Elkins by his own efforts discovered the facts that made it known that McMahon was the murderer; that he reported these facts to the sheriff; and that as the natural result of this report the arrest was made by Ziriimer. Such findings, in the opinion of this court, would require a verdict for Elkins. But under the instruction complained of such a verdict was forbidden if the jury also found that Elkins could have himself arrested McMahon, but omitted to do so. We think the instruction put too much stress upon the question as to who made the arrest, and unduly limited the effect of another instruction, in the following words, which correctly stated the principle by which the matter in dispute should be determined: “A literal compliance with the terms of the reward is not required, neither need there be an actual physical arrest by a claimant; but if you find from a preponderance of the evidence that one of the said parties, plaintiff or intervenor, acting with a knowledge that said reward had been offered and with a view to obtain it, performed substantially the terms of said offer of reward and discover [ed] evidence and performed services which were the primary, proximate, procuring and predominant cause of the arrest and conviction of one James McMahon for the crime in question, you will find for that party.” The argument is made that Elkins in his petition alleged that he had made the arrest, and, therefore, that he can not complain of the ruling in question. However defective his pleading may have been, the character of his claim was necessarily made clear at the first trial, and Zimmer can not have been misled. It may be remarked that situations frequently arise in which substantial justice is promoted by the division of a reward among several claimants. The right of a court of equity to make such an apportionment has been asserted, although in other instances it has been denied. (Rogers v. M’Coach, 120 N. Y. Supp. 686; 42 Cent. Dig., Rewards, § 16; 17 Dec. Dig., Rewards, §12.) After the first judgment in favor of Zimmer was appealed from, Zimmer gave a bond to enforce it notwithstanding the appeal, and it was paid. The county asks that it be relieved of liability for the costs that have since accrued. The controversy is between Elkins and Zimmer, and the costs should be awarded accordingly. The judgment is reversed and a new trial ordered.	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The opinion of the court was delivered by Johnston, C. J.: This was an action to recover for permanent injuries to the plaintiff’s land caused- by the pollution of Drum creek which ran through the land. Drum creek, in its natural state, it was alleged, was a stream of good wholesome water, suitable for live stock and also for culinary and domestic purposes, and was used for such purposes by the plaintiff, James McDaniel, until it became polluted. It was alleged that in 1905 the city of Cherryvale constructed a system of sewers through which sewage was discharged into Drum creek, thus polluting the water and rendering plaintiff’s home unhealthful and an unfit place in which to live. It was also alleged that in the same year the Uncle Sam Oil Company constructed an oil refinery near the creek and discharged into it waste water,- refuse, oils, acids and other impurities, which contributed to pollute the stream. It was-further alleged that the defendants concurrently discharged sewage, refuse and filth, and that by the concurrent and chemical action of the impurities the creek was polluted and its usefulness to plaintiff destroyed; that it contaminated his premises and damaged and depreciated the market value of his land to the extent of $6000. It was also averred that because of rains the stream was swollen a great part of the time from the construction of the sewer system and the erection of the refinery until 1909, and that so long as the volume of water was large the impurities thrown by the defendants in the stream did not settle or accumu late on his land, but that in 1909 there was a period of dry weather which diminished the flow of the stream, and that the sewage, refuse and Other impurities poisoned the stream and made it a cesspool and a. nuisance and'greatly injured his property. He avers that on December 1, 1909, he presented a claim against the city for the injuries sustained in the sum of $6000 but that the city refused to recognize or pay it. He therefore asked for permanent damages measured by the depreciation in the value of his land, which he fixed at $6000. In answer to special questions the jury found that the defendant city had been continuously discharging sewage into the creek since May, 1905, and that the Uncle Sam Oil Company had been continuously discharging waste water, refuse, oils, acids and other impurities from the refinery into it since July, 1905, that the plaintiff knew and understood from the beginning that these dischargés would, to a certain extent, pollute the stream. The jury also found that the market value of the land prior to the injury was $5000 but that after the injury its market value was only $4400, and damages were awarded the plaintiff in the sum of $600. It is first contended that there was an improper joinder of causes of action against the defendants and that the plaintiff failed to set forth a joint liability against both defendants. The petition charged both defendants with wrongfully polluting the stream and that it was done by their concurrent action. This averment brings the case within the rule which has been applied in this state, that if two or more persons by their concurrent wrongdoing cause injury to a third they are jointly, and severaly liable and the injured party may, at his option, institute an action and recover against one or all of those contributing to the injury. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Arnold, v. Milling Co., 86 Kan. 12, 119 Pac. 373; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032.) The principal question presented in this appeal is whether or not the cause of action on which a recovery was had was barred by the statute of limitations. The plaintiff, as we have seen, did not sue for a temporary injury or for any special damage or loss which he had sustained immediately before the bringing of the action, but he treated the injury as a permanent one and as a sort of an appropriation of an interest in his property and asked for all damages already sustained and which he might sustain in the future. He could have elected to have sued for temporary damages sustained within the statutory period preceding the bringing of the action, and for any subsequent injury or loss an additional action might have been brought. He chose, however, to treat the injury as permanent in character and brought a single action to recover for all present and prospective damages to his land. As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream. As the effect of the discharge of the sewage and the refuse in the stream could have been ascertained with reasonable certainty and as the stream was polluted to a certain extent when the discharges were thrown into the stream plaintiff could have brought an action for permanent damages at the beginning, and it is settled that “whenever one person may sue another a cause of action has accrued and the statute begins to rim.’’ (25 Cyc. 1066.) The plaintiff chose a remedy for permanent injury and is bound by the limitations which the law places upon the enforcement of such remedy. As was said in C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702: “The plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots, as a quasi condemnation and permanent taking and appropriation of a certain interest in his property; and he can therefore recover merely for the consequent' depreciation in value of his property by reason of such permanent injury, by reason of such permanent taking and appropriation, by reason of such quasi condemnation. He had the privilege to consider the obstruction of the alley as only a temporary injury, and to have sued for any special or temporary damage which might have occurred at any time by reason of the obstruction.” (p. 710.) So here, the plaintiff elected to ask for damages for a permanent injury or an appropriation of a certain interest in his land, and such an action he was entitled to bring when the impurities were thrown into the stream in 1905. In W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362, the railroad company trespassed upon the lands and rights of an owner by building thereon a structure of a permanent character without, the consent of the owner or the making of compensation, and it was held that the owner was at liberty to pursue any one of several remedies, and that when the structure was permanent in its nature, as in that case, he might elect to bring an action for a permanent appropriation and injury. In Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182, the land of an owner was. flooded and injured by the erection of a dam which was permanent in its character, and it was held that the owner who had not been compensated for the injury might, if he saw fit, maintain an action to recover all damages, present and prospective, and that such a cause of action accrued .when the appropriation was first made. (See, also, L. N. & S. Rly. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297; Brock v. Francis, 89 Kan. 463, 131 Pac. 1179.) It is argued that the averment in plaintiff’s petition, and certain testimony which tended to sustain it, to the effect that when the rains were abundant and the stream swollen the sewage and impurities discharged into it caused but little injury were sufficient to take the case out of the statute of limitations until 1909, when the lack of rain caused a diminution in the flow of the stream and a more serious in j ury. Plaintiff argues that the impurities thrown into the stream were greatly diluted by the large volume of water, that he could not sue until he was in j ured, and that if he had sued when the impurities were first thrown into the creek he could have shown but little, if any, damages'. On the other hand, it appears that the plaintiff knew of the character of the sewer system and refinery, and he also knew that there would be a constant and continuous flow of impurities into-the stream which would necessarily pollute the water flowing through his premises. He must have known the course of the seasons and that the stream would be higher and lower as the rainfall would vary. It does not appear that there was any change in the character or quantity of sewage- and refuse deposited in the creek after 1905. Plaintiff himself testified that the impurities always affected and polluted the water, and also that when the sewer was established and the refinery built his rights were then invaded. He admitted that he knew in 1905 that there were times when the water in the creek did not run, and hence he must have anticipated that the deposits of sewage and filth would not be carried away and that he would necessarily sustain the injury subsequently suffered. Other witnesses of the plaintiff testified that there was some damage resulting from the impurities even when there was a full flow of water in the stream, and that there was a constant damage to the land from this cause from the time the sewer and refinery began to be operated in 1905. The jury specifically found that in 1905 plaintiff knew that the drainage through the sewers and from the refinery into the creek would pollute the water to a certain extent so long as the refinery and sewer system were in operation. ' If plaintiff had brought a suit in 1905 he could have recovered for permanent injury to his land, and could have shown without much difficulty the effect of discharging sewage and refuse of the quality and quantity which the defendants were throwing into the creek. He could have shown that at times there would be a full flow of water in the creek, and again that there would be no running water in it, and that the discharges into the creek would necessarily pollute the water and create a nuisance on his premises. It would have been no defense to such an action to have shown that little or no damage would occur when the rains were heavy and the flow in the stream was strong. In Smith v. Sedalia, 244 Mo. 107, 149 S. W. 597, where •injuries resulting from the construction of a city sewer were under consideration, it was held that such a system must be regarded as a permanent one, and the fact that the system might thereafter be extended and the injury enhanced by the increase of sewage did not affect the permanent character of the injury nor the right of the plaintiff, to recover therefor. The difficulty in ascertaining the extent of the future use and the exact amount of the damage which would result did not deprive the city of the right to condemn nor prevent the ascertainment of the final permanent damages as of the time the sewer was built. Here, as we have seen, the sewer system and refinery are, in their nature, design and use, permanent structures, the operation of which will necessarily be injurious to plaintiff’s land and must continue permanently to affect and depreciate the value of his land. He elected to treat this invasion of his property rights as a permanent injury and, in effect, an appropriation of an interest in his land. The court tried the case upon the theory that a permanent injury had been sustained, and the jury measured the damages upon that basis and awarded the plaintiff the diminished value of his property. The plaintiff had a cause of action for these damages in 1905, when these permanent structures were built and the polluting discharges were turned into the stream. (Va. Hot Springs Co. v. McCray, 106 Va. 461, 56 S. E. 216.) The injury to the property was susceptible of ascertainment at that time, and the statute of limitations then began to run on an action for permanent damages. Not having been brought within two years from that time, the action was effectually barred. (Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631.) It follows that the judgment must be reversed, and the cause remanded with directions to enter judgment in favor of the appellants.	[ -16, 108, -100, -52, 26, 96, -24, -40, 69, -77, -11, 119, -119, -53, 13, 97, -21, 125, -48, 105, -26, -77, 19, -58, -102, -13, 121, -128, -80, 108, -12, 87, 76, 36, -54, -107, -26, 2, -41, -36, -58, -75, -7, -27, -35, 80, 52, 123, 32, 79, 113, -98, -29, 40, 21, -62, 73, 40, -5, 60, 81, -15, -117, -108, 79, 20, -96, 98, -100, -93, -38, 14, -37, 49, 0, -20, 115, -90, -106, -12, 71, -117, 8, -32, 99, 34, 93, 107, -8, -39, 15, -98, -119, -92, -100, 80, -61, 32, -75, -99, 104, 86, -113, 118, -2, -107, 93, -84, -57, -125, -106, -77, -49, -72, -100, 18, -1, 35, 36, 116, -115, -94, 108, 71, 114, 31, -97, -40 ]
The opinion of the court was delivered by BENSON, J.: This is an appeal from a judgment for damages to growing crops caused by the obstruction of a ditch in a public road. The defendant alleges that the ditch was wrongfully opened by the plaintiif’s father, John Marts, to the defendant’s injury and without lawful right or authority, and prayed for an injunction to restrain the plaintiff from maintaining it. At the time the ditch was opened the plaintiff’s father owned abutting land on the south side of the road referred to. The defendant owned land abutting on'the north side of the road. The west boundary of the defendant’s land is an extension north of the east boundary of the Marts land. The defendant also owned another tract south of the road. Chapman creek runs southwardly through both of the defendant’s tracts. The road'was established in the year 1893. The next year a culvert was placed in the road at a low place crossing the road on the John Marts land, afterward occupied by the plaintiff, and the land next north of it. The culvert is about two thousand four hundred eighty feet west of a bridge over Chapman creek. The low place begins north of the road, and extending southeastwardly and growing wider crosses the east line of the Marts land upon an adjoining tract .of eighty acres. The surface drainage of approximately six hundred fifty acres north of the road is into this low place, finding its way, after filling the depression, to Chapman creek or into a branch flowing into that creek about a mile below the bridge. In the year 1900 complaints were made to the township officers of water standing along and upon the road which extends across a valley for a considerable distance west of the creek. The plaintiff’s father was desirous of having a ditch constructed along the road which would serve to divert the water passing through the culvert from flowing upon his land. The township trustee and the township board visited the place, and upon examination believed that such a ditch would be a benefit to the road, but doubted their right to construct it without authority from the county commissioners. Later the county commissioners, at a meeting held when the township board were present, investigated the matter and instructed that board to take the water off the road and to make a ditch for that purpose. Mr. Marts, senior, was present and agreed to'pay the expense of making the ditch and also agreed to put a bridge across it to Freeman’s south tract. The county attorney, who was also present, advised that the work should be done under the direction of the road overseer. Afterwards the township board directed the road overseer to put thé ditch on the south side of the.road, the defendant objecting to having it made on the north side. The overseer constructed the ditch as deep as it could be made with a road grader. The surface of the ground at and near the bank of Chapman creek being about four feet higher than at the culvert it was found necessary to have the ditch made deeper, and Mr. Marts agreed to deepen it accordingly at his own expense. He performed the work, making the ditch about six feet deep at the outlet, and about two feet deep at the culvert. He threw back the material excavated from the ditch, along its south side and upon his land at the road side, thereby forming a low dike which served to hold the water in the ditch and prevent it from overflowing upon his land except in times of heavy rains or freshets. He also built a bridge for the defendant as he had promised, near the northwest corner of his eighty-acre tract, which the defendant used for many years in going to and from his land. That tract has a frontage of about three hundred twenty feet on the road west of the creek. The ditch was a substantial improvement of the road and carried off the water from ordinary rains. In freshets, however, it still overflowed the low places upon adjacent lands, and at times the dike has been washed away. The defendant repaired the bridge over the ditch at different times, and at one time dug a little ditch across the road to carry surface water from his north tract into the ditch. Evidence was given tending to show that he also assisted in digging the ditch in question. The ditch grew wider and deeper toward its' mouth by the action of the water until it was fifteen or twenty feet deep and thirty feet wide at the outlet, having cut into the defendant’s land five or six feet near the creek, narrowing toward the west to a point, and taking away about one hundred twenty feet of his fence, and also cut into the road near the bridge. The township authorities restored the road by filling the cut and protecting the north side of the ditch. The defendant, on April 10, 1910, after removing what was left of the bridge built for his use, which had fallen down, filled up the ditch at that point, where it was eight or nine feet wide, making a dam to the height of the surface of the ground. He also made another dam across the ditch on the same land. These obstructions caused an overflow upon the plaintiff’s lands resulting in damages, for which he sued; they also caused an overflow of the road near the culvert. No record appears to have been made of any of the orders or proceedings of the township board or of any of the officers relating to this ditch. • The plaintiff requested an instruction to the effect that any person who should unlawfully obstruct a county road was liable for resulting damages to any person injured thereby. The defendant, on the other hand, asked for an instruction to the effect that if, after the road overseer had graded the road, the plaintiff dug the ditch and built the dike, in order to prevent surface water from flowing upon his land, such acts were an unlawful diversion, and the defendant would have the right to use such means as he saw fit to prevent such water from encroaching upon his premises. The court refused these requests and instructed the jury, in substance, that if the ditch and dike were constructed by Marts with the consent and approval of the road overseer, the township.trustee and township board, in conjunction with these authorities, for the common purpose of protecting and improving the road and protecting his land, and the defendant filled up the ditch, and that it was not necessary that he should do so in order to protect his own land, and that such filling caused an -overflow which injured the plaintiff’s crop which would not have occurred but for such obstruction, the defendant was liable for' the resulting dam.ages. Following this another instruction was given, to the effect that if the defendant obstructed the ditch to divert surface water which was flowing upon his own land, thereby injuring it, and the surface water • would not have otherwise reached his land, the plaintiff could not recover. Various specifications of error are presented but they all depend upon a few underlying propositions which will now be considered. It is contended that neither the township officers nor the county commissioners had any authority to authorize the construction of the ditch, although it is suggested that the road overseer may have had that authority under the provisions of section 7285 of the General Statutes of 1909. The statute making the township board commissioners of highways for the township did not take effect until after the ditch was opened. No specific duty respecting the drainage of roads appears to have been enjoined upon township trustees, although in the act relating to township officers (Gen. Stat. 1909, §§ 9584-9590) the trustee is charged generally with the duty to see that the road moneys are properly applied, also with the duty to prosecute for violations of the road laws, and is given the care and management of the property of the township, and superintendency of its interests. Road overseers are primarily and specially charged with the repair of public highways. Necessary drainage is an ordinary and necessary incident of this power. (Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010; Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252; Dennis v. Osborn, 75 Kan. 557, 89 Pac. 925.) The fact that in exercising this authority in this instance the overseer was advised or directed by the township trustee or township board or by the county commissioners, or all of these officers, did not impair that authority. He performed some of the work in person or by laborers employed by him, and the landowner was employed to complete it. All work was done with the approval and consent of the overseer as as improvement of the road, and it was done in pursuance of public authority. It is true that the private interests of a landowner were promoted by the improvement and that he was active in initiating and carrying it on. But the fact that such improvements' are urged by and result in benefits to individuals does not impair the right of the constituted authorities, acting in good faith, to make them for the use and benefit of the public. The evidence tends to prove that the defendant, with other owners of lands adjoining the road, was present at different times at consultations with the township officers, and at one time with the county commissioners, when this ditch was under consideration, and assisted in digging the ditch and in cleaning it out. In his testimony,' however, he denied that he assisted in digging the ditch and stated that he always opposed it. As no special findings were requested it can not be known what the jury found from this evidence. But so far as it was conflicting it may be presumed from their general verdict that they found against the defendant upon any material fact necessary to uphold the verdict. The dike, so called, thrown up by the plaintiff’s father in constructing the ditch was really a part of it, serving to hold the water within it, promoting the flow in the artificial channel, and tending, as we may presume, to keep the channel open. The authority to make the drain involved the exercise of judgment in the manner of its construction. If the overseer gave the landowner no express directions or authority to make the dike, still it must have, been done with his consent for it was a visible part of the work under his charge and oversight. No complaint was made of it by the defendant or any one else, so far as the evidence shows. The fact that it was less than a foot in height,, of such' slight stability that it was frequently washed away and broken .during heavy rainfalls, and that in freshets the water rose above it, appear to show that it had but little effect beyond holding the water in .the channel under ordinary conditions. In this view its construction is an incident of establishing the ditch, involving the exercise of judgment on the part of the officer having authority to make the improvement, who is vested with a broad discretion not to be interfered with by a court except in cases of fraud or bad faith. (Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252; Murphy v. Fairmount Township, 89 Kan. 760, 133 Pac. 169.) Having determined that the ditch was rightfully established by public authority it follows that its obstruction by the defendant was wrongful. The fact that a watercourse thus created is an artificial one affords no justification for obstructing it where it exists by lawful authority, although the obstruction only caused the water to flow where it did before the ditch was opened. ' The public had previously appropriated land of these parties for highway purposes. This appropriation included the right to make the highway fit for public travel, involving necessary drainage. It must be presumed that any damage consequent upon such improvement was paid for when the right of way was appropriated. Where land has been so taken for public use the owner can not recover further damages because of the injurious effects of repairs or improvements properly made in maintaining such use. Among the cases illustrating this principle one .arising in Nebraska is closely in point. The owner of land abutting upon a public road sought to restrain the road authorities from opening a culvert and otherwise changing the course of surface water so that it would flow upon his land, contrary to its previous course. The court said: “It is now the settled law of the state that for all injuries which may arise on account of the proper construction or future operation of an improvement, an adjoining proprietor must be compensated in the original condemnation proceedings. . . . The owner of adjoining lands is entitled to compensation not only for such injuries as might result from the use of the land appropriated in its natural state, but for all which would result from ¿ proper construction, improvement, and maintenance of thé highway, taking into consideration such embankments, cuts; bridges, 'culverts, and ditches as .shall be required or warranted for- the purpose of a proper construction and maintenance. .. . . It must be presumed that he .received such compensation, or at least had an opportunity to receive it, when the highway was originally constructed. ' He is not entitled to any further condemnation proceedings. Much less is he entitled to a perpetual injunction to restrain such highway improvement.” (Churchill v. Becthe, 48 Neb. 87, 90, 91, 92, 66 N. W. 992, 35 L. R. A. 442.) The same rule is tersely given in section 55 of the second edition of Mills on Eminent Domain, where it is stated that the right of way appropriated for a road includes drains and gutters and that the original compensation paid is supposed to cover damages for such uses. As the -defendant had no right to relief by action to prevent or. to recover damages caused by the opening or proper maintenance of this ditch, it follows that he could not lawfully obstruct it. The only remaining question relates to the right of the plaintiff to recover private damages for the obstruction of this public ditch. It is a general rule that an individual who has suffered special injuries from a public wrong not common to- the general public may recover damages therefor against the wrongdoer. (Addison on Torts, 8th ed., p. 10; 2 Cooley on Torts, 3d ed., p. 1292; 2 Farnham on Waters, 1197; 2 Elliott on Roads and Streets, 3d ed., § 850.) “A public wrong, though the perpetrator of it may be subject to prosecution by the public, may also have the nature and consequences of a private wrong, and be actionable as such in behalf of a person who sus- ■ tains an injury differing in kind from that which the public at large suffers.” (1 Sutherland on Damages, 3d ed., § 4.) * This principle, as applied to obstructions of highways, is stated in Thompson on Highways, 3d edition, page 345: “Although it is a general rule that a private action can not be maintained for a public injury, as for a common nuisance, yet if an individual suffer a more special injury than any other from such nuisance, he may have a separate action therefor.” It is not deemed necessary to discuss the effect of the evidence tending to show acquiescence in opening and maintaining the ditch, in view of the conclusion that it. was lawfully opened. We do not decide whether the obstruction is within the provisions of' section 17 of the road law relied upon by the plaintiff (Gen. Stat. 1909, § 7290), nor is it necessary to decide whether the instructions accurately stated in all respects the rules of law applicable to -the controversy. It is sufficient to say that no error appears in the' instructions or rulings of the district court of which the defendant can complain. The judgment is affirmed.	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The judgment of the court was delivered by Porter, J.: The first count in the information •■charged the defendant with a sale of liquors in violation of law. The sixth count was for maintaining a nuisance.. The verdict of the jury was guilty as charged in the first count; not guilty as. charged in the sixth. The contention is that the.court pronounced sentence under the sixth instead of the first count, and the-journal entry so reads. However, after the cause was submitted in this court a motion was filed in the district court setting forth the facts showing a mistake in the journal entry, and a supplemental abstract has been filed, to which is attached a certified copy of an order of the court correcting the journal, so that it now speaks the truth, and states that the defendant, was sentenced upon the first count of the information instead of upon the last. The mistake was made by the person who prepared the journal entry. It is the duty of the court, and it has power at any time, to make an order correcting a mistake in the record of a judgment. (See cases cited in the opinion in The State v. Linderholm, 90 Kan. 489, 493, 135 Pac. 564.) As the corrected journal reads, it shows that, no error was committed. In instruction No. 12 the court properly defined a sale. The instruction requested by the defendant was rightly refused. There was a conflict in the evidence upon the question whether the defendant was acting as the agent of the purchaser. The judgment is affirmed.	[ -77, -2, -39, -67, 26, 96, 34, -102, 64, -127, -78, 51, -19, -62, 20, 43, -78, 121, 85, 104, -60, -93, 15, -61, -10, -109, -46, -59, -75, 109, -20, -10, 77, -32, -54, -75, -26, 67, -43, 84, -118, 6, 25, -63, -31, 2, 52, 59, 6, 10, 49, 79, -13, 46, 27, 75, 105, 40, -24, 57, -64, -16, -69, 15, 111, 22, -79, 50, -36, 7, 88, 46, -106, 49, 1, -8, 115, -74, 2, 52, 45, -117, -83, 102, 110, 33, 29, -17, 56, -104, 47, 127, -115, -89, -102, 24, 73, 73, -106, -99, 116, 50, -121, -34, -28, -43, 25, 116, 3, -54, -44, -75, -113, 52, 10, 79, -1, -125, 48, 112, -51, -28, 92, 100, 18, -101, -114, -76 ]
The opinion of the court was delivered by Benson, J.: This is an action in ejectment by parents against their son to recover the possession of a farm in which they claim an estate for life. In April, 1904, the plaintiffs conveyed to their son, David Scott, a farm of 475 acres, subject to mortgages amounting to $4500. The conveyance was made in the ordinary form of a warranty deed but contained the following clause inserted immediately after the description : “This conveyance is made upon the express condition that the grantors, Adam Scott and Elizabeth Scott shall each have an estate for life in said conveyed lands and tenements.” . . . ■ At the date of the conveyance the grantors, Adam Scott, sr., and Elizabeth Scott, his'wife, were of the age of 79 and 75 years, respectively. They also owned another farm, of 160 acres upon which they lived, called the home place. In consideration of this conveyance and the transfer of some personal property, David agreed to care for his parents while they lived. The agreement was verbal, and can only be stated in general. terms,. but it was faithfully .performed until August, 1906, when by reason of failing health David was compelled to leave his father and mother and move to Colorado, where his brother, the defendant, then lived. In October, the defendant, Adam Scott, jr., came to his parents and told them he had come to take David’s place. They had, it seems, been, informed of his intended coming for that purpose by letter from David, but the agreement between the brothers is not further shown. Adam, jr., moved with his family into the' house with his parents on the home place, and also entered upon the possession and management of the farm in controversy, with their consent and approval, and cared for them until August, 1907, when he left the home, but continued to furnish supplies for three or four months longer, when he ceased to do so because his mother told him that they had made arrangements with another son-to provide for them. He said to her that whenever there was. anything he cbuld do for them they would find him willing. It does not appear that they ever demanded anything of him afterwards, although the father wrote to David at two different times asking for support but received nothing from either except the rent of -the home place, Adam having rented it on March 1. By some arrangement between. David and Adam, jr., a- stock business was carried on upon the farm in controversy under the name of Scott Bros. Out of the rents received for the home place the parents-have the taxes to-pay, and interest upon a mortgage upon it, leaving them $180 per year, which is all they have had to live on since Adam, jr., cease'd to furnish their supplies. David died in August, 1911. Adam, jr., has had the exclusive use of the farm since that time and has paid the taxes from the time he took possession. This suit was commenced April 19, 1912. Before commencing the action a notice to' quit, in the usual form in proceedings for forcible detainer, was served on Adam, jr., and also on him as survivor of the firm of Scott Bros. David paid $2500 of the principal of the mortgages, and it seems placed another mortgage upon the farm for $1000. It is presumed that the brothers have paid the interest also. The assessed value of the farm is $16,765, and its rental value was $1100 per year for the three years preceding the trial. While the details of the agreement between David and his parents are not definitely shown, it appears that it provided for their support from this farm — and it may fairly be presumed that the condition in the deed related to this agreement. This relation further appears from extrinsic evidence. The father when asked why this reservation was made said: “I thought I had a perfect' right to put it in that way; I gave him so much of it and retained so much of it for my future use. . . . ■ “Q. You did not claim possession of this land at any time during David’s lifetime? A. No, sir. I had no need to. David tended well to us while he was with us. . ‘ . . My intention was that I should have possession of this land if it became necessary for me to rent it for our support.” In a paper filed in the probate court, after referring to David’s agreement for support, he stated: “That for the purpose of securing the performance of said agreement, claimant reserved in said deed of conveyance a life interest and estate therein for himself and his said wife.” It is the contention of the defendant that the condition was put in the deed merely to secure the agree ment for support; that the parents accepted Adam, jr., in place of David to perform the agreement, and as they did not demand performance from Adam, jr., there was no default on his part and hence there can be no recovery of possession; and that in any event the remedy for any default would be an action to recover the value of the support withheld. The district court decided that the reservation iri the deed was invalid and insufficient to reserve to plaintiffs, or either of them, an estate for life in the premises, and that they, nor either of them, were entitled to the possession of such premises, nor to any damages for the detention thereof. Neither the abstracts nor briefs inform the court of the particular reasons for this conclusion. It is not contended that the reservation contradicts the grant, and no sufficient grounds appear for holding the reservation void, and it must be held that a life estate was effectually reserved in the deed. The next' inquiry is whether: the plaintiffs should recover the possession or be remitted to an action for support, as contended by the defendant. The condition and the oral agreement should be considered in their relation to each other and in the light of all the attendant circumstances, and the intention of the parties should be carried into effect so far as possible. The parents relied upon the fidelity of David, with whom they contracted,. and while his health permitted him to exercise personal care they lacked nothing. When his brother offered to take his place they made no objections, doubtless believing that he would act with equal faithfulness. For a short time he attended to their want's, and then, without any modification of the agreement and without consulting with his father, he left them upon the statement of his mother that other arrangements for their support had been made with another son. Tt seems that the father did not rely upon these other arrangements, but called upon David, with whom the contract had been made, to comply with its terms. Whether David informed Adam of this request does not appear, but nothing was done. The parents were left with only $180 a year for their support. Adam was enjoying the revenue of this large farm, yielding a rental value of $1100 per year. His father and. mother were old and. in need. Considering their age, it may fairly be presumed that they not only needed money, but also the care and attention that a son who had undertaken to support them should give and which is implied in such agreements. It is true that they made no special demand upon him, hut it was his duty to ascertain whether the arrangements referred to by the mother were being carried out and to see that they were furnished the supplies which their eomfort reasonably required. The clause in the deed should not be narrowly construed into a mere mortgage or conventional security. It was placed there for a broader purpose. They did not contract for a lawsuit, but for present and continued support, reserving the use of -the farm while they, lived that this support might be assured beyond question. They did not contemplate that a formal demand would be necessary in order that they might have the ordinary comforts of life. The alternative of a suit for damages would leave them dependent on charity while the slow processes of the law were going on. The son who undertook to discharge his brother’s obligation owed a higher duty than to wait for a demand. . He should have ascertained their condition and supplied their needs. Treating the promise of support made by David as a sufficient consideration for the possession taken by him against the terms of the reservation, such possession can not be withheld by his successor without fulfilling that promise, for possession was held upon that condition. An action for damages is not deemed an adequate remedy in the situation disclosed by the evidence. This conclusion is reached without deciding whether there was sufficient proof that the defendant was entitled to all the rights of his brother or the precise nature of those rights. The plaintiffs should have judgment for the possession of the farm while they live and during the lifetime of the surviving spouse, and for the value of its use for the three years preceding the commencement of the action, subject to deductions for taxes and interest paid and other proper counterclaims, if any, that may be found equitable by the district court. The judgment is reversed and the cause remanded for further proceedings.	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The opinion of the court was delivered by Burch, J.: Mary Ann Hopper died testate in September, 1910. She had seven children, among whom were two sons, Cicero Adolphus and Moses Gilliam, and a daughter, Milly J., who was married to E. L. Pitzer. For a number of years prior to her death she had made her home with her daughter the greater part of the time. Her estate consisted of considerable bodies of land in Harper and Stafford counties. From the death of her husband in 1898 until April 27, 1909, these lands were in charge of the two sons, C. A. and M. G. Hopper. On the date last mentioned Pitzer became her agent under power of attorney. On May 3, 1909, Mrs. Hopper duly executed her will, which gave her estate to her seven children share and share alike, subject, however, to the following qualifications and provisions : “Whereas, I claim that my son Cicero Adolphus, is indebted to me or has converted moneys and properties to which I am justly entitled in the value of the sum of $8,000; and that my son Moses Gilliam is indebted to me in the value of the sum of $7,400. Now, if my son Cicero Adolphus shall hereinafter pay to me in fact the said sum of $8,000, so that it may become a part of my estate, he shall receive a full share of my estate with his brothers and sisters, but if he does not make such payment, then the said sum of $8,000 less one-seventh of the same, shall be deducted from his share of my estate and added to the shares of his brothers and sisters mentioned herein. Likewise if my son Moses Gilliam pays to me in fact the sum of $7,400 so that the sum may be a part of my estate, then, he shall re ceive a full share of my estate, but if he neglects and refuses to make such payment, then at my death there shall be deducted from his share of my estate the said sum of $7,400 less one-seventh of the same and the said sum .of $7,400 less one-seventh of the same shall be divided equally among his brothers and sisters mentioned herein. “This Will shall not prevent me from collecting said sums above referred to of Cicero Adolphus and Moses Gilliam if I wish to do so or see fit to do so, but in case of my death, it shall apply absolutely to their inheritance from me regardless of what .they may say or claim to be the true state of their action or accounts with me.” After the probate of the will the two sons named brought suit to set it aside on the grounds of mental incapacity of the testatrix and undue influence and fraud practiced on her by the Pitzers. At the trial the court availed itself of the advice of a jury. The instructions to the jury on the subject of mental incapacity were adequate and were correct, and the instructions on the subject of undue influence and fraud followed with care the decision in the case of Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634. The jury answered questions propounded to them as follows: “Was the deceased, Mary Ann Hopper, on the 3rd day of May, 1909, at the time the instrument claimed to be her Last Will and Testament, purports to have been made, of such sound mind and memory as to enable her to know and understand the business in which she was engaged.and the disposition and manner in which she was willing and disposing of her property? “She was. “Was the said instrument made and signed by the said Mary Ann Hopper by reason of undue influence brought to bear upon her by the defendants, Millie J. Pitzer and E. L. Pitzer? “It was not. “Was the said instrument made and signed by the said Mary Ann Hopper by reason of fraud practiced upon her by the said Millie J. Pitzer and E. L. Pitzer? “It was not.” In harmony with these answers the court then found the issues as follows: “That the paper purporting to be the last will and testament of Mary Ann Hopper, deceased, which was made on the 3rd day of May, 1909, and which has been duly probated in the Probate Court of Pratt County, Kansas, was and is the last will and testament of the said Mary Ann Hopper, deceased; that, at the time of making said will and testament, the said Mary Ann Hopper was of such sound mind and memory as to enable her to know and understand the business in which she was engaged and the disposition and manner in which she was willing and disposing of her property, the claims of those who were entitled to participate in her bounty,-and the nature and extent of her property;' that the said Mary Ann Hopper was not under any undue influence or restraint whatever, and that no fraud or deception was practiced upon her and that she had full testamentary capacity to make such will.” Judgment was entered accordingly and the contestants appeal. It is conceded that the finding of mental capacity to make the will is sustained by the evidence. The finding of freedom from undue influence and fraud is not attacked as contrary to the evidence adduced, but the plaintiffs claim they were unduly restricted in making their proof respecting those subjects. The plaintiffs offered evidence, which was rejected, tending to show that C. A. Hopper was not indebted to his mother beyond the sum of $1600, that M. G. Hopper was not indebted to her at all, and that they were not in default of any settlement with her. The quoted provisions of the will reduced the share of one son $8000, less one-seventh, and reduced the share of the other son $7400, less one-seventh. Whatever the claims of the testatrix which served as the basis for fixing these amounts, they could not be disputed. Without the declaration of the will that its provisions should stand regardless of what her sons might say respecting the true state of their accounts, she ■could give them what she pleased on any consideration she pleased. When she made the will she knew and understood the business in which she was engaged, the manner in which she w;as disposing of her property, the nature and extent of her estate, and the claims of those who were entitled to participate in her bounty, and it is too elementary to require the citation of authorities that parol evidence can not be employed to contradict ■or add to or take from plainly expressed provisions of a will. When once fixed by clear recitals of the will ■the sums to be deducted from the plaintiffs’ share of the estate could not be varied by extrinsic evidence of any amount or character. The plaintiffs may feel that it would be to their credit to show that their mother was mistaken. Since, however, she deliberately expressed her conclusion concerning the disputed matter in the will, it can not be made to speak a different language. To do so would be to insert in the will gifts of $8000 and $7400 respectively, which the will expressly withholds. “Under the rule that parol evidence cannot be employed to vary or add to a will, it is incompetent to show by the declarations of the testator or other extrinsic evidence that the testator has by his own mistake or that of some other person given a legacy of less value or of a different character from that which he in fact actually meant to give.” (2 Underhill on The Law of Wills, § 912.) It was open to the plaintiffs to show that the will was the product of a mind unduly influenced. To do this .it was necessary to prove that the testatrix was under such compulsion or coercion as to destroy her free agency, overcome her power of resistance, and oblige her to adopt the will of the Pitzers instead of exercising her own. There is no evidence in the record of this character. The will was drawn by Mr. Houston Whiteside, of Hutchinson, who related the circum stances in testimony abstracted by the defendants as follows: “That he lives at Hutchinson, Kansas; that he has lived in Kansas for forty years; that he has lived in Hutchinson all that time; that he is an attorney at law, and has been engaged in the practice since 1872. That, a few years ago, he practically retired from the practice of law. That he was acquainted with Mary A. Hopper during her lifetime; had known her about thirty years; that he was acquainted with her husband, W. T. Hopper, and that he became acquainted with him about the same time; that he got acquainted with him after he came to Kansas; that he was quite intimate with Mr. Hopper, and knew his folks very well; that they were, in fact, what you might call very good friends; that lie knew the whole family; that he was distantly related by marriage to W. T. Hopper; that they claimed kind of a kinship, and probably from the fact that they were born in the same locality, and had this connection by marriage of kin-folks, that they claimed a little kin with each other; that they both came from the state of Tennessee; that he sometimes acted in the capacity of an attorney for W. T. Hopper, and Mary Ann Hopper, but did not represent them exclusively; that he, at one time, paid a friendly visit to the Hoppers down in Pratt county; that he drew the instrument marked ‘Exhibit A,’ dated the 3d day of May, 1909; that he remembered the occasion of drawing the will; that Mr. Pitzer and his wife came with Mrs. Hopper to his office in Hutchinson; that he is not. quite sure but thinks that they reached the office in the morning; that he talked with Mrs. Mary Ann Hopper extensively on that day and that he afterwards dictated the Will to his Stenographer, Miss Souders. “Q. Where did you get the information concerning the terms of this will, Judge? A. I got it from Mrs. Hopper. “Q. I will ask you to state, Judge, as near as you can, what the conversation was that took place between you and Mrs. Hopper there? A. The parties came to my office, as I stated and a general conversation ensued when they first got there as part of the greetings, you might say, and Mrs. Hopper said to me that she wanted to see me on a business transaction; on the drawing up of a will. This was the substance. She then proceeded to state how she wanted the will drawn. She said that her son Bud or Cicero had come into possession of and appropriated property that belonged to her and that in her opinion he was' indebted to her in the sum of $8000 but that he would not pay it and she could not get a settlement out of him and she was too old to go to law with him. She wanted to know whether or not this sum that she claimed of him could be inserted in her will, expressed so that unless he paid his part, it would be deducted from his share of the estate, and she also stated that her son, Gilliam, had had the use of property — I think more than one piece of property — but it was a large piece of property in Stafford county, for a number of years, and had paid nothing for the use of it, and that he was indebted to her, in her judgment, $7400.00, and unless he paid this amount to her, she wanted it deducted from his share of the estate, so that she would be just by her other children who did not owe her and who had not obtained property from her and refused to account for it. I told her she could have a will drawn up that way if she wished it done, and she told me that she wanted it done and I drew the will according to her wishes. Now the conversation was quite lengthy and my recollection now is that the dinner hour came on and we adjourned for dinner and met in the afternoon. Whether I dictated this before adjournment or after-wards, I can’t remember. In the afternoon the will was read over to Mrs. Hopper and witnessed and attested. “Q. I will ask you to state if she recollected and called to mind her children that day? A. She spoke of her children and she spoke — seemed to be anxious to convince me that she was not trying to do an injustice to the boys, but wanted to do justice by the other children. “Q. You may state to the jury whether or not you received any dictation from Mr. and Mrs. Pitzer, on that day, concerning the terms of the will. A. I received no dictation from them. I even do not recollect whether they said a word about the contents of the will or not. I talked with them some when they came in this general conversation and may have addressed them some questions but I have no recollection of doing so. This meeting was somewhat lengthy-.” Manifestly the question whether or not the testatrix was mistaken in her opinion and judgment respecting the indebtedness of her sons to her had nothing to do with the question whether or not she was a free agent. If the views expressed to the scrivener and embodied in the will were her own views, it was of no consequence that on a trial the facts might be made to appear otherwise. If she was so far dominated by the Pitzers that she was not a free agent and was compelled to reduce the bequests to her sons because it was the will of the Pitzers and not her own it made no difference what the excuse given for the reduction was or whether the amount were $1 or $10,000. The stenographer to whom the will was dictated testified that Mr. and Mrs. Pitzer gave directions as to what should be put in the will, and that the testatrix referred to them concerning the indebtedness of the plaintiffs, but she testified that Mr. Whiteside got the facts and information from Mary Ann Hopper, and related no circumstances indicating that the testatrix was under any improper restraint whatever. If this were all the evidence on the subject it would not be sufficient to warrant an inference that the testatrix was overborne and rendered incapable of acting upon her own motives. “To vitiate a will there must be more than influence. It must be undue influence. To be classed as ‘undue/ influence must place the testator in the attitude of saying: ‘It is not my will but I must do it.’ He must act under such coercion, compulsion or constraint that his own free agency is destroyed. - The will or the provision assailed does not truly proceed from him. He becomes the tutored instrument of a dominating mind, which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and by overcoming his power of resistance impels him to do what he would not have done had he been free from its control.” (Ginter v. Ginter, 79 Kan. 721, 725, 101 Pac. 634.) The Pitzers testified that they did not participate in the preparation of the will, and Mr. Whiteside’s testimony has been set out at length. The result is that no evidence was either offered or introduced of a character to vitiate the finding that the will was not the product of undue influence. It was open to the plaintiffs to show that the will was the result of fraud practiced on the testatrix. Fraud is a species of undue influence, but undue influence may be exercised otherwise than through fraud. If, therefore, the mind of the testatrix was so perverted by deceit or other sinister means that she lacked power to give expression to her true desires, provisions of the will procured by such influences were void notwithstanding the fact that she possessed capacity to make the will and was under no coercion. “A will procured by lying is no less invalid than a will procured by violence.” (1 Underhill on The Law of Wills, § 152, p. 218.) On this branch of the controversy proof that the <elaim made by the testatrix against her sons in the will was unfounded might have become relevant. In order, however, to defeat the will on the ground of fraud it was necessary for the plaintiffs to show that the Pitzers made representations to the testatrix concerning the indebtedness of her sons to her, that they knew the representations to be false or made them recklessly, while she was ignorant of their falsity, that the representations were made with the purpose of influencing the testatrix, and that they did in fact influence her to make a testamentary disposition of her property disadvantageous to her sons. The plaintiffs had no proof of this character. They did not examine the Pitzers directly or produce any witnesses who connected the Pitzers with the will as the procuring cause of the provisions in controvérsy. The plaintiffs did offer to show, both by cross-examination of Pitzer and by the testimony of other witnesses, that on two occasions, after the death of Mrs. Hopper, Pitzer made the statement that the claim of indebtedness recited in the will was inserted on information which he obtained from records of mortgages and other instruments and by inquiry from tenants and others, and which he communicated to the testatrix. There are five devisees named in the will, besides the contestants, whose interests were affected. They could not be bound by the declarations of a person who was a stranger both to the will and to the action made after the death of the testatrix, and the offers were properly rejected under the hearsay rule. Declarations of Mrs. Hopper herself that she was unduly influenced or defrauded would have been inadmissible. (Mooney v. Olsen, 22 Kan. 69.) The same is true of declarations made by legatees or by executors (1 Underhill on The Law of Wills, § 163), and a fortiori of the volunteer statements of strangers. On cross-examination by the plaintiffs Pitzer was interrogated as follows: “Q. I will ask you, Mr. Pitzer, if you did not go around over the country in different places and go to the Register of Deeds office and look up lots of different items and enter them up in a book which you had, after the death of Mrs. Hopper ? A. After the death of Mrs. Hopper? “Q. Yes, after the death of Mrs. Hopper.” An objection was interposed and sustained on the ground that the question was not cross-examination. It did not relate to any subject developed by the direct examination and the time fixed was after the death of Mrs. Hopper. Pitzer’s conduct after her death could no more bind beneficiaries of the will than his declarations. It is not contended that the purpose of Pitzer’s cross-examination was to affect his credibility. The result is there was no proof that the Pitzers imposed representations of any kind upon the testatrix whereby she was induced to make the will, and whether the claims of indebtedness recited in it be well founded or not is of no consequence. The plaintiffs might have searched the Pitzers with reference to the origin of the will and the claim of indebtedness which it contains, but they carefully avoided the only legal pathway to that information; and if it had been admitted that the testatrix inserted an untenable claim in her will, fraud upon her and upon the plaintiffs would have been merely a matter of suspicion, conjecture, possibility and guess, which are not enough to overthrow a will. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634.) Any burden of proof resting upon Mrs. Pitzer because of the relation of herself and her husband to the testatrix was fully discharged. With the cause of action to set aside the will was joined another for partition. The plaintiffs were not entitled to a jury trial. The court had full power as an incident to partition to make the sums specified as due from the plaintiffs liens on their shares of the real estate. The finding of the court on a supplemental issue respecting the amount due from M. G. Hopper as rent is approved. The notice terminating his tenancy was sufficient notwithstanding the misdescription, and the conclusion that the purpose,to insist upon an ouster was not relinquished was justified by the facts. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Porter, J.: In an action for libel the plaintiff was awarded damages in the sum of $1230.33. From the judgment defendant appeals. The action was based upon a letter written by defendant which referred to plaintiff as follows: “Elmdale, Kansas, April 5, 1912. ‘■Mr. Randolph. “Dear Sir : As I have never met you, you may think I am impolite in writing to you; but, as you know, Fred Roniger lived in my house, and raised life stock; came here and represented himself to a farmer and all-'round stock man, but I found him no good for anything, only torturing stock. He could not do anything like a farmer. Could not plow a row of com, if he got ten dollars for it. But I found he could steal a good lick. I wrote him yesterday, but I am of the opinion that he will not answer. If so, I will send for him. I am in awful poor health, and not in shape to be annoyed by thieves. ... William McIntosh.” The defendant filed a plea of justification alleging that the matters stated in the letter were true. In a cross-petition he set up a claim of damages arising out of the alleged failure of the plaintiff to cultivate the land in a good farmer-like manner in compliance with the terms of the lease, and a further claim for the value of corn and other personal property belonging to him, which he alleged the plaintiff had carried away from the farm at the expiration of the lease. The reply to the answer and cross-petition was a general denial. The person to whom the letter was addressed was a stranger to the writer, and seems to have been a friend and acquaintance of the plaintiff. There were so many obviously extravagant statements in the letter that, taken as a whole, it carried its own antidote for the poison in the libelous statements concerning the plaintiff. Mr. Randolph testified that he knew the plaintiff enjoyed a reputation as an honest man, and that after studying the letter over he considered the source from which it eame; and. it is clear, from his testimony that his confidence in' the honesty and integrity of the-plaintiff was not affected by the letter. There was no attempt to prove any actual damages sustained by the plaintiff. This was not necessary, because the letter contained statements that were libelous per se, and the court rightly instructed- the jury that the amount of the plaintiff’s recovery should be left to their good sense and fair judgment. (Miles v. Harrington, 8 Kan. 425; Walker v. Wickens, 49 Kan. 42, 30 Pac. 181.): We are not prepared, to say that the amount is so excessive as to warrant the inference that it resulted from prejudice or passion of the jury. But it is sufficient' of itself to justify a quite careful scrutiny of defendant’s claims of error in the course of the trial. It appears that when the case was called for trial plaintiff’s attorney asked leave to amend the reply to show a settlement of the matters pleaded by way of set-off as evidenced by a check given by the plaintiff to the defendant, bearing upon its face the words, “final settlement.” The defendant objected to the amendment unless the case was continued over the term for the reason that he was not prepared at that time to try the issue of settlement. The court thereupon refused to allow the amendment to be made and the case proceeded to trial. The defendant admitted writing the letter, and the court held that he had the burden of proof. Upon cross-examination of defendant,, plaintiff’s attorney asked him whether he had made a final settlement with the plaintiff. Ah, objection was sustained to the question because it was not within the issues. When the plaintiff came to offer his testimony in rebuttal he was asked by his counsel if he had ever talked with defendant about a settlement of their matters. The de fendant objected. The court at this .time appears- to. have changed its ruling upon the admissibility-of evi-. dence showing a settlement and overruled* the objeck tion. Plaintiff was permitted over the defendant’s objections to testify to a settlement-with defendant and to introduce in evidence a bank, check- Tor ■ $4.50, drawn by himself to the order of the defendant, marked “Final Settlement.” The check was dated February 29, 1912, which was the expiration of his lease, and it was endorsed by the defendant and stamped-as paid-There is some contention by the- plaintiff -that the check was not offered for the purpose of showing a settlement but merely for the purpose of showing that some of the items in the defendant’s counterclaim or set-off were not in existence. The court, however, instructed the jury as follows: “A check has been introduced in evidence upon which appear the words, ‘Final Settlement’; as to this, the jury is instructed that if they believe from the evidence that said check was given by the plaintiff and accepted by the defendant as a final settlement of all the matters between them at the time said check was given, then the defendant can not recover for any items that were in existence at the time of such settlement; the question of whether there was or was not a settlement between the plaintiff and defendant at said time is entirely a question of fact, to be determined by the jury from all the evidence-in the case. The burden of proof is on the plaintiff to prove that said check was a final settlement between the parties when it was given.” - We think the court was right in its first ruling that a settlement of the matters could only be shown -provided it was properly pleaded. Bouvier defines “settlement”' as the same thing as “payment.” (See, also, 7 Words and Phrases, p. 6446.) It is the generál rule that proof of payment can only be made when the. issue is presented by proper pleadings, and that it is never admissible under a general denial. (Stevens v. Thomp son, 5 Kan. 305; Clark v. Spencer, 14 Kan. 398, 408; St. L., Ft. S. & W. Rld. Co. v. Grove, 39 Kan. 731, 735, 18 Pac. 958; 16 Encyc. Pl. & Pr. 180.) When his objections were overruled counsel for defendant stated that he was not prepared to meet the issue of payment; that he was taken by surprise at the change in the ruling, and requested á postponement, with a statement that if the case were continued, he could produce evidence to disprove a settlement-. The request was denied. , Manifestly it was error to admit evidence of a settlement and to submit to the jury a material issue not presented by the pleadings. It follows that the judgment must be reversed and a :new trial ordered.	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Per Curiam: The questions propounded to witness Scarth which were objected to followed his denial that he had ever been arrested for stealing. They ■did not relate to any proceedings of any kind brought ■against him, nor to his character, nor to specific acts of past conduct which would tend to disgrace or discredit him. The district' court was authorized to exercise its discretion over the limits of the cross-examination and to sustain the objections. The testimony of witness Loger was admitted for the purpose of impeaching witness Knorr, proper foundation for the impeachment having been laid. The testimony was admissible for the purpose for which it was offered, and the extent to which the jury might consider it was properly limited by the instructions. The assignments of error relating to the instructions are all hypercritical. The law of the case was clearly and fairly stated in as simple a manner as the nature ■of the charge permitted. The instructions were perfectly comprehensible by the jury, and there is no indication that they were misled. The judgment of the district court is affirmed.	[ 112, -24, -23, -65, 42, -31, 56, -104, 71, -91, 55, 114, 97, -46, -124, 35, -66, -69, 85, 51, 68, -89, 103, 65, -78, -5, 90, -43, -79, -21, -18, 29, 13, -72, -64, -11, 102, -120, -25, 92, -114, -121, -72, -54, -77, 112, 36, 55, 38, 15, -15, 86, -13, 42, 24, -53, 9, 40, 107, -7, -48, -79, -68, -115, 77, 5, -77, 38, -100, 69, -8, 46, -48, 53, 1, -8, 115, -74, -126, -44, 43, -85, 12, 102, 98, -127, 109, 97, 60, -88, 110, 46, -67, -89, 82, 80, 72, 109, -73, -33, 116, 32, 46, 108, -25, 84, 31, 100, 15, -49, -44, -77, -113, 32, -68, -110, -5, -111, 16, 112, -51, -14, 92, 118, 48, -101, -114, -70 ]
Per Curiam: The action was not one for the recovery of money. It was an action to rescind a transaction on the ground of mental incapacity, involving restoration on both sides, including money to the plaintiff, the cancellation of instruments, and other equitable features. Therefore a jury trial was properly denied. It is not practicable and would be unprofitable to discuss one by one the various assignments of error, although they have all been examined. Many of the objections to evidence which was excluded were well founded. Matters like the Texas trip, the condition of mind of Oswald E. Thieme’s mother, and his conduct on several occasions were investigated with sufficient fullness, and the evidence concerning them which was rejected would not have changed the result. The rulings relating to evidence excluded as not proper cross-examination were correct. Such evidence extended to matters and occasions not “directly connected with the facts testified to in chief.” . (Blake v. Powell, 26 Kan. 320, 326.) If, however, the testimony were regarded as important by the plaintiff, he should have made the witnesses his own, or asked later to open the case to admit the evidence as a part of his case in chief, or at least have presented the evidence to the court for consideration on the motion for a new trial. The last observation meets all the assignments of error relating to excluded evidence. It may be conceded that the court, might well have been more liberal in its rulings. Still, if the plaintiff believed that the rejected evidence ought to have been considered, and that if considered it would probably have changed the result, he should have gathered it up and presented it to the court at the hearing on the motion for a new trial when the court was finally determining whether or not the decision was wrong. (Civ. Code, § 307.) When this is not done claims of error in the exclusion of evidence at the trial are waived. The findings of fact cover all the essential facts in the case. The findings are not inconsistent with each other. Those upon which the plaintiff relies as showing an abnormal mental condition must be considered with others, such as findings 24 to 30, inclusive, and when so considered they, do not overcome and do not conflict with the very direct, positive and explicit findings numbered 38, 39, 40 and 41. The findings show that the court considered the evidence in the light of the law governing the case, which was clearly comprehended, and its conclusions are abundantly sustained. The case is one depending entirely upon the solution of a' question of fact. All the material testimony was oral. Its weight and credibility and the inferences to be drawn from it were matters for the trial court to determine. The court appears to have fairly and candidly performed its function as a trier of the facts, and no reason which the law deems sufficient appears authorizing this court to disturb the result. The judgment of the district court is affirmed.	[ -80, -8, -60, 62, 11, -32, 42, 26, 69, -87, 55, 115, 105, -38, 16, 45, -10, -83, 85, 99, -53, -77, 7, 19, -14, -105, -8, 85, 49, -19, -26, 92, 76, 112, -62, -11, 98, 72, -47, 80, -114, -108, -72, 69, -7, 112, 48, 39, 86, 31, 81, -98, -29, 42, 31, -57, 73, 44, 107, -75, 112, -80, -120, 5, 109, 0, -93, 22, 30, 39, -40, 44, -104, -79, 0, -88, 115, -74, -58, 84, 101, -119, 44, 98, 98, -111, 77, -19, -40, -120, 63, -73, 15, -89, -41, 64, -55, 101, -73, -1, 101, 16, 38, 120, -4, -35, 93, 108, 11, -65, -106, -93, -67, 116, -68, 33, -22, -103, 20, 112, -51, -16, 92, 20, 123, -101, -114, -105 ]
The opinion of the court was delivered by Porter, J.: The sole question in this appeal is whether the trial court erred in granting a new trial. The action was to recover the value of com and stalks in a field burned over by fire, alleged to have been caused by the negligent operation of one of defendant’s trains. The jury returned a general verdict for defendant. The court set the verdict aside and granted a new trial on the sole ground that the verdict was not sustained by the evidence. The plaintiff’s evidence showed that he was the owner of the premises and that the fire was set out by the train. This, under the statute, made a prima facie showing of negligence, and the burden of proof was on the defendant to rebut the presumption of negligence arising from the fact that the fire was caused by the operation of its trains. (Railroad Co. v. Chace, 64 Kan. 380, 381, 67 Pac. 853.) The railroad company claims that it overcame the presumption by showing that it had exercised ordinary care and diligence in equipping its engine with the latest approved appliances to prevent the escape of fire, and in operating the train in question. But unless we are able to say that the trial court abused its discretion in setting aside the verdict and granting a new trial, the ruling must be affirmed. The general rule, as stated in Swan v. Salt Co., 86 Kan. 260, 119 Pac. 871, and in numerous other decisions of this court, is that “where a general verdict is attacked as contrary to the evidence no judgment can be rendered upon it until it has been approved by the trial court.” (p. 262.) In K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 30 Pac. 108, the rule was stated in this language: “It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same.” (p. 12.) In Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518, it was said: “New trials ought always to be granted whenever, in the opinion of the trial court, the party asking for a new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice.” (p. 14.) In Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429, it was said that if the trial court “is not satisfied with the verdict and is convinced that it is clearly against the weight of the evidence; no duty is clearer than the granting of a new trial.” (p. 361.) This court will not reverse an order granting a new trial “unless error is clearly established with respect to some pure, simple and unmixed question of law.” (Sanders v. Wakefield, supra, syl. ¶ 1; Scott v. Stone, 72 Kan. 545, 84 Pac. 117; Railway Co. v. Fields, 73 Kan. 375, 85 Pac. 412; Cronk v. Frazier, 86 Kan. 879, 880, 122 Pac. 893.) “The allowance of a motion for a new. trial is largely in the discretion of the trial court, and should be reversed only for an abuse of such discretion.” (Manufacturing Co. v. Bowers, 71 Kan. 260, syl. ¶ 1, 80 Pac. 565.) Before we would be justified in reversing the judgment we must be able to say, as was said by the court in Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348, that “the- uncontradicted evidence ... all points to but one rational conclusion of fact, the one found by the verdict of the jury.” (Syl. ¶ 2.) In that case, speaking of the discretion of the trial court, it was said in the opinion: “The discretion of district courts in the matter Of granting or refusing new trials is a legal, not a capricious, one. It must be warranted by law and guided by established precedent. It may not be exercised simply because the judge might wish the verdict to be otherwise. The applicant, therefore, must show a legal reason for its exercise. The saying that it takes thirteen to render a verdict has passed to an adage, but can mean nothing more than that, in cases where conflicting evidence raises a substantial and serious doubt in the-mind of the trial judge of the correctness of the conclusion reached by the jury, he may interfere.” (p. 337.) Applying the foregoing well-established rules to the present case, our duty is clear. The trial court had the opportunity of seeing the witnesses and hearing them testify, which we have not; and, since we are not able to say that there is a clear showing that the trial court usurped the functions of the jury by arbitrarily setting aside the verdict and granting a new trial, the judgment must be affirmed.	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The opinion of the court was delivered by West, J.: The plaintiff recovered a judgment for injuries received while working at an elevator box in the defendant’s plant. The building was four stories high, and the power running the conveyor belt came from a horizontal shaft on the fourth floor which was so arranged that when the belt of the conveyor worked upon a pulley which revolved with the shaft the power was thereby transmitted, and in order to throw the belt out of gear it was necessary for a workman on the first floor to pull a rope reaching down from the fourth floor, the effect of which was to change the belt over to a loose pulley not revolving with the shaft. To put the belt in gear another rope was provided, by which the belt could be drawn back so as to run over the fixed pulley. The petition alleged, among’ other things, that the apparatus for starting and stopping the conveyor belt was defective in that it would start in motion after having been thrown out of gear “without any one having pulled the rope provided for that purpose, by reason of some defect in the machinery for throwing and keeping said belt out of gear”; that it was the plaintiff’s duty when the conveyor belt became choked to throw the belt out of gear and clean out the elevator box; that in attempting so to do he pulled the rope in the usual and proper way, and went to the elevator box and proceeded to remove with his hand the accumulated obstructions therein, and while so engaged, without any warning the belt started up, pulling the plaintiff’s hand forward and crushing it. The answer was a general -denial and plea of contributory negligence and assumption of risk. The instructions were brief and clear, and are not attacked by either party. The jury were told that if the plaintiff knew, or in the exercise of common and ordinary sense and judgment could have known, that the instant the obstruction was removed the belt would start in motion, then he could not recover; that the plaintiff’s claim as to defects was that the conveyor belt “would start in motion without any one having pulled the rope provided for that purpose.” The. jury returned a verdict for the plaintiff, and in answer to special questions found that he pulled the rope in the usual and ordinary way for throwing the machinery out of gear before beginning work in the elevator box; that the belt started in motion while he was engaged in cleaning out the box, without notice or warning. “Q. 14. Did plaintiff throw said drive belt out of gear before descending into said basement? A. Yes. Q. 15. Did said drive belt get into gear automatically after plaintiff went down into said basement? A. No evidence to show how it got back.” It was also found that the plaintiff stated to witnesses that he might have pulled the wrong -rope.- ■ The other, questions were answered favorably to the plaintiff- and were consistent with the verdict, with the .possible exception of a finding to the effect that the plaintiff was informed or had notice of the dangers and hazards of -the place “by observation,and another express finding that he assumed- the risks and hazards and perils of the place at which he was injured — which would seem to be a-matter rather for the court than for the jury. It was testified by experts that the belt could not automatically change-from the loose to the rigid pulley,- but other evidence, like a finding of the jury, was to the effect-that the drive belt could move from the loose to the tight pulley of its own-accord.- The defendant moved for judgment on the special findings, which being overruled, a new trial was asked for and denied. The defendant appeals and presses the point- that the plaintiff did not testify unqualifiedly that he knew the belt was out of gear before he went to -the basement,' but a fair interpretation of his answer on direct and cross-examination is-that he pulled-the proper rope which was provided for the purpose- of taking the belt but of gear, and which he assumed would have that effect, having no reason to think otherwise. -He did say-he had knowledge two weeks before that if- he pulled it out of gear it might itself work back into gear. We think the candor of the plaintiff was- not only - commendable, but that it did not weaken the force of his testimony or make it less convincing than a positive assertion of actual knowledge that the belt was out of gear. It is also emphasized that ■ before ■ a recovery-could be had the jury must believe that a defect existed yn the mechanism for shifting the -belt, by reason whereof the latter would start, in motion-without -any one having pulled the rope provided for that purpose, that is, of its owp accord, automatically, - and that the -answer to ■question No. 15, “no evidence-to show how-it got hack;” leaves the-matter.-in the-situation of basing the verdict upon conjecture. While the use of the word “automatic” in the question is criticized by the plaintiff, we think the jury must have rightfully understood it to mean as Webster defines it: “Having an inherent power of action or motion; self-acting or self-regulating; not voluntary; not depending on the will'; mechanical.” (Webster’s New International Dictionary, 1911.) In other words, we think the jury understood the question and intended by the answer to say that there was no evidence to show whether the belt started' in motion mechanically, by reason-of some defect in the shifting gear, or by the application of human force. The minus quantity in this finding is represented by that portion of the allegation that the “conveyor belt, . . . by reason of said defect in said machinery hereinbefore set out, started up,” etc. It is impossible to discover in the findings anything which shows that the belt started on account of this defect, and not by reason of the rope being pulled by some one. The plaintiff testified that after he had pulled the rope and gone below to clean out the box, and had taken out about a bushel of obstructions, he ran his hand in under the belt and found a hail or' spike in thé cup of the elevator; “so I took my hand and worked that loose, and when I got my obstruction loose, the elevator started and, caught my hand.” This may have been one reason why the jury felt unable to state what started the belt in motion. While the defendant is not entitled to a judgment on the special findings, and while but for the answer to question No. 15 the general verdict might be reconcilable .with the other special findings, the entire conclusions of the jury leave the case in the condition of having found in favor of the plaintiff' while failing to find one of the essential- elements of his right- to a recovery. One ground of a motion for a new trial was that the verdict was contrary'to the evidence, and in the respect indicated this ground was well taken and the motion should have been granted. It was alleged and found that the defendant had not furnished plaintiff a safe place in which to work, but it is clear that the controlling cause of such unsafety was the tendency of the belt to shift from the loose to the fixed pulley, and in this instance it was necessary to prove that such shifting occurred without human agency. This — the very crux of the matter — the jury failed to determine. The judgment is reversed and the cause remanded for further proceedings in accordance herewith.	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The opinion of the court was delivered by Benson, J.: This action is to recover damages caused by eating tainted meat at the defendant’s home. The evidence shows that defendant Henry D. Jones was carrying on farming operations on a farm owned and occupied by his parents, with whom he lived. Needing help, Henry sent his father to the plaintiff, who was looking for work, to employ him. This was done. The plaintiff testified explicitly, and repeated the statement in substance, that David Jones employed him to work for Henry, who paid the wages. Defendants David H. Jones and wife boarded the hands for their son, Henry. After the plaintiff commenced working at the farm, David Jones bought a piece of beef in town, which his wife afterwards cooked. While apparently wholesome when purchased, it was tainted when cooked. The plaintiff partook of it and became sick in consequence. This is the ground of his action. It was not shown that David Jones or Henry took any part in cooking or serving the meat, or that they knew of its condition when prepared for the table. When Henry came to the table he found that the meat was tainted, and ordered it removed. The suit is against the father, mother, and son, jointly. It was alleged in the petition that the plaintiff was employed by the defendants. The answer admitted this, but the plaintiff testified that he was in the employment of Henry, and after he had rested his case, the defendants asked leave to amend the answer to conform to the proof, by alleging that Henry Jones alone was the employer. This was denied. Leave to amend a pleading during the trial is ordinarily a matter of discretion, but an amendment to conform to the proof should be allowed when a mistake appears and the amendment will not prejudice the adverse party. The plaintiff would not have been taken by surprise if the amendment had been allowed, for he gave the testimony which made it proper. It can not be claimed that he would have been prepared to prove the fact admitted, had the admission not been made, for such proof would contradict his own testimony. Conceding that the amendment ought to have been allowed, it must be determined whether its disallowance was prejudicial. This requires an examination of the grounds upon which the liability of the several defendants rests. Henry Jones having agreed, in addition to the stipulated wages, to furnish board, was liable for the negligent discharge of that duty, although performed through his father and mother, in the circumstances shown. The arrangement for board, as testified to by David Jones, was: “We all live at the same place, and when Henry has hands we board them at my table, and Henry pays for the hired girls. My wife has charge of the household affairs. The hands board at our-table. Henry directs the hands that work for him.. I don’t direct the hands. I own the farm we live on. Henry makes his home there.” On the same subject Mrs. Jones testified: “I furnished nothing for the board of the men. Henry pays for the board when he has hands there. He settles with us for the board.” It will be observed that the board was to be furnished at the family table, and Henry’s liability is not different from what it would have been had he furnished it by the help of servants in the ordinary way. The court instructed the jury that a verdict should not be rendered against any defendant who was not found to be an employer of the plaintiff. If this was a condition of liability, the proposed amendment was material. The relation of employer and employee, however, was not necessary to make any one whose negligence caused the injury liable for the consequences of his own wrong. While there was no contractual relation of employer and employee between David Jones and wife and the plaintiff, they were not relieved from the duty of exercising reasonable care in providing his food. Their liability springs from the wrong, and reaches to any person whom it might be reasonably foreseen would be injuriously affected by it. This principle is elaborately considered in an opinion by Chancellor Pitney in Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 Atl. 314, 19 L. R. A., n. s., 923. In that case the declaration charged the defendant, a meat packer, with having negligently and carelessly placed unfit and unwholesome meat in a can which in the-course of its business, was sold to a retail dealer of whom the plaintiff purchased it, and having partaken of it was made sick. On a demurrer the question was raised whether, in the absence of a scienter, any liability of Armour & Company appeared. The opinion discussed the question of implied warranty, and assuming that there was none, nevertheless held that the defendant was liable, because of the duty resting upon the manufacturer to exercise care that the contents of the cans which it put upon the market, to be sold for food and for domestic use, were in fact food fit to be eaten. The same principle applies here with equal force. David Jones and his wife provided and prepared food for those sitting at their table, and owed to them the duty, at least, to exercise reasonable care in this service, whether the persons for whom the food was intended were their employees or not. It was not necessary to the liability of David Jones that he should actively participate in cooking or serving the meat. He was engaged jointly with his wife .in furnishing the board, and is equally liable with her for negligent performance of the duty so undertaken. As liability does not depend on employment, it is immaterial whether the plaintiff was employed by Henry Jones alone or by all the defendants. It follows that the rejection of the proposed amendment was not prejudicial. Objections were made to the instructions because they did not distinguish the particular ground upon which each defendant might be bound. The observations already made sufficiently answer these objections. As the jury found that the tainted meat was negligently cooked and served, each defendant was liable for the resulting injury in the circumstances shown. For the same reason there was no error in overruling the several demurrers to the plaintiff’s evidence. Rulings relating to testimony are complained of but no error affecting the substantial rights of the defendants is discovered. While the instructions placed a greater burden on the plaintiff than the law required, the defendants have no just cause of complaint. The judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: The plaintiff, á salaried police officer of the city of Topeka, sued for fees as a witness in a criminal case prosecuted by the state. He was defeated and appeals. - ^ Section 1 of chapter 183 of the Laws of 1907 reads as follows: “No person holding any office or appointment under any county, city or other municipality shall be paid any witness fees in any case whatsoever when such person is a witness for the state of Kansas, county, city or other municipality when such state, county, city or other municipality is a party to said suit; nor shall any sheriff or his under-sheriff or deputies, or any constable, while attending court as an officer, claim or be paid any witness fees in such cases; provided, that this act shall not apply where such witness is required to attend court at a place other than where he resides or is employed.” (Gen. Stat. 1909, § 3674.) The contention is that the statute is unconstitutional and that a city official is denied witness fees in those cases only to which the city is a party. The constitutionality of the statute was affirmed in the case of Claflin v. Wyandotte County, 81 Kan. 57, 105 Pac. 19. In the same case it was held that the statute is one affecting the compensation of public officers and not one relating to witness fees, the legislative purpose being to cut off pay for attending court when recompense for the time consumed is made by way of official salary or fees. The statute governs in all cases to which the reason for its enactment extends. It is peculiarly applicable to police officers who may be called as witnesses in state cases. Although such offi-' cers are chosen by local municipal authority, the performance of their duties is not a matter of local concern only. They are not mere servants and agents of the city, but are appointed and act for the benefit of the public at large. They are essentially state functionaries. (The State, ex rel., v. Hunter, 38 Kan. 578, 583, 17 Pac. 177; Peters v. City of Lindsborg, 40 Kan. 654, 656, 20 Pac. 490; 1 Dillon, Municipal Corporations, 5th ed., § 103.) The plaintiff’s salary as a police officer fully compensated him for that portion of his time occupied in attending court as a witness for the state. The judgment of the district court is affirmed.	[ -108, -22, -92, 108, 25, 96, -73, -80, 89, -79, 36, 83, 105, 72, 17, 41, -22, 61, 52, 75, 68, -74, 7, 8, -94, -13, -39, -59, -5, 79, -16, -12, 77, 56, 74, -43, 39, 75, -123, -44, -114, 6, -87, -48, -48, 64, 48, 121, 50, 91, 49, -34, -5, 42, 16, 99, -52, 44, -37, -89, 48, 115, -114, -123, 126, 4, -126, 52, -98, -121, 88, 46, -104, 57, 64, 72, 83, -90, -126, -12, 37, -103, -120, 46, 96, 33, 60, -32, -88, -83, 46, -5, -97, -89, -107, 120, 74, 13, -106, -101, 109, 20, 7, -12, -13, 21, -97, 108, 3, -114, -116, -77, -49, 102, -126, -46, -17, 5, 16, 97, -54, -14, 94, 71, 50, 91, -83, -100 ]
The opinion of the court was delivered by Johnston, C. J.: This action was begun by the appellee, The National Supply Company, to recover from the appellant, the United Kansas Portland Cement Company, the sum of $947.50, the price of fuel-oil appliances which it was conceded were ordered by the appellant and furnished by the appellee, but for which payment has not yet been made. The order for these appliances was based on a verbal proposition previously submitted by Mr. Billow, an officer of appellee. It was claimed by appellee that under this proposition appel lant was to pay $1 per boiler horse power under builders’ rating, which amounted to $920 for the fuel-oil appliances, and $27.50 for the tank-car connection, which was a hose for unloading oil; that appellee was. to give the necessary supervision and instruction as to setting up the appliances; that these were promptly shipped to and received by appellant, and that plans, and blue prints were prepared by appellee for constructing the plant and its experts sent to Iola to supervise its installation, but appellant declined to have the work done. The appellant admitted liability for $27.50, the price of the oil-unloading hose, but denied liability to pay $920 for the remainder of the plant, alleging that they were ordered subject to its approval and its option to accept and use them. It further alleged that the equipment was not satisfactory and that it decided not to install them and notified appellee that the appliances were held subject to its order. Testimony was offered by appellant tending to show that the order to purchase--included expert .supervision and instruction without additional charge to appellant, and that it had notified, appellee of its desire to cancel the order for the appliances, and claimed a deduction for the services of experts in the installation of the plant. The jury found in favor of the appellee, and the court gave judgment in its favor for the purchase price of the appliances. Complaint is made of the charge given to the jury, and, first, of some general instructions as to the binding effect of a contract between parties and the liability-arising from its breach by one of them. These appear to be appropriate and free from error. The theories, of each party, as gathered from the pleadings and evidence, were presented in the charge to the jury. Special objection is made to an instruction with reference to a claimed deduction. for the services of experts in installing the plant, which were not rendered, and in which the jury were told that if they found “that such failure to. install plant and instruct. employees of defendant in the use of same was occasioned by the countermanding of the order by defendant which was acquiesced in by plaintiff,” then it would be their duty to find the reasonable value of the experts’ services and deduct the same from the price of the appliances. Attention is particularly called to the qualification making the acquiescence of the appellee necessary to a countermanding of the order. No material error was committed in the instruction. From the appellant’s own testimony it appears that the order for appliances was given and that they were delivered in accordance with the order. The superintendent of appellant gave his testimony, but made no claim that appellant was at liberty to accept or reject the appliances at its option. There was some dispute in regard to the agreement as to the expert supervision of the installation of the plant, but none as to the other conditions of the contract. The action was brought on the contract, which appellee had subsequently performed. The appellant was not at liberty to countermand the order after it had been filled nor to change or cancel the contract without the acquiescence or consent of the appellee. There was no complaint that the appliances delivered did not come up to the requirements of the contract, but the superintendent of appellant gave as an excuse for failure of appellant to install and pay that conditions had arisen since the purchase was made which rendered the installation of the equipment of no advantage to appellant, and he had therefore asked the appellee to take it back and use it elsewhere. The order had then been filled, the contract substantially executed, and the title to the appliances transferred. Appellant had no ground for rescission of the contract nor any right to repudiate ■ its obligations. As there was no right to cancel or change the contract there is little ground to complain of the statement that it could not be done without the acquiescence of appellee. It is true that appellee did not- supervise the installation of the plant, but that was not its fault. It did furnish the plans and blue prints, and went to the trouble and expense of sending two of its experts to Iola to perform that service. By refusing to have the purchased appliances set up the appellant made it impossible for appellee to perform that condition. It has been said: “A party to a contract who' prevents the performance of ány condition, can neither claim benefit nor escape liability from the failure of such condition.” (Mill v. Poper 29 Kan. 289, syl. ¶ 2.) It appears that the supervision was only an incident of the sale, and as it was performed so far as it was possible by appellee, the appellant, which prevented performance, can not take advantage of nonperformance. Aside from that, the appellant, in one paragraph of its answer, alleged that the service of expert supervision of the equipment by appellee was to be paid for by appellant; According to the testimony of appellee, which was evidently accepted by the jury, the agreed price of the fuel-oil appliances, outside of the hose, was $1 per boiler horse power, a computation of which made it amount to $920, and that was the award of the j ury for that part of the equipment. The admissions made by the officers and agents of appellant and the letters written by its treasurer tended strongly to support the claims of appellee and the finding of the jury. In view of the developments in the trial of the case the objections to rulings in the admission of testimony are not deemed to be substantial. The judgment is affirmed.	[ -48, 120, -8, -116, 14, 96, 58, -38, 117, -95, -89, 83, -19, -42, -108, 99, -41, 125, -44, 106, 119, -77, 3, 115, -42, -5, -15, -51, -79, 127, -12, -34, 72, 36, -54, -107, -30, -62, -59, 84, -54, 5, 105, -24, -7, 66, 52, 122, 118, 75, 81, -116, 115, 40, 25, -61, 109, 44, -21, 41, -63, -16, -86, -123, 77, 23, 50, 36, -98, 69, -56, 30, -104, -79, 32, -24, 115, -90, -62, -12, 39, -71, 9, 102, 98, 1, -123, -21, -4, -40, 14, -34, -97, -90, -112, 24, -93, 97, -74, -99, 116, 18, -123, 118, -9, 21, 95, 108, 3, -117, -12, -15, 15, 119, -98, 20, -17, -125, -112, 100, -115, -94, 94, 71, 50, -101, -113, -72 ]
The opinion of the court was delivered by Mason, J.: C. C. Epp brought an action against Charles R. Hinton and others, alleging that they had defrauded him by misrepresentations made as an inducement to the purchase of real estate. The plaintiff recovered a judgment for $14,500 and interest, as damages, and the defendants appeal. The transaction out of which the controversy grows was an exchange of lands, the plaintiff paying boot of $20,000 in secured notes, which passed into other hands. The lands conveyed to the plaintiff were situated in Colorado. The substance of his contention is that representations were made that all of the lands were irrigable, and that as to a part of them this was untrue. A jury was impaneled, but, by consent of the parties, acted only in an advisory capacity, returning answers to specific questions. These the court approved, making also additional findings, covering all the issues. In his petition the plaintiff asked that the contract for the purchase of the land be rescinded, and if this could not be done, that he have j udgment for damages. The defendants maintain that the petition was fatally-defective because it did not allege an offer to return the property conveyed to the plaintiff. The court found that a rescission of the contract was impracticable. The action then became one for the recovery of damages, 'thereby eliminating any question of the duty of the plaintiff to restore the benefits he had received. The defendants assert that the representations relied upon as amounting to fraud were not of such a character as to afford a basis for the action. Upon sufficient evidence, the court found these facts, among others: The plaintiff received valid water rights with reference to a part of the land conveyed to him; he knew he was not to receive a similar formal evidence -of a right to use water upon the remainder, but was. led to' believe that water was available for irrigating it, and that his ownership of the land entitled him to use the water. It is argued that under these conditions the question whether the owner of the land was entitled to water for its irrigation was not one of fact, but of opinion or law, and that a wrong statement with respect thereto could not amount to such a false representation as to constitute fraud. The question whether land is irrigable, in the sense that the owner has a legal right to water to be used upon it, necessarily depends upon the local law on the subject. It is said that a false representation as to a matter of law will not support an action for- deceit, because it is essentially an expression of opinion. (14 A. & E. Encycl. of L. 55; 20 Cyc. 54.) But the question — What is the law of another state? — is regarded as one of fact (Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652, annotated in 46 L. R. A., n. s., 174), and a misstatement concerning it may be actionable (20 Cyc. 54). We think the representations here relied upon could form the basis of the action apart from this consideration. The matter did not turn upon some general proposition — a naked legal question. There was evidence that the plaintiff was told that conditions existed that made it safe for him -to depend upon using-the water unchallenged, from the circumstance that it-had previously been used upon this land. As a practical matter this was a question of fact. The modern tendency — a wholesome one — is to restrict rather than extend the immunity of one who gains an advantage over another by purposely misleading , him.. (20 Cyc. 62.) The defendants argue that the plaintiff relied upon the results of his own investigation rather than on the representations made to him. This is essentially a question of fact on which the determination of the trial court is final. The contention is also made that there is no evidence that any false representations were made until after the plaintiff had signed a written contract binding him to take the land on the agreed terms. We find, however, that there was competent evidence that substantially the same misrepresentations were made as an inducement to the execution of this agreement. It was, therefore, proper to show that further deceit was resorted to in order to induce the plaintiff to carry out the contract. A further contention is that, even if the statements complained of were false, there is no evidence that the defendants knew them to be so. Whether or not there can be said to have been any direct testimony on the subject, the entire transaction was before the court, and we think there was room for a reasonable inference that the deceit was intentional. The court adopted as the measure of damages the difference between what the property conveyed to the plaintiff was actually worth and what it would have been worth if it had been as represented. Th,is is in accordance with the weight of authority (14 A. & E. Encycl. of L. 182; 20 Cyc. 132; Note, 123 Am. St. Rep. 776), and with prior decisions of this court (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562), although in some jurisdictions the recovery is limited to the difference between the actual value of the property and the price paid for it by the plaintiff. The latter rule merely protects the person deceived from suffering actual loss; the former, which is the settled rule in this jurisdiction, gives him the benefit of his bargain, and in effect forces the wrongdoer to make good his representations. The final complaint, and the only one which we find to be well founded, is that there was no competent evi-' dence to show what the dry land would have been worth if it had in fact been irrigable. There was no evidence on the subject unless it is to be found in testimony that in arranging the terms of the exchange it was put in at $125 an acre. In behalf of the plaintiff it is con tended that this should be taken as the presumptive value, and as the defendants made no showing to the contrary, the court was justified in basing its finding upon it. The price at which property is sold, or the value of property exchanged for it, is said to be evidence of value in an action for procuring its sale by false representations. (20 Cyc. 146; Fisk v. Hicks, 31 N. H. 535; Lovejoy v. Isbell, 73 Conn. 368, 47 Atl. 682.) Here testimony was given as to the rental value of the property parted with by the plaintiff, but not of its market value. When an exchange of property is being arranged the prices at which each item is figured will naturally be liberal, and perhaps it may be assumed that they will ordinarily be somewhat above the market value. As was said in Shidy v. Cutter and Fitch, Trustees, et al., 54 Md. 674: “The value put on property by its owner when exchanged for other property, is no safe or just criterion of its actual market value. In such transactions it becomes the interest of each party to estimate his property above the market price, and such is the common practice.” (p. 678.) We conclude that the probability of a just result will be promoted by a further hearing upon this single issue. The cause will be remanded in order that the parties may offer evidence as to what the dry land would have been worth, if its ownership had carried a right to the use of water for its .irrigation, the burden of proof being upon the plaintiff. If the decision is that it was worth $125 an acre, the original judgment will stand. If a different amount is found, the judgment will be modified accordingly. Neither party will be entitled to a jury as a matter of right, the original waiver being effective. Otherwise the findings and judgment are affirmed.	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The opinion of the court was delivered by West, J.: The defendant was charged in four counts .with the unlawful sale of intoxicating liquors and in the fifth with maintaining a nuisance, and was found guilty on all. A warrant was issued February 15, 1913, and on that day the defendant gave bond. On April 8 he filed a motion for continuance on the ground of physical inability to attend trial, testimony being received for and against such motion, which was overruled and the trial postponed until April 10. On the date last mentioned a change of venue was asked for on the ground of prejudice of the trial judge, and refused, whereupon application for continuance over the term was made on the ground of the defendant’s physical condition and for the further reason that the court in passing upon- the motion and the showing made for continuance used language prejudicial to the interest of the defendant and which.would tend to prejudice the minds of the jurors against him. This was also’ denied and the defendant was ordered to be arraigned. Objection was made by his counsel on the ground already referred to, and upon the ground that the defendant was unable to be present and plead and that the law did not authorize his attorneys to plead for him. The clerk was directed to read the information and the counsel were asked whether they would plead for the defendant, to which' it was replied that they had no right so to do, whereupon the court entered a plea of not guilty as to each count. Counsel also objected to the jurymen then in the box being sworn to try the case, and objected to going to trial upon the ground of the defendant’s inability to be present and plead or advise with his attorneys during the trial, and that all of the jurors then in the box except three had been present in the court room when the applications for continuance were presented, and had heard the affidavits and arguments and the remarks of the court. The objection was overruled and the trial proceeded. The defendant’s counsel cross-examined the state’s witnesses, but introduced no evidence after the state rested. On May 13 the defendant appeared in person and was sentenced by the court. He appeals and assigns as error the denial of the three continuances asked for, the denial of his motion for change of venue, entering the plea of not guilty in his absence, overruling his objections to. proceedings before incompetent jurors, and excluding and admitting certain evidence. Whether the three applications for continuances be considered separately, or together the record shows abundant ground both for granting arid for refusing. The evidence was very conflicting. A large number of physicians spoke from personal acquaintance with and examination of the defendant. Taking the testimony on his behalf alone, the court was justified in concluding that he was a physical wreck whose immediate collapse and dissolution might likely result from the excitement of a trial. Considering .only the evidence on behalf of the state there was equally strong ground for holding that the defendant’s claim of critical illness was recent in fact and fictitious in character.' The court having weighed all of the evidence found and said that the application was not made in good faith, and it is, impossible to find any error in this conclusion. The fact that the trial judge in denying the continuance stated its finding that the application • was not made in good faith but for the purpose of delay, after a charge by the county attorney that the defendant was trying to perpetrate a fraud, the defendant deems sufficient to require the change of venue applied for. It would seem from the recofd that much feeling was aroused over the case and the statement had 'been published, and that an order had been made to bring the defendant to court if necessary in an ambulance. To deny this the trial judge made and filed his own affidavit. He said from the bench that he had no personal acquaintance with the defendant and felt that he would not know him if he should walk into the court room; that he had no knowledge of the facts in the case- or of the case in any way and had no prejudice of any kind against the defendant. Certainly no one could know the state -of his own mind better than the trial judge himself, and feeling that he was free from prejudice he did not err in refusing to grant the change on a ground which his own conscience told him was not true. (The State v. Tawney, 81 Kan. 162, 105 Pac. 218, and cases cited.) Counsel cite certain decisions from other states to support the contention that it was error to try the defendant in his absence. However, our statute provides for that fully. “No person indicted or informed against for a felony can be tried unless he be personally present during the trial; nor can any person indicted or informed against for any other offense be tried unless he be present, either personally or by his counsel.” (Crim. Code, §207.) While in a literal' sense the defendant was present-by counsel, still it was by -counsel who were objecting and - protesting against proceeding in his absence. There is something so repellant to the sense of justice in trying a man in-his absence that the books offer few if any instances of á trial involving heavy fines and long imprisonment with the defendant not only absent, but with his counsel strenuously attempting to prevent such proceedings. In Kenworthy v. El Dorado, 7 Kan. App. 643, 53 Pac. 486, the defendant in a misdemeanor case was absent, and it was held error to take a forfeiture over the objections of his attorneys, who were present demanding a trial, which was not the case here. In The State v. Gomes, 9 Kan. App. 63, 57 Pac. 262, the defendant in a misdemeanor case with his counsel willfully absented himself from the justice court during the progress of the trial, and after the verdict of guilty had been received returned and urged that such absence was a ground for arresting the judgment, and it was held that the justice did right in overruling the motion and in sentencing the defendant. It was held in The State v. Way, 76 Kan. 928, 93 Pac. 159, that the right of a defendant to be present when the verdict is returned in a felony case is one which may be waived, and if he voluntarily absents himself the verdict of guilty may be lawfully received in his absence. Some authorities hold that the court may decline to recognize the withdrawal of the defendant’s attorneys for the purpose of preventing a trial, the defendant being absent, but if such withdrawal be permitted the trial can not proceed. (State v. Young, 86 Iowa, 406, 53 N. W. 272; 12 Cyc. 527; 14 Cent. Dig. Criminal Law, § 1467.) We have then this situation: The defendant was absent, which absence the'court on conflicting testimony found to be voluntary and unnecessary; he was in fact present by counsel, who, while protesting and objecting, nevertheless remained and cross-examined the state’s witnesses and did not withdraw or request permission to withdraw from the case.' Presumably they were present when the verdict came in, and as the defendant himself was present when the sentence was pronounced, we fail to see any prejudice caused other than by the fault of the defendant himself. While it is stated in the plaintiff’s brief that there is no evidence that any of the jurors who were impaneled to try the case were present when the statements were made by the court touching the character of the application for continuances, the record does show, however, that the language was excepted to' for' the express reason that it was made in the presence of a large number of the jurors, which would prevent the defendant from having a fair and impartial trial before the jurors then in attendance upon the term; also, after the plea had been entered by the court the defendant “by his counsel, objects and protests to the present jurymen now in the box being sworn to try the issues in this case, for the reason that they are disqualified to try the issues involved in this suit”; and “for the reason that said j urors, or a large portion of them, all except three, now in the box, was present in the court room at the time and times when the applications were made to this court for a continuance of this case, and said j urors heard the affidavits now on file and a part of the record in this case; that the said jurors were present and heard the argument in behalf of the state, in which said argument the action of the defendant was criticized, and in which argument the county attorney stated that the defendant was trying to impose and perpetrate a fraud upon the court and that the applications for continuance was not made’ in good faith. That said jurors were in the court rooms and heard the decision of the judge of this court upon the last application for a continuance and heard the remarks made by the court with reference to the postponement and continuance of the trial.” From this recital from the record and what was said upon the argument, We think it must be assumed that a part of the jurors did hear the evidence or. arguments and remarks of the court, and were impaneled to try the case after stating that they had not been disqualified by these matters. Just how his evidence and discussion of the question, taken together with the remark of the prosecutor and the expression of the court, could fail to affect the minds of any jurors present and affect them unfavorably respecting the defendant is difficult to see. It would seem that the situation was somewhat similar to that found in The State v. Hammon, 84 Kan. 137, 113 Pac. 418. It was there said: “Answers by these jurors to categorical questions, though doubtless intended to be truthful, are less convincing than the known nature and tendency of the human mind.” (p. 140.) But, as the examination of the jurors was not brought up and we are not advised as to what challenges were made or to what extent the defendant’s counsel sought to protect his rights in this matter, we are not able to say that any prejudicial error affirmatively appears. One witness who testified for the state was upon cross-examination asked concerning alleged sales of liquor made by him within two years next, preceding the trial, and his attention was called to alleged sales to certain named persons. Objections to these questions were sustained, and the defendant offered to discredit and impeach the witness and lay the foundation therefor by asking whether he had not within the last two years, in Cloud county, sold and delivered whisky to certain named persons and received and delivered shipments of liquors, which offer was refused. The theory of the defense was that if the witness denied such sales he could be impeached by proving them and showing his personal interest as a witness for the state, and that he was giving evidence upon the theory that it might cover up his own transactions. In answer to this the plaintiff asserts that the questions were not relevant to the issues and therefore could not be used in laying the foundation for' impeachment. The trouble is that they tended to bring into the case outside issues. It was the province of the jury to determine whether the defendant, not the witnesses,, had soid intoxicating liquors. (The State v. Ray, 54 Kan. 160, 37 Pac. 996.) Complaint is made that the court admitted in evidence exhibits Nos. 9 and 14, freight receipts for whisky consigned to Glasner and Barzen. No. 9 contained a direction to notify “Glasner and Barzen, A. Kemp,” and had indorsed on the back an order from A. Kemp for the shipment to be delivered to a drayman. No. 14 shows a consignment to Glasner and Barzen, “notify L. Berger,” with ah indorsement signed L. Berger to deliver to the drayman, who would pay all charges before it should leave the depot. The railway agent testified that these packages were delivered to the drayman, and the latter testified that he delivered them to the defendant, who gave him orders for various shipments to be delivered to him, the drayman, by the railroad company. It appears that the defendant had told the railway agent that Kemp was a clerk, and had about the same conversation with him regarding Berger; that both these men were clerking for Glasner and Barzen in Kansas City, and that the defendant stated he had received these shipments, or rather said in respect thereto, “You need not worry about that; that is all right.” It seems, therefore, that the consignments were addressed to the consignors, with directions to notify one of their clerks, who gave the order for delivery to the drayman, who turned the shipment over to the defendant, who received it and appeared to be satisfied with this method of doing business. We think these exhibits were competent. It is urged that the court erred in proceeding without the personal arraignment of the defendant, and that his counsel had no right to plead for him. Decisions are cited to the effect that unless the right to be personally present is expressly or impliedly waived a conviction can not stand, and that counsel can not con sent to an arraignment and plea in the absence of the defendant. Our statutes and decisions, however, settle this matter adversely to these contentions. Section 161 of the criminal code provides that in all cases when the defendant does not confess the indictment or information to be true, a plea of not guilty shall be entered, and the same proceedings shall be had in all respects as if he had formally pleaded not guilty. In The State v. Cassady, 12 Kan. 550, a failure to arraign and have a formal plea of not guilty entered, the defendant being present, was held insufficient to entitle him to a new trial in a felony case, and in The State v. Forner, 75 Kan. 423, 89 Pac. 674, it was decided that the defendant need not be personally present in a trial for misdemeanor provided he appear by counsel, and that the failure to arraign is not a sufficient ground for a new trial. Technically a plea of not guilty is a joinder of issue with the state, but the language of the statute referred to indicates that such issue is joined as effectually when entered by the court as when made by the defendant, and it would certainly be inconsistent to hold that one could be tried in his absence and if convicted have such conviction set aside, not because thereof, but because such absence was .not interrupted or preceded by his personal plea of not guilty. On the assumption that the defendant’s physical condition was as claimed by him he has suffered a great wrong. However, assuming and holding that the trial court’s decision of that matter was fully justified by the evidence, and therefore correct, it inevitably follows that the defendant has brought his trouble upon himself. The law can not be defeated and the orderly administration of justice thwarted by the willful and needless absence from court of one who is charged with a misdemeanor. A careful examination of the record, with all the points urged, fails to disclose any material error, and the judgment is therefore affirmed.	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The opinion of the court was delivered by West, J.: The plaintiff sued in 1910 to have a certain instrument declared a mortgage, for possession of the land covered thereby and for an accounting. He alleged in substance that in 1898 he was the owner of a tract of land in Republic county and a school-land contract in Jewell county, and was then indebted to his brother-in-law, John Shoesmith, in the sum of $4000, the note for which would be due in 1899 and which was secured by mortgage on the Republic county land; that about June, 1898, Shoesmith, who resided in Lena, 111., visited the plaintiff and his family at Nelson, Neb., and professing a desire to help the plaintiff, orally proposed to lend him $3800 more, take a deed to the land in ques tion and an assignment of the school-land certificate as security, and when a purchaser could be found for a part of the land and the plaintiff approved the sale Shoesmith was to deed to such purchaser the land so sold, the proceeds to be credited on the plaintiff’s debt; that Shoesmith was to have immediate possession of the lands and receive the crops thereon and credit their value on the plaintiff’s debt, plaintiff to have the privilege of paying any part thereof at any time, and when enough should be realized to pay Shoesmith the sum of $7500 with seven per cent interest thereon and for any taxes paid by him and for any sum expended in securing title to the school land a reconveyance was to be made of the part remaining unsold; that in accordance with such oral agreement Shoesmith loaned the plaintiff $3500, taking no note therefor, and the lands were turned over and Shoesmith received the crops, rents and profits; that Shoesmith sold forty acres of the Jewell county land in 1906 for $5000, which sum he retained; that upon taking possession of the land Shoesmith received $1200 worth of grain, and in May, 1899, plaintiff paid him $500 by bank draft; that soon after the transfer of the land to Shoesmith, and frequently thereafter, the plaintiff requested of him an accounting and settlement and reconveyance, which were promised from time to time; that once Shoesmith stated that he had already executed a deed for the Jewell county land and left the same at his office at Lena; that he died in 1909 without having made a settlement, accounting or re-conveyance. It was alleged that the debt had been overpaid in the sum of $8000, and the relief already indicated was prayed for; that the deed was made and accepted as security only. After various attacks by motion had been made to the plaintiff’s pleadings by the executor and the widow a demurrer to the second amended petition was filed, and after holding the same under advisement for some time the court sustained it, and from this ruling the plaintiff appeals. The execu tor of the will of Shoesmith, the widow, the plaintiffs wife, sister of the testator, and certain other beneficiaries under the will were made parties defendant, service being had by publication. Default was made except as to the executor, widow and sister. The latter, the plaintiff’s wife, alleged in her answer that the deceased had by will given her one-half of the real estate involved in this action. The will was probated in Illinois, where the testator formerly lived. In addition to the general demurrer, a separate demurrer to that part of the petition relating to an accounting was also filed and sustained. It is argued that the court had no jurisdiction of that portion of the action relating to an accounting, the parties defendant, with one exception, being nonresidents, and no personal judgment being possible as to them. As to the general demurrer, it is contended that the action is barred by the statute of limitations; that the debt not being evidenced by writing and no time set for payment, was payable on demand, which means at least within a reasonable time, and the action would be barred within three years therefrom. Also, that the action is barred' by the laches of the plaintiff, which it is stated had much to do with the sustaining of the demurrer. It is insisted that the court has no jurisdiction to consider the appeal, for the reason that a number of parties to be affected thereby are not brought in, and a motion to dismiss is pressed. But the statute requires only that a copy of the notice of appeal be served “on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial.” (Civ. Code, § 569.) Dismissal, therefore, can not rightfully be demanded. It is urged that the pleading is demurrable in so far as it relates to an accounting, as the estate and most of the devisees are in Illinois, and our courts can not control them. But the land is located here and the suit concerns the legal title and right of possession, and an accounting would be only incidental to the main purpose of restoring the land to the alleged owner, who would of course have to do equity, and would likewise be entitled to demand that those claiming the land under the will also do equity. At least the defendants who have appeared can not deny the jurisdiction of the court to take cognizance of the controversy as to them, though what final orders or judgment it shall make or render may depend on matters not yet disclosed. It is insisted that for various reasons the action is barred. But taking the allegations of the plaintiff as true, for the purpose of the demurrer, we have the undisputed averment that Shoesmith upon his own offer took the legal title to hold until repaid, and instead of a claim of ownership or denial of his trusteeship we find actual and repeated promises to reconvey which, taken at their face value, show a continued recognition and practical assertion of his trusteeship of the legal title, and so long as this state of affairs continued the statute would not run. This was decided in Hunter v. Coffman, 74 Kan. 308, 86 Pac. 451, which decision remains the unmodified rule. It was said: “Until there was a renunciation of the trust, or some declaration or act to manifest a claim to hold adversely, there could be no adverse holding. . . . The statute, it is clear, did not begin to run until the notice of the adverse holding or denial of the trust was given.” (pp. 310, 311.) While the numerous decisions cited by the defendants would apply in certain circumstances the rule in the Hunter case meets the situation presented by the plaintiff’s allegations, and must be followed. Lastly, it is argued that the action is barred by the plaintiff’s laches, and many authorities are cited. This is an equitable defense, which means that for the plaintiff to proceed at so late a date would be inequitable to the defendant, unfair or unjust. But how could the testator in this case, if living, argue that having repeatedly promised his brother-in-law to reconvey he should not be compelled to do so now; and of course the defendants, claiming under him, stand in his shoes. If, as alleged, the requests for and promises of a re-conveyance were made over and over again each operated as a notice or reminder'to the testator that the plaintiff was claiming the right to a reconveyance— the legal title — and under the rule laid down in Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098, there is nothing appearing on the face of the pleading in question which shows such laches as to bar the right of the plaintiff to proceed. It is suggested that the attempt to dispose of the property by will shows a claim of ownership. But the will appears to have been made only about one year prior to the beginning of the action, and on no theory could the action be barred in that length of time after assertion of title. It is also pointed out that by delaying until death and the legislature having taken away one witness and made another competent the plaintiff' has secured an undue advantage, and his allegations are-deemed by the defendants unreasonable and unbelievable. But of course allegations are not proof, and upon a trial the real facts, whatever they are, will doubtless, be disclosed. But taking the allegations as true, we hold that they state a cause of action, and the judgment is therefore-reversed and the cause remanded for further proceedings.	[ 81, 106, -76, 29, 26, 96, 43, -102, 106, -95, -92, 91, -21, -116, 13, 109, 35, 13, -48, 106, 102, -77, 82, -31, -112, -77, -47, -51, -79, 72, -12, 87, 76, 48, 74, -107, 102, -62, -63, 20, -114, 4, 41, 76, -39, 64, 52, 99, 50, 75, 113, -82, -13, 43, 60, -61, 109, 44, -21, -71, -103, -8, -102, -105, 125, 23, 17, 39, -102, -123, 72, 40, -104, 49, 4, -24, 83, 54, -58, -12, 73, -119, 8, 102, 102, 50, 125, -17, 24, -104, 15, -66, -115, -90, -112, 88, -94, 104, -66, -99, 125, 16, 3, -10, -25, 13, 28, 104, 5, -98, -42, -125, -113, 56, -119, 67, -5, 7, 48, 112, -51, -94, 93, 71, 52, -101, -117, -40 ]
The opinion of the court was delivered by Burch, J.: In October, 1911, the defendant issued to the plaintiff a fire insurance policy covering .a farm dwelling house and bam. The policy contained the following provision: “Sec. 19. Vacant Buildings. If any building becomes ánd remains vacant for a period of thirty days the policy thereupon shall become void unless written notice of said vacancy is given to the company and its consent to a continuance of the policy is given by the secretary.” On August 8, 1912, the insured property was destroyed by fire. In an action on the policy the defense was that the house and barn remained vacant from March 1, 1912, to the date of the fire. The jury returned a general verdict for the plaintiff together with the following special findings of fact: “1. Was the dwelling house mentioned in the policy of insurance sued on occupied by a tenant at the time the policy was issued? Ans. Yes. “2. If you answer the foregoing question in the affirmative then state when said tenant moved out of said house. Ans. In March, 1912. “3. Was said house ever occupied as a dwelling by any one after the tenant so moved out of it ? Ans. Yes. “4. If you answer the preceding question in the affirmative give the name of the person who occupied it and state the time when he moved into it. Ans. In March, 1912. Geo. W. Robinson. “5. Where did the plaintiff live at the time of the fire? Ans. Living on the adjoining farm. “6. Did the plaintiff or any member of his family live in the house so insured at any time prior to its destruction by fire ? Ans. No.” Judgment was rendered in favor of the plaintiff, and the question is whether the verdict and findings are supported by the law and the evidence. The evidence is undisputed, and stated in another way, the question is whether it shows that the property became and remained vacant within the meaning of the policy. The plaintiff owned the farm on which the buildings stood, but lived one hundred and thirty rods away from them. It was his intention to improve the house somewhat and move into it in the fall of 1912. What he did is shown by the following testimony: “Q. Now, after the tenant moved out, I will ask how you did in the matter of occupying the premises? A. Well, we moved quite a bit of stuff in the house and we was there almost every day ourselves; had stock in the barn. “Q. What stuff did you move in the house? A. Well, household furniture of different kinds. “Q. What household furniture did you move in? A. Well, beds and a sofa and bed spring and stove and quite a bit of bedding and clothes;-clothing. “Q. Family wearing apparel? A. Yes, sir; and then a baby carriage was in there; I don’t know whether you call that furniture or not. “Q. About what was the value of the furniture you put in the house, would you say? A. Well, from one hundred to one hundred and twenty-five dollars. “Q. Worth of furniture? A. Yes, sir. “Q. Now, was this — when did you put this furniture in there, after the tenant moved out ? A. In March. “Q. In the same month? A. In the same month; yes, sir. “Q. Now, you say that you were there at the house frequently? A. Almost .every day; we farmed the place extra there. “Q. Oh, did you farm that land? A. Yes, sir. “Q. That the house stood on? A. Yes, sir. “Q. And was there almost every day? A. Yés, sir. “Q. Now, was the barn also occupied? A. Yes, sir. “Q. What was it occupied with? A. Well, there was some feed in the barn and a good share of the time there was a horse; one or more in the barn. “Q. You used it for a horse and feed barn ? A. Yes, sir. “Q. Now, when was you last in the building before the fire? A. I was in the building the day before. “Q. What time in the day? A. In the forenoon. “Q. What was you doing there? A. Well, the hired man and myself was fixing the eaves troughs to the ■cistern and fixing the troughs to our stock and the horses. “Q. Was any part of your family, to your knowledge, in the building the day of the fire ? A. No, sir. “Q. Or anybody employed by you so far as you know? A. Well, according to the hand he was in there that afternoon out of the rain. “Q. It had rained? A. It rained that áfternoon; yes, sir. “Q. Had there been anybody sleeping in the house there? A. No, sir. “Q. Immediately before that? A. No, sir. “Q. Nobody; nobody actually occupying it at all at the time of the fire; that is, I mean actually living in it; staying in it ? A. Living there, no; was n’t living right in the house; we was in the house using it every day. “Q. What you might claim as occupancy of it is' your going there from time to time? A. Using- it; yes, sir. “Q. And looking in? A. No, we did n’t look in; we was in there. “Q. Did you keep the house locked? A. Yes, sir; and ate more than one meal there. “Q. How long before the fire had you eaten a meal there? A. I don’t know; been over a week or two; I could n’t say to the day.” “There was somewhere near half a ton of hay in the barn at the time it burned. There was probably from an eighth to a quarter of a ton of millet; part in the loft and part in the manger; it hadn’t been put in there but just a few days; it was prairie hay and millet; old hay. Live stock was in there right along, horses in there almost every day or night. There was one I kept in thére at nights up until just a day or two before, and she was in the pasture at the time, that night, and had a couple of colts in there. Could get there all the time. I kept this hay and millet there for the purpose of feeding this stock. I kept the colts there from the first of March till the fire. They was n’t in the barn all the time; either in the barn or in the pasture,’ up to the fire.” The views of the court respecting the law governing the case are expressed in the case of Insurance Co. v. Johnson, 69 Kan. 146, 76 Pac. 419. In that case a fire, lightning and tornado policy covered a farm dwelling and a double corn crib. The crib was destroyed by a wind storm. The house was not used or occupied at all and the crib merely had some unused farming implements stored in it. It was held that the vacancy clause of the policy should be construed with reference to its manifest purpose; that it contemplated the protection of a guardian of the premises, some individual in charge of them who would exercise a preserving superintendency over them; and that in view of the vacancy of the house and the use of the corn crib the policy was avoided. Applying the same rule to the facts of the present case a contrary conclusion must be reached. The court is not disposed to refine upon the terms “vacant” and “unoccupied.” Of course, they are distinct words having distinct meanings, but as applied to the subject under consideration it adds nothing to the thought to say that a house is “vacant and unoccupied.” Care and attention such as will naturally result in protection against the hazard covered by the policy is the matter in mind. This may exist although, contrary to the defendant’s contention, a building may not be actually occupied as a present place of abode. Without this a building may be vacant although, contrary to the plaintiff’s contention, it may be far from being empty of everything but air. In this case the premises were occupied by the owner for substantially all the purposes of a dwelling place except that sleeping there at night was deferred and meals were eaten there only occasionally. In view of the foregoing it is unnecessary to consider a question of waiver, to which much attention is given in the briefs. The judgment of the district court is affirmed.	[ -15, 124, -44, -83, -120, 96, 106, -40, 102, -119, 38, 91, -3, -62, 20, 45, -10, 41, -59, 74, -44, -93, 19, 3, -42, -5, 83, -59, -71, 93, -4, 94, 72, 32, -118, 87, -122, 76, -59, 92, 14, -115, -70, -27, -39, 80, 52, 91, 96, 79, 85, -101, -13, 46, 17, -61, 73, 40, 75, -67, -15, -7, -118, 6, 111, 22, -95, 39, -102, -121, 120, 12, -112, 53, -128, -8, 115, -74, -106, 124, 7, -119, 8, 38, 103, 49, 101, -17, -24, 25, 38, -106, 47, -90, 52, 24, -117, 8, -65, -103, 125, 16, -89, 110, -27, 85, 29, 100, 5, -121, -42, -15, -61, 106, -104, -113, -9, -125, 35, 113, -49, -86, 84, 69, 112, -103, -98, -4 ]
Per Curiam: This action was brought to recover $300 as the agreed price for breaking 150 acres of prairie sod land. The action was brought upon a verbal contract which provided, according to the evidence, that the appellee should break 160 acres of land for the appellant in the spring and summer of 1910 and should plant as much of the land to sod corn as could be planted in proper season; that on September 1,1910, appellee was to have the option to accept the sod-corn crop as compensation for the breaking of the land that had been planted to corn or to have $2.50 per acre for all the land broken and planted to corn and $2 for the land broken and not planted; that it was verbally agreed that the appellee should lease the land for. wheat to be sown in the fall of 1910. It was alleged that on February 19, 1910, appellant prepared a written contract and procured appellee to sign the same; that by mistake and oversight on appellee’s part and by fraud or mistake on the pait of the appellant the instrument failed to express the true contract, verbally agreed upon by the parties. A copy of the written contract was attached to the petition. By its terms the appelleeagreed to break the entire quarter section described and to plant the same to corn, the breaking and planting to be done in the proper season of 1910, and that the consideration appellee was to have for the breaking was the sod-corn crop. The appellant, in answer, denied all facts not expressly admitted, admitted the execution of the written contract, alleged that it fully and completely stated the agreement between the parties, alleged that the only consideration agreed upon for the breaking of the land was the sod-corn crop to be planted thereon by the appellee, and that appellee failed and neglected to plant the corn on any of the land broken as agreed upon, and appellant prayed for judgment for costs. A jury was impaneled to try the case. Evidence of a surgeon was introduced that on the day the contract was executed he had attended the appellee for a dislocated shoulder and had set the shoulder; that appellee seemed to be in great pain; that he was with the patient about an hour and left him suffering and in a nervous condition. Appellee testified that on the day previous to the execution of the contract he had been thrown from a horse and had his shoulder dislocated; that he went to town on February 19, 1910, and had the shoulder set, and thereafter met appellant who asked him if he could draw up a contract that day and he said he could; that he told the appellant that he wanted the contract to be written so they would undersand it; that appellant said “All right.” Appellee testified, in substance, that appellant repeated the contract orally as they had agreed upon it; that they went into a bank and appellant wrote the contract; that appellee was standing by appellant a part of the time he was writing and part of the time appellee was walking around; that his shoulder pained him so he could not stand still; that appellee read a part of the contract as it was being written but did not read the entire contract; that at the time he signed the contract he believed it contained the provisions that the appellant had told him. • The appellant testified and gave a different version of the verbal contract, and testified, in substance, that the written contract was in accordance with the verbal contract. Some other witnesses testified but their evidence did not bear upon the question whether the appellee was in a condition, at the time of signing the written contract, to “read and understand it.” The case was submitted to the jury under proper instructions given by the court, the substance of which was that the appellee was bound by the written contract signed by him unless the jury should find that he was entitled, under the rules given them, to avoid it; that if the appellee had an opportunity to read the contract and was able to read and understand it at the time he is bound by it. The jury returned a verdict for the appellee and, while the evidence is such that different minds might come to different' conclusions, we think there was evidence from which a jury might reasonably believe that the appellee was not in mental condition to read and understand the force of the con tract at the time he signed it. The trial court also seems to have come to the same conclusion and rendered judgment in accordance with the verdict. The judgment is affirmed.	[ 83, 104, -35, 13, -118, -96, 104, -102, 95, -23, -89, 95, -23, 23, -100, 33, -25, 45, 80, 120, 71, -77, 82, 67, -10, -13, -13, -51, 49, 109, -12, 85, 77, 24, -126, 21, -30, -64, -63, 28, -102, -124, -115, 108, -39, 98, 48, 63, 80, 77, 49, -114, -13, 34, 53, 79, 45, 40, -5, 41, -63, -24, -87, -124, 123, 3, -96, 70, -100, 33, -40, 78, -112, -79, 1, -56, 122, 54, -58, 116, 7, -103, 12, 102, 102, 17, 4, 77, 120, -120, 15, -98, -115, -90, -59, 88, 114, -28, -66, -100, 84, 84, 22, 126, -3, -51, 13, 96, 6, -122, -44, -77, -97, -24, -100, 67, -21, 43, -73, 81, -51, -90, 92, -57, 51, -109, -118, -79 ]
The opinion of the court was delivered by Mason, J.: Michael Leonard was in the employ of the Portland Gas and Pipeline Company, which furnished natural gas for fuel to the United Kansas Portland Cement Company. He was helping in a test of one of the meters through which gas was delivered, when an explosion occurred, causing him serious injury. He sued both companies, recovering a judgment, from which each appeals. The evidence may be deemed to have established these facts: The meter in question, with two others, was situated in a meter-house built by the cement company. Tests were made every thirty or sixty days. For this purpose what is called a “prover” was used, a funnel-shaped attachment about three feet long, through which the gas is passed as it comes out of the meter. The meter in question was so situated that if the prover was attached directly to it the escaping gas would be liberatéd within the house. For this reason an employee of the gas company had provided an “extension” about twelve feet long, to be used between the meter and the prover, so that the gas would be discharged out of doors. The meters were being tested on the part of the gas company by this employee, F. W. Ranger, assisted by Leonard. The operation was watched in behalf of the cement company by Merlin Boyd, who was accompanied, by another employee of that company, one Morrison. Ranger’s instructions were to conduct the test to the satisfaction of Boyd. Two of the meters had already been tested, the “extension” having been used in the operation. Boyd, in be-half of the cement company, objected to the use of the extension in testing the third meter, on the ground that the test so made would not be fair, it being a fact that a more accurate result is obtained by the use of the shorter connection. On account of Boyd’s objection, the extension was taken out and the prover connected closer to the meter — so close that the gas escaped inside the house. The operation had been in progress for some time when Boyd asked Morrison to tell David Callaway (another employee of the cement company) that he wanted to see him. Morrison left, apparently to perform the errand, and shortly returned. About five minutes later Callaway came to the door of the meter-house and lit a match to light a cigarette. The explosion followed. A reversal is asked upon the ground that the evidence neither shows a joint liability on the part of the defendants, nor a liability on the part of either separately. The jury found that the gas company was negligent in “not having gas meters installed in proper building.” This finding, in view of the pleadings and evidence, obviously meant that the meters should have been situated near enough to windows or other openings so that when the prover was in use the gas would escape into the open air. The jury found that the cement company was negligent in not using an extension to prevent the gas from escaping in the building, and in not using precaution to keep careless employees away from the house during the test. We think the evidence justified holding the gas company liable for a neglect of its obligation to use due care to provide its employee with a safe place in which to work. While the meter-house was constructed and presumably owned by the cement company, the gas company owned the meters and was in full control of the tests made of them. That they were upon the premises of the cement company did not relieve the gas company from the duty of using diligence to devise safe means of making the tests. (See cases cited in 26 Cyc. 1110, note 58, and Annotations 1901-1913.) It is argued that the finding of negligence on this ground is met by the fact that the gas company had provided an extension for conveying the gas out of the building. The answer to this is that this device was not a complete remedy, because it interfered with the accuracy of the test, and for that reason, upon the objection of the representative of the cement company, was not used. It may reasonably be said that it was negligence on the part of the gas company, in testing its meters, to allow the gas to escape in the house, unless it took some effective precaution to guard against an explosion. While the cement company was not the employer of the plaintiff, it was bound to use reasonable care for the protection of one in his situation. He was within the rule thus stated in Heaven v. Pender, L. R. 11 Q. B. Div. 503, and quoted in Aaron v. Telephone Co., 89 Kan. 186, 131 Pac. 582, 45 L. R. A., n. s., 309: “ ‘Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he- would cause danger of injury to the'person or property of the other, a duty arises to use ordinary care and skill to avoid such danger, (p. 509.) ’ ” (p. 189..) The defendants were engaged in a joint operation in which each had an interest — the testing of the meters. There rested upon them a joint duty to use due care for the safety of those employed in the work. (Fliege v. Railway Co., 82 Kan. 147, 107 Pac. 555, 30 L. R. A., n. s., 734; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032.) Having permitted the house to be filled with a highly explosive gas, it was incumbent upon them to exercise due care to guard against its ignition from any source that might be anticipated. It was a fair question for the jury whether the careless act of an approaching workman or visitor ought not to have been foreseen, especially in view of the message sent by Boyd to Callaway. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468, cited in Note, 32 L. R. A., n. s., 811; Luengene v. Power Co., supra.) In view of the character of negligence found the fellow servant rule does not apply. The plaintiff can not be charged with assumption of risk or contributory negligence, for while he knew the gas was being discharged into the house he was not bound to suppose that no precaution had been taken against its • being ignited. Errors assigned with regard to the instructions involve substantially the questions already considered. Complaint is made because the full pleadings were embodied in the charge. While the matter might perhaps have been condensed with advantage, it can not be said that any prejudice resulted. ' Complaint is made of the refusal of the court to submit six of the forty-nine special interrogatories prepared by the defendants. We conclude that two of these were immaterial, that three were substantially covered by the answers given to other questions, and that the remaining one is not of enough importance to justify a re versal. The jury were asked whether the injury to the plaintiff was caused by the failure to use the extension, and answered — “Partly so.” This answer is complained of as evasive. Possibly, however, the jury meant that the injury was partly due to that cause in the sense that the use of the extension was one of several ways by which it might have been prevented. The question was asked whether the extension, if it had been used, would have conducted the gas out of the house. The answer to this — “Partly so”- — -suggests a want of frankness, but may have been occasioned by a doubt whether some of the gas might not have escaped on the inside even if the extension had been used. The judgment is affirmed.	[ -16, 120, -36, -116, 8, 96, 122, -38, 97, -95, -25, 83, -83, -37, 5, 99, -109, 125, -44, 106, -48, -89, 3, 81, -42, -13, 49, -43, -79, 95, 124, -33, 76, 96, 10, -43, -26, 74, -43, 84, -50, 21, -87, -22, 89, 16, 38, 104, 52, 15, 113, -108, 115, 36, 25, -49, 77, 44, 107, 45, -45, -8, -94, 21, 77, 20, 50, 39, -106, 71, -8, 30, -104, -79, 32, -88, 114, -74, -64, -12, 39, -83, -96, -30, 98, 17, 21, -25, -18, -88, 31, -122, -113, -90, 48, 56, 43, 44, -105, -107, 106, 22, 38, 122, -14, 21, 95, 125, 16, -113, -88, -31, 15, 109, -104, -119, -49, -89, 20, 116, -51, -88, 92, 69, 114, 31, -50, -6 ]
The opinion of the court was delivered by West, J.: The plaintiff sued to enjoin the collection of a tax on three land contracts. The first was a bond for a deed which recited that the plaintiff and wife were held and firmly bound to one J. H. Duston in the sum of $54,000; that the parties of the first part had agreed to convey to Duston certain described lands for $25,000 to be paid, $1200 cash in hand, $3000 on furnishing abstract showing perfect title, $2000 March 1 of each year from 1911 to 1915, inclusive, and $11,000 on or before March 1, 1919, all deferred payments to draw six per cent interest payable March 1 of each year. On payment of $14,200 with accrued interest to the date of such payment a deed was to be given and a mortgage to be taken back for the balance still unpaid, to run five years and bear six per cent interest. Duston was to have possession on payment of the $3000 and to pay the taxes on the land from that date. It was stipulated at the trial that this was the only writing aifecting the land or the payment therefor, and that it was understood and agreed that the plaintiff “was to have no enforceable right or claim under the terms of the verbal agreement, or the bond for deed against the said J. H. Duston for any balance that might be unpaid by the said J. H. Duston”; that Duston “might at any time refuse to carry out the terms of the contract and make no further payment and forfeit the payments already made, in which case he was not to be held liable for any future payments,” and that he had made all payments that fell due under the bond prior to bringing the ae-' tion, and had paid all the taxes on the land. Neither Duston nor his wife signed the instrument. The second was termed a conditional agreement, by which Golden agreed to sell to one Strickland eighty acres of land for $2000, which Strickland agreed to pay, $500 cash and $150 with certain interest on September 1 of each year from 1910 to 1919, inclusive, with privilege of paying all unpaid principal at any interest date, all deferred payments to draw six per cent interest per annum until paid, payable annually. Strickland was to pay all the taxes and keep the improvements insured for the benefit of Golden. Payment of deferred payments, taxes and insurance was to be optional with Strickland, he to “be under no legal obligation to pay the same.” But if not paid promptly, then all deferred payments and interest to become at once due and payable, and if not paid on demand of Golden the premises were to be surrendered to him, time being of the essence of the contract. If all the payments were made a war ranty deed was to be delivered, but no title was to pass until all the conditions were fully complied with. The third .was practically identical in character with the second. The three contracts were dated February 21, 1910, September 1, 1909, and February 22, 1907, respectively. The court deemed them all taxable and denied the injunction, from which ruling the plaintiff appeals. The plaintiff argues that these instruments evidence mere options; that as he can not enforce them they do not show an indebtedness and therefore are not taxable. True, it was stipulated that he was to have no enforceable right against Duston “for any balance that might be unpaid” by him, but this does not show that he had no enforceable rights of any kind by virtue of the bond. Suppose Duston should stop paying and refuse to vacate, then Golden could put him off and keep all that had been paid, while until the payments ceased he would have an arrangement by which the taxes would be paid, more principal and interest would be coming due, and insurance would be maintained for his benefit. The situation is so nearly identical with that presented in Mc-Gregor v. Ireland, 86 Kan. 426, 121 Pac. 358, that much of the language there used would be applicable here. While the plaintiff may possess no right to proceed against Duston for a debt, he has the right to receive the payments of principal and interest, and the benefit of the payment of the taxes and insurance, and as he retains the title to the land until sufficient payments shall have been made to require a deed and a mortgage back, each payment increases the security and lessens the likelihood of Duston’s abandoning the contract and the land. In short, the plaintiff, by virtue of the bond, owns the right to receive all future payments, the right to retain those already made, and the right to dispossess Duston upon default. - What such a contract may at any given time be worth must depend on many things which the taxing officers should consider, but that it has a value and is taxable personal property can not be denied. (Gen. Stat. 1909, §§ 9214, 9215; Williams v. Osage County, 84 Kan. 508, 114 Pac. 585; McGregor v. Ireland, 86 Kan. 426, 121 Pac. 358; Motzner v. Bogan, 89 Kan. 496, 131 Pac. 1193; Harris v. Edwards County, 89 Kan. 661, 132 Pac. 206.) The other contracts are even more clearly taxable than the one already discussed. The judgment is therefore affirmed.	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Per Curiam: In this appeal from a judgment sustaining a demurrer to' a petition the plaintiff asks the court to review proceedings in other actions, but they are not set out or abstracted and therefore they can not be examined. Various documents are referred to in the abstract as exhibits, designated by letters A to H, but we have no information of the contents of the papers referred to. This is also true of a decree, motion, notice and various journal entries to which reference is made without stating their purport. In like manner a stenographer’s report of a trial is mentioned but no such report, or abstract of its contents, is given, nor is it stated how it was material to the hearing upon a demurrer to the petition. It seems from the argument that the plaintiff sought in this action to recover damages for alleged misconduct of a district judge, attorneys and others in other actions and proceedings, but the ruling of the learned judge pro tem upon the demurrer must be presumed to be correct in the absence of the petition or its substance and the grounds upon which it was challenged. No error being shown the judgment is affirmed.	[ -80, -12, -59, -100, -86, 97, 34, -82, 65, 1, 119, 115, -91, -62, -108, 47, -11, 59, 116, 107, -36, -73, 118, -61, -10, -77, -70, -44, -15, 95, -17, -16, 76, -80, -54, -107, 71, -126, -49, 84, -50, 7, -119, 77, -23, 96, 48, 51, 120, 15, 113, -9, -29, 44, -104, 66, -87, 44, 107, -93, -64, -72, -97, 13, 91, 3, 51, 55, -100, 6, -36, 10, -92, 57, 3, -20, 48, -76, -126, 20, 107, -71, 0, 114, -30, 33, 69, -23, -104, -120, 39, 106, 30, -90, -38, 9, 11, -93, -74, -67, 53, 64, 39, 106, -26, -123, 31, 102, 15, -114, -44, -73, -113, 116, -38, -61, -26, -77, 16, 84, -59, -110, 92, -49, 27, -103, -58, -102 ]
The opinion of the court was delivered by Porter, J.: Plaintiffs sued for a share of the profits in a real-estate transaction, and recovered judgment, from which defendant appeals. The plaintiffs are partners engaged in the real-estate business at Emporia. The defendant is a corporation organized under the laws of Nebraska and engaged in the business of buying and selling real estate. The petition alleges that on the 28th day of November, 1910, the defendant company purchased, for the purpose of resale at a profit, certain real estate in Lyon county, consisting of 1167 acres, and known as the Dwelle land; that immediately thereafter the defendant, by its president and secretary, entered into an oral contract with the plaintiffs by which the plaintiffs agreed to assist in the resale of the land and in showing the same to prospective purchasers, and were to receive as compensation a stipulated price per acre; that subsequently the oral contract was modified in writing, by which the plaintiffs were to receive for their services one-fourth of the profits of the resale over and above the cost of the land. Attached to the petition was a letter dated December 14, 1910, from the secretary of the defendant, in whieh it was stated that the company was willing to handle the Dwelle tract of land and allow the plaintiffs one-fourth of the profits over and above the cost. The cause of action is founded upon this letter. The petition alleges that in September, 1911, the defendant sold a part of the land, 831 acres, at a price which left a profit, one-fourth of which would amount to $2190.62. Plaintiffs remitted a portion of the amount claimed to be due and sued to recover $1995.62 and costs. The answer is voluminous, and sets out much correspondence between the parties, and matters which are of little bearing upon the real issues. The particular defense, however, to which it is necessary to refer is set out in the answer substantially as follows: It is claimed that Crawford Brothers were the agents of the defendant in the original purchase of the Dwelle land, and falsely represented to defendant that $37.50 per acre was the lowest net price to the owners which the plaintiffs were able to obtain, and falsely concealed from the defendant that they were at the same time acting as agents for the owners of the land; that the defendant believed the plaintiffs were acting solely in its behalf in the transaction; that in fact the real price at which the land was purchased was $35 per acre, and the $2.50 per acre additional paid by the defendant was divided between the plaintiffs and one of the owners of the land as a commission; that by reason of the false and fraudulent acts and representations of the plaintiffs the defendant was damaged in the sum of $2922.50, which was the difference in the price actually paid by defendant and the price which the owners received net to them. The defendant therefore asked judgment for that sum against the plaintiffs. The reply, in addition to a general denial, specifically denied that the plaintiffs’ firm or either member therof acted as the agent of the owners of the land in the sale to defendant. At the trial defendant introduced in evidence a receipt in writing, signed by each of the plaintiffs, which stated that the amount of commission due them for the sale of the land was $875.25, and acknowledging the payment of $500 of the amount; also checks from Dwelle to the order of Crawford Bros., endorsed by the firm, and aggregating $500. W. T. Crawford admitted that he was to receive this amount of commission from the owners of the land for services in the sale, but denied that his brother received any part of it except some that his brother borrowed from him. E. J. Crawford testified that a private arrangement existed between himself and his brother by which the latter, although his partner, was to represent the owners of the land in the sale, while he was to represent the defendant as purchaser. The explanation for both partners signing the receipt to Dwelle is that Dwelle recognized the firm in the transaction. So far as we are able to gather from the evidence, Hughes, one of the owners of the Dwelle land, knew nothing about any commission, and supposed the land was being sold at $35 per acre. The explanation of the secret arrangement by which one of the firm was to act for the vendors and the other was to represent the purchaser is far from satisfactory. The court in its instructions properly charged that in a transaction where a partnership acts as agent for one party, neither the firm nor any individual member can act as agent for the other party where the interests are conflicting, unless it is done with the full knowledge and consent of both parties, and it is a presumption of law, that where an agent acts for both parties in the same transaction, such action is a fraud upon both principals, and that the burden of proof is upon the agent to prove absolute good faith on his part and to show that both principals were informed of every fact material to their interests, and that they freely consented to such double agency. That this is the law can not be doubted. On the trial plaintiffs sought to show that the officers of the defendant had knowledge that one of the firm was to receive, or had received, a commission on the sale, and the court charged the jury that if they should find from the evidence that defendant, through its officers, with such knowledge, agreed to pay plaintiffs a commission on a resale, then the defendant could not recover anything on the cross demand. We think there was no evidence sufficient to warrant submitting the issue of notice to the jury. The evidence relied upon was a statement by W. T. Crawford, that at the hotel in Emporia, on the evening before the contract was closed for the purchase of the Dwelle land, he had a conversation with the secretary of the defendant. He testified: “We were talking about getting in on the resale. . . . I told him that in taking that price that we wanted to be in on the resale . . . because I did n’t get much out of it.” In another part of his testimony he said he used the words “because I did n’t get much commission out of it,” and he testified that the conversation at this point was interrupted. What, if anything, was said in reply by the secretary of defendant is not shown, and from all the circumstances and all that was said there was not,. in our opinion, a sufficient disclosure of the facts to constitute the notice required in such a case. The law is well settled that the burden is upon the agent to make a full disclosure of his dual agency; and where he has acted for both he can not recover from either without a showing that each of the principals had full knowledge of all the circumstances and assented to the double employment. (Jeffries v. Robbins, 66 Kan. 427, 437, 71 Pac. 852, and cases cited in the opinion; Krhut v. Phares, 80 Kan. 515, 103 Pac. 117.) In Bell v. McConnell, 37 Ohio St. 396, it was said: "Of course, to relieve such double agent from suspicion that inconsistent duties have been assumed, which prima facie will be presumed, it is necessary that it should appear that knowledge of every circumstance connected with his employment by either should be communicated to the other, in so far as the same would naturally affect his action.” (p. 402.) In Lynch v. Fallon, 11 R. I. 311, it was said: “A broker acting at once for both vendor and purchaser assumes a double agency disapproved of by law, and which, if exercised without the full knowledge and free consent of both parties, is not to be tolerated.” (Syl.) (To the same effect see Raisin v. Clark, 41 Md. 158.) Another instruction is erroneous because the jury were told that if they should believe from the evidence that the plaintiffs honestly and in good faith believed they were entitled to receive a commission on the sale to the defendant, and without any intent on the part of either to deceive or defraud the defendant obtained such commission and retained it, the defendant would be entitled to one-half of the commission, provided the jury further found that there was some arrangement or agreement for a division of commissions earned on similar transactions. This presented a question with respect to another contract which was not strictly within the issues; and as worded was likely to mislead the jury into the belief that if the plaintiffs in good faith believed they were entitled to act for both parties, they might still maintain this action. A party will not be permitted to escape the consequences of his fraudulent conduct on the plea that he thought he was acting within his rights in a transaction contrary to sound morals and forbidden by public policy. In Smith v. Townsend, 109 Mass. 500, Smith, who was agent for the vendor, made an arrangement with the prospective purchaser to assist him in procuring the purchase of the real estate in consideration of which the purchaser was to sell to him a part of the property at an agreed price. It was held that no arrangement that he might make with defendant (the purchaser) in consideration of such double agency could be enforced. Contracts of this character are said to be contrary to good morals and sound policy because they tend to sanction an unwarrantable concealment of facts essential to a contract, and operate as a fraud on parties who have a right to rely .on the confidence which they repose in their agents. (Farnsworth v. Hemmer, 83 Mass. 494; Raisin v. Clark, 41 Md. 158; Rice v. Wood, 113 Mass. 133.) Ordinarily an agent to purchase can not buy of himself (but see Marshall v. Miles, 90 Kan. 161, 132 Pac. 1008, where an agent was permitted to recover a commission for a sale to a firm of which he was a partner where the contract with the owner was to find a purchaser for the land at a certain specified price). There are numerous decisions to the effect that knowledge alone is not sufficient, and many courts have ruled that knowledge and failure to dissent will not prevent the application of the rule that the agent for the sale of property can not at the same time act as the agent of the purchaser and thus become entitled to compensation from both. In Evans v. Rockett, Appellant, 32 Pa. Superior Ct. Rep. 365, it was said: “ ‘Nothing short of clear and satisfactory proof of an express agreement to do so should be regarded as sufficient for that purpose.’ . . . ‘He (the defendant) had a right to be silent, even if he knew that the plaintiff had undertaken to serve two masters, and intended to claim compensation from both.’ . . . ‘Rules of' law, such as that under consideration, intended to be preventive of the possibility of wrong, rather than remedial of actual wrong, should be rigidly enforced,, unless it clearly appears that the parties, for whose protection they were intended, have, with full knowledge of all the circumstances, agreed to waive their rights, thereunder.’” (p.'370.) (To the same effect see Rice v. Wood, 113 Mass. 133, 20 Am. Rep. 460, and Meyer and another v. Hanchett, 43 Wis. 246, 250.) E. J. Crawford admitted in his testimony that the price of the Dwelle land was to be “net” to the owners. At the same time he admitted that he knew before the sale that his brother was to get a commission. The correspondence between the parties shows quite clearly that the defendant supposed it was dealing in this transaction with the firm of Crawford Bros., and there is nothing in the evidence to indicate that the defendant knew anything of a secret arrangement between the parties by which one was to represent the owner of the land. Upon the ground that plaintiffs concealed their dual agency, the court should have denied them any relief. For another substantial reason, however, the action must fail. Throughout the trial the defendant contended that no cause of action for a share of the profits could accrue in favor of the plaintiffs under the express terms of the contract until all of the land purchased had been disposed of. The point was raised by an objection to testimony, by a demurrer to the evidence, a. request for a directed verdict, and by the motion for a new trial, upon all of which the court ruled adversely to the defendant. It appeared from the petition as well as from the evidence that only 831 acres of the 1167 purchased had been disposed of, and plaintiffs’ evidence disclosed a further complication from the fact that in the sale of the 831 acres the defendants had taken as part of the consideration a 200-acre tract of land in Nebraska at $150 per acre, and there was no evidence that this last-mentioned tract had been disposed of. It is quite obvious that there may have been a profit on a portion of the land sold and a loss sustained upon the part remaining unsold, and further that until all had been disposed of, including the 200-acre tract taken in exchange, it would be impossible to determine what, if any, profits accrued to the défendant upon the entire transaction; and it is equally clear, we think, that the contract sued upon is entire and indivisible. (See Note, 59 Am. St. Rep. 277-295.) The petition on its face showed that the action was prematurely brought; and the plaintiffs’ evidence only made that fact stand out with greater prominence. It is stated to be a general rule that “an action commenced -upon a contract before the expiration of the time fixed for performance is premature and can. not be maintained.” (1 Cyc. 742, and cases cited in Note 10; 16 Encyc. PI. & Pr. 878.) Plaintiffs could not maintain an action to.recover the profits until the whole transaction was closed or until the question and amount of profits could be ascertained. The general rule is that whether or not a contract is entire or indivisible is one of construction, to be determined by the court according to the intention of the contracting parties as ascertained from the contract itself and upon a consideration of all the circumstances surrounding the making of it. (Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305; Toher v. Schaefer, 91 N. Y. Supp. 3.) In Weber v. Clark, 24 Minn. 354, the defendant owned a farm of two hundred acres and agreed to pay Weber $100 if he would find a purchaser for it. Plaintiff found a purchaser for one hundred and seventeen acres of the farm, and Weber sued for the commission. It was held that he was not entitled to recover anything. In Broxton v. Nelson, 103 Ga. 327, 30 S. E. 38, the plaintiff obligated himself to build four houses and the defendant agreed to pay a gross sum therefor. The contract was held to be entire and not divisible. The word “profits” as applied to a transaction has a well-defined meaning, and as used in this contract must be construed to apply to the transaction in its entirety, that is to say, the net gains resulting from the entire purchase and sale of the lands; and we discover nothing in the evidence or from a consideration of all the circumstances surrounding the making of the contract to take the case out of the general rule or to indicate a different intention of the parties. It follows that the judgment will be reversed with directions to dismiss the plaintiffs’ cause of action at their costs.	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The opinion of the court was delivered by West, J.: The plaintiff levied execution on certain property to satisfy a judgment against the defendant. The latter claimed the property as exempt. The court found for the defendant, and the plaintiff appeals. The execution was levied December 26, 1911. On the 80th of the previous September the defendant’s mother had left the property to him by will. We have examined the testimony given by the various witnesses, from which different conclusions might be drawn, and also that of the defendant himself, from which different conclusions might likewise be drawn, but it can not be said that the decision of the trial court was hot supported by competent evidence. Among the things which go to lend support were the following: The defendant testified that he had lived on the property and had built a house in 1908, and his mother lived with him, she owning the lots \ which a small house had been built by him before the one erected in 1908; that he, with his family, was living on a ranch in July, 1911, but came to the house on the premises now in controversy in that month, while his mother was sick, and went back and forth waiting on her until he could leave his crop, when he came and stayed; that previously he had been living there in the winter and on the ranch in the summer, coming back in time to send his children to school; that he had considered the town of Sharon, where the property is located, his home and voted there for sixteen years, during which time he had not voted elsewhere or called any other place home. The wife testified that they were living in the house at the time of the mother’s death, and had been there continually for eight or nine weeks, and continued to live there until the 10th of October following, when they went back to the ranch, but leaving some of their household effects, intending, after they had finished their work on the ranch, to come back to the property in town, which she had always regarded as her home. There was testimony showing that the defendant had rented the house, except one room, and had attempted to arrange for a removal to Texas, but it was not clear that the property, if a homéstead, had been abandoned as such at the time of the levy. (Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; Randolph v. Wilhite, 78 Kan. 355, 96 Pac. 492; Shattuck v. Weaver, 80 Kan. 82, 101 Pac. 649.) While a different conclusion could have been reached from all the testimony or from that given by the defendant himself (Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Simmons v. Shaft, ante, p. 553, 138 Pac. 614), we are not authorized to change the one arrived at by the trial court, it being supported as already indicated. The judgment is therefore affirmed.	[ -63, 110, -43, 31, 10, -32, 42, -104, 112, -30, -92, 83, -55, -62, 20, 105, 122, 45, 84, 105, 85, -77, 23, -87, 90, -13, -111, -43, -79, 105, -10, 86, 76, 32, -54, 85, 38, 66, -61, 80, -114, 7, -119, 79, -56, 18, 52, 51, 54, 10, -127, -97, -13, 43, 28, -62, 105, 44, 75, 61, -111, -8, 26, -114, -49, 2, -109, 39, -68, -93, 104, 46, -104, 53, 0, -24, 115, 54, -122, 116, 121, -53, 44, 102, 98, 49, 93, -17, -24, -119, 15, 126, -115, -89, 16, 88, 2, 40, -66, -39, 125, 116, 14, 126, -20, 5, 92, 100, 15, -113, -42, -79, 5, 60, -102, 74, -29, -95, 33, 97, -51, -94, 92, 103, 123, -71, -113, -110 ]
The opinion of the court was delivered by Porter, J.: In the year 1902, the board of county commissioners of Ellis county attempted to lay out and establish a public road across appellant’s land, and for that purpose condemned a tract consisting of about one and one-half acres. The road was maintained as a public highway from that time until June, 1908, when, by a judgment of the district court, the proceedings for establishing the road were declared illegal and void. Sometime thereafter the plaintiff presented to the board of county commissioners a claim for damages, amounting in the aggregate to $4200. The claim was disallowed; neither the date when it was filed nor when it was disallowed is shown by the record. On the 28th day of April, 1909, she appealed to the district court. In April, 1910, the case was submitted to the court on an agreed statement of facts, and judgment was rendered in favor of the defendant and against the plaintiff for costs. On February 29, 1912, the case was appealed to this court. In March, 1913, it was dismissed, and afterwards reinstated. The case is perhaps more noteworthy by reason of its chronological history than because of any question of law or fact involved. It is part of a series of litigation which, considered as a whole, presents a striking illustration of the fact that it is still possible, under our code, for court proceedings to be delayed. “The law’s delay” had passed into a proverb in Shakespeare’s time; and the supposed existence of the evil is still employed as a foundation for more or less indiscriminate criticism of courts. Notwithstanding the fact that the final chapter in this litigation is not. written until almost twelve years have elapsed since the proceedings were taken for establishing the road, our decision is handed down one month from the time the case was submitted here. Unreasonable delays are possible under almost any legal procedure, but our experience is that when they occur the fault is seldom that of the courts. In the ordinary course it would be possible under our code to obtain a final determination of the question of the validity of proceedings to-establish a road within a few months from the time the proceedings were begun; and even if appealed to-this court a decision would usually be rendered within less than a year thereafter. We are not advised from the record what occasioned the delay of more than six years in having the illegality of the proceedings determined. It is agreed that Mrs. Thomas, in endeavoring to have the road vacated, and in defending herself in a criminal action wherein she was charged with obstructing the road as a public highway, expended the sum of $500. It is also agreed that the reasonable value of the use of the land taken and used as a highway during the years from 1902 to 1908 is $275. The sole question presented is whether the county is liable for damages, as claimed by the appellant. The judgment of the court was doubtless based upon a principle, which has the sanction of numerous decisions in this state, to the effect that counties are mere auxiliary agencies of the state and, like the state itself, are immune from liability on account of damages occasioned by the manner in which they either exercise or fail to exercise governmental powers. (Silver v. Clay County, 76 Kan. 228, 91 Pac. 55; Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817; Fisher v. Township, 87 Kan. 674, 125 Pac. 94.) In Silver v. Clay County, supra, it was said in the syllabus: “A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.” (Syl. ¶ 2.) In Downing v. Mason County, 87 Ky. 208, 8 S. W. 264, 12 Am. St. Rep. 473, it was sought to hold the county liable for unlawfully and negligently changing and obstructing the course of a stream by which the plaintiff’s lands were flooded. It was said in the opinion : “A county being but an arm or branch of the state government, it is no more liable to be sued for the neglect or tort of its officers than the state is for that of those in authority in it. The common law gives no such right, and it, therefore, can only exist by statute. There is none in this state! ■. . . The denial of the right may sometimes, and no doubt often does, result in individual hardship; but public policy demands it. It must be kept in view that the paramount object of the existence of a county is governmental; that it is, indeed, a part of the sovereignty itself. In view of this, and for its proper conduct, it has become a settled judicial rule, that no liability exists upon its part, unless it be authorized expressly, or by necessary implication by statute. Its general purpose forbids that it should otherwise be open to suit or answerable for the manner in which it either exercises, or fails to exercise its corporate powers.” (pp. 211, 212.) These principles are clearly applicable and decisive, and the judgment is affirmed.	[ -16, 106, -76, -50, 106, 66, 0, -104, 65, -93, -16, -45, -81, -62, 28, 113, 43, 109, 85, 123, -28, -94, 87, -32, 50, -13, -37, -33, -69, -35, -12, -41, 76, 48, -54, -107, 70, 72, 77, 80, -50, 23, -103, 76, -39, -88, 52, 59, 82, 79, 81, -82, -29, 42, 24, -61, -24, 44, -53, 58, -103, -16, -106, -123, 127, 6, -79, -122, -98, -121, -56, 46, -112, 49, 32, -8, 119, -90, -105, -12, 77, -103, 8, -90, 98, 1, 77, -17, -24, -103, 6, 118, 45, -90, 4, 16, -21, 65, 54, -99, 124, 80, 103, 126, -2, 69, 95, 44, 15, -117, -112, -79, -49, -76, -104, 1, -13, -91, 50, 113, -49, -10, 92, 98, 49, 27, 23, -80 ]
The opinion of the court was delivered by West, J.: The defendant, a druggist at Williams-burg, a town of about five hundred inhabitants, found himself in possession of a copy of a document indicating that he had ordered and given a promissory note for about fifty dozen packages of perfumes of various kinds amounting to $189.75. He notified the company that it need not ship the goods. The document mentioned is a composite affair printed in various sizes of type and containing along with other items a guarantee, a warranty, a list of things given free, and a blank order for the line of perfumes mentioned. Underneath the place for the signature to the order is printed in small italics this line: “The company is authorized, to detach the below agreement when this order is accepted and executed,” and immediately following this is a line of perforations separating the portion of the document already referred to from the remainder, which consists of a blank promissory note payable in installments. On this part of the paper, detached, this suit was brought by a bank which claimed to be an innocent holder in due course by purchase from the company which claims to have sold the goods to the defendant. The latter testified that the agent came to his store and said that he wanted the privilege of placing a line of toilet articles and perfumes on commission; that he would furnish a show case, and when the goods arrived would come and help display the goods therein; that he was not selling the goods and did not want the defendant to buy them; wanted him to take them on commission, and he would come áround every three months and check up what had been sold, which defendant should then pay for after keeping out his commission of 33% per cent; and having agreed to this the defendant was handed the document in question with the request that he would fix it up so that there would be no mistake about the matter and both would under stand it. Upon the defendant’s noticing the words “For value received, I promise to pay,” etc., and saying that he'did'notlike the looks of that kind of a contract the agent said “I will fix that all right, I will write in here the time when I come around to cheek you up; T will not put any amount in it because you are not buying the goods.” He said that the figures ¿t the bottom showing when the installments were due indicated the times when he was to come around to check up. The agent professed 'to be in a hurry to take a train for another town and requested the defendant to sign the document which the agent was to' fill out at his leisure. Without going into' details, the testimony clearly shows a skillfully planned and well acted deceit •by the agent and surprising carelessness on the part of the defendant. His signature appeared following the order arid also the note, so that an important question in the case was whether or not he bound himself by the latter or by his negligence estopped, himself from denying liability thereon as against an innocent holder in'due course. The jury found in his favor and the plaintiff appeals, complaining mainly of the instructions. The court charged, in substance, that if the defendant signed a blank promissory nóte understanding that the agent was to fill the same out, and it was so completed, and transferred' to the plaintiff, an innocent holder, the latter should recover, but that if he signed what the agent led him to believe was merely a contract for the sale of goods on commission without any intention of signing a promissory note, then such instrument when filled' out by the agent in the form of a promissory note would not bind the defendant even in the hands of an innocent purchaser unless estopped by his own negligence to deny liability; and the question of such negligence was submitted to the jury. The plaintiff insists that under the defendant’s own version of the facts in this case he was guilty of negligence as a matter of law under the rule announced in Ort v. Fowler, 31 Kan. 478, 2 Pac. 580. We are inclined to agree with this contention, but this instruction was apparently drawn to fit the allegations rather than the evidence of the defendant, and under the former the question of negligence could properly be submitted as one of fact. And while his own testimony showed such negligence as would estop him as against an innocent holder in due course, the error, if any, in submitting instead of declaring it to the jury worked no substantial prejudice in view of the result reached. The substance of section 21 of the negotiable instrument’s law (Gen. Stat. 1909, § 5267), touching an instrument signed in' blank and delivered to another for completion, was given and the jury were advised that this section applies only when the paper was understood by the signer and intended to be a blank promissory note. The plaintiff complains of this and suggests that this rests the matter on intention rather than on negligence and agency, but the language of the section is: “a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument.” And the delivery of the paper with one’s signature thereon in order that it may be converted into a negotiable instrument is certainly the same as if done with the understanding and intention that it is to be so converted. The jury were told in instruction No. 8 that if they believed from the evidence that the note was procured from the defendant fraudulently then the burden was upon the plaintiff to show that it was a holder in due course. • The instructions requested by the plaintiff were framed upon the theory that a signed blank note was delivered by the defendant to the agent and by the latter filled out so as to become a promissory note, but the court had to frame its charge to fit the peculiarly devised and constructed document used in this case, which instead of being a blank promissory note included such blank so connected with other printed matter and yet so easily severable therefrom as to put the entire paper in a different class from that considered in Ort v. Fowler. Indeéd authorities are cited by the def éndant which seem to hold in somewhat similar situations that severance amounts to a material change in the paper, destroying the negotiability' of the severed portion. Here, however, had the paper been filled properly' and signed uriderstandingly it would have shown on its face an order for goods to be paid for in installments, an agréement that all which should remain at the termination ’of the agreement were to be purchased back on certain conditions if the purchaser so desired, a warranty as to their quality, an agreement as to return and' exchange, and a note payable in installments preceded by an' italicized line in small print providing for its severance from the remainder of the documént. The difficulty' is not With this anomalous páper honestly used but with the condition brought about by its fraudúlent use. Whether the signature wás 'obtained solely by the fraud of the agent or by that together with the carelessness of the defendant, in either event the plaintiff 1 could not recover unless a holder in due course. From the counter-abstract and a statement in reference thereto it appears that the verdict was received in the absence of counsel for both sides, and with it were certain special questions and answers which though not signed by the foreman were delivered to and filed by the clerk. No. 3 was as follows: “Was the note now sued upon sold by the Fránklin-Price Company for a valuable consideration before maturity? A.' We do not know.” Under the repeated decisions of this court this answer was equivalent to “No” (Railroad Co. v. Swarts, 58 Kan. 235, 238, 48 Pac. 953; Hilligoss v. Railway Co., 84 Kan. 372, 114 Pac. 383), and the result' is a finding in effect that the plaintiff is not a holder in due course (Gen. Stat. 1909, § 5305). It seems that the questions were submitted at the request of the plaintiff, and the fact that they were not signed by the foreman of the jury does not under the circumstances shown preclude their consideration as a part of the récord of the proceedings in the case. It is complained that the verdict is against the weight of the evidence. The plaintiff’s testimony was that it purchased and received the note, detached, January 20, 1910, while the defendant ■ testified ■ that he saw the unsevered paper after November 8, 19,10, which would be after its maturity. This left the matter for the jury to determine, giving to the evidence such weight, and significance as they believed it deserved. In view of this finding, which with the general verdict presumably met the approval of the trial court, the plaintiff would not be entitled .to recover had the instructions, requested by it been given instead..of those which the court gave. . . The judgment is therefore affirmed.	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The opinion of the court was delivered by West, J.: The plaintiffs recovered a judgment for the death of their minor son caused by a shock of electricity received by touching a windlass attached to an electric light pole situated on the Fort Leavenworth Military Reservation. The defendant was under contract with the government to furnish the electric current for illuminating and small motor purposes on such reservation, such current to be furnished at such times and places and in such quantities as required by the service and as directed by the officer in charge. The current for arc lamp exterior lighting was to be paid for at a flat rate, and the company was to maintain transformers or regulators at its power house so as to furnish the proper power for the lamps in use, and to supply, maintain and trim all arc lamps used for street lighting. The electricity furnished under this contract, regulated by the transformers, was a current transmitted to the lamps upon the reservation, returning thence to the company’s power plant. The light pole where the injury occurred is located upon a thoroughfare or public highway and upon the reservation, near the intersection of this highway and one of the city streets. It appears that from one of the wires on the pole in question the insulation had worn off and the wire had become looped over an iron step on one side of the pole, and the chain of the windlass by which the arc light was raised and lowered coming in contact with such step became charged with electricity, and the deceased touching the windlass received the shock from which he died. An employee of the- defendant attended to the care and maintenance of the lamps, trimming them about once in seven days. He had the use of a crank with which to lower and raise the windlass but was not shown to have any further duty than the care of the lamps. He stated that if anything was out of order he informed the post elec trician, but there was no showing that he had any instructions so to do. Two principal contentions are made, first, that the action can not be maintained because the death occurred on the reservation, which is under the exclusive jurisdiction of the United States; and second, that having no contractual right to inspect or repair the equipment belonging to the government the defendant can not be held liable for a defect therein. Section 8 of article 1 of the federal constitution provides that congress shall have power to exercise exclusive legislation in all cases whatsoever over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings. The reservation in question was not acquired in this way, but jurisdiction was ceded by chapter 66 of the Laws of 1875 (Gen. Stat. 1909, § 4584). This act saved to the state the right to serve civil and criminal process within the reservation in suits or prosecutions for or on account of rights acquired, obligations incurred or crimes committed in the state but outside the cession and reservation. It saved also to the state the right to tax railroads, bridges and other corporations, their franchises and property, on such reservation. Jurisdiction of the state in criminal matters was asserted before the act of cession in Clay v. The State, 4 Kan. 49. Afterwards, in Ft. L. Rld. Co. v. Lowe, Sheriff, 27 Kan. 749, it was held that the state could tax railroad property on the reservation, and in C. R. I. & P. Rly. Co. v. McGlinn, 28 Kan. 274, this court decided that the railroad fence or stock law of 1874 was in force there. In Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, the decision in 27 Kan. 749 was affirmed, and it was held that on such reservation the buildings, appurtenances and instrumentalities used by the government will be free from any such interferences and jurisdiction from the state as would destroy or impair their use for the purposes designed, but when not so used the legislative power of the state over the places acquired will be as full and complete as over any other place within her limits, (p. 539.) It was also said that the cession of jurisdiction was not of exclusive legislative authority over the land except so far as necessary for its use as a military post. (p. 542.) In Chicago & Pacific Railway Co. v. McGlinn, 114 U. S. 542, the decision in 28 Kan. 274, was affirmed, and it was held that the cession of jurisdiction was not of exclusive legislative authority over the land except so far as necessary for its use for a military post, and that as when the cession was made the state law made railroad companies whose roads were not enclosed by lawful fence liable for animals killed or wounded, the act remained in force after the cession. It was said that this law was as necessary after the cession as before, and was no more abrogated thereby than “regulations as to the crossing of highways by the railroad cars, and the ringing of bells as a warning to others of their approach. . . . The liability of the railroad company for the killing of the cow did not depend upon the place where the animal was killed, but upon the neglect of the company to enclose the road with a fence which would have prevented the cow from straying upon it.” (p. 547.) An elaboration of the doctrine announced in the decisions already referred to may be found in Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604, and Divine v. Bank, 125 Tenn. 98, 140 S. W. 747. (See, also, Delamater v. Folz, [N. Y. Supr. Ct.] 50 Hun, 528.) The statute under which the action was brought was likewise in force before the act ceding j urisdiction was passed, and no reason is apparent, either in principle or upon authority, why if the defendant company was guilty of negligence in conducting its work upon the reservation it would not be liable. Railroads and other common carriers conveying passengers could hardly expect to escape liability for negligence occurring upon the land covered by the act of cession, such effect not being within the purview or purpose of such act. There are two theories and two lines of decisions touching the question of the defendant’s liability. One is that by the act of furnishing for use so dangerous a force as an electric current a party is bound to know that the poles and wires over which it is to be conveyed are in such condition that the furnishing of such current will not endanger life or limb. The other is that the one who provides and controls the apparatus and equipment over which the current is conveyed is bound to attend to their safety, and that its mere supply to such party does not render the party supplying it responsible for the condition of such apparatus and equipment. The cases chiefly relied on by the defendant in support of the latter, contention are Minneapolis General Electric Co. v. Cronon, 166 Fed. 651, 20 L. R. A., n. s., 816; Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S. W. 595; Nat. F. Ins. Co. v. Denver Consol. E. Co., 16 Colo. App. 86, 63 Pac. 949; and Fickeisen v. Electrical Co., 67 W. Va. 335, 67 S. E. 788, 27 L. R. A., n. s., 893. In the first of these cases the widow of the deceased sued to recover damages for a death caused by coming in contact with an electric wire suspended from the wall or ceiling of a blacksmith shop to which was attached an electric bulb for use in shoeing horses. When not in use the wire was hung on a nail driven into the side of the wall. The shop had caught fire and the deceased had entered and was trying to extinguish it when he lost his life. The inside wiring of the shop was done under an independent contract by the electric company three years before the accident and became the private property of the owner of the building. The use of the suspended wire was for his own convenience and the manner of hanging it on the wall was of his own selection. The company had no notice of the fact that the insulation had become worn where it rested upon the nail. It was held that when such wiring became defective by the act of the owner of the building, without notice to the company, the latter was not liable. In the opinion it was said, quoting from the Denver case (16 Colo. App. 86, 63 Pac. 949): “ ‘Where, however, they are only employed to deliver the current by connection with wiring already made by the individual who owns the property, it seems to us that their responsibility ends when the connection is properly made under proper conditions and they deliver the current in a manner which will protect both life and property.’ ” (166 Fed. 656.) In the Speers case the company contracted to furnish electricity for the illumination of a sign in front of a building but had no interest in or control over the wires or appliances by which the current was conducted thereto, and it was held not liable for the killing of the plaintiff’s horse by electricity escaping from such wires through a defect in construction or insulation. It was said: “It is true that electricity is a subtle and, unless controlled, a dangerous agent; yet we do not see how this fact fixes responsibility on this company when it simply furnished the electric current to the wires of Roberts, over which it had no control, and with regard to which there was on its part no duty of inspection, and when the record does not impute to it any knowledge of the defect producing the loss complained of.” (113 Tenn. 86.) In the case against the Denver Consolidated Electric Company (16 Colo. App. 86) suit was brought by a number of insurance companies to recover the amount they had paid to the depot company for a fire loss claimed to have been caused by defective wiring. It did not appear, however, that the electric company had anything to do with such wiring or its inspection or had made any agreement to keep the same in proper condition. It was simply to furnish the current for use in the equipment provided by the depot company. The defendant prevailed in the court below and the court of appeals affirmed the judgment. It was held that there was nothing to show that the company had any knowledge of the alleged defect in the wire or in its construction, and it was said that when a company is employed to deliver the current by connection with wiring already made by the one who owns the property its responsibility ends when the connection is properly made under proper conditions and the current is delivered in a manner which will protect both life and property. In the Fickeisen case (67 W. Va. 335) the electric company sold electricity to another company to be used in lighting the streets of an adjoining city, delivering the current at a point where the wires of the two companies met. The wire of the purchasing company conveying electricity along a street was grounded, resulting in the death of a person coming in contact therewith, and the furnishing company was sued. There the purchasing company owned the equipment and had a cut-off at the end of the bridge separating the two cities for the purpose of cutting off the current from its wires. It did not appear that the furnishing company assumed any control over the equipment, and it was held not liable, the court taking the view that the one company actually delivered the electricity to the other so that a title thereto passed, which can not be said to be true here. Four cases are also chiefly relied on to support the other contention: Maysville Gas Co. v. Thomas’ Adm’r, 25 Ky. Law Rep. 403, 75 S. W. 1129; Lewis’ Adm’r v. Bowling Green Gas Light Co., 135 Ky. 611, 117 S. W. 278; Hebert v. Hudson River Electric Co., 120 N. Y. Supp. 672; and Hoboken, &c., Co. v. United Electric Co., 71 N. J. Law, 430, 58 Atl. 1082. In the first of these cases a boy was killed by coming in con-’ tact with a charged wire connected with a trolley owned and used by a street-railway company, and the gas company was sued because it had furnished the current of electricity. It appeared that the gas company received a certain amount per month for supplying the current to the railroad company, and it was held, considering the character of the furnished product, there was a duty resting on each company to see that the wires through which it was sent were properly insulated. It was also shown that the streetcar company owned the dynamos and generators, and that the gas company only furnished the steam power by which the generator was operated. In the Lewis’ Adm’r case the gas-light company furnished the electric power for a private electric line extending beyond the city limits. One of the wires became sagged and the insulation worn off, and the plaintiff’s decedent, coming in contact therewith, was killed. The court said that the company could not escape its responsibility as the dispenser through the public streets and roads of such a deadly force, nor could it dispense with the duty of inspecting the wires to see if they were in proper condition, although the wires were not owned by it; that when it used the line it was its duty to see that they were in proper and safe condition, which duty required the highest degree of care to keep them safe. In the Hebert case the electric company was delivering the current over the wire in question to a power company so that the latter could in turn supply its customers for light, heat and power purposes. The place where the wire broke and the injury occurred was at a point on the line before the current had been delivered to the receiving company, and the furnishing company was held liable. In the case of Hoboken, &c., Co. a power company was called upon to install an electric meter in a certain building for the purpose of furnishing light. The company contracted with an independent and competent electrician to install the meter, and then began to furnish the current. Subsequently a fire started in the meter box, and an examination disclosed that the electrician was probably negligent in his work. The successor of the furnishing company was sued upon the theory that it was liable for negligence for transmitting its current through a “defective apparatus. It was held that it was the duty of the furnishing company to exercise -due- care and skill, either by installing apparatus by its own agent or in examination to see that it had been properly installed by others. The case of Thomas’ Adm’r was first reported in 25 Ky. Law Rep. 403, 56 S. W. 153, the decision already referred to, 75 S. W. 1129, being practically a reaffirmance of the former one. The Lewis case (135 Ky. 611) was decided by the same court. In the Speers (113 Tenn. 83) and Cronon (166 Fed. 651) cases the doctrine of the Thomas (25 Ky. Law Rep. 403) decision was disapproved. The Fickeisen case (67 W. Va. 335), decided by the West Virginia supreme ■court of appeals, was followed by the case of Perry v. Railway Co., 70 W. Va. 697, 74 S. E. 993, holding that there is no obligation upon a generating company that sells and delivers electricity to a distributing company to see that the lines of the latter company, over which the current is to be carried, are in safe condition. The decision and discussion in the Fickeisen case were ■expressly reaffirmed. In Sckmeer v. Gas Light Co., 147 N. Y. 529, 42 N. E. 202, 30 L. R. A. 653, it was held that before turning on gas for the benefit of tenants in an apartment house a gas company must use reasonable precaution to ■ascertain that the pipes in the building are in such condition that the gas will not flow out into the apartments of the tenants who have not applied for it, to their injury. The decision was by Peckham, J., and stated the rule to be that the gas company in making the delivery was not an insurer, but simply bound to exercise that degree of care which the nature of the article dealt in and the consequences to be apprehended from an accident reasonably called for; but it was stated that the court did not assume to say that when the piping had been carefully and thoroughly examined there was a continuing liability thereafter on the part of the company to see that it was kept in proper condition. It was said: “As the company has no control over the piping, •does not put it in, and is not consulted about it, the principle upon which it might be held liable, in cases of this character, at the time of the first delivery of gas, if no precaution were taken at all, is simply that it, would have the right to refuse to turn on, or permit others to turn on, the gas for the supply of the applicants until properly assured of the condition of the piping in other portions of the building. Having become assured of it, and the gas being on, it would not seem that the company ought further to be regarded as liable for the continuous good condition of the piping. Here we may justly say that to impose such a liability upon the defendant would clearly be unreasonable. It would render necessary the examination, at frequent intervals, of all the buildings in the city in which gas was used. This would be so onerous as to be practically impossible of execution, because of the expense to the company. The law ought not to, and does not, exact an unreasonable amount of care from any one. Under the restrictions, however, as above stated, we think the question of defendant’s negligence was for the jury.” (p. 541.) The jury found that the pole was erected and the wire steps and chain placed thereon according to the plans and specifications of the government of the United States, and had been in place about nine years; that no one' representing the defendant had any actual notice that the wire was caught over the step; that the current had been turned on less than an hour when the ■accident occurred; that the government employed a competent and practical electrician, who stated that inspection was made every two or three months, of the chain, pole and wires in question. The electrician testified that, according to his understanding, his assistant, who was in the habit of walking to and fro between the city and the reservation, was to keep his eyes open for trouble of the kind under consideration, and if found to repair if able, otherwise to report it. The engineer and the electrician from the military ■prison testified that the construction of the pole in question, including the location of its windlass and the windlass chain, was faulty. Numerous witnesses testified to seeing sparks at night, and it appears that a long time before the injury the pole in question had been on fire. It appears also that boys had been for some time in the habit of playing around the windlass, and receiving shocks by touching it. The jury found that the wire had been caught over the step about three days, and that the pole was on fire several months before the occurrence of the injury, caused by a current escaping from a wire through defective insulation to the step and chain. The defendant’s trimmer testified that he had been trimming the lamp about six years, and noticed nothing wrong with the poles and wires when he was there. Were the government suable in this kind of a case, its negligence would certainly be well established. Whatever right or duty existed to be assured that the equipment was in proper condition before beginning to furnish the current, the question of liability here depends on the duty of the company afterwards to inspect and see that such equipment was kept safe. An early and leading application of the doctrine that one must so use his own property as not to injure another was the decision in Rylands v. Fletcher, L. R. 3 H. L. 330, that where one brings upon his land by artificial means that which would not naturally come upon it, and which is in itself dangerous, and which may become mischievous to his neighbor if not kept under control, he will be liable for damages for any mischief thereby caused, and liable as an insurer. Thompson, in his Commentaries on the Law of Negligence, vol. 1, § 796, suggests that persons employing for their own private advantage so dangerous an agency as electricity ought to be regarded as quasi-insurers, as towards third persons, and that one who creates such agency on his own land should restrain it at his peril. The author admits, however, that the doctrine of Rylands v. Fletcher has not been followed in all the American jurisdictions. (See §§ 696-714.) The question of the defendant’s liability is a new one in this state and must be decided in accordance with established principles. Two of these principles are that one shall so use his own as not to injure another, and that the law demands only what is reasonable under the circumstances to avert such injury. The furnishing of electric current to distant places is a necessity of modem civic and industrial life, but it is in strict line with the dictates alike of law, moráis and humanitarianism that one who generates and sells this dangerous agency should use proper care to avoid resulting harm. When such power is simply furnished to a responsible party for use in a system of poles, wires and appliances owned and controlled by such party and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of defect therein it may justly and reasonably assume that such safety will be maintained; justly and reasonably, because the using company is presumed to act in accordance with prudence and safety until the contrary appears. The fact that in furnishing such power for arc lighting the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule, for such party has the same right as before to assume that the purchaser will act with due care. In order, therefore, to hold the seller liable it must appear that it continued to furnish and turn on the dangerous current after knowing that the purchaser had permitted the equipment to become defective. From the time of acquiring such knowledge the seller’s contract duty can not be required save on condition that such defect be remedied, for otherwise it must thenceforward furnish a dangerous force knowing that life and limb might be imperiled by reason of such defect, which neither a contract nor the law nor the common instincts of humanity could require of any one. The jury having found that no one representing the defendant had any actual notice that the wire was caught over the step, and there being no showing that the company had knowledge of the defect which caused the injury, the defendant is not liable. The judgment is therefore reversed and the cause remanded with directions to enter judgment for the defendant.	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The opinion of the court was delivered by Mason, J.: Daniel Mosier was injured while driving in a buggy across a bridge. He brought action against the county. A demurrer to his evidence was sustained, but the ruling was reversed on appeal. (Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162.) A second trial resulted in a judgment in his favor, from which the county appeals. Complaint is made of the overruling of a motion, to make the petition more definite. The trial court has considerable discretion in passing upon such matters. If the petition was more general in its terms than might be desired, the plaintiff’s contentions were necessarily developed at the first trial, so that on the second hearing the defendant can not have been seriously misled. The plaintiff had driven across the bridge proper and was upon the approach, when his horse took fright at a rock in the road, and backed the buggy against a guard rail, which gave way. The buggy, with its occupants, fell to the ground, a distance of about twenty feet. Among other contentions made by the defendant are the following: (1) the statute imposes an express duty on townships to maintain guard rails on certain bridges, but has no such provision concerning counties; therefore thé county can not be held liable by reason of a defective guard rail; (2) the chairman of the board of county commissioners did not have notice of the defect; (3) the defect was not the proximate cause of the injury; (4) the approach was not a part of the bridge, and therefore the county was not liable for a defect in the guard rail. These matters were all necessarily involved in the former appeal, and were there passed on. The defendant maintains that the question whether the approach was a part of the bridge should have been submitted to the jury. A line of decisions in Iowa sup ports the view that such a question is one of fact, and not of law. (Nims v. Boone County, 66 Iowa, 272, 23 N. W. 663; Newcomb v. Montgomery Co., 79 Iowa, 487, 44 N. W. 715.) But in the case in which the doctrine was first announced the court said of the structure there involved: “That this approach was a part of the bridge, there can be no reasonable doubt.” (Moreland v. Mitchell County, 40 Iowa, 394, 398.) In particular instances there might be differences of opinion as to j ust where a bridge ended. But, as was said in the former opinion, there is nothing substantial in the contention that the approach in this case was not a part of the bridge. The defendant also maintains that the county is not liable because, although it built the bridge proper, and undertook to keep it in repair, it had nothing to do with the approach, and was charged with no duty in that regard, the township having exclusive control of it. The •evidence showed that the county furnished $2000 in 1882, which was used in the construction of the bridge. The next year it furnished an additional amount of $600 or $700, which was used in its completion. The bridge commissioner who had the matter in charge testified with regard to the approach: “I superintended the building of the bridge. The approach at the west end was either poor and did not amount to anything as did that west, and the approach in question at the east end of the bridge — there was not enough money to build it and what it lacked was donated by citizens that lived around there. We donated the work. For instance, Mr. Cupp gave the timber. They made the bent in the center of the bridge and we neighbors hauled it in there and I paid the carpenters for framing it from the township, and I used what money there was remaining from the construction of the main bridge in paying the balance.” It thus appears that the county contributed something to the building of the approach, individuals and the township making up the remainder. Notwith standing a custom or an agreement by which the county undertook to keep in repair the main part of the bridge, and the township the approaches, we think the county is liable for an injury resulting from a defective condition of the approach. The statute with regard to the recovery of damages on account of injuries occasioned by defective bridges provides that “such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or ‘ partially by such county.” (Gen. Stat. 1909, § 658.) We interpret this language to mean that a county is. liable for an injury resulting from a defect in any part of a bridge, to the building of which it has contributed a proportionate share, or a definite portion of which it has itself constructed. We think this interpretation naturally follows from the use of the word “partially.” The purpose of the statute seems to be to fix a definite liability. There might seem to be some injustice in making the county liable for the entire damage resulting from a defect in a structure of which it is only one of the builders, but this is equally true whether'it has built a part of the whole or the whole of a part. The case of City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685, cited by the defendant, does not conflict with this view. There a city was held liable for an injury resulting from a defect in the portion of a bridge located within the corporate limits, although it had been built by the county. But the decision was based upon the obligation of the city to keep its streets in a safe condition. Neither the statute now under consideration, nor any question as to the liability of the.county, was there involved. Complaint is made with regard to the instructions, but we think most of the questions presented in that connection are involved in what has already been said, and that the remainder do not require separate discussion. The petition alleged that by reason of his fall the plaintiff was “greatly injured, bruised and wounded,” and that both bones of his left leg were broken. The motion to make the petition more definite, which was overruled, included a request for a more specific statement of his inj uries'. The evidence was that the fibula was broken, but that the permanent injury and the pain were chiefly due to the dislocation of the ankle and the rupture and tearing of the ligaments ,and muscles, matters not mentioned in the petition. The defendant complains of this as a material variance. We do not think any prejudice resulted to the defendant from the inaccurate description of the plaintiff’s injuries. (Civ. Code, § 134.) The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: H. E. Osburn brought this action to recover from Mrs. L. M. Addington and her husband a commission alleged to have been earned in procuring the sale or exchange of the Addington ranch in Greenwood county for a tract of land in Woodson county owned by G. W. Hamilton. The Addingtons, who resided in Illinois, placed their Kansas land, which is a tract of about five hundred and eighty-five acres, in the hands of A. J. Houchin, of Bloomington, 111., to be sold or exchanged for other property. Houchin at once started inquiries and made efforts to negotiate a sale or trade that would be acceptable to the owners, and among others entered into correspondence with the appellant, Osburn. Many letters passed between Houchin and Osburn relating to a sale or exchange of the land, and in this correspondence Osburn was informed that Houchin had interested other agents in 'the disposition of the land, and that the first satisfactory offer received by him would be accepted. The Addingtons dealt only with Houchin, and no letters regarding the sale or exchange of lands passed between them and Osburn. A trade for Oklahoma land was" suggested by Osburn to Houchin, which upon inquiry was found to be unsatisfactory, and finally he proposed an exchange for the Hamilton land in Woodson county. On behalf of Osburn, it was alleged that he procured Hamilton, who was ready, willing and able to trade lands on the terms proposed by the Addingtons, thus earning his commission, and he insists that the fact that the Addingtons chose to sell the land to another-did not relieve them from liability for the commission which he had earned. The Addingtons, on the other hand, allege that they had employed Houchin to find a purchaser for the lands; that they had not employed Osburn nor authorized any one else to employ him as their agent in the sale or exchange of the lands, and neither had they ever recognized him as their agent. They claimed that Houchin had submitted a proposition to them to exchange their land for the Hamilton land, and that they had entered into the negotiations looking towards an exchange, but that while investigations were being conducted and a trip to Kansas to ascertain the quality and value of the Hamilton land was under consideration a cash offer for the land was. made by another party, which they accepted. It is their contention that only preliminary negotiations were had, and that there was no meeting of minds, and further, that there was to be no closing of a contract until after a personal examination of the property had been made and an agreement reached on some unsettled terms and conditions. The trial court, upon a demurrer to the evidence, held that the negotiations of' the parties had not been completed, that a binding contract had not been made, and therefore no commission, had been earned by Osburn. Appellant complains and insists that the correspondence shows that definite terms of exchange of properties had been agreed upon and that he had produced one who was ready and able to make the exchange on those terms. The authority to represent appellees is open to question. His dealings were with Houchin, who had authority to find a purchaser for the lands, rather than with the appellees. In their letters to Houchin appellees spoke of appellant as' Houchin’s agent, and some things in the letters tend to show that this was his status. However, appellees learned of his efforts towards securing the exchange of properties and of the commission he expected to obtain if he succeeded, and assuming that he had the necessary authority to procure a buyer or one willing to exchange, it must be held, we think, that the minds of the parties never met as to the terms and conditions of exchange. There were preliminary negotiations whereby some of the terms of an agreement between thé owners of the property were arranged, but other terms and conditions were not settled, and manifestly the appellees never intended to close the deal until they had made a personal visit to Kansas and inspected the Hamilton land. Inspection of the property offered in exchange for theirs was spoken of in the correspondence as the condition of an acceptance of this proposal as well as others that were presented to them. It was suggested at one time that if a banker would certify that a loan of $8000 could be secured on the land offered to them that an inspecting visit might not be necessary, but no such certificate was produced. Appellees valued their land at $20,000, against which there were incumbrances amounting to $14,000, leaving them an equity of $6000 in the land. They desired to sell it for cash but were willing to take some property in exchange if they could get a satisfactory offer and one which would enable them to raise about $585 with which to pay interest which had accrued on the mortgages. Appellant found a man who was willing to meet this single condition; but it was only one of the terms of the exchange that was under negotiation. In a letter to Houchin appellant stated that he had a party who had a farm to ex change, which he described, that was worth about the-amount of the equity which appellees had in their land, and suggested that appellees come and look at it in case there was a prospect for a trade. The letters of' appellant discussing the proposal and the likelihood of bringing the parties to an agreement were sent to appellee Mrs. Addington by Houchin, and on August. 7, 1911, she replied that she was glad that Hamilton was going to look at her property, and that if it was. satisfactory to him “and things are as they have represented them to be — we will close the deal soon as we-find it to be so.” She added that she wanted to know-how much could be borrowed on the place, that they could not close the deal unless they knew that money could be raised to pay overdue interest and taxes, that' they did not want to make the trip to Kansas unless this could be done, saying, also, that “unless it is ready to close if it suits us, & you know we are not going to be hard to pleas if its worth any thing like they claim.” On August 8 appellant wired Houchin, “We-have seen farm G. W. Hamilton has accepted proposition and will take farm wire me at once at Wichita, Kans.” Houchin answered same day, “Message received see letter sent August seventh if sure five hundred eighty-five dollars can be got to pay interest parties will be right out.” On that day appellant wired back to Houchin, “Message received five hundred eighty five dollars will be paid.” On the next day Houchin wired, “Myself and party will leave Bloomington 9:45 p. M. Thursday August Tenth wire me-where to meet you better see Woodson county farm first have arrangements all made so we can get through quick as I will be in a hurry to get back.” On August-10 appellant wired, “Prefer you to come direct to-Wichita.. Will be ready to go upon your arrival.” On. the same day Houchin wired to appellant that appellees had a cash offer of $20,000 and had wired an acceptance. and for that reason would not go but that if it. did not go through they would go right out to Kansas. On the day appellant wired that Hamilton would take appellees’ land, and which is called an acceptance- of appellees’ proposal, he wrote a letter which shows how incomplete the negotations were. He informed Houchin that there was a $2200 mortgage on the Hamilton land although he had previously written that the mortgage was only $2000. He also suggested that appellees could assume that mortgage and that they might get along without the payment of more money than $2200. He further wrote that a deed should he executed by each party and placed in escrow in a certain bank until March 1 of the next year, then Hamilton was to pay $8925 into that bank, appellees to draw out $2200 of that amount and appellant to take the balance of that payment as commission. Showing that appellant understood that the deal was not closed he stated, “if you want to look at his Land, you must come at once,” adding that the abstract of the land must be brought to date and sent to Hamilton for approval and that he would send abstract for his land as soon as contract was signed. He further added, “A Contract is to be gotten up and Signed by all Parties both Man and Wife, come strait down here or J will get it up and send it there for their Signatures, but things must be done quick.” Some of these terms and conditions, which are obviously material, had never been considered and about them there had been no agreement. As was said in Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612: “It is essential, however, that the minds of the contracting parties come to the point of agreement — that the offer and acceptance coincide; and if they do not correspond in every material respect there is no acceptance or completed contract.” (p. 722.) Aside from these conditions it is clear that appellees did not intend to bind themselves to an exchange until they had made a personal inspection of the land offered to them, and it is equally clear that appellant .understood that an agreement to exchange would not be complete until appellees had seen the Hamilton land and were satisfied to take it. The negotiations were preliminary and incomplete until satisfaction followed such personal inspection. As appellee said in her letter, when referring to the representations made as to the quality and condition of the Hamilton land, “we will close the deal soon as we find it to be so,” and in another part of the letter, in speaking of making the trip of inspection, that they were “ready to close if it suits us.” As was said in Lyman v. Robinson, 96 Mass. 242: “A valid contract may doubtless be made by correspondence, but care should always be taken not to construe as an agreement letters which the parties intended only as a preliminary negotiation. The question in such cases always is, did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after-all its particulars were adjusted?” <p. 254.) Here the parties were only arranging or settling terms of an agreement which they hoped to consummate, and the arrangement to raise $585 towards the payment of defaulted interest and taxes was only a step in the negotiations. So long as there was any element or condition of the proposed exchange of properties that'was unsettled the control was incomplete and none of the parties was bound by the negotations. For the same reason no commission had been earned. The. judgment of the district court will be affirmed.	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The opinion of the court was delivered by Burch, J.: In March, 1902, Louis D. Miller undertook to divide a portion of his real estate among his children, seven in number. To that end he executed a deed to each one of a particular tract of land. His wife joined in the execution of the deeds, but he retained them in his possession. Afterwards his wife died, and he remarried. On December 7, 1904, the day before his remarriage, he filed the deeds for record and paid for the recording of them.' As soon as they were recorded they were returned to him. ' Each deed conveyed an estate in fee simple, except the one to his son, George W. Miller. This deed was in form a warranty deed executed in consideration of parental love and affection, and granted the land to George W. Miller for his life, remainder to Nettie J. Miller for her life, should she survive her husband, or so long as she remains his widow, remainder in fee to the heirs of the body of George W. Miller, and in default of such heirs, reversion to the grantor. On February 1, 1905, Louis D. Miller handed this deed to George W. Miller, but the son refused to accept it because of the discrimination his father had made against him and in favor of his brothers and sisters. At this time George W. Miller and Nettie J. Miller were husband and wife and had two children, Vernon and Ethel. In February, 1906, Nettie J. Miller procured a judgment for alimony against her husband. In March, 1906, an execution was issued and George W. Miller’s interest in the land described in his father’s deed to him was sold. Nettie J. Miller became the'purchaser, and a sheriff’s deed was issued to her. ' The action was instituted by Louis D. Miller against George W. Miller and Nettie J. Miller to cancel the unaccepted deed and the sheriff’s deed, and to quiet his title. On the application of Nettie J. Miller the children were made parties to the suit. Judgment was rendered in favor of the plaintiff, and the defendants appeal. The district court held that the remainders to Nettie J. Miller and to the heirs of the body of George W. Miller were void. No estate of any kind vested in George W. Miller because hé repudiated the effort of his father to convey to him. The purpose of the grantor was to create freehold estates in remainder to commence at a future time. Under the common law this could not be done without the grant of a precedent particular estate to support them, and under the common law whenever the particular estate is void at its inception, or for any reason does not come into being, remainders limited upon it are defeated. This court is of the opinion that the common-law rules reférred to have been abrogated by statute. The territorial legislature of 1855 passed an act relating to conveyances which dealt with the subject of the creation of future estates as follows: “When an estate hath been, or shall be, by any conveyance, limited in remainder to the son or daughter, or to the use of the son or daughter of any person to be begotten, such son or daughter, born after the decease of his or her fáther, shall take the estate, in the .same manner as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his •death. And, hereafter, an estate of freehold, or of inheritance, may be made to commence in future by deed, in like manner as by will.” (Statutes of Kansas Territory, 1855, ch; 26, § 9.)* In 1859 the act of 1855 regulating conveyances was .revised, ahd section 9 was condensed and restated as follows: “Estates may be created, to commence at a future •day.” (Kansas Statutes, 1859, ch. 30, § 6.) This act remained in force until repealed in 1868, when another revision occurred. In this révision section 6 of the act of 1859 was omitted and the subject was covered by a declaration as general as it was possible to make. “Conveyances of land, or of any other estate or interest therein, may be made by deed, executed by any person having authority to convey the same, or by his .agent or attorney, and may be acknowledged and recorded as herein directed, without any other act or ■ceremony whatever.” (Gen. Stat. 1868, ch. 22, § 3.) The words, “conveyances of land,” mean, of course, the land itself in fee simple absolute. The words, “any other estate or interest .therein,” include estates of freehold and less than freehold, of inheritance and not of inheritance, absolute and limited, present and future, vested and contingent, and any other kind a grantor may choose to invent, consistent, of course, with public policy. The doctrine of the particular estate arose from the necessity under the feudal system of always having a tenant to fulfill feudal duties, defend the estate, and represent it so that other claimants might maintain their rights. The only way to pass a freehold estate was by livery of seisin which operated immediately or not at all, and if the freehold became vacant the lord had an immediate right of entry and all limitations of the tenancy came to an end. The result was that in order to create a freehold estate, the enjoyment of which was to be postponed to a future time, it was necessary to support it by a precedent particular estate taken out of the inheritance, and to make livery of seisin to the particular tenant, which by fiction inured to the remainder man or remainder men. A much more liberal and equitable doctrine applied to the transmission of estates by will. “An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points; 1. That it needs not any particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3. That by this means a. remainder may be limited of a chattel interest, after a particular estate for life created in the same.” (2 Bl. Com., p. *172.) The legislature of 1855 placed conveyances by deed on the same footing as wills so far as the creation of future estates was concerned, but following the lead of the legislatures of some of the older states, the Kansas legislature of 1868 undertook not only to permit the granting of future estates but to abolish other common-law restrictions on alienation not suited to allodial tenures and modern conveyancing, and to make transfers of interests in land' as free as possible. The concluding portion of section 3 of the act of 1868, quoted above, expressly abolishes the common-law ceremony of livery of seisin, which stood as an insuperable bar to the creation of freeholds to begin in futuro unless supported by a particular estate. The language was adapted from statutes of other states, which usually provided that deeds duly acknowledged and recorded should be valid and pass estates in land “without livery of seisin, attornment, or other ceremony whatever.” It follows that the remainders to Nettie J. Miller and to the heirs of the body of George W. Miller do not require the support of the life estate to George W. Miller in order to be valid. The defendants claim the remainders were accelerated by the refusal of George W. Miller to take, and consequently that they occupy the same situation as if he were dead. If a testator devise an estate for life to his widow, with remainder over in fee, and the widow elect to take under the law and not under the will, the remainder is ordinarily accelerated to take effect as if the widow had died. The rule is equitable in character and proceeds upon the assumption that the gift over of the fee was the principal thing in the testator’s mind, that the life estate was a mere charge on that gift, and that he desired the gift in fee to take effect whenever the life estate for any cause was out of the way. The rule applies to other situations, but never when the result would be contrary to the testator’s intention. (16 Cyc. 651; 24 A. & E. Encycl.. of L., 418; Note, 18 L. R. A., n. s., 272.) The defendants, Vernon Miller and Ethel Miller, children of George W. Miller, are not mentioned in the deed. The remainder in fee is given to the heirs of the body of George W. Miller, dubious and uncertain persons not now known and who can not be as certained except on the contingency of George W. Miller’s death. He has no heirs at all while he is living. We have then a deed, under which George W. Miller takes nothing, and his two children now in being take nothing unless they outlive their father. Nettie J. Miller’s estate is simply a charge on the postponed fee, which she is not to enjoy unless she survive her husband and then only during widowhood. Manifestly the grantor was not making a deed of no immediate benefit to any one but her and which would put her in present possession to. continue for her life, should she not remarry, although her husband is still living. If, therefore, the rule relating to wills were to be applied, the remainders could not be accelerated. That rule, however, will rarely govern grants by deed. A deed sounds in contract. It takes effect on delivery and not after the grantor’s death, and in the absence of the equivalent of alternative provisions the presumption is that each grantee is given what thé grantor intended he should receive, if any one refuse to take, his share remains a portion of the grantor’s estate to be disposed of by will or by deed as he may desire, or to descend to his heirs, and not to be absorbed by other_ grantees whose portions are defined by the instrument./ The only remaining question is whether or not the provision for George W. Miller is so complicated with the other gifts specified in the deed that the failure of one destroys them all. This question is one of interpretation, to be resolved by a consideration of the language of the instrument. In case of doubt the interpretation may be aided by evidence of the situation and circumstances of the grantor, and his relation to the grantees at the time the instrument would take effect if valid. The scheme of the instrument in question is perfectly simple, and the failure of one portion to become operative does not involve any of the others. If the extrinsic evidence were to be resorted to it would con firm the deed. Louis D. Miller and his first wife made a distribution of his property- among their children. The deeds were not delivered in the lifetime of the first wife, and to make them effective against the second wife they were placed on record the day before her marriage to Louis D. Miller. At that time all the children were in possession of the lands intended for them except one. George W. Miller had occupied the land in controversy for three or four years under an arrangement with his father that he should pay the taxes and have all the crops he could raise. He was given a life estate because of his dissolute habits and to, prevent him from squandering the property. Louis D. Miller was-permitted to testify that he did not intend anybody else should have the land, if George W. Miller did not accept the deed. The recording of the deed made it effective as to all grantees benefited by it who did not dissent. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.) The intention of the grantor must be derived, as in other cases, from -the language of the instrument itself, which can not be impeached except on the equitable grounds of accident, mistake, fraud, and the like, none of which appears. (See, Pentico v. Hays, 75 Kan. 76, 88 Pac. 738.) /The result is that the estate to Nettie J. Miller for life or during widowhood and the remainder in fee to the heirs of the body of George W. Miller should be confirmed, but the title of Louis D. Miller should be quieted against George W. Miller and against the sheriff’s deed to Nettie J. Miller. The judgment of the district court is reversed and the cause is remanded with direction to enter judgment as indicated?/	[ -15, 108, -35, 108, -70, -32, -118, -8, 98, -32, 53, 115, 91, -38, 24, 41, 114, 109, 81, 106, -42, -77, 22, -95, -45, -109, -13, -59, -79, 93, -26, 71, 76, 32, -118, -107, -26, -126, -59, 84, -122, 70, 43, 76, -39, 80, 52, 35, 86, 77, 101, -113, -13, 46, 61, 82, 108, 46, 73, -67, -40, 56, -85, -108, 95, 18, -79, 37, -112, 1, 72, -118, -104, 53, -124, -24, 19, -76, -121, 116, 73, -101, 41, 38, 103, 18, 93, -27, -72, -104, -122, -2, -113, -90, -106, 88, -128, 100, -66, -99, 109, 112, 102, 118, -18, 20, 29, 104, 15, -113, -42, -109, -121, -14, -120, 1, -13, 45, 32, 113, -49, -94, 94, 99, 121, -101, -98, -16 ]
The opinion of the court was delivered by Mason, J.: E. 0. Beckwith, a merchant, executed a chattel mortgage upon his stock of goods to a bank, which took possession of the property, placing its agent, J. E. Stowell, in charge. Ten days later he executed another instrument, which for present purposes may be spoken of as a chattel mortgage, to C. W. Beeler (who was president of the bank), as trustee for a number of Beckwith’s creditors. Beckwith was adjudged a bankrupt, in proceedings begun more than four months later. The trustee in bankruptcy brought replevin for the goods, and recovered a judgment, from which Beeler appeals. A reversal is asked upon the ground that under the facts as found by the trial court the judgment should have been for the defendant. The findings that are here important are to the effect that the instrument executed to Beeler was a chattel mortgage; that it was never filed for record; that Beeler at once “assumed control of the stock of goods in question under said writing, but that said J. E. Stowell continued in the actual visible possession and charge thereof”; “that there was no apparent change of possession when said C.* W. Beeler assumed control of said stock of merchandise.” The court concluded that the chattel mortgage to Beeler was void as to the plaintiff, because it was neither made of record nor accompanied by an actual and apparent change of possession. The defendant .contends that as Beckwith had delivered the stock to the bank, and was no longer himself in possession, the unrecorded chattel mortgage was valid without any change of possession except such as is shown by the -findings. The court found that there was no visible change of -possession whatever. When the mortgage was given the person having physical possession of the goods was Stowell. After it was given the condition, so far as could be ascertained by observation, remained the same. Stowell was still in possession. The only difference was that whereas he had formerly held only for the protection of the bank under its mortgage, he now undertook to hold also for the protection of -the creditors secured by the second mortgage, under the direction of Beeler, the trustee, who was also president of the bank to which the first mortgage had been given. Stated in general terms the question is, Where the mortgagor of chattels delivers them to an agent of the mortgagee, is an unrecorded second mortgage to another person valid against creditors, if the agent agrees to hold for the benefit of the new mortgagee? The defendant relies strongly upon Nash v. Ely, (N. Y. Sup. Ct.) 19 Wend. 523, which was decided in 1838. There a mortgage was given upon goods which were in the hands of a third person, claiming to have acquired title thereto by transfer from the mortgagor in payment of a debt. The mortgage was held to be good against an attaching creditor, who assailed it on the ground that it had not been accompanied by a change of possession. The court said: “The statute does not require that the mortgagee shall take the actual possession of the property at the time himself; it is enough if he removes it out of that of the mortgagor; and if he finds it in the custody of a third person, when the sale or mortgage is made, we do not perceive any thing in the language',' or in the object, or policy of the act, against permitting it to remain with him till such time as he may choose to take the personal charge of it. Leaving the property in this condition, is certainly not within the mischief of leaving it in the possession of the vendor or mortgagor.” (p. 524.) When that case was decided New York had a statute (passed in 1833) substantially like our own with respect to the filing of chattel mortgages. So the case upon the facts would seem to be directly in point. An examination of the opinion, however, discloses that no reference whatever was made either to the omission to file the mortgage for record or to the effect of the recording act. The statute to which the court there referred (obviously the only one considered, as it was the only one discussed) was one making all transfers of personal property prima facie fraudulent as to creditors unless accompanied by “an actual and continued change of possession,” being somewhat the same as the third section of our statute of frauds (Gen. Stat. 1909, §3835). However, it related to sales made by a vendor of goods “in his possession or under his control.” (3 Rev. Stat. of N, Y. 1859, part II, title 2, § 5.) So the decision in the Nash-Ely case was obviously sound so far as it related to the effect of that statute. Of that decision it was said in Beskin v. Feigenspan, 52 N. Y. Supp. 750: “The defendant contends that as the property was in possession, not-of the owner of the mortgaged property, but of a third party, the tenant, a change of possession was not necessary; and he relies on Nash v. Ely, 19 Wend. 523, in support of this claim. It must be borne in mind that there are two statutory enactments relating to the validity of chattel mortgages— that of the act of 1833, already cited, and section 5, 2 Rev. St. p.-136 (now reproduced in the lien law and personal property law), which declares that sales and mortgages of goods and chattels, unless followed by an actual and continued change of possession, shall be presumed fraudulent and void as • against creditors or subsequent purchasers in good faith.' Even where a chattel mortgage is properly filed, the failure to change possession raises a presumption of fraud. Smith v. Acker, 23 Wend. 653. It was in reference to this provision of the Revised Statutes that the court held in Nash v. Ely, supra, that where the property is in the possession of third parties the case does not fall within the statute. There is a difference between the language of the two statutory provisions. The section of the Revised Statutes makes provision for the case of a vendor of goods or chattels ‘in his possession or control,’ and merely creates a presumption of fraud in case of a failure to change possession, while the statute of 1833 provides that chattel mortgages shall be absolutely void unless filed as therein directed, and does not limit its application to the cases of a vendor ‘of goods or chattels in his possession or under his control.’ We are of opinion that Nash v. Ely, supra, is not in point on the question of change of possession under the act of 1833. If, however, we are in error' ¿s to this view, then jt must be considered as overruled by the later, cases in Hill, Hun, and in the New York Reports, already cited.” (p. 751.) The cases referred to in the portion of the opinion just quoted are not absolutely in point upon the facts of the present case, but they sustain the view that the change of possession referred to in the recording act as a sufficient substitute for a recoi'd must be an actual and not a constructive change; must be such a change as to be apparent to an observer. The considerations already stated make it clear that the decision in Nash v. Ely is not an authority, except by analogy, upon the construction of the act relating to the filing of chattel mortgages. It has, however, been so cited by text-writers and by courts, for instance in Buhl Iron Works v. Teuton, 67 Mich. 623, 630, 35 N. W. 804, and First Nat. Bank v. Barse Commission Co., 198 Ill. 232, 254, 64 N. E. 1097. Other cases apply the same rule, but under statutes which do not require an actual change of possession in order to dispense with the record. (Morse v. Powers, 17 N. H. 286; Wheeler v. Nichols, 32 Maine, 233; Clark v. Williams, 190 Mass. 219, 222, 76 N. E. 723.) If the doctrine of the Nash-Ely case were, accepted a chattel mortgage would be valid without record and without change, of possession, if when it was made the property was not in the control of the ■mortgagor. We must regard the question before us as an open one, to be determined from the language of our statutes.. It is to be noted that our statute of frauds, which is somewhat similar to that interpreted in the NashEly case, expressly provides that it is not to interfere with the law relating to chattel mortgages. Statutes relating to the effect of a transfer of title to personal property unaccompanied by an actual change of possession may well receive a liberal interpretation in view of conditions that make such a change difficult. But the act requiring the record of a chattel mortgage is explicit, and compliance with it is easy. It requires a record unless there is an actual change of possession. (Gen. Stat. 1909, § 5224.) The mortgagee may always protect'himself by making a record, which’is the normal condition; the unrecorded chattel mortgage is the exception. In the present case it may be that substantial justice would have been subserved by upholding the second chattel mortgage. But the general rule that would be established by such a decision here would hamper the operation of the recording act, and might open the door to frequent injustice. For illustration, a merchant might make a small chattel mortgage on his stock and give the mortgagee possession until payment should be made. A third person, advised by the record that the stock was worth much more than the lien, might give credit to the mortgagor, only to find out later that in the meantime a second mortgage for the full value of the stock had been given, which was not of record, but was valid because the first mortgagee had agreed to hold possession for the protection of the second mortgagee as well as for his own. The whole question is one of legislative policy, and our statutes seem to have been drawn with a purpose to make the requirement of record especially rigid in the case of chattel mortgages. The failure to record a real-estate mortgage can be taken advantage of only by one who has been thereby misled — a purchaser in good faith, for value and without notice. But an unrecorded chattel mortgage, although given in the best of faith, may be defeated by a creditor, even although he had actual knowledge of it. Upon the grounds stated and suggested we approve the ruling of the trial court to the effect that in order to be effective against .creditors a chattel mortgage must either be made of record, or be accompanied by such a change of possession as would be apparent to an observer. The question whether the instrument spoken of as a chattel mortgage was not in fact merely a void assignment for the benefit of creditors has been argued. It seems probable that the circumstances made this question one of fact, to be determined by the trial court upon all the evidence. But in view of the ruling already made this need not be determined. The judgment is affirmed.	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The opinion of the court was delivered by MASON, J.: Jasper Stewart was engaged in buying and selling live stock. His custom was to purchase horses and mules, giving in payment his checks on The Home National Bank, of Arkansas City. Later he would borrow money from the bank upon his personal note to meet the checks. This plan became unsatisfactory to the bank, by reason of unsuccessful transactions made by Stewart, and it notified him that it would no longer loan him money, and that he must make some other arrangement if he desired to continue business relations with it. Subsequently a conversation was had between the president of the bank and Stewart, which it is contended resulted in an agreement that Stewart might continue to buy stock, giving checks therefor, which would be paid by the bank, provided money for the purpose was furnished by Stewart from the sale of the stock he had purchased. Stewart bought stock from several persons, giving his checks. He made sales sufficient for the purpose and deposited the proceeds in time to meet the outstanding checks. The bank, however, refused to pay them, and applied the deposit to the preexisting debt of Stewart. Two separate actions were brought against the bank by holders of the checks. In each the plaintiff recovered, and the defendant appeals. Stewart and the bank president, A. Ht Denton, gave substantially the same account of their conversation. One who overheard it testified to some additional particulars. Denton’s version was this: “I told him that as I had informed him before, we would buy no more mules for Mr. Stewart, at least not until after the feed business and the unfinished business was settled. He said: ‘Perhaps I can beat them around.’ That was practically the end of the conversation. To which I made answer, ‘That might do.’ ” Stewart testified that he spoke with Denton about buying some mules, and proceeded: “Mr. Denton, he says, ‘No, we will buy no more mules at present, until we get this feed deal off.’ ... I. says, ‘Suppose I buy and check for some mules and beat the checks in?’ He says, ‘That might do.’ ” The third person testified: “Mr. Stewart told Mr. Denton that he had a bunch of mules down there that he was going to buy, and Mr. Denton spoke up and'told him that.he wouldn’t pay any of his checks. He says, ‘Well, I have these mules sold,’ and he mentioned the man’s name, I' don’t remember it; and Mr. Denton says, ‘Well, that is all right, his checks are good.’ He asked Mr. Stewart when he was coming in and Mr. Stewart told him the day, but I don’t remember the date; it was along the last of the week some time. He says, ‘If you- are coming in then you will beat those checks in, because you know how they do, some of them run around several days before they get in the bank.’ That is about all the conversation I heard talked.” We think this evidence sufficient to sustain a finding that the bank, by its president, agreed with Stewart that he might draw checks upon it in payment of stock, and that, notwithstanding his past due debt to the bank, it would pay the checks, provided he “beat them in”— that is, provided he resold the stock and turned the proceeds over to the bank in time to furnish a fund for their payment. It was a fair question of fact whether under all the circumstances this was what each party intended. The jury by its general verdict, under proper instructions, must be regarded as having rendered an affirmative answer, thus settling this issue. The jury were instructed, in substance, that in order to render a verdict for the plaintiff they must find that in pursuance of the agreement Stewart bought the stock, giving his checks therefor, and deposited the proceeds with the bank. These facts also must therefore be regarded as established. We think these findings, considered in connection with the undisputed facts, compel the conclusion that, as against Stewart at least, the bank could not rightfully refuse the payment of the checks. “All the authorities are agreed upon the rule of law declared in the above case, that a bank which accepts a deposit of money made by a depositor for a special purpose, under an agreement that it will pay the amount when needed for that purpose, can not rightfully appropriate such deposit to discharge the depositor’s indebtedness to it.” (Note, 30 L. R. A., n. s., 517; see, also, Notes, 111 Am. St. Rep. 425; 2 Ann. Cas. 206; 19 Ann. Cas. 488.) It is not necessary, in order for this rule to apply, that there shall be what is strictly and technically known as a “special deposit.” It is enough that there is an agreement for a particular application of the fund. The bank’s right to a lien upon deposits is not of such character that it may not be waived. As was said in the case to which the note quoted from is attached: “Of the general rule that a bank to whom a depositor is owing a matured indebtedness may appropriate the general deposit of its debtor to the discharge of the obligation, there can be no doubt. . . . But it is no less certain that a deposit made for a special purpose, or under a special agreement, can not rightfully be so appropriated. . . . Indeed, the proposition that a bank enjoys no exemption from the general rule by which every party to a business transaction or agreement is legally bound to respect the obligation of his contract is one which ought to require neither argument nor citation of authority.” (Smith v. Sanborn State Bank, 147 Iowa, 640, 644, 645, 126 N. W. 779, 30 L. R. A., n. s., 517.) The defendant maintains that the evidence did not warrant the application of this principle, or if so, that proper instructions were not given concerning it. It is urged that the bank had no notice that the deposits made by Stewart were for the protection of the checks in question. They were turned into the bank without specific directions given at the time. They were, however, in the form of checks bearing upon their faces memoranda showing that they were given “for mules,” which served to connect them with the transaction discussed by Stewart and Denton. But it would refine too closely to suppose that the bank did not understand the purpose of the deposit. At the time of depositing one check Stewart said to the bank president, “You might send Bert Wood, [one of the plaintiffs] a draft for $620.” The president said, “Why don’t you send him your own check ?” Stewart did so, the check being one of those sued on. The president was asked with respect to other checks deposited by Stewart: “You knew they were for the purchase of mules?” He answered, “Well, I could have inferred so, yes sir.” The agreement had been made that if Stewart beat his checks in they were to be paid. His contract required him to get the money to the bank in time to meet the checks, and he did so. He was not required to make what could with strict accuracy be called a “special deposit.” The direction for the application of the fund resulted from the previous agreement, and from the fact that the deposit was made in pursuance thereof. Complaint is made in this connection of an instruction that the plaintiff might recover “even though Stewart deposited the proceeds of the sale of the mules in the bank and took credit for the same generally on his account and without any direction to the bank as to how such deposit should be applied.” The jury had already been told that the plaintiff had the burden of proving that the deposit was made in pursuance of the prior agreement. In view of this we think the fair interpretation of the language quoted is that it was not essential to the plaintiff’s recovery that any specific direction should have been given at the time of the deposit. The defendant further maintains that whatever may be the relations between the bank and Stewart, the plaintiffs have no cause of action against the bank, because there is no privity between them. Of course, by the usual rule, which obtains in this state, the holder of a check can not ordinarily maintain action thereon against the bank, notwithstanding it may have had funds to meet it when it was presented. (Note, 5 Ann. Cas. 189; Note, 80 Am. St. Rep. 870; Note, Ann. Cas. 1913 D, 418.) Special circumstances, however, may give to the issuance of a check the character of a pro tanto. assignment, théreby vesting in the holder a right of action upon it against the bank on which it is drawn. (Fourth Street Bank v. Yardley, 165 U. S. 634.) Here the actions are not brought upon the checks alone, but upon the entire transaction, of which the giving of the checks forms a part. If the plaintiffs had been present at the conversation between Stewart and Denton it can not be doubted that they; would have a right of action against the bank. The contract made at that time was obviously for their benefit, and they are entitled to rely upon it, notwithstanding they had no prior knowledge concerning it. (Griffith v. Stucker, ante, p. 47.) (See, also, Anthony v. Herman, 14 Kan. 494; Harrison v. Simpson, 17 Kan. 508; K. P. Rly. Co. v. Hopkins, 18 Kan. 494; Bank v. Crowell, 6 Kan. App. 533, 51 Pac. 575; Bank of Garnett v. Cramer, 7 Kan. App. 461, 53 Pac. 534; Gruenther v. Bank of Monroe, 90 Neb. 280, 133 N. W. 402—decided since the adoption of the uniform negotiable instruments act.) The bank had on hand funds which it not only was at liberty to apply to the checks presented by the plaintiffs, but which it had undertaken to use for that purpose — which by virtue of its agreement with Stewart had been so appropriated. The money obtained by the sale of the property of the plaintiffs was received by the bank under a virtual promise to hold ft for their benefit, and pay them out of it. The negotiable instruments act provides specifically that a bank is not liable to the holder of an unaccepted check (Gen. Stat. 1909, § 5442), and that the acceptanee must be in writing (Gen. Stat. 1909, § 5385; Rambo v. Bank, 88 Kan. 257, 128 Pac. 182), and if on a separate paper, operates only in favor’ of one to whom it is shown (Gen. Stat. 1909, § 5387). These provisions are declaratory of the law as it already existed. (Gen. Stat. 1901, §§ 547, 548; Eakin v. Bank, 67 Kan. 338, 72 Pac. 874; Clark v. Bank, 72 Kan. 1, 82 Pac. 582; Bank v. Ringo, 72 Kan. 116, 83 Pac. 119.) The present actions are not brought simply on the promise of the bank to pay Stewart’s checks issued in payment for stock. They are brought upon that promise, supplemented by the carrying out of the conditions on which it was based — the purchase of the stock, the issuance of the checks, the resale of the stock and the deposit of the proceeds to meet the checks — in effect the receiving by the bank of the money appropriated by agreement to that purpose. It is suggested that the making of such an agreement was beyond the power of the president of a national bank, or of the bank itself. The contract was not immoral or forbidden, and even if when made it was invalid for want of capacity on the part of the officer or of the bank, it was so far carried out that a defense on that ground can not successfully be interposed. (See cases cited in Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123.) The judgments are affirmed.	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The opinion of the court was delivered by Benson, J.: This is an action in ejectment by the holder of a tax title against the defendants who are the owners of the land in fee unless their title is extinguished by the tax deed. The judgment was for the defendants, awarding, however, a tax lien in favor of the plaintiffs for taxes for over $250. Several questions are discussed but only one need be considered since it determines the controversy. The tax deed was issued September 13, 1902, and was recorded October 8, 1902. The land was vacant and unoccupied until the defendants took possession, which was in April, 1907, as the district court found. This action was commenced in April, 1911. The holder of a tax title has two years from the date of the recording of the tax deed in which to commence an action to recover possession. (Civ. Code, § 15, subdiv. 3.) But where the land is vacant and unoccupied for more than two years after the deed is recorded he has two years from the time the original owner takes actual possession in which to commence his action. (Case v. Frazier, 30 Kan. 343, 2. Pac. 519; Coale v. Campbell, 58 Kan. 480, 483, 49 Pac. 604; Gibson v. Hinchman, 72 Kan. 382, 83 Pac. 981.) The finding that the defendants took actual' possession in April,'1907, is, however, disputed. The evidence must therefore be. examined to determine the fact. It appears that in February,- 1907,- the- defendants leased the land to J. J. Banks. At that ti-me there'was a dug out upon the land, constructed upon the belief that it was upon another tract. The defendants paid for the dugout and their tenant occupied it. The tenant broke out two acres and laid- off the boundary lines by plowing furrows around it. The following year, 1908, the defendants leased the land to another tenant for three years, who agreed to put in a crop, but on account of dry weather he did not plow upon the land but herded some cattle upon it that year. He plowed ten acres and put a crop upon it in the year 1909. He disked the land in cultivation for a crop in the year 1910, but did not plant it because it was too dry. The tenant herded cattle for the defendants on the land in the years 1908, 1909 and 1910. This evidence is sufficient to sustain the finding that the defendants took actual possession of the land in the spring of 1907. There is also a finding that the plaintiffs took possession in March, 1911, although it was not shown how long they held it. The time must have been quite short, for the defendants were in possession when this suit was brought, in April, 1911, as the plaintiffs allege and the evidence shows, and it was occupied at the time of the trial by the same tenant who leased it from the defendants in the year 1908. The district court found that the possession so taken by the plaintiffs was forcible, and held that it was of no effect in this litigation, but allowed them to remove the improvements made during their brief occupancy. Our conclusion is that the plaintiffs’ cause of action was barred by the two years’ statute of limitation, and that the court did not err in holding' that the 'alleged possession of the plaintiffs' in March, 1911, was not effectual. The defendants cómplain of the lien for taxes and. interest because there was testimony that'a tender, had been made, but the evidence relating to tender was conflicting and the allowance of the lien is approved. The judgment is 'aífirméd. '	[ -12, 126, -36, 13, 42, -64, 42, -104, 73, -91, -90, 87, 109, -126, 20, 41, 99, 125, 81, 104, 70, -77, 19, 11, -126, -77, -39, -35, -67, 77, -12, 86, 12, 48, -62, -75, -26, 96, -59, 92, -50, -121, -87, 76, -39, 64, 52, 107, 2, 74, 113, -118, -13, 43, 25, 71, 73, 44, -53, 63, 80, -8, -70, -124, 111, 6, -95, 69, -108, -61, -24, -118, -80, 49, -127, -24, 123, 38, -122, 116, 13, -119, 41, 38, 102, 49, 117, -17, -4, -104, 14, -1, -115, -26, -112, 88, 35, -120, -98, -99, 117, 84, 70, 126, -26, -123, 29, 108, 21, -53, -44, -77, 15, 124, -118, 3, -37, -125, -80, 113, -113, -26, 92, 103, 122, -101, -113, -16 ]
The opinion of the court was delivered by Burch, J.: Mason brought suit against Harlow to enjoin the prosecution of an action in a court of Arkansas in which Harlow sought to recover damages for a libel published against him by Mason in Arkansas. The district court refused a temporary injunction and sustained a demurrer to the petition. On appeal the judgment was reversed in the case of Mason v. Harlow, 84 Kan. 277, 114 Pac. 218, where the essential facts of the plaintiff’s cause of action are stated. The case has now been tried on its merits. The district court found all the issues in favor of the defendant, and rendered judgment accordingly. Mason again appeals. The circumstances under which equity will interfere to prevent the prosecution of a suit in another state were stated in the former opinion, to which the court adheres. The plaintiff relied on two facts to furnish the necessary equitable basis for relief. These were that the suit in Arkansas was maliciously brought to harass the plaintiff and obstruct the administration of justice, and that the character of the plaintiff’s business in Arkansas was of a certain kind. If of that kind, it is argued that the plaintiff was privileged from the service of civil process. The court has found both these facts against the plaintiff on conflicting evidence, essential portions of which consisted of oral testimony. That ends the controversy over the facts. The plaintiff undertakes to show that the service made on him in the Arkansas suit is void under the laws of that state. If so, the Arkansas court will promptly set it aside. It might be more convenient to the plaintiff for the courts of this state to adjudicate the matter, but, as stated on the former appeal, convenience of parties is not a ground for equitable interference, and the other grounds relied on have failed. It is said that the libel suit ought to have been brought in the state where both parties reside. The libel was published, however, in Arkansas. The cause of action arose there, and must be sustained, if at all, by the testimony of witnesses who reside there. Since the plaintiff was unable to establish facts making an injunction necessary to prevent the defendant from doing an unequitable thing, the judgment of the district court must be affirmed, and it is so ordered.	[ -12, -22, -4, 62, 8, 96, 48, -70, 80, -127, 101, -45, 109, -49, 13, 125, -69, 121, 117, 107, -43, -73, 23, -63, -14, -77, -37, -43, -70, -37, -25, 94, 76, 48, -54, -43, 102, 74, -63, -100, -118, 4, 59, 100, -39, -63, 48, 106, 80, 15, 49, -99, -13, 40, 25, -61, 44, 44, -53, -75, 114, -80, -102, 15, 47, 20, 51, 36, -100, 39, 80, 44, -48, 48, 3, -23, 114, -74, -58, 116, 103, -103, 8, 34, 99, 33, 33, -49, -68, -88, 46, 61, -115, -90, -112, 8, 11, 9, -74, -103, 123, 20, -121, 122, -4, -123, -98, 124, 27, -49, -42, -79, -121, 32, 20, 7, -18, -123, 48, 100, -49, -94, 93, 87, 80, -101, -106, -67 ]
The opinion of the court was delivered by Benson, J.: This is an action to recover damages for the death of J. N. Thornbro, a brakeman of the defendant company, in Oklahoma, under the provisions of the federal employer’s liability act of April 22, 1908, which provides: “That every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in-case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves; or other equipment. . . . Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. . . . Such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or- death of such employee.” (Part 1, 35 U. S. Stat. at Large, ch. 149, p. 65, U. S. Comp. Stat. 1901, Supp. 1911, p. 1322.) A freight train upon the defendant’s railway, made up at Altus, Okla., proceeding eastwardly, stopped on June 27, 1909, at Custer City, where some switching was done. A car designated as a Frisco car, loaded with chats at Oklahoma City, destined for Canton, Okla., had been turned over to the defendant company at Custer by the St. Louis & San Francisco Railway Company on the preceding day, and was standing on the house track with a Rock Island box car immediately in front of it. The engine was detached from the train, switched to the house track and attached to the box car to which the Frisco car was coupled for the purpose of picking up the latter and putting it into the train for transportation to its destination. The two cars were pulled out to the main track, and while upon that track, in an effort to uncouple the two cars in order to leave the Rock Island car, Thornbro was killed, because, as the petition alleged, of the defective and unsafe coupling appliances on the Frisco car, which defect required him to step between the cars to do his work by hand. The plaintiff recovered and the defendant appeals. It is conceded that the defendant company was engaged in interstate commerce in operating the train, but it is earnestly insisted that the brakeman in doing the particular work in which he lost his life was not so engaged. In order to recover under the act referred to both the company and the employees must be engaged in interstate commerce at the time of the injury. (Second Employers’ Liability Cases, 223 U. S. 1.) The precise contention of the defendant is that the car in question, starting from one point to be transported to another point in the same state, was an instrument of intrastate commerce; and that it had not become a part of an interstate train, and so the brakeman was not engaged in interstate commerce. On the other hand, the plaintiff contends that the duties of the engineer and brakeman in picking up this car and putting it in the train, consisting largely of interstate cars carrying interstate freight, had such connection with interstate commerce as to bring their work within the purview of the act. No decision of the federal supreme court has been cited upon the precise point in controversy, and the circuit courts appear to be at variance. In Van Brimmer v. Texas & P. Ry. Co., 190 Fed. 394, it was held that a brakeman while engaged in making a flying switch to set out a car transported wholly in intrastate traffic from a train carrying interstate freight was not engaging in interstate commerce, and therefore the act in question did not apply to an injury received by him in doing such work. It was said that the brakeman was with others merely completing the transportation of an intrastate car. That case was commenced in a state court and came before the federal court on a motion to remand, Which was denied. Upon the question of removal, however, that opinion appears to have been disapproved in other circuits. (De Atley v. Chesapeake & O. Ry. Co., 201 Fed. 591.) Opposed to the Van Brimmer case is that of Behrens v. Illinois Cent. R. Co., 192 Fed. 581, also a circuit court decision. That was an action to recover for the death of a fireman, one of a switch crew. It was the duty of the crew to switch cars moving in both state and interstate commerce indiscriminately at Chalmette, a terminal below New Orleans, to make up trains of empties intended for various destinations, and haul the train to Harrahan, a terminal above the city, and then take another train back to Chalmette. It was contended that the deceased employee was at the time engaged in intrastate commerce, not within the range of the federal employer’s liability act, but the court, Foster, J., said: “In my opinion, the construction sought to be secured by the defendant is entirely too narrow and restricted. Undoubtedly the act of Congress is in derogation of the common law; but certainly the elimination of the doctrine of fellow servant and the modification of the doctrines of contributory negligence and assumed risk makes for the betterment of human rights as opposed to those of property, and I consider that, in the light of modern thought and opinion, the law should be as broadly and as liberally construed as possible. . . . I consider that the usual and ordinary employment of the decedent in interstate commerce, mingled though it may be with employment in commerce which is wholly intrastate, fixes his status, and fixes the status of the railroad, and the mere fact that the accident occurred while he was engaged in work on an intrastate train, rather than a few minutes earlier or later, when he might have been engaged on an interstate train is immaterial.” (p. 582.) In Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, 116 C. C. A. 156, the statute was construed to cover the case of a fireman employed by a company engaged in interstate commerce, who, with others, was being transported from one station to another to relieve the crew of an interstate train, and was killed while on the way. The court said: “The deceased when he was killed was not only on his way to work for his employer, but he was proceeding under the direct and peremptory command of the Railroad Company to do a designated specific act in the service of the company, towit, to move a train then engaged in interstate commerce.” (p. 338.) Quotations were made in that case from the opinion in the Behrens case, and also from the opinion of the court of appeals of the second circuit in Central R. of New Jersey v. Colasurdo, 192 Fed. 901, 113 C. C. A. 379, wherein it was held that the statute applied to a trackman injured by a passing train while at work repairing a switch in terminal yards over which intrastate and interstate commerce was carried. Quotations were also made from the opinion in the Second Employers’ Liability Cases, 223 U. S. 1. Following these quotations, it was said: “As indicated in the opinion, the test question in determining whether a personal injury to an employee of a railroad company is within the purview of the act is, What is its effect upon interstate commerce? Does it have the effect to hinder, delay, or interfere with such commerce? As applied to the present case, it is this: Was the relation of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce? To that question we think there can be but one answer. Under the imperative command of his employer, the deceased was on his way to relieve, in the capacity of a fireman, the crew of a train which was carrying interstate commerce, and the effect of his death was to hinder and delay the movement of that train. In our opinion the complaint states a cause of action under the Employer’s Liability Act.” (p. 340.) In Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 33 Sup. Ct. Rep. 649, it was held that the case of an employee of an interstate railway killed while carrying bolts to repair a bridge used in both classes of commerce was within the provisions of the act in question, and the Lamphere case was cited with apparent approval. After referring to the work the deceased was doing when killed, the court said: “Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it ? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier?” (p. 151.) After discussing the use of bridges in the operation of railroads, and holding that repairs upon them are so closely related to interstate commerce as to be in practice and legal contemplation a part of it, the opinion proceeds: “The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?” (p. 151.) In Horton v. Oregon-Washington R. & Nav. Co., 72 Wash. 503, 130 Pac. 897, the case of a pumper for locomotives of a railroad engaged in commerce of both classes who was injured while upon a hand car furnished for his use in going to and from his home to the pumping station, by collision with an . interstate train, was held to be within the purview of the statute. It was said in the opinion: “ ‘The act meant to include everybody whom Congress could include.’ (Colasurdo v. Central R. Co., 180 Fed. 832.) That such was the purpose and intent of the second act seems to be assumed by the supreme court of the United States in an opinion holding the act constitutional.....It may be remarked in passing, however, as showing the sweepingly broad construction placed upon the act and the true criterion of the congressional power, that in the Second Employers’ Liability Cases,-223 U. S. 1, the supreme court expressly decided that the fact that the negligence which caused the injury was that of an employee engaged in intrastate commerce was immaterial, the true criterion being the effect of the injury upon interstate commerce, not the source of the injury.” (p. 506.) The opinion ably reviews many federal decisions, including the Behrens case, and demonstrates the power of congress in the situation presented and the efficacy of the act in such cases. In Carr v. New York Central & H. R. R. Co., 136 N. Y. Supp. 501, it appeared that a brakeman running on a train between points in the state, but consisting in part of cars consigned to points outside of the state, was injured by the negligence of a fellow servant at a siding in cutting out cars which had been shipped from and billed to places within the state. It was held that the brakeman was engaged in interstate commerce within the federal statute. Both the Van Brimmer case and the Behrens case were reviewed in the opinion with other cases. The court said: “Placing the cars upon the siding was but incidental to their main employment. Any accident or injury to one or more of the crew to that extent tended to unman the train about to proceed in interstate commerce, and to disable one or more of such a crew might impede and delay the progress of the train on its way, and affect its safety and dispatch. The safety of the plaintiff, as one of the trainmen charged with the movement of the remaining cars of the train, had an important bear ing and direct relationship to thé movement of interstate commerce, and his injuries and consequent inability to discharge his duties as brakeman on the train about to proceed directly affected such commerce.” (p. 506.) The federal circuit court decisions reviewing the scope of the act are numerous, and, as we have already seen, in two cases at least, contradictory. Other cases are cited and commented upon in Richey’s Federal Employers’ Liability Act. In Second Employers’ Liability Cases, 223 U. S. 1, it appeared that one of the injured employees whose case was under consideration was a car repairer engaged in replacing a draw bar in a car used in interstate commerce. In the opinion it was said: “The second objection proceeds upon the theory that, even although Congress has power to regulate the liability of a carrier for injuries sustained by one employee through the negligence of another where all are engaged in interstate commerce, that power does not embrace instances where the negligent employee is engaged in intrastate commerce. But this is a mistaken theory, in that it treats the source of the injury, rather than its effect upon interstate commerce, as the ■criterion of congressional power. As was said in Southern Railway Co. v. United States, 222 U. S. 20, 27, that power is plenary and competently may be exerted to secure the safety of interstate transportation and of those who are employed therein, no matter what the ¡source of the dangers which threaten it. The present act, unlike the one condemned in Employers’ Liability Eases, 207 U. S. 463, deals only with the liability of a carrier engaged in interstate commerce for injuries, sustained by its employees while engaged in such commerce. And this being so, it is not a valid objection that the act embraces instances where the causal negligence is that of an employee engaged in intrastate commerce; for such negligence, when operating injuriously upon an employee engaged in interstate commerce, has the same effect upon that commerce as if the negligent employee were also engaged therein.” (p. 51.) In another part of the opinion it was said: “The particulars in which those relations are regulated must have a leal or substantial connection with the interstate commerce in which the carriers and their employees are engaged.” (p. 49.) This subject was considered by this court in Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151, where some of the federal decisions referred to here with others are cited. The governing principle there declared is that: “To constitute him (the employee) a person so employed his work at the time of the injury must have had a real and substantial connection with the interstate commerce in which such carrier was then engaged.” (Syl. ¶ 4.) Referring to the test applied in the Lamphere case, “Was the relation of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce” (196 Fed. 340), an affirmative answer is as obvious here as there. Delay is a necessary incident of such a calamity, and delay in fact occurred. The regular movement of the train was interrupted to switch the defective car back upon the house track where it was left, and the promptT ings of common humanity required attention and care for the body, which were doubtless given. The train was deprived of a brakeman. All this tended to hinder and cripple interstate transportation. It can not be doubted that the . work of the deceased had a real and substantial relation to interstate commerce. The rearrangement, as well as delay required in picking up a car by the way, necessarily affects the operation and movement of a train, and it can not be held that an employee upon such a train as this, while doing such work, is not engaged in interstate commerce, whatever may be the origin or destination of the particular car. To hold otherwise would be contrary to the manifest purpose of the act, which, as we have seen, has been generally construed broadly and liberally, as it should be, in the interest of humanity and commerce alike. The language of Mr. Justice Van Devanter in closing the opinion in Southern Ry. Co. v. United States, 222 U. S. 20, 27, referring to the related subject of the federal safety appliance act is apt and appropriate here also. The plaintiff contends that the coupler was defective and did not meet the requirements of the federal safety appliance acts. It appears that the original act of March 2, 1893 (27 U. S. Stat. at Large, ch. 196, p. 531), required railroads engaged in interstate commerce to equip trains, locomotives and cars used on its line in moving interstate traffic with designated appliances and made it unlawful for any such common carrier to haul, or permit to be hauled, or used on its line any car used in moving interstate traffic not equipped with automatic couplers capable of being coupled and uncoupléd without the necessity of a man going between the ends of the cars. That act was amended by the act of March 2, 1903, which declared, among other things, that its provisions and requirements should “apply to all trains, locomotives, tenders, cars, ánd similar vehicles used on any railroad engaged in interstate commerce.” (32 U. S. Stat. at Large, ch. 976, p. 943.) Construing these acts, the federal supreme court, in Southern Ry. Co. v. United States, 222 U. S. 20, held that they were intended “to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce.” (p. 26.) It was also held that the requirements of the statute were within the constitutional power of congress. The effect of the amended act was again stated in Brinkmeier v. Mo. Pac. Ry. Co., 224 U. S. 268. It must be regarded as settled that the car in question should have been equipped with a coupler as specified in the statute. The defendant complains of instructions relating to a rule of the company which provides that “Coupling apparatus must be examined and if out of order must not attempt to make a coupling.” The court stated the rule and told the jury that if they found that Thornbro attempted to uncouple the cars by the use of the pin lifter lever on the Frisco car, and was unable to uncouple the same by the use of the lever, then, under the rule, it was his duty not to attempt to use the coupling appliances, and if he then went between the cars to uncouple them, the plaintiff could not recover; that if Thornbro willfully disobeyed the rule there could be no recovery, but: “If, to the knowledge of said Thornbro, the rule in question was and had been disregarded with the knowledge of those superior in authority for such a length of time and to such an extent as to show a tacit or express consent by the defendant to such disregard of such rule, then the mere fact that Thornbro may have likewise disregarded, the rule would not of itself prevent the plaintiff’s recovery herein.” The defendant objects to the modification contained in the quotation on the ground only that there was no evidence to which it could apply. The abstract, however, shows competent evidence to which the instruction was pertinent. The federal employer’s liability act eliminates the defense of contributory negligence, as well as assumed risk, when the violation by a common carrier of any statute enacted for the safety of employees contributed to the injury or death. The defendant also complains that the defense of contributory negligence, independent of any disregard of the rule, was not sufficiently stated in the instructions. This complaint, however, is predicated upon the contention that Thornbro was not engaged in interstate commerce when he was killed. It being determined that he was so engaged, and that the violation of the safety appliance act contributed to his death, the defense of contributory negligence is not available. Although not necessary to this decision, it may be remarked in passing that while the defendant insists that failure to observe the rule referred to was something above and beyond contributory negligence, in our opinion, it should not be so considered, but as contributory negligence only, and therefore is not available as a defense in this case under the statutes referred to. In any event the defendant has no good reason to complain of the instructions with respect to the rule. The petition not only charged negligence with respect to the coupler, but also negligence in maintaining an unblocked guide rail whereby the brakeman’s foot was caught while he was between the cars to make the coupling, a place into which he was compelled to go because the coupler, being defective as alleged, could not be used. At the close of the plaintiff’s evidence the defendant asked that all evidence relating to the unblocked guide rail be withdrawn frohi the jury and alleges error in overruling this motion. The court apparently treated the evidence relating to the guide rail as descriptive of the place of the brakeman’s fall and not as another ground of negligence, and carefully limited the plaintiff’s right to recover upon two precedent facts to be found by the jury from the evidence, viz., that the coupler was defective as alleged, and second, that such defect was the proximate cause of the injury; and charged the jury that unless they so found the plaintiff could not recover. These propositions were stated and repeated in the instructions in clear and pertinent language. - The jury returned a special finding that the Frisco car was equipped with a defective coupler “which could not be uncoupled without the necessity of a man going between the ends of the car.” ; The question of proximate cause was one of fact for the jury. It was so held in the circuit court of appeals in the second circuit, in Donegan v. Baltimore & N. Y. Ry. Co., 165 Fed. 869, a case quite similar to this, where a brakeman stepped between moving cars to uncouple them because the automatic coupler was broken. In starting back his foot was caught in an unblocked frog, and he was thereby pulled down and injured. The court held upon the question of proximate cause: “It is true that the direct instrumentality by which the plaintiff was injured was the frog. It was the immediate, but not necessarily the proximate cause. It was for the jury to determine whether the failure of the defendant to equip the cars with the appliances required by the statute was, in view of all the facts and circumstances, a proximate cause of the accident. Had the car been properly equipped there would have been no occasion for the plaintiff to go into a. place of danger. We can not say that the jury would' not have been warranted in finding that the accident, would never have occurred had the car been equipped with the statutory appliances, and, consequently, that the failure to have such appliances was a proximate-cause of the plaintiff’s injuries.” (p. 872.) The circuit court had ruled in that case that the violation of the safety appliance act was not a proximate cause of the accident, and the court of appeals ordered a new trial for that error. Here, upon competent evidence and pertinent instructions, the jury found that, the defective appliance was the proximate cause, and the district court approved the finding. (For a discussion of proximate cause, see Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488.) Some criticism is made of the amount of the damages allowed, $12,000. The amount is larger than is allowed, by our statute for death by wrongful act, but the federal statute, which, as we have seen, governs the controversy, contains no such limitation. Mr. Thornbrowas thirty-eight or thirty-nine years old, and was earning from $75 to $85 per month. He left a wife and two- minor children. The amount is not so great as to show passion or prejudice. No sufficient reason appears for setting aside the verdict. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: P. E. Hussey, having bought a tract of land from Calvin J. Michael, brought an action against him for damages on the ground that he had been defrauded by false representations as to its character. He joined as defendants George F. Edwards and W. F. Melton, a firm of real-estate agents who acted for Michael in the matter. A general verdict was returned against all of the defendants, but upon the special findings the court exculpated Edwards and Melton, and gave them judgment for their costs. From this decision the plaintiff appeals. The verdict and findings may be taken to establish these facts: Michael placed the land with Edwards and Melton for sale, making materially false statements to them as to its character. Edwards and Melton repeated these statements to the plaintiff, without wrong intent, supposing them to be true. They also employed one L. M. Chenoweth to show the land to the plaintiff. Chenoweth showed the plaintiff a different and less valuable tract in the same vicinity, but this was without he knowledge of Edwards and Melton. The plaintiff was deceived both by the statements as to the character of the land, and by being shown the wrong tract. We think Edwards and Melton can not be held liable by reason of having innocently repeated the false statements made to them by Michael. A principal, although personally innocent, may be liable for fraud practiced by his agent, acting within the scope of his employment. This is upon the theory that the acts 'of the agent are in legal contemplation the acts of the principal. Upon the same theory, the innocent repetition by the agent of the false representation made by his principal may well be conceived as the sole act of the latter in such a case as the present. “If . . . the agent makes false representations on behalf of his principal honestly believing them to be true, the mental element of fraud is lacking and he is not guilty of fraud and not liable for such, although his principal may have known that such representations were false. In order that an agent may be held liable for fraud there must be some fraudulent intent to deceive, in the circumstances of the particular case.” (2 Clark & Skyles on the Law of Agency, § 6026.) In some classes of torts, particularly in conversion, it is held that the agent may be personally liable to the owner of the property notwithstanding the innocence of his intentions. (Story on Agency, 9th ed., § 812.) It is suggested in a note in 50 L. R. A. • 648, that good faith will not excuse an agent who makes false representations concerning property sold, being deceivéd by his principal. That rule might apply where the third person is misled because of reposing special -confidence in the agent. Here Edwards and Melton .showed the plaintiff the description of the property as entered on their books. They did not profess any personal knowledge of the matter. The representation .relied upon by the plaintiff was essentially that of Michael, communicated to him by Edwards and Melton. If Edwards and Melton are to be held liable, it must be upon the theory that Chenoweth was their agent ■ and'that they are legally responsible for-his wrong doing. The 'jury were asked whose agent Chenoweth was, and answered that he was the agent of Edwards and Melton. This finding is conclusive against them, .if it is given its full apparent import, determining that Chenoweth in legal contemplation was their agent, and not the agent of Michael. But in view of the ruling •of the trial court the finding may reasonably be interpreted as meaning merely that Chenoweth was in fact selected and hired by Edwards and Melton, and was their agent in that sense, leaving the question of law •as to the relations of the various parties to be determined upon the whole record. The facts as to Chenoweth’s connection with the matter do not seem to be in dispute. The question as to who is liable for his misconduct becomes essentially one of law. It may be doubted whether Edwards and Melton had implied ■ authority to employ Chenoweth to show the land, and thereby make Michael liable for his conduct as a sub-agent. Such authority may, however, have existed in virtue of the character of the service delegated to •Chenoweth — it being essentially ministerial. (1 Clark & Sky.les on the Law of Agency, § 345d; Mechem on Agency, § 193.) But as against the plaintiff the allegations of his pleadings appear to establish conclusively that Michael was responsible for the acts of Chenoweth. The petition alleges that Michael stated to the plaintiff that the land he was selling him was the same that had been shown him by Chenoweth, knowing this to be false. This amounts to an allegation that Michael knew of the act of Chenoweth and adopted it, thereby making him his agent by ratification, even if originally Chenoweth had represented only Edwards and Melton. The question of law to be considered, then, resolves itself into this: Is an agent liable to a person injured by the fraud of a subagent whom he has appointed, the appointment having been ratified by the principal, the fraudulent act having been committed in a transaction within the scope of the employment? We think a negative answer should be given, and that this is in accordance with the great weight of authority, as illustrated by the following quotations: “An agent is not in general liable to third persons for the misfeasance or malfeasance of subagents employed by him in the service of his principal; but if he directs or authorizes the particular wrongful act of the sub-agent he will be liable to third persons therefor.” (31 Cyc. 1563.) “No action will ordinarily lie against an agent for the misfeasance, or for the negligence of those whom he has retained for the service of his principal, by his consent or authority, any more than it will lie against a servant who hires laborers for his master at his request, for their acts; unless, indeed, in either case, the particular acts which occasion the damage are done by the orders or directions of such agent or servant. The action, under other circumstances, must be brought either against the principal or against the immediate actors in the wrong.” (Story on Agency, 9th ed., § 313.) “Whether or not an agent is liable for the wrongs of a subagent depends upon whether or not the sub-agent is considered his agent in the particular transaction, or whether or not he has in some way participated in the wrong. . . . If . . . it is determined that the subagent is the agent of the initial agent only, and not of the principal, then such agent may be held personally responsible for the torts, whether of omission or commission, of his agent (the subagent) committed by the latter in the course of his agency. His liability in such cases is governed by the same rules as those governing the liability of any other principal for the torts of his agent. But where . . . it is determined that the subagent is the agent of the principal only, and not of the initial agent, the latter is not liable for such subagent’s wrongs unless he has been guilty of fraud or negligence in employing him or unless he has authorized or participated in the commission of such wrongs.” (2 Clark & Skyles on the Law of Agency, § 603.) “Where . . . the subagent is to be regarded as the agent of the agent, the latter will be liable to the subagent, the principal and third persons as a principal. . . . But where, on the other hand, the sub-agent is found to be the agent of the principal, then the intermediate agent will not be liable to the sub-agent or to third persons as a principal.” (Mechem on Agency, § 575.) “Third persons can not maintain an action against an agent for damage done by the negligence of sub-agents employed in the service of the principal. The principal only, or ‘the hand committing the injury,’ is liable.” (Note, 50 Am. St. Rep. 122.) “Neither principle nor authority will warrant the holding a mere middle man, an intermediate agent between the master and the direct agent, constructively responsible for the acts of the latter.” (Brown v. Lent, 20 Vt. 529, 533.) The distinction between the nonfeasance and the misfeasance of an agent, by which his liability to a third person has sometimes been determined, although recognized generally by the text-writers and by some courts (31 Cyc. 1559), seems very artificial, and is of at least doubtful value (see Note, 2 L. R. A., n. s., 378). An agent by whose breach of duty another has suffered injury may well be subjected to the same rule of liability as any one else. But here Edwards and Melton appear to have been without personal fault. If they are accountable to the plaintiff for his loss it is because they acted as the means of communication between him and Michael, or because the acts of Chenoweth are to be regarded as their own. The transaction of which the plaintiff complains is a sale of property to him by Michael, by means of false representations as to its character, and consequently as to its value. Edwards and Melton acted for Michael, not for themselves. ' If they had intentionally participated in the fraud they would of course be liable, but the finding is to the contrary. What Chenoweth did was to promote the sale, to which Michael and the plaintiff were the sole parties. Although Edwards and Melton were interested in the matter to the extent of their commission, and in that respect Chenoweth’s services accrued to their personal benefit, they were neither parties to the sale nor privy to the misrepresentation employed to carry it through. We think the situation is not one in which they ought to be held liable for the deceit of the principal and the subagent. The judgment is affirmed.	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The opinion of the court was delivered by Benson, J.: The question to be determined is whether an abstract of title tendered by the plaintiff to the defendant showed a good merchantable title, as stipulated for in a contract between the parties for the exchange of real estate. In a petition for specific performance the plaintiff alleged, among other things, that he had furnished such an abstract, and attached a copy. The district court sustained a demurrer to the petition and the plaintiff appeals. The abstract being a part of the petition, its sufficiency was challenged by the demurrer. The abstract shows that the title was in A. C. Wilcox on March 20, 1889, subject to two mortgages, one for $2000, and another for $100. On that day Wilcox and wife conveyed it to Logan Huntin. Huntin conveyed to Edrid Drew, March 28, 1890, and Drew conveyed it to Wesley L. Pieper, May 31, 1893. These three conveyances were made by warranty deeds, and all were recorded on June 13, 1893. No conveyance from Pieper was shown. The abstract also shows that a suit was commenced on March 3, 1890, to foreclose the $100 mortgage, above referred to, against Wilcox and wife and the mortgagors, through whom Wilcox had held the title. A judgment for foreclosure and sale, subject to the $2000 mortgage, was rendered April 28, 1890, and a sale was made on December 15, 1890, as ordered, to Clint C. Rush, which was confirmed, and a sheriff’s deed was made on April 7,1891, which was recorded on July 30, 1892. On April 19, 1912, this title was vested in the plaintiff through several mesne conveyances. A tax deed purporting to convey this land was issued to B. C. Nields, recorded August 24, 1893. This tax title was also vested in the plaintiff through quitclaim deeds. The abstract does not otherwise state or refer to the tax deed. The tax proceedings are not stated or abstracted. The $2000 mortgage was paid by one of the grantors under whom the plaintiff claims title, and was released of record. Two affidavits were attached to the abstract, in each of which the affiant testified that he had been acquainted with the land for the past twenty years, and knew that no one had been in possession except Clint C. Rush and B. C. Nields, and their grantees under them, and that there had been no adverse possession to them or to their grantees. It will be observed that according to the abstract the record shows the title to be in W. L. Pieper, holding under the conveyance from Wilcox to Huntin, subject to the mortgages and the tax title. The foreclosure suit was commenced and the sheriff’s deed was made between the date of the Huntin deed and the date upon which it was recorded. So far as the record in the register’s office, disclosed the necessary parties were brought into the foreclosure. But a grantee under the Huntin deed may have been in possession, or Rush, the grantee, may have been otherwise chargeable with notice of that title. The validity of the outstanding Huntin title, as vested in Pieper, May 31, 1893, as against the plaintiff’s title, depends upon notice, which may have been afforded by possession sufficient for that purpose. The affidavits relate only to the possession for the twenty years preceding October 14, 1912. Nothing is said about possession before that period commenced, that is, before October 14, 1892, yet all the foreclosure proceedings were taken and the sheriff’s deed made before that date. Was the plaintiff’s title, as shown on this abstract, merchantable? In a case involving similar facts the supreme court of Pennsylvania said: “It is an invariable rule in chancery that a purchaser shall not be compelled to accept a doubtful title, or what in some of the cases is called an unmarketable title. And every title is doubtful which invites or exposes the party holding it to litigation. In the opinion of the court it may be good, but if its validity depends upon some facts resting in the knowledge of some party or writings not before the court; if there be a colour of an outstanding title which may prove substantial, though there is not. enough in evidence to enable the chancellor to say that it is so, a purchaser will not be held to take it, and encounter the hazard of litigation with an adverse claimant.” (Speakman v. Forepaugh, 44 Pa. St. 363, 371.) In McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834, it was held: “Equity will not compel a purchaser under an ex-ecutory contract for the sale of land to accept the title if doubtful or unmarketable. “A title is doubtful if it exposes the party holding it to the hazard of litigation.” (Syl. ¶¶ 1, 2.) In the opinion it was said: “In determining whether a title is so doubtful that equity will refuse to compel a purchaser to accept it the court is not required to pass upon the validity of the title itself; the parties whose possible claims may affect the title are not before the court, and no judgment which the court could render would bind them.” (p. 428.) Concerning a title depending on notice that might be shown outside of the record, it is said'in section 294 of the second edition of Maupin on Marketable Title to Real Estate: “As a general rule a purchaser can not be compelled to perform a contract when the vendor’s title depends upon a question of notice of the rights of third parties.” An unrecorded deed is invalid “except between the parties thereto, and such as have actual notice thereof” (Gen. Stat. 1909, § 1672), but open and notorious possession is notice to all the world (Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228). Nothing appears in the abstract negativing such possession by Huntin when the foreclosure suit was commenced, and there is nothing to indicate when the sheriff’s grantee took possession or from whom, or the nature of that possession. The outstanding title of Pieper may or may not be barred by adverse possession, depending upon the facts. If the defendant is compelled to take the title shown upon this abstract, he must necessarily take the risk of proving such adverse possession. It is true that two persons have stated in the most general terms facts from which, at some time not stated, possession adverse to the Pieper title might be inferred, but the examination of these and other witnesses who may be produced in another action to assert or overthrow the apparently outstanding title may result in a different conclusion. The abstract, giving full effect to all that is contained in the affidavits, does not show a merchantable title within the definitions heretofore given in cases in this state or in the authorities generally. We are inclined to hold, also, that this is not a case like Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720, where incidental matters such as intestacy, heirship, and the satisfaction of claims against an estate not probated may be shown by affidavits upon an abstract of the title of a deceased owner. Here the abstract shows an outstanding title in fee in Pieper. Its validity depends upon matters of fact concerning notice, possession and periods of limitation. To require a purchaser to accept affidavits upon such matters would impose too great a hazard and would be unjust. Whether Pieper is living or dead does not appear, and so another element of uncertainty arises, respecting heirship, minority, and the period of limitations. Little was said in the argument about the tax title. The abstract shows that a tax deed was issued, and that the plaintiff has succeeded to the rights of the tax purchaser. Whether it was void or valid upon its face does not appear. If valid in that respect it may be void now for failure to take possession within the time allowed for that purpose by the statute. (Andrew v. Reid, ante, p. 135, 137, 136 Pac. 793.) Cases are cited holding that when the record shows title clear in a party, and a purchaser has no notice of any outstanding equities or titles, he may, as a.rule, safely purchase from such party, and the holder of the unrecorded title will be estopped as against a purchaser for value in good faith. This is undoubtedly true; courts do not favor secret liens, interests, or titles withheld from record where notice is not imparted by possession or otherwise. These rules would doubtless be applied if an action were brought to test the validity of the outstanding title. The question here, however, is whether the defendant should be required to assume the burden of such prospective litigation. It seems clear that he should not. The judgment is affirmed.	[ -16, 102, -47, -81, -22, 96, 42, -104, 104, -75, -27, 83, -17, -46, 29, 121, -30, 57, -11, 104, -26, -77, 82, -31, -110, -77, -47, -44, -79, 76, -10, -41, 76, 36, -62, -107, 102, -126, 71, 20, -50, -123, -87, 76, -39, 96, 52, 107, 96, 9, 113, -98, -13, 45, 25, 66, 45, 44, -37, 59, -48, -8, -118, -115, -17, 15, 17, 102, -100, -61, -24, -120, -112, 57, 64, -24, 122, 38, -106, -12, 9, -117, 41, 38, 98, 32, 85, -17, -88, -104, 47, 127, -115, -90, -74, 88, -86, 40, -73, -99, 124, 48, 70, -10, -17, 85, 25, 109, 7, -113, -42, -109, 15, 56, -120, 3, -34, 35, -76, 112, -49, -128, 92, 102, 20, 27, -113, -8 ]
The opinion of the court was delivered by Johnston, C. J.: F. F. Erhart, who is a resident taxpayer of the Kaw Valley Drainage District, sought, by this action, to enjoin the holding of the regular election of the directors of the district, claiming that the board in providing for the election had designated more polling places than the law authorizes. The trial court denied the injunction, and Erhart appeals. It appears that the district is over seven miles long, extending along the Kaw river through the populous part of Kansas City and outside the corporate limits to a point beyond the village of Turner, and that in the district there are more than 1500 qualified voters. On the theory that the electors of the district could not be accommodated at a single polling place, as evidenced by experience at former elections, the majority of the board, acting upon the advice of the attorney-general of the state, designated three polling places in the district and provided for the appointment of three judges and two clerks of election at each place. The case turns upon the question whether more than one polling place may be established for an election in a drainage district. There is no contention that there is an express limitation as to the number of polling places which may be provided, but it is insisted that the language of the statute implies that only one place can be created. The statute provides that: “elections to choose directors shall be conducted, the returns made and the results ascertained in the manner provided by law for general county elections,” and after providing how candidates may be placed on the ticket it proceeds : “At least five days before each election the board of directors shall appoint three judges and two clerks, and designate a place for holding the election, and shall cause to be ascertained the names of all the taxpayers within the district and furnish a list thereof to said judges of election. Notice of the time and place of holding each election, signed by the president of the board of directors, shall be given in some newspaper published in the county and posted in a conspicuous place in the office of the board of directors at least five days before the holding thereof.” (Laws 1913, ch. 184, §3.) It is urged that the power to designate “a place for holding the election” does not authorize the board of directors to establish several places and to appoint election boards for each place. It is also contended that the holding of an election at an authorized place is vital, and that it is just as imperative to hold the election at the place fixed as it is to hold it at the time fixed, and therefore the provision giving the board power to designate a polling place should be given a reasonably strict construction, and that so construed the board may only designate a single place. If the language of the statute expressly or by necessary implication requires that all the electors of the district must cast their votes at a single place only one polling place, of course, can be established by the board, although the lack of accommo'dations might result in depriving voters of an opportunity to cast their ballots. The language of the provision, however, is not' prohibitive nor restrictive. Instead of imposing a mandatory limitation as to where the electors shall cast their ballots the legislature used the indefinte expression, “a place,” and- this was used incidentally in connection with other requirements. The board is admonished to provide some place,- but it is not, in terms, confined to a single place, and as used it would seem to be no more than a requirement to provide accommodations for the electors to cast their ballots. The first consideration in the election is io obtain and give effect to the will of the majority of the voters of the district wherein each voter shall be given an opportunity to freely cast his ballot. If the pro vision was mandatory or peremptory in character as well as form there would be no discretion in the board as to polling places, but as an increase of the number of polling places will not defeat the legislative purpose nor vitiate the election the provision should be regarded as directory. (Gilleland v. Schuyler, 9 Kan. 569; Wildman v. Anderson, 17 Kan. 344; 15 Cyc. 318.) If there was a compelling purpose to be subserved by requiring all the voters to attend a single polling place there might be some reason to regard the expression as a limitation. No good reason, however, is seen why all the electors of a district, large and populous as it may be, should be required to vote at one place. On the other hand, it is easy to see that in some cases such restriction would deprive voters of an opportunity to express their will and would defeat the purpose for which the election was held. A drainage district may be so large that it would be utterly impossible to accommodate the voters at a single polling place, as under the statute the boundary of the county is the only limit to the extent of a district. If a district was forty miles long, and included a city with a dozen voting precincts, each of which was necessary to a full vote, and also a number of townships with one or more voting precincts in each, not an unreasonable supposition, an election there would be a farce as only a small fraction of the votes could be cast or received at one polling place. It is clear that from the extent of the district in question and the number of voters that it is not practicable to obtain a full vote at one polling place. In the absence of an explicit or compelling requirement it can not be presumed that the legislature intended a limitation that would effect such a result or would operate to hamper the casting of a full vote. Althougn the legislature used a word singular in form it must be interpreted in accordance with the ‘general rule prescribed for construing statutes, which is that: “Words importing the singular number only may be extended to several persons or things . . . unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” (Gen. Stat. 1909, § 9087.) The phrase comes fairly within this rule of interpretation, and although the word is singular in form it is to be interpreted in a plural sense. At one time the legislature authorized the enforcement of tax liens against all owners whose lands had been bid in by the county and were still unredeemed by an action to be brought by the county attorney. Notwithstanding the fact that the word “action” was used in the act it was held, under the statutory rule mentioned, that the word although singular in form should be given a plural signification. (Douglass v. Leavenworth County, 75 Kan. 6, 88 Pac. 557.) In all the statutes governing general elections provision is made for the creation of a sufficient number of precincts so that all of the voters may have a full opportunity to vote, and nothing is found in the act in question from which it reasonably can be inferred that the legislature intended to make it impracticable or impossible to obtain a free expression of the will of the voters in the elections held in drainage districts. 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 upon an instrument whereby the makers promised to pay Austin Van Fossan and A. J. Miller $300, six months after date. It was signed by the defendants and several others, described as members and shareholders of the Arkansas City, Kan., branch of the Socialist Commercial Industrial Cooperative Association of America. Following the usual form of a promissory note is a statement that it is given to purchase property, described, consisting of the furnishings and tools of a retail meat market, the title to which is to remain in the payee until the note is paid. It appears that Van Fossan deposited $300 in a bank to be used in buying the necessary tools, etc., with which to carry' on the business. This note was then drawn payable to him and A. J. Miller, signed by twelve of the sixty members, and delivered to Van Fossan. Thereupon Miller, who was at first chairman of the association and afterwards bookkeeper, checked out the money, paid for the property, and then indorsed the note to Van Fossan. Miller really had no interest in it. The business failed, the property was sold, and the proceeds applied on the note. . The defendants sought to prove that it was agreed that the note should be paid out of the profits of the business of the association. Evidence of such an' agreement, however, was held immaterial, and that defense was withdrawn in the instructions. The instrument was an unconditional promise to pay money at a certain time, lacking, however, the quality of negotiability, because of the omission of the words “or order” or “or bearer.” (Neg. Inst. Law, § 8, Gen. Stat. 1909, §5254.) Oral evidence that it was not to be paid until profits sufficient for that purpose were made out of the business would contradict its terms and could not be admitted as a defense. (Railway Co. v. Truskett, 67 Kan. 26, 72 Pac. 562; Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867; Trice v. Yoeman, 60 Kan. 742, 57 Pac. 955; Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Benner v. Luth, 28 Kan. 581.) The rule is thus stated in section 2425 of volume 4 of Wigmore on Evidence: “When a legal act is reduced into a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act.” The defendants also claim that they signed the instrument upon an oral agreement with the payees that it was also to be signed by all the members of the association, and unless that were done it should not take effect as a valid obligation. The district court held that such an agreement would be a defense, and submitted to the jury the question of fact whether it had been so agreed. It was an undisputed fact that all the members had not signed, but there was a substantial conflict in the evidence whether such an agreement had been made. Upon this conflicting evidence the jury found for the plaintiff. The only defense therefore failed, and the judgment is affirmed.	[ 116, 124, 16, -35, 10, 96, 58, -102, 17, -92, 39, 115, -23, -43, 16, 107, 103, 61, 116, 105, -57, -77, 39, 75, -62, -77, -15, -43, -79, 109, -28, 85, 77, 52, -54, -35, -26, -32, -63, -98, 14, 36, 11, -60, -7, 76, 48, 27, 80, 75, -11, -54, 107, 47, 24, 67, 41, 44, 107, 13, 96, -72, -69, -49, 127, 23, -109, 64, -100, 39, -8, 44, -104, 49, 1, -24, 114, -74, 6, 116, 109, 25, 44, 102, 98, 50, -107, -53, 92, -100, 46, -1, -99, -89, 80, 88, -125, 47, -74, -97, 54, 21, 38, 118, -1, 29, 27, 108, 1, -117, -28, -126, 63, 126, 28, -117, -21, -93, 48, 101, -50, -16, 93, 71, 122, -109, -114, -111 ]
The opinion of the court was delivered by Mason, J.: In a petition for a rehearing it is strongly urged that the opinion heretofore filed does not meet the contentions of the appellants, and does not adopt a definite theory in support of the decision made. In the opinion it was said that the plaintiff could not prevail, whether or not there was a redemption from the sale under the first mortgage. The petitioner suggests that we should determine that there was or that there was not a redemption, and that his theory presents a third hypothesis — that of merger. The facts of the case are unusual; the situation presented is in some respects unique. It is not necessary that the resulting condition should be given a name. However, we are clear that what was actually done mas?- be regarded as amounting to a redemption — that the rights of the parties were the same as thojigh a formal redemption had been made. The second mortgagee was a party to the partition action in which the sale to Mrs. Jett was made. The sale purported to convey the property itself, and not the property subject to the second mortgage. The sale was for two-thirds of the appraised value of $3600, which manifestly represented the estimated value of the property, and not of the property subject to a mortgage. Whether or not the proceedings with regard to the sale were erroneous, they were not appealed from, and are binding upon the owner of the second mortgage. His interest was cut off by the sale because of his being a party to the litigation. (Woodman v. Davison, 85 Kan. 713, 716, 118 Pac. 1066.) In these circumstances we can not regard it as equitable to hold that the second mortgage became a first lien through a merger of the prior lien with the title. The petition for a rehearing is denied.	[ 51, -4, 81, -84, 10, 96, 34, -6, 72, -96, 39, 115, 109, -54, 20, 41, -90, 127, 117, 104, -41, -77, 23, 9, -46, -13, -45, 93, -79, -20, 116, 30, 76, -96, -62, -43, 102, -118, -57, 86, 14, -121, 24, 69, -39, 64, 52, 11, 80, 9, 85, -49, -13, 44, 25, -61, 73, 40, 59, 61, -48, -72, -101, -115, 127, 6, 49, 52, -36, -25, 88, 14, -112, 56, 1, -23, 115, -74, -122, 116, 45, -103, 9, 102, 98, 35, 101, -17, -112, -104, 46, 87, -115, -90, -111, 24, 3, 97, -73, -99, 109, 64, 38, 124, -22, 21, 29, -20, 15, -18, -74, -111, -51, 126, -104, 11, -10, -109, 50, 112, -51, -78, 93, -10, 123, -5, -114, -4 ]
The opinion of the court was delivered by Burch, J.: Sell traded his farm to Compton for a stock of goods. The goods were priced higher than the farm, and Sell gave Compton a note secured by a chattel mortgage on the goods for the difference. The goods were in a store conducted by Compton at Lehigh. Sell undertook to continue the business, and contracted to keep an accurate account of the goods sold and to de- ’ posit sixty-five per cent of the proceeds in the bank at Lehigh, to be credited on the note until it should be paid. Sell took possession of the store' on January 29, 1912, and continued in possession until March 20, 1912; when Compton took possession under the chattel mortgage and proceeded to foreclose it. Afterwards Sell brought an action to set aside the deed of the farm, alleging that it had been procured through misrepresentations as to the character, quality and value of the stock of goods. Compton answered and set up a claim to affirmative relief. After the pleadings on both sides had been substantially recast and issues had been joined, the case came on for trial. A jury.was called, which returned answers to special questions. The court approved these answers and rendered judgment canceling the deed and canceling the note given by Sell, a portion of which remained unpaid after the proceeds of the chattel mortgage sale had been credited on it. Compton appeals. One of the issues upon which the court instructed the jury was whether or not the plaintiff had full opportunity to examine the goods before purchasing them. The jury returned the following findings relating to this issue: “5. Did Compton, before the signing of the contract and delivery of the déed, tell Sell that if he (Sell) - did not think that the stock would invoice $12,000.00, they would invoice it? Answer. No. “6. Did Compton do anything to prevent Sell, or Case, or anyone else acting for Sell, from making any examination of the stock of goods they cared to make? Answer. Yes. “7. If you answer the last preceding question in the affirmative, state what was done. Answer. The trade rushed through, and they did not have time to investigate the stock.” There is no testimony in the record to support these findings, and all the testimony given on the subjects to which they relate is contrary to them. The court instructed the jury that if the defendant was guilty of fraud it was the duty of the plaintiff to act promptly on discovery of the fraud, to return or offer to return the goods, and to demand restoration of the title to his land; and that if he said nothing and continued to sell the goods, he waived the fraud and could not complain of it. The evidence was that the plaintiff doubted the representation of; the defendant as to the quantity of goods in the store when the trade was concluded. About February 12, one of the plaintiff’s witnesses looked through the stock and told the plaintiff what he had. The plaintiff then employed a man to invoice the stock and a complete invoice was taken, the plaintiff himself assisting part of the time. In taking the invoice the character and quality of the goods were revealed. In this invoice the goods and fixtures were priced at $7757.59. The goods amounted to $6243.39 and were worth 40 cents on the dollar, or less than $2500. The fixtures were of small value. The alleged representation of the defendant was that the goods and fixtures were of the value of $12,000. With complete and detailed knowledge of just what he had received for his farm the plaintiff, instead of rescinding, put on a ten-day “Fearless Price Cutting Sale,” beginning February 28. The station agent at Lehigh testified that the plaintiff made the following shipments of goods to other points: February 5, one box shoes, weight 100 pounds; one box shoes, weight 50 pounds; February 21, two boxes dry goods,, weight 70.pounds;-March 6, five boxes dry goods, weight 550 pounds;, four boxes-canned goods, weight'275-pounds; March' 9, two zinc trunks, checked as baggage, weight 200 pounds; two zinc trunks, checked as baggage, weight 250 pounds. , The plaintiff did not make deposits of the proceeds of sales as he had agreed to do. On March 8, the defendant called on him in reference to the matter, and instead of rescinding the trade he made a payment on his note of $193.20. On March 19 he made another payment. On March 20 he yielded possession to the defendant, with,out protest or complaint. The chattel-mortgage sale occurred on April 19, and still no indication was given to the defendant that the trade was unsatisfactory. The action was commenced, on May 23. The plaintiff said he did not think he was defrauded very much until the day the defendant demanded possession under the chattel mortgage, when the defendant said he did not think there were goods enough in the store to pay the mortgage. The plaintiff had full opportunity to know the facts and had the means of acquiring knowledge of the facts at least from the day he took possession of the store. Allowing time to improve them, such means and opportunity were equivalent to knowledge. But the plaintiff had actual knowledge of the essential facts probably on February 12, and certainly by February 28, and he can not be heard to say that he postponed the mental act of drawing the inference of fraud from the known facts. It was then his duty to repudiate the contract if he ever intended to do so. The law did not permit him to select his own time and consult his own convenience in rescinding. (Bell v. Keepers, 39 Kan. 105, 108, 17 Pac. 785.) He co.uld not speculate on the probability of deriving some advantage from the trade (Neal v. Reynolds, 38 Kan. 432, 435, 16 Pac. 785), and the law implied affirmance from his unequivocal conduct in selling and shipping goods and making payments on his note (Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498). The plaintiff testified that he ordered new goods for the store to the amount of $618 while he was in possession. The amount was not corroborated by any bills or receipts or checks or other memoranda. Neither full nor accurate accounts were kept of the goods which went out of the store. But granting that all the new goods were in the store when the defendant foreclosed the chattel mortgage, and crediting the plaintiff with the payments made on the note, the evidence shows there was still a deficiency. If it had been possible to determine the amount of the shortage with accuracy, compensation might have been made. (Basye v. Refining Co., 79 Kan. 755, 101 Pac. 658.) But it was not, and because of lapse of time and the conduct of the plaintiff the defendant completely changed his situation. (Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498, and authorities there cited.) From what has been said it is manifest that the plaintiff has no standing in equity to obtain relief by way of rescission and cancellation. His pleadings are in such form that they might be amended to ask for damages if he should see fit to make the request and the court, in its discretion, should permit. The judgment of the district court is reversed and the cause is remanded.	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The opinion of the court was delivered by Mason, J.: Fred Meyn brought an action to restrain the city of Kansas City from entering into a contract with two railroads for the construction of a viaduct, and to enjoin proceedings under such contract, including the building of the viaduct. A preliminary injunction was refused, and judgment on the pleadings was rendered in favor of the defendants.. The plaintiff appeals. The defendants, have made a showing that the acts sought to be enjoined have already been fully performed, and a dismissal is asked on that ground. The ordinary rule is that in that situation the decision of the trial court will not be reviewed. (See 2 Cent. Dig., Appeal and Error, § 75; 1 Dec. Dig., Appeal and Error, § .19.) The plaintiff contends that he is entitled to a hearing because of the judgment for costs rendered against him, and cites Cheesebrough v. Parker, 25 Kan. 566, in support of the contention. It was there said that the plaintiff in ejectment could have a review of the judgment for costs against him, notwithstanding he had conveyed the property to the defendant pending the appeal. The action, however, was not merely for possession, but for rents and profits as well. The rule is settled that in this court “appeals are not heard for the determination of matters of cost only.” (Anderson v. Cloud County, 90 Kan. 15, 17, 132 Pac. 996.) A judgment denying an injunction is sometimes reversed, notwithstanding the act sought to be enjoined has been performed, where, as in tax proceedings, the court has power to restore the original status. (Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853.) This principle seems to have been applied where minor alterations in partitions in rented property were the subject of controversy. (Moses v. Salomon, 135 N. Y. Supp. 408.) Assuming that the court would have jurisdiction to command the removal of the viaduct here involved, which cost over $70,000, such an order is not to be thought of, and is not asked. If the judgment in this case were of such a character that its affirmance would constitute an adjudication of any of the plaintiff’s rights other than with respect to an injunction, his appeal might be determined upon its merits on that account. (Bithulithic Paving Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46.) But he sought only injunctive relief. True, in some circumstances the action might have been converted into one for damages, upon the principle that jurisdiction assumed by a court of equity for one purpose will be retained for all. (Note, Ann. Cas. 1912 A, 803.) But the question whether an injunction should issue was not the same as whether the conduct of the defendants was an invasion of the plaintiffs rights. So .far as the record discloses, the court may have rendered judgment upon the pleadings upon the theory that the. petition showed that the plaintiff had an adequate remedy in an action for damages. For the, reason that nothing is .involved in this proceeding except relief by injunction, which can not now be granted, the appeal is dismissed. As a result, the judgment of the district court will remain undisturbed, but it is now interpreted as.having to do only with injunctive relief, and it will not be a bar to an action to recover any damages he, may have suffered, if the defendants’ acts shall be found to have been wrongful.	[ -12, 104, -15, -100, 74, 64, 74, -39, 65, -93, 101, 83, -115, -38, 4, 111, -2, 95, 117, 107, 80, -77, 7, -45, -42, -45, -45, -35, -69, 92, 102, -33, 76, 32, -62, -107, 102, -61, 85, 84, -114, -91, -88, -59, -39, 96, 48, 43, 16, 71, 17, -97, -13, 40, 24, -61, 105, 44, -101, 41, -16, -72, -114, 13, 111, 20, 49, 36, -104, 7, 88, 44, -112, 49, 9, -4, 115, -92, -122, 116, 97, -37, 8, -82, 99, 32, 73, -21, -4, -72, 14, 89, -115, -90, -109, 24, 75, 65, -106, -35, 117, 6, 7, -2, -18, 5, -33, 60, 3, -113, -78, -79, 15, 57, -110, 1, -21, 3, 52, 116, -50, 114, 92, 7, 19, -101, -98, -68 ]
Per Curiam: Action to recover possession of horses taken under a chattel mortgage executed by the husband and agent of the mortgagor. She subsequently gave the horses to her son. There is testimony that her husband was her agent, that she knew of the existence of the note and mortgage shortly after they were executed, and that she did not repudiate them nor the act of her agent. There was a claim that the note was invalid because it was given for an amount in excess of the price of the horses and for an illegal purpose, but the jury have found that there was no collusion or intention to defraud any one, and while two or three of the findings are somewhat argumentative it can not be held that they betray passion or prejudice. They were sufficiently definite and appear to have support in the testimony. As to obtaining possession of the horses, the jury have, in effect, found that the appellant first refused the demand of the appellee but finally yielded possession. No material error is found in, the instructions given by the court. Judgment affirmed.	[ -13, 116, -31, -83, 74, -32, 42, -104, 71, -63, 55, 83, 43, -62, -108, 41, 98, 105, 85, 99, -58, -77, 87, -47, -14, -13, -109, 77, -75, 109, -11, 87, 77, 48, -54, 85, -58, -126, -95, 84, -118, 5, -118, 108, -39, 120, 52, 43, 84, 74, 113, -113, -13, 46, 61, 87, 105, 40, 107, 57, -64, -23, -69, -123, 111, 6, -111, 100, -116, 67, -38, 110, -108, 49, 1, -8, 114, -74, -114, 84, 9, 27, 9, 98, 102, 49, -59, -17, 120, -56, 39, 126, 7, -90, -110, 88, 10, 99, -105, -99, 116, 64, 39, -4, -17, -99, 29, 108, 4, -49, -42, -77, 47, 126, -102, 2, -13, -105, 21, 117, -51, 104, 85, 2, 48, -101, -114, -73 ]
The opinion of the court was delivered by Mason, J.: W. H. Bowers, brought an action to foreclose a mortgage, which was resisted by Lizzie T. Jett, who asserted ownership of the land, freed from the plaintiff’s lien. The case was sent to a referee, who reported the facts in detail, and concluded that the defendant should recover. The trial court, however, gave j udgment for the plaintiff, from which- an appeal is taken. The facts found by the referee were practically adopted by the court throughout. Some of the findings were modified, but in each instance the difference of opinion between.the referee and the court was not really as to what had taken place, but as to the legal consequences that followed. Therefore we have only to determine the rights of the parties under the established facts, which for present purposes may be thus stated: In 1898 Allen G. Woodcock owned the land in controversy. On June 14 of that year he gave a first mortgage upon it for $1500. The next day he made a second mortgage to his son, Chester 0. Woodcock, for the expressed consideration of $2500. He died intestate March 20, 1899, his only heirs besides his wife and his son Chester being another son. The first mortgage was foreclosed in an action brought in the district court of Wyandotte county July 17, 1902, Chester O. Woodcock being a party. Judgment was rendered March 17, 1903, for $1927.50, bearing 8 per cent interest. November 16, 1900, a partition suit was begun in the court of common pleas, for the purpose of dividing the real estate among the heirs of Allen G. Woodcock. A division in kind was found impracticable, and a sale was ordered. A decree in the partition suit was rendered June 6, 1904, providing that if no party took the property at its appraised value ($3600) it should be sold by the sheriff at not less than two-thirds of the appraisement, the proceeds, after payment of costs and taxes, to be applied to the judgment in the foreclosure action, the residue to be distributed among the heirs. June 27, 1904, a sale under the mortgage foreclosure was had, which was confirmed July 2, 1904. A sale under the decree in the partition suit followed July 11, 1904. Mrs. Jett was the buyer at the second sale. She also bought the certificate of purchase which had been issued in pursuance of the foreclosure sale, upon which eighteen months’ redemption was allowed. The sale in the partition action was confirmed September 19, 1904, and the decree of confirmation directed the sheriff to apply the proceeds to the redemption of the property from the foreclosure sale, and return the canceled certificate. A sheriff’s deed in pursuance of the sale in the partition suit was executed to Mrs. Jett October 13, 1904. December 16,1904, W. H. Bowers, who had acquired whatever rights Chester O. Woodcock had under the second mortgage, brought the present action for its foreclosure. He contends that the interest acquired by Mrs. Jett through her purchase of the certificate of purchase, which was issued in the first-mortgage foreclosure, merged with the title she obtained by purchase at the sale under the decree in the partition suit, and that the original second mortgage thereby became a first lien. We can not assent to this view. The doctrine of merger is equitable in its nature, and we see no sufficient reason for its application to this situation. In the partition case it might perhaps have been simpler for the court to have directed a sale of the mere equity in the property — of the property, subject to the rights arising under the first mortgage. But substantially the same result was accomplished by the sale of the property as a whole, with a direction to apply the proceeds, so far as necessary, to the first lien. Between the judgment in the partition proceedings and the sale thereon the property was sold under the fore closure decree, and the form of the first-mortgage lien was thereby changed from a judgment to a certificate of purchase, but it was essentially the same demand and was still a first charge. The confirmation of the partition sale implies that it was regularly and fairly conducted. As the proceeds of this second sale, after the payment of the costs and taxes, were directed to be applied to the lien of the first mortgage, and as these items practically exhausted the amount for which the property was sold, nothing was left for either the heirs or the second mortgagee. Their failure to realize anything for their respective interests was the necessary consequence of the property not having brought a larger amount. A formal redemption of the property from the sale on foreclosure does not appear to have been made, although the transaction as a whole doubtless amounted substantially to the same thing. Mrs. Jett was the bidder at the partition sale, and she held the certificate of purchase, to the redemption of which the amount of her bid was to be applied. The precise manner in which her preferred claim was applied to the amount of her bid is not important. The certificate of purchase was treated as a credit upon her bid. If there was a valid redemption her title is good in virtue of her purchase at the partition sale; the redemption was made in her behalf as the purchaser — the owner of the equity of redemption — and the property is no longer liable to the second mortgage. (Civ. Code, § 477.) If the proceedings are regarded as not amounting'to a redemption, then her title is good in virtue of the sale under the mortgage foreclosure. It may be suggested that in that view of the case she has not paid the amount of her bid at the partition sale. The property was in effect bid off to her at the partition sale for substantially the claim she held against it. What method was. adopted in setting the one amount against the other is not very important. We hold that in buying at this sale, under a decree which appropriated the amount of the bid to the payment of her own claim, she did not take the property charged with the lien- of the second mortgage, and that ruling is decisive of the controversy. A contention has been made in behalf of Mrs. Jett that the second mortgage was barred by the judgment in the action brought to foreclose the first mortgage, and also by the judgment in the partition action. In view of what has already been said, it is not necessary to determine those questions. The judgment is reversed and the cause remanded with directions to render a judgment quieting the title of Mrs. Jett.	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Per Curiam: The contract contained no restrictions as to place, and expressed what the parties clearly had in mind, namely, the regular selling price of automobiles of the kind the plaintiff purchased. Therefore newspaper advertisements and other proof of reductions in price at other places than Paola were properly received in evidence to establish the plaintiff’s cause of action. Crosswhite’s admission that the selling price of cars of the kind sold the plaintiff was reduced to one thousand dollars in the latter part of 1910 concludes him. The contract purports to bind the firm to refund. Crosswhite’s admission that his partner was acting for the firm when he sold the plaintiff his car concludes him on the question of authority and on the question whether it was an individual or firm transaction. There is no question of estoppel in the case, either in the pleadings or in the proof. The plaintiff could demand compliance with the contract at any time within the statute of limitations. The judgment is fully sustained by the law and by the evidence, and it is affirmed.	[ -16, 126, -16, -83, 26, 96, 58, -102, -3, 69, 39, 83, -83, 66, 20, 105, -25, 93, 117, 107, -43, -77, 7, -125, -10, -109, -47, -39, -75, -50, -25, 92, 76, 32, -62, -123, -30, 66, -43, 92, 78, 4, -72, -24, -7, 80, 116, 91, 64, 73, 97, -49, -29, 38, 16, -49, -83, 44, -21, 49, -16, 112, -115, -124, 111, 15, 19, 52, -72, 39, -40, 12, -112, 49, 1, -24, 114, -74, 70, -36, 107, -119, -120, 2, 98, 34, 97, -19, -4, -100, 46, -6, 15, -90, 118, 89, 10, 97, -65, -97, 116, 16, 15, -2, -8, -100, 31, -27, 3, -113, -106, -93, -17, 102, 30, 70, -18, -127, 21, 64, -49, 118, 92, 86, 26, -101, -106, -76 ]
The opinion of the court was delivered by Smith, J.: In his petition, filed at the commencement of this action, the appellee alleged that he rented a farm of appellants, and by the terms of the contract the appellants were to furnish, the land, the stock thereon, one-half the feed for the same, and the implements and teams necessary to farm the land; that the appellee was to do the work and that the crop and the increase of the stock were to be equally divided between the parties to the contract. He appended to the petition an itemized statement of his claims. The appellants, in answer, restated the contract according to their version and alleged that the transaction constituted a copartnership between the parties, and asked for an accounting and prayed judgment for $1066.69 against the appellee.' After the introduction of appellee’s evidence, a demurrer was filed thereto, and pending the hearing of the motion the appellee obtained leave to file an amended petition, to which he appended- an itemized statement of his claims and claimed that a balance was due to him. Appellants filed successively a demurrer to the amended petition and to the evidence which had been produced, each of which motions were overruled. Thereupon the appellants introduced their evidence under the pleadings filed. The court made extensive findings of fact and conclusions of law and rendered judgment in favor of the appellee for $328.35. Appellants then filed a motion for a new trial, which was overruled. Several assignments of error are made, only one of which we think requires any discussion. The court found that there was evidence that appellee sold his interest in some corn, produced on the farm, to the appellants at the agreed price of $300, and this item in favor of appellee was allowed by the court, although it was not included in the appellee’s itemized statement in the petition. If a motion had been made to strike out this item, the appellee would probably have asked and been allowed to amend his petition to include it. It is claimed by the appellants, as to this item, that it is not a partnership transaction but an individual transaction between partners for which the appellee could have brought a separate action. It is, however, a transaction growing out' of the partnership business, and it is the policy of the law to settle all controversies, where possible, in one action. The most that can be said is that it is a variance from the pleading. It is also apparent that if the fact of such variance had been called to the attention of the court, the pleading would probably have been reformed to include the item. Under the provisions of section 134 of the civil code, we think the variance would not justify a reversal of the judgment. (See, also, A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, 14 Pac. 229, and Crane v. Ring, 48 Kan. 61, 29 Pac. 696.) The judgment is affirmed.	[ 114, 126, -67, -115, 26, 96, 42, -104, 81, -32, 39, 83, -19, -46, 20, 105, -25, 77, 65, 106, 86, -77, 6, -32, -13, -13, -13, -35, -80, 78, -81, 86, 76, 60, -62, -33, -26, -46, -63, -36, -114, -123, -119, -19, -7, 66, 52, 43, 86, 73, 53, -114, -13, 44, 57, 67, 41, 46, -17, 45, -63, -7, -86, -116, 95, 15, 49, 100, -34, -59, -56, 46, -112, 49, 8, -55, 90, -74, -122, 116, 43, -69, 8, 38, 98, 0, 85, -17, 88, -40, 46, -1, 29, -26, -47, 88, 83, 64, -66, 31, -4, 20, -90, 118, -4, 13, 25, 104, 3, -49, -42, -93, -121, 120, -102, 3, -30, -93, 17, 97, -51, -86, 92, 69, 62, -103, -114, -117 ]
The opinion of the court was delivered by Mason, J.: Mary R. Loftus obtained judgment in the city court of Leavenworth against The Taylor Corn Mill Company for the possession of a mill standing upon a railroad right of way. The mill company appealed, giving a statutory bond, one of the conditions of which is that it would not commit or suffer waste to be committed on the premises. The district court-likewise gave judgment for the plaintiff, which became final. In the meantime the mill had been destroyed by fire. The plaintiff brought action upon the bond and recovered a judgment against the principal, the mill company, and the surety, The Title Guaranty and Surety Company. The surety company appeals. The plaintiff contends that the fire was caused by the negligence of the mill company in failing to take proper care of the building while in its charge, and upon this theory the recovery included an allowance-for the value of the building, less the insurance and salvage. This is the part of the judgment chiefly complained of. If the fire resulted from the negligent conduct of the mill company, the loss was covered by the bond,, being classified as permissive waste. (80 A. & E. Encycl. of L. 256; 40 Cyc. 499.) The surety company contends that there was no evidence that the mill company’s negligence was the proximate cause of the fire.. There was testimony that the building was suffered to-remain vacant, without a watchman, for six months before the fire; that the doors and windows were open; that the windows were broken — that there was not a whole pane of glass in the building, and in places the sashes were broken out; that the doors were broken down; that tramps, or men who looked like tramps, were frequently seen in the mill at night and early in the morning; that insurance was refused on the property because of its condition; that the fire started in the morning; that if the regular schedule was followed no train had passed since six o’clock the evening before. The jury found specifically that the fire was the result of the negligence of the mill company in allowing the windows to be broken out and doors to be torn down, thereby throwing the building open to the public. If direct or circumstantial evidence had clearly shown that the fire was intentionally or accidentally set by tramps camping in the building, a fair question would obviously have been presented for the determination of the jury, as to whether the mill company’s negligence in permitting the mill to remain open and unguarded was not the proximate cause of the loss. A jury might well determine that due care requires one in control of such a building to maintain a watchman (Duer v. Allen & Son, 96 Iowa, 36, 64 N. W. 682), or at least to keep the doors and windows shut. One purpose, perhaps the principal and most obvious purpose, of such precautions would be to prevent stragglers from making the place a resort and setting fire to it. Destruction by fire caused in that manner is one of the results readily to be anticipated from the omission of these or similar measures of precaution. There is a direct causal connection between the failure to care for the safety of the building and its loss in the manner indicated. (13 A. & E. Encycl. of L. 448; cases cited in Leonard v. Cement Co., ante, p. 735.) Notwithstanding the want of evidence indicating the particular manner in which the fire originated, we think the circumstances warranted the finding of the jury that it was due to the negligence of the mill company. A very similar situation upon the facts was presented in Williams v. Kearny County, 61 Kan. 708, 60 Pac. 1046, reversing Kearny County v. Williams, 8 Kan. App. 850, 60 Pac. 1045. There a landlord was permitted to recover from a tenant the value of a building destroyed by fire, on the ground that reasonable precautions on the part of the latter would have prevented its destruction. In that case as in this there was a failure to show how the fire originated. In Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876, a finding that a fire had been caused by the operation of a railroad was sustained, although practically all the evidence on the subject was that it had broken out on the leeward side of the track shortly after a train had passed; it was not shown that the engine was emitting sparks, or that it was working hard, and no attempt was made to exclude other possible origins. In the opinion it was said: “If the circumstances present a reasonably adequate cause, they will be sufficient to go to the jury, even though some other cause which may be suggested may not be excluded.” (p. 794.) In the present case there was some evidence tending to exclude the theory that the fire was set by a passing engine. The testimony- as to the building being frequented by tramps suggested a very plausible origin. In the absence of anything to indicate a different source we think the inference that the fire was occasioned by vagrants who made it a stopping place can not be said to be unreasonable. Complaint is made that there was a want of evidence to sustain the value placed upon the mill by the jury, on the ground that the witness whose testimony was followed in that regard failed, upon cross-examination, to show how far his estimate was based upon the rights acquired from the railroad company. The witness in his examination in chief stated that the mill was worth $5000. Whether the effect of this was weakened by the cross-examination was a question for the jury. The jury in their verdict undertook to allow interest from the date of the fire, and the judgment followed the verdict in this respect. It is conceded by: the appellee that the judgment should be modified by eliminating interest prior to its rendition, and this will be done. Otherwise the judgment is affirmed.	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The opinion of the court was delivered by Smith, J.: There is no conflict in the evidence in this case. The action was brought to recover an amount of money and property, the property consisting only of a promissory note which will be referred to later. J. D'. Joseph testified that he was and had been for twenty years the assistant cashier of the appellant bank, and that on February 20, 1911, he met Dr. H. L. Wood at the bank who at that time closed the sale of a tract of real estate from Dr. Wood to Charles Clay-pool, and Claypool gave him a check for $1000 and a promissory note for $1250 for the land; that on the following day, February 21, Dr. Wood came to the bank again and stated that people were trying to get his property away from him and inquired if there was any way he could fix his bank account, notes, real estate and other property so that people could not get it away from him; that Mr. Joseph told him that he could place his bank account in his mother’s name subject to his check and that it would remain his property and that he could indorse the note to his mother; that his" accounts could be collected and placed in the same account under the same conditions; that all the other money and credits that came into the bank could be credited to the same account, and all checks that he drew could be charged to that account and the account remain his and under his control and subject to his check; that on that day the note in question was delivered to the teller for collection and the $1000. received was delivered to the teller of the bank and entered to the credit of H. L. Wood; that on February 24, following, Dr. Wood stated to Mr. Joseph in the bank that he wished to transfer his account so that it would be subject to his check and under his control and place all his money coming in for notes and collection to the credit of his mother, Carrie Wood, but that such accounts and other money collected or that should be left in the bank for him should be credited to his account, under his control and should be his property; that he would indorse the note as suggested, and that when collected it should be credited to the same account under the same conditions. There was also evidence that the note for $1250 was collected by the bank and credited in this account in the name of the appellee subject to the check of H. L. Wood. After the evidence was closed the court instructed the jury. There is no controversy in regard to the instructions except as to instruction No. 12. To under stand this, however, instruction-No. 9 should be read in connection with it. The two instructions read as follows: “(9) You are instructed that before the plaintiff could have any interest in the money deposited in the defendant bank, you would have to find from the evidence that the said H. L. Wood when he made the deposits, lost all dominion and control of said deposits, and that the same were not subject to the check of said H. L. Wood, and if you find from the evidence in this case that he still had the dominion and control of said deposits, and that they were subject to his check, then and in that event your verdict must be for the defendant, excepting as explained in instruction No. 12. “(12) You are instructed that with reference to the $1250 note, that if you find from a preponderance of the evidence that said note bore on the back of it the following words, viz: — ‘Pay to Mrs. Carrie Wood — H. L. Wood/ and that H. L. Wood signed the same and after signing the said endorsement he took it to the said defendant, or if already at the bank, he left the same to be there paid by the maker of the note, and that he did not after so indorsing the same, take it into his possession, and afterwards said note was paid by the party giving the same to the bank or one of its officers whose business it was to so receive the money, and that upon said money being paid to the bank, the said bank, because of directions from said H. L. Wood, placed the same on the bank books in the name of Carrie Wood, and you further find that she has not been paid by the bank but that the bank refused pay- ' ment upon being requested to pay the same by Carrie Wood or her duly authorized attorney to draw the same, then and in that case it will be your duty to return a verdict against the defendant for the amount due thereon.” The jury returned a verdict in favor of the appellee for $1250, the amount collected on the note. There was no evidence in the case that Dr. Wood gave any instruction to have the note held or delivered to the appellee but, on the other hand, that he instructed the bank to collect the note and deposit the money to his account, kept in the name of his mother, as other moneys were credited subject to his check. The evidence of appellee shows that she knew nothing of the transaction until after Dr. Wood had been adjudged insane and Mr. Joseph had been appointed his guardian; after the note had been collected and the •proceeds deposited as directed. Appellee also testified that Dr. Wood owed her nothing. The mere signing of an instrument of conveyance does not consummate a conveyance, but to effect a conveyance there must be an actual or constructive delivery of the instrument from the grantor to the grantee. (Sanderson v. Sanderson, ante, p. 98, 136 Pac. 791; see, also, Ireland v. Shore, ante, p. 326, 137 Pac. 926.) It is contended on the part of the appellant that if appellee acquired any right in the note it was by way of a gift inter vivos, and that the burden rested upon the appellee to prove a delivery of the note after it was indorsed or a delivery thereof to some other person for her use or benefit, and that no such evidence appears in the case; that on the other hand Dr. Wood directed that when the note was collected the money should be deposited in the bank in his mother’s name subject to his check, and this conveyed no property in the note or its proceeds to his mother. We think this contention is correct, and that the' indorsement of the note, of which the appellee had no knowledge and which was not done with the knowledge of any person acting for her, did not constitute a contract or conveyance of the note and did not constitute a gift thereof. A delivery is essential to a valid gift of a promissory note. The evidence of appellee was not sufficient to establish any cause of action. (Johnson v. Eaton, 51 Kan. 708, 33 Pac. 597; Gallagher v. Donahy, 65 Kan. 341, 69 Pac. 330; Calvin v. Free, 66 Kan. 466, 71 Pac. 823.) The judgment is reversed and the case is remanded with instructions to render judgment for the appellant.	[ -14, 124, -56, -35, 26, -32, 42, -101, 89, -31, -96, 83, -23, 66, 20, 39, 117, 61, 80, 107, -26, -77, 7, -87, -46, -77, -7, -35, -67, 76, -28, 85, 76, 48, 10, -107, 102, -38, -57, 80, 78, -127, 8, 65, -7, 96, 52, 47, 22, 72, -15, -98, -13, 40, 25, 86, 105, 44, 123, 56, -16, -72, -117, -123, 111, 28, 49, 102, -116, 69, -56, 10, -104, 51, 1, -24, 115, -74, -106, 116, 109, -119, 9, 98, 98, 1, 117, 111, -80, -104, 47, -10, -99, -90, 80, 88, -125, 37, -66, -103, -1, 16, 34, -2, -13, 5, 29, 108, 15, -117, -10, -125, 15, 60, -102, -117, -21, -93, 34, 97, -50, 34, 92, 119, 120, -101, -114, -39 ]
The opinion of the court was delivered by Mason, J.: W. R. Hewey entered into a contract providing for the handling by him in the city of Wichita of an article known as the “White House Pantry,” and including an agreement for the purchase of six hundred of them. He later brought an action against Wiley B. Fouts, alleging that he had been induced to make such contract by false representations of that defendant and others. Hewey recovered a judgment, and Fouts appeals. The principal contention made is that the evidence did not justify the verdict, because the representations relied upon as constituting fraud were either shown to be true or were not actionable because they related to matters of opinion rather than of fact. There was evidence, however, that Fouts stated that he had sold over 900 pantries in Wichita, and had thereby made over $5500. The jury found that he had sold about 246, his net profits being about $452. The statement concerning the number of articles sold, and the profit made, was one of fact, having an important bearing upon the matter in hand. If falsely made, and relied upon, it afforded a sufficient basis for the recovery of damages. The amount of business done by Fouts would, of course, not be an infallible guide to the amount that Hewey could do in the same line, but what had actually been accomplished by Fouts was a material matter to be considered by Hewey in deciding whether he should engage in the same enterprise. Complaint is made of the admission of evidence regarding the construction of the pantry. It is perhaps true that if Hewey saw the article before making the contract, he could not found an action upon representations as to its character and qualities. But we think it was at least within the discretion of the court to admit evidence of the entire transaction. Upon this ground we think no material error was committed in allowing evidence to be given of statements concerning plans that had been laid for making and marketing large quantities of the pantries, although such statements, being promissory in their nature, might not by themselves support an action. Complaint is made of the admission of evidence regarding the weight of the pantries, on the ground that it was offered to show how many could be shipped in a car, whereas this would be affected by the size rather than by the weight. The matter was one for argument, and it does not appear that the jury could have been misled. Evidence was admitted, over the objection of Fouts, of misstatements to others similar to those made to Hewey. Within reasonable limits this was permissible (14 A. & E. Encycl. of L. 195), and we do not think the limit was exceeded. Errors are assigned in respect to the rejection of evidence, but the matters involved do not appear to be vital, and in any event no showing under oath was made, as required by section 807 of the code, of what could have been proved. The charge included a statement that the plaintiff was required to establish his case by a preponderance of the evidence, to which was added: “and if the evidence is evenly balanced or preponderates to the slightest extent in favor of the defendant, then . . . you should find against the plaintiff.” The defendant maintains that the words quoted were prejudicial, because, although nominally given for his benefit, they suggested that a preponderance of the evidence either way would be effective, however slight it might be. The rule is that fraud can only be shown by clear and convincing evidence. Even upon that issue, however, the giving of the ordinary instruction that the jury should be governed by the preponderance of the evidence is not regarded as error. (Tanton v. Martin, 80 Kan. 22, 101 Pac. 461.) A statement that the preponderance need not be great — that it was sufficient if it just barely preponderated — has been held to be erroneous. (Bank v. Reid, 86 Kan. 245, 120 Pac. 339.) We do not think the sentence here complained of so far minimized the degree of proof required of the plaintiff as to justify a reversal of the judgment. Other assignments of error have been considered, but are not thought to require separate discussion. In a second count of his petition the plaintiff declared upon a claim of the same character, alleged to have accrued in favor of one H. W. Davis, and to have been assigned to Hewey. There is a conflict of authority as to whether a cause of action is assignable which is founded upon a tort, where the estate of the tort feasor has not been benefited. (5 Ene. L. & P. 889.) In this state it has been held that only the original claimant can sue upon such a demand. (K. M. Rly. Co. v. Brehm, 54 Kan. 751, 39 Pac. 690.) That decision was based upon the language of the code to the effect that the provision that an action must be prosecuted in the name of the real party in interest shall not be deemed to authorize the assignment of a thing in action not arising out of contract. This language remains unchanged (Civ. Code, §25), and the interpretation already placed upon it must be regarded as controlling. Davis could, however, make a valid assignment of his right to reclaim the money the defendants had wrongfully obtained from him, because he was privileged to regard them as having agreed to restore it to him. “Whenever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrongdoer to pay to the party injured the full value of all benefits resulting to such wrongdoer.” (Fanson v. Linsley, 20 Kan. 235, syl. ¶ 2.) Therefore Hewey could maintain an action upon the claim that originally accrued in favor of Davis to the extent of recovering whatever Fouts profited by the transaction, but no further. The amount of recovery asked upon the first count was $2329.10, and upon the second $675. The verdict was for $2527.10, in a lump sum, no apportionment between the two causes of action being indicated. Therefore something was allowed upon the second count, but it is impossible to say how much. It may have been the full sum asked, $675, or it may have been only $198. The record does not conclusively show that Fouts profited personally from the transaction with Davis, so it can not be said with certainty that the plaintiff was entitled to recover anything by virtue of the assignment. A new trial must therefore be granted upon the second cause of action, and as we can not know how much of the general verdict was based upon the assigned claim, a new trial must be allowed upon the first cause of action also, unless the plaintiff will consent to remit $675 from the verdict, the remainder to be regarded as the verdict upon the first count alone. If this remission is made, the judgment as modified accordingly is affirmed, as a final determination of the first cause of action. Upon the second, the motion for a new trial is sustained. No error being found that affects any part of the verdict excepting the amount of recovery, a new trial should be limited to that issue.	[ -76, -20, -8, -65, 26, 104, 42, -102, 43, -96, -89, 95, -19, -44, 4, 127, -13, 125, -48, 107, -57, -109, 7, -93, -46, -109, -45, -51, 49, -51, -27, 84, 76, 52, -54, -99, -26, -62, -63, -100, -118, 12, 10, -30, -3, 68, -76, 106, -108, 79, 113, -114, -5, 40, 26, -57, 43, 44, 105, 57, -16, -79, 54, -113, 127, 22, -109, 38, -102, 7, -54, 44, -104, 49, 9, -24, 115, -74, 86, 124, 37, -87, 12, 34, 98, 19, -111, -23, -24, -100, 47, 95, -115, -89, 16, 73, 3, 97, -65, -99, 125, 16, 2, -2, -4, 13, 89, 104, 11, -122, -10, -96, -113, 112, -104, 27, -17, -81, 17, 113, -49, -94, 93, 35, 88, -101, -114, -110 ]
The opinion of the court was delivered by West, J.: The bridge company sued the railroad company, and its promoters, the construction company and the trust company, for a balance due for certain bridges constructed pursuant to a contract with the railroad company — the payment being guaranteed by McCue and Tennis, the promoters. Judgment was recovered against the railroad company only, but a first lien was declared against its property, and the railroad company and its receivers, who appeared and were made parties, and the trust company appeal, the contention being that the lien was improperly adjudged. In the summer of 1910 the railroad company was organized for the purpose of building a line of road fifty-five miles in length, with possible extensions— the estimated cost being about $600,000. A mortgage for $1,500,000 was executed to the trust company as trustee to secure bonds of the same amount, $825,000 thereof to be issued and set apart for immediate use for the purpose of constructing the road — the remainder not to be issued until needed for extensions. A construction company having been organized, the railroad company issued to it the $825,000 of bonds, having contracted with it for the construction of the road. The trust company loaned or arranged for a loan of $400,000 to the construction company, the $825,000 bonds being pledged for its payment. The amount of the loan was afterwards increased to $600,000. In December the railroad company contracted with the bridge company for the construction of the bridges, and they were completed and paid for except the balance involved herein. The trust company is the only appealing party vitally interested in the priority of liens, and it is contended that its relation to the enterprise is such that it can not fairly assert its lien to the exclusion of the bridge company’s claim. The fact that the road was placed under a receivership indicates that some party will have to lose, and it is argued that the one which made the very existence of the road possible by spanning the streams which it crossed should not be thrust aside, while the party which directly or indirectly furnished the funds to be used in the construction of the road be given preference. The plaintiff contends that the trust company is not the lawful holder of the bonds as pledgee, because the transaction under which it obtained possession was void for usury, the theory being that the trust company really made the loan but used a certain bank as a cover to avoid usury. Also, that the relations of the various parties to the entire project were such as to entitle the bridge company to a preferential claim upon the assets of the road, which could not have existed complete without the bridges. We do not deem it necessary to go into the question of usury, as we consider the circumstances sufficient to warrant a decision without entering upon that branch of the case. McCue and Tennis were president and vice president of the construction company. A letter bearing date September 1 was written by them to the trust company desiring it to procure a loan of $400,000 for the construction company, “the proceeds to be disbursed only for the purpose of paying for property, labor and material in and about the construction of said railway, between the points named, and such other expenditures as you may approve,” and agreeing to pay $60,000 for procuring such loan, and also agreeing that the railroad company should be immediately incorporated, and that it should contract with the construction company for the building of the road. The form of this letter was the joint production of the writers and the vice president of the trust company “putting on paper the agreement that we had worked out in the course of the discussion.” In the mortgage or trust deed it was provided that bonds equal to $15,000 par value per mile should be set apart for immediate use “for the purpose of paying the sums heretofore expended by said Railroad Company, or to be hereafter expended by said Railroad Company, and for paying indebtedness heretofore incurred or to be hereinafter incurred by the Railroad Company, and for the purpose-of acquiring and constructing the said line of railroad.” The contract with the construction company provided that the latter was to construct the road in accordance with the plans and specifications, “the compensation for completing the road” to be as therein set forth, and that the trustee should certify and deliver to the construction company certain mortgage bonds for the purpose of securing the necessary funds for the work. The trust deed expressly covered all tracks and bridges then owned or to be thereafter acquired, and provided that in case of an extension the trust company should, upon a specified demand of the railroad company, certify and deliver to it bonds equal in amount to $15,000 a mile “of said Railroad Company completely constructed in every case with necessary bridges, sidings, turnouts, and stations and with necessary motive power and cars ready for operation.” It is plain that the promoters of the railroad company, the construction company and the trust company were in a sense mutually if not jointly interested in the project of building the road. One of the receivers is or was an employee of the trust company, a former secretary of the trust company is or was treasurer of the railroad company, and the trust company’s vice president appears to be the president of the railroad company. During the progress of the work of construction, and in October, 1911, the trust company sent a man to look after the disbursements, and a letter was written advising Mr. Tennis that this agent’s duties would be to “examine and audit all disbursements and certify to this company that all payments made by us are for the purpose of paying for labor and materials actually used in the construction of the Railway, and for no other purposes. . . . The compensation of Mr. Knox will be at the rate of $150.00 per month and expenses, which by the direction of the Executive Committee, we will be obliged to charge to your account.” Aside from certain securities furnished by the promoters of the railroad company the entire project to organize, finance and construct the road was a paper affair, and was so known and understood by all concerned. It is no distortion of language or misuse of terms to say that the contract with the construction company and the mortgage executed to the trust company both called for and contemplated the building of a complete line of road, which, of course, would be impossible without including the necessary bridges. The trust company in agreeing to finance the project and in overseeing the expenditure of the money furnished knew and understood that whatever material went into the completed line of road would not only go to make up the principal security for the loan but that the latter was to be used for the very purpose of paying for such constituent material, and there is certainly an element of fairness in the suggestion that the trust company should see that such material be paid for before claiming a first lien upon the completed road. Had the project been a financial success so that the balance due the bridge company could have been paid without em barrassment to any of the parties concerned, the matter of liens or their priority would not be of importance. But we have for consideration a road bonded to pay for its construction, now insolvent, and it becomes a question of moment whether the party which furnished a material portion of the completed physical construction should be given preference. Let it be said once for all that this is not a case of a bona fide purchaser for value before maturity of a mortgage upon railroad property. It is the case of a trustee in such instrument who instead of purchasing after the money had been furnished took the security in advance and furnished the money for the work as it was needed from time to time, knowing that such work could not be completed without bridges, and knowing also that the bridges were actually constructed and went into the completed line of road. The sum already paid on the contract price simply went to enhance the trust company’s security while the amount remaining unpaid is in reality compensation for a small portion of the completed line which was to be constructed with the money furnished by the trust company according to the terms of the trust deed itself. The defense correctly maintains that the bridge company did not provide in its contract for a lien and can claim none under any of our lien statutes. The real question is whether under the facts and circumstances shown equity will decree a preferential claim regardless of contract or statute. It is not strange that able counsel on both sides array decisions which might be said to substantiate the claims of each. But a close examination of the cases chiefly relied on discloses that in most of them the claims of bona fide purchasers before maturity were involved, or else implied contracts for liens were deemed to exist. Such is true of Porter v. Pittsburg Bessemer Steel Co., 120 U. S. 649; Dunham v. Railway Company, 68 U. S. 254, 17 L. Ed. 584, and Porter v. Pittsburg Steel Co., 122 U. S. 267, cited by the defense, and Perry v. Board of Missions, etc., of Albany, 102 N. Y. 99, 6 N. E. 116; Smith v. Smith, (N. Y. Supr. Ct.) 51 Hun, 164, 4 N. Y. Supp. 669; Westall v. Wood, 212 Mass. 540, 99 N. E. 325, and Society of Shakers v. Watson, 68 Fed. 730, 15 C. C. A. 632, 163 U. S. 704, 16 Sup. Ct. Rep. 1206, 41 L. Ed. 313, cited by the plaintiffs. The rule seems well established that a mortgage on present and after acquired railroad property is valid, and that such mortgage can not be impaired as to innocent holders for value by allowing as preferential the claims of those who contributed to the construction of the road after the execution and recording of the mortgage, and who have no claim to a lien either by statute or by contract. But in none of the decisions to this effect are the facts similar to those now presented. It may be well to notice a few cases somewhat analogous in principle. In McIlhenny, Admr., and U. T. Co. v. Binz, 80 Tex. 1, 13 S. W. 655, 26 Am. St. Rep. 704, it was said that as a general rule claims for construction unless for work done by order of court can not be allowed priority. It was then said: “But we think there may be construction claims which appeal as strongly to the conscience of a court of equity as the debts which are commonly known as operating expenses, and we further think we have such claims in those now under consideration.” (p. 15.) There the mortgage covered the present and contemplated road, the bonds to be issued as the work progressed. While the construction was going on a receiver was appointed and the operating receipts of the completed portion of the road were all expended under orders of the court, in paying interest on the bonds, and in making valuable and permanent improvements upon the property subject to the mortgage. It was held that as the claims for “useful improvements” accrued within six months before the appointment of a receiver and the holders, being guilty of no laches, were prevented by the action of the court from subjecting the property to the payment of their claims through the courts Of law, it was the duty of the court to protect them in the final decree if there was on hand a fund which could be applied to the payment of their debt, and as the net earnings were not on hand, but had been applied to the interest on the mortgage and improvements which enhanced the value of the property, such net earnings should be restored from the proceeds of the sale of the mortgaged property and the claimants be given the prior claim thereto. In Penn Mutual Life Ins. Co. et al. v. Heiss et al., 141 Ill. 35, 31 N. E. 138, 33 Am. St. Rep. 273, a railroad company gave a mortgage covering the entire line, the bonds to be issued as the road should be completed, and in constructing the same certain property was damaged without compensation being made. The bonds were sold in the market and the road was constructed over the land damaged in 1883. In 1887 suit was begun by the landowners, and the mortgage was set up as prior to the claims of the plaintiffs. It was held that the claims took’ precedence over the lien of the mortgage. It was said in the opinion (p. 63) that the bondholders were notified upon the face of the bonds and mortgage that the bonds were issued upon an unfinished line of road and were to 'be issued at the rate of $10,000 per mile as the line was completed, and that it was apparent on the face of the security that the property of the road then in existence was to be enhanced by the building and completion of the line which would necessarily require the procuring of a right of way. It was then said: “It can no more be said that the fact that the bonds were executed at a date prior to the building of the road will entitle them to priority against persons whose property was damaged for the public use, than it could be that they are entitled to priority as against persons whose lands may have been taken and appropriated to the public use, — and in the latter case it will not be contended that the mortgage would have priority. The railroad company was, in a sense, agent of the bondholders to perfect their security, and the latter must be held bound by the acts of the company in the respect of the completion of the projected road, so far, at least, as such acts can be held to have been clearly within the contemplation of the parties in appreciating and perfecting the security.” (p. 63.) In the well-known decision by Judge Caldwell in Farmers’ Loan and Trust Co. v. Kansas City, W. & N. W. R. Co., 53 Fed. 182, 41 C. R. R. §§ 615, 678, it was held that in appointing a receiver in a railroad foreclosure it was proper to require as a condition that the trustee of the bonds sought to be foreclosed should consent to the payment of certain claims, prior to the satisfaction of the'bonds, for supplies furnished in the construction, extension, and equipment of the road. In this opinion a railroad company was likened to a ship, and it was suggested that the common-law rule as to the priority of liens had to some extent been and ought to be modified in analogy to the rules of maritime law. It was said: “The labor, supplies, and materials are absolutely essential to the operation of the road, and, as a matter of fact, are in most cases furnished on its credit, in the same sense that the supplies of a ship are furnished on the credit of the ship. For these and other like reasons there has been a growing tendency among the courts and legislatures of this country to give such debts of a railroad company priority over the Hen of a mortgage.” (p. 190.) The practical observation was made that “when it is known that a misapplication or fraudulent use of the proceeds of the bonds or the earnings of the road can not be visited upon the innocent persons whose labor and materials build the road or keep it in repair and' operation, the mortgagee will see to it that the revenues of the company, derived from these and all other sources, are expended for legitimate purposes.” (p. 191.) In Kilpatrick v. Kansas City & B. R. Co., 88 Neb. 620, 57 N. W. 664, 41 Am. St. Rep. 741, an investment company had agreed to furnish the money necessary for the construction of the proposed railroad and take a mortgage on its anticipated property to secure its negotiable bonds. When the security was executed and delivered no property whatever had been acquired, and this was known to the investment company. The money was paid over to the promoters, officers of the proposed railroad company, who made contracts in the name of such company for labor and material used in the building of the road but failed to pay therefor. It was held that the investment company should be regarded as the promoter and builder of the railroad and that its mortgage security should be inferior to the statutory liens for labor and material furnished in its construction. In the opinion it was said that the recording of the mortgage created no rights or obligations; that had the mortgage recited at length the agreements between the investment company and the promoters and pledged the proposed road and franchise to the investment company as security for its advances for the construction of the road, the legal effect would have been the same. Court's of equity in determining the priority of liens are governed largely by considerations of essential fairness and justice. The trust company undertook to finance a projected railroad on the express agreement that the funds were to be advanced and used as the construction progressed, and it was to have a first lien on the completed line which it was contemplated should be paid for out of the funds advanced. It was its right if not its. duty to see, especially after taking charge of the disbursements, that the proceeds of the loan went to pay for the constituent material going into the road. It knew that the construction company which was borrowing the money had contracted to build and complete the road, and it might or should have known what provision was being made to pay for the bridges which made the complete line a possibility. The fact that the two promoters of the railroad company contracted in the name of the former and their own names for the bridges hardly indicates that the railroad company was trying to donate the bridges to the construction company either for its own benefit or for the benefit of the security holder. The more natural and sensible inference is that they intended the bridges to be paid for out of the funds which were to pay for other portions of the road. Had the contract for the bridges been made in the name of the construction company no question could arise as to the rightful appropriation of sufficient proceeds of the loan to pay for them. The court below having all the parties before it, and considering all the facts and circumstances, felt impelled to look through the forms of the transaction and reach the substance and to prefer the bridge company’s claims to that of the trust company’s, and in such ruling we find no error. It is suggested that the court below had no jurisdiction to decree as it did, the property being in the hands of receivers appointed by another court. It appears, however, that the receivers voluntarily entered their appearance, having been appointed after this action was begun. There is nothing in the record indicating that they questioned the power of the court below to determine the matters before it, and while as a general rule the court appointing receivers may draw all controversies to itself, still when its receivers voluntarily appear in a sister court and litigate the question of priority as in this instance they should not be heard for the first time after an adverse decision to complain that the court was without jurisdiction. At any rate the in terest of the railroad company and its receivers in the matter of preference is much less substantial than that of the trust company. The judgment is affirmed.	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The opinion of the court was delivered by West, J.: When this case was here before (Humble v. Insurance Co., 85 Kan. 140, 116 Pac. 472) it was held that the policy was not avoided by additional in surance taken out by another without the knowledge, consent or ratification of the insured, and that a provision prohibiting- incumbrance does not invalidate a policy issued on oral application when no inquiries or statements are made regarding incumbrances and there is no concealment or misleading conduct on the part of the insured. The company appeals from a judgment resulting from a retrial. The action was brought by a mortgagee to recover on a policy issued March 25, 1908, to the owner, loss payable to the mortgagee as his interest should appear, subject to all the stipulations, provisions and conditions in the policy. It was contended by the defendant that when the policy was issued there was a chattel mortgage on the property and other insurance procured by the owner, each of which, by the terms of the policy, avoided the insurance. ' The plaintiff denied that he had procured any other insurance on the property, and alleged that a former chattel mortgage had been superseded by a subsequent agreement and therefore the property was unincumbered. He alleged that when the policy in suit was taken out it was on a verbal application, and that no representation was made by the owner with reference to any incumbrance or any other insurance on the property, and that no questions were asked with reference thereto. The court found that there was other insurance, but that it was not taken out by the owner or with his knowledge, consent or acquiescence, and that when he learned of it he directed its cancellation. No direct finding was made as to the alleged incumbrance, but its existence might be inferred from the language of a finding which was made. The defendant requested the court to find whether, at the time of the issuance of the policy, there was other insurance upon the property, and this was properly refused because it was covered by the findings made. Request was also made to find whether there was a mortgage upon the property and whether the agent of the defendant made any inquiry of the insurer as to other insurance or incumbrance upon the property. The finding last mentioned was within the issues, and evidence was introduced pro and con, and it should have been made. Others were requested and refused, but we deem them immaterial. But had the one improperly refused been made it would have been without effect in and of itself. Had it been found that the defendant’s agent did make inquiry of the insured, this fact could have no particular bearing on the result unless it were further found what answer was made to such inquiry, and this was not asked for. And in view of the evidence and the result reached by the court, had such a finding been requested and made we must conclude that it would have been unfavorable to the defendant, as the other findings which were made indicate that the plaintiff’s version of the matter must have been taken as the correct one. While a party has the right to answers to special questions on material matters within the issues, and their refusal is error and usually material error, as in A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722, still in this instance it appears from the record that had the one requested finding to which the defendant was entitled been made either way it would have been supported by evidence, and unless followed by another finding not requested it could have had no effectual significance, and hence can not be said to have been material to the case, as were the questions discussed in the Ayers case (p. 180). Its refusal, therefore, was not substantial or prejudicial error. (38 Cyc. 1910; Miner v. Vedder, 66 Mich. 101, 33 N. W. 47.) Complaint is made of sustaining an objection to a certain question on cross-examination of the owner touching a subsequent settlement of other alleged insurance and the refusal of an offer to prove by him an adjustment thereof. But an examination of the abstracts shows that the question and offer were so confused with what was said to have been theretofore stated in the case that no error is manifest in the ruling made. ■ The principal contentions on the trial concerned the questions of an incumbrance and additional insurance on the property, and the law as announced in the former decision applies to the findings and conclusion of the trial court and need not be restated. ,The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: The defendant is clerk of school district No. 107, Crawford county. In an action in mandamus the district court gave judgment commanding him to approve and file the plaintiff’s bond as treasurer of the district, and further commanding him to file and record the minutes of an adjourned session of the an nual school meeting at which the plaintiff was elected treasurer. The court made very complete findings. It appears that the annual school meeting was held as provided by law on the 11th day of April, 1913. It was presided over by director Richard O’Brien and there were present 175 electors of the district. Hugh R. Cleland was elected director for the following year, and the chairman then announced that nominations were in order for treasurer. James Perkins, James Reeves, and John Procho were placed in nomination; Perkins declined to run. It was moved and carried that the nominations be closed. John Procho then withdrew his name, whereupon Richard O’Brien attempted to nominate himself as a candidate. A parliamentary question arose as to whether any one could become a candidate after the nominations had closed, and the meeting became disorderly; much confusion prevailed and some of the parties almost came to blows. During the disturbance a written paper signed by some of the persons composing the meeting was handed to the chairman requesting him to adjourn the meeting.to a future date. No other motion to adjourn was made. The chairman read the written request, and stating that he did not want any trouble, declared the meeting adjourned until April 15, 2 o’clock p. M.; at the same place, again to take up the election of a treasurer. All of those present acquiesced in the decision of the chair to adjourn and accepted the same as the action of the meeting, and practically all those present immediately dispersed. The trial court finds as a fact and as a conclusion of law that the meeting was legally adjourned to April 15, to finish the election of treasurer and other business. On April 15, at the time appointed, a meeting of the electors was held at which ninety-five were present, including Hugh R. Cleland who had in the meantime qualified as director. The defendant did not attend although he knew of the meeting, and the court finds that it was his duty to have attended. A secretary or clerk pro tern was duly chosen, and the meeting then proceeded with the election of a treasurer. The plaintiff was the only person nominated, and eighty-five votes were cast for him, one against him, and the court finds that he was duly chosen treasurer. After the transaction of other business the meeting adjourned. The minutes were properly kept by the clerk pro tern and signed by director Cleland. There is a finding that the defendant as clerk refused to record the minutes in the record book although requested so to do, and that he refused to approve and file the bond and oath of office of plaintiff, and had refused even to receive the bond presented to him which was duly executed. The judgment therefore commanded him to perform these official duties. It is contended that the chairman had no right to adjourn the meeting without the consent of the majority of the electors present, and that such consent could only be obtained by putting a motion to the house to that effect and having the same voted upon; that even though he had the right to adjourn the meeting he had no right to fix a time for its reconvening. These objections, which are obviously based, upon a quite technical ■ construction of parliamentary usage, are manifestly wholly without merit. No reason is apparent why a motion or any other resolution may not be presented to the chairman of a public meeting in writing; besides, no statute requires school meetings to be conducted in accordance with strict parliamentary rules. Moreover, all the electors present acquiesced in the adjournment as well as in the time fixed for the adjourned meeting; and a fair representation of the electors attended the adjourned meeting, the proceedings of which are shown to have been in all respects regular. The defendant cites au thorities in support of the further contention that an action in mandamus is not the proper method by which to try the title to an office; but substantially that is what defendant himself attempted to do in refusing to perform his plain ministerial duties as clerk of the board. However, the title to the office is only incidentally involved in this action. All that was required of the plaintiff was a prima facie showing of sufficient right to the office to entitle him to demand the performance of plain duties incumbent upon the defendant as clerk of the board. The findings are well supported by evidence, and no argument is needed to show that the conclusions reached by the trial court are sustained by the findings. The judgment is affirmed.	[ 48, -20, -4, -52, 10, 64, 59, -98, 72, -79, 32, 115, -87, -110, 20, 105, -13, 45, 64, 122, -57, -78, 83, -63, -77, -13, -3, -41, -65, 108, -68, 127, 72, 48, 74, 85, -58, -64, -57, -44, -114, -126, 43, 106, -47, -128, 40, 120, 50, 15, 53, 78, -13, 108, 28, 67, 104, 44, -39, -69, 64, -15, -106, -113, 95, 6, -109, -122, -98, -121, -24, 46, -104, 49, -60, -7, 56, -90, 6, -44, 9, -87, 8, 102, 34, 1, -75, -49, -72, -119, 46, 30, 61, 38, -109, 89, -86, 13, -74, -103, 117, 80, -121, 126, -94, -59, 18, 44, 70, -102, -42, 19, -98, 52, -114, 10, -53, -94, 48, 113, -115, 118, 94, -60, 18, 19, -58, 48 ]
The opinion of the court was delivered by Burch, J.: The question in this case is one of fact. Did a bank deposit when made become a part of the funds of the Grand Lodge of Masons of Kansas? The solution depends upon the answer to another question. What was the intention of the depositor ? The deposit was made in the State Bank of Holton by Albert Sarbach, who was treasurer of the grand lodge, and who had an account in the bank as such. Officially he was a defaulter in a large sum, more than $20,000, and his account as grand treasurer was overdrawn. Personally he was indebted to the bank on a demand note for $3000, given to take up an overdraft occasioned by his appropriating the proceeds of a shipment of grain which should have come to the bank. The deposit consisted of a check for $4000 drawn in favor of Sarbach personally by C. D. Bateman. It was placed to his account as grand treasurer on March 6. The next day was Sunday. On March 8, after a telephone conversation between Sarbach and the president of the bank, the note was paid out of the deposit. In an action instituted on behalf of the grand lodge against the bank, and prosecuted by a substituted plaintiff, the district court found specially that Sarbach did not intend that the check should be credited to his account as grand treasurer, but did intend that so much of it as might be necessary should be applied to the payment of his note, which with. interest amounted to $3045.20. Judgment was rendered accordingly. The contention is that the special finding of fact is without support in the evidence. Features of the case were considered in Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, where the principal facts are stated and the telephone conversation referred to is given. Sarbach sent the check to the bank by a messenger, who did not testify at the trial. The deposit slip is lost. The employee who entered the credit on the bank’s books did not testify. The circumstances are such, however, that no inferences pertinent to the ultimate fact can be drawn from the absence of evidence from these sources. The check was given on account of a loan made by Bateman to Sarbach secured by Sarbach’s note as grand treasurer. The note was also signed by Sarbach personally and by a firm of which he was a member. It does not appear that Sarbach was pressed for funds as grand treasurer. His defalcation was not known, and bills of the grand lodge were being taken care of as presented. After the note to the bank was deducted from his account Sarbach had to his credit as grand treasurer $710.83. There is nothing to indicate that when the loan was procured Sarbach anticipated that he would presently need more money as grand treasurer than the remainder left after paying the bank. On the other hand, the bank was urging payment of its note. The bank was dissatisfied with Sarbach’s conduct in creating the overdraft, and insisted on prompt reimbursement. Sarbach said he would soon have the money. The money not being immediately forthcoming, he was told that the matter could not be carried in the form of an overdraft, and he gave the demand note, assuring the bank that it would be paid in a few days. The bank kept pressing for payment, Sarbach kept promising to pay, ‘and a few days before he procured the loan from Bateman told the bank he was raising the money and would soon have it. Here is evidence that the loan was obtained from Bateman to secure relief from the importunateness of the bank. Before making the loan Bateman consulted the president of the bánk with reference to whether or not the names on the note offered by Sarbach would be good security. In this conversation Bateman rehearsed the reasons which Sarbach had given him for desiring the loan. Sarbach had said that he was behind in his account with the bank, and that he was raising some money for the grand lodge for some improvements at the Masonic Home, and so was behind with'the bank. Bateman and the president of the bank do not agree upon what occurred at this interview, but the finding of the trial court indicates that the version favorable to the bank was adopted. This being the evidence as to the state of affairs when the deposit was made, it can not be said that a definite purpose existed in Sarbach’s mind to augment his account as grand treasurer to the full extent of the Bateman loan and leave the bank unpaid, and the telephone conversation referred to became relevant and material. “Monday Sarbach called up J. Q. Myers, the president, and asked if he had noticed the deposit. Myers said he had not, but looked it up and told Sarbach it had been credited to his account as grand treasurer, and Sarbach said, ‘It was? Well, you know what I want done»with it; you know that I want to pay that note,’ and directed Myers to charge his note up to the account, and this was done. ... If Sarbach simply sent the check to the bank by a messenger intending but not directing the amount to be credited to his personal account, and the credit was by mistake made to his account as grand treasurer, then upon discovering this fact he had a right to direct the credit to be made in accordance with his original intention. But if the credit was properly made and afterward Sarbach concluded for the first time to have it changed, then his conversation was not a part of the original transaction, so as-to be a part of the res gestae, and was incompetent.” (Washbon v. Bank, 86 Kan. 468, 469, 472, 121 Pac. 515.) Other findings of the district court are attacked, but the one discussed is determinative of the case. It is sufficiently sustained by the evidence, and the judgment of the district court is, therefore, affirmed: Mr. Justice Mason not sitting.	[ -14, -24, -23, -36, 10, 96, 50, -102, 101, -127, 49, 115, 105, 83, 20, 105, -12, 45, -48, 99, -43, -77, 7, 73, -46, -13, -23, -43, -75, 95, -92, 87, 74, 48, 10, -41, -26, -118, -61, -36, -114, 4, 40, -63, -15, 88, 32, -101, 18, 72, -31, -36, -29, 34, 24, 74, 73, 44, -39, 61, -80, -79, -18, -123, 125, 20, -95, 32, -108, 7, -48, 46, -104, 115, 9, -8, 115, -74, -126, 116, 107, 58, -83, 110, 98, 49, 117, -56, -68, -104, 30, -9, 29, -25, -106, 73, -95, 45, -76, -99, 124, 82, 38, -4, -6, 21, 25, 108, 27, -34, -10, -109, -116, 124, 28, -117, -9, -127, 32, 97, -52, 64, 93, -57, 122, 19, -82, -79 ]
The opinion of the court was delivered by Benson, J.: The plaintiffs ask that the governor be required by mandamus to appoint a board of chiropractic examiners under the provisions of chapter 291 of the Laws of 1913, relating to the practice of chiropractic. The first section of the act declares: “That there is hereby created and established a board to be known by the style and name of the state board of chiropractic examiners, said board shall be composed of one ordained minister, one school teacher, and three (3) practicing chiropractors of integrity and ability, who shall be residents of the state of Kansas, and shall have practiced chiropractic continually in the state of Kansas for a period of not less than two (2) years. No two chiropractic members of said board shall be graduates from the same school or college of chiropractic.” Section 2 requires the governor to appoint, as members of the board, three chiropractors who shall posséss the qualifications specified in section 1, but makes no provision for the appointment, election or selection otherwise of the minister or school teacher to be the other members of the board. The plaintiffs aver that they are engaged in the practice of chiropractic, are graduates of schools and colleges of chiropractic, possess the necessary qualifications, and are desirous of obtaining a certificate to practice chiropractic in the state; and that there are many others for whom they also appear, who are also entitled to such certificates. They pray that the governor, who has refused to act, be required to “appoint said board of chiropractic examiners as per said law.” The governor, in giving the matter consideration, asked and obtained the opinion of the attorney-general, in which that officer advised that there was such ambiguity in the statute that action by the governor ought not to be taken. It is not stated in the petition that the plaintiffs or any of the persons represented by them have complied with the statutes relating to the practice of medicine and surgery, although their practice required such compliance. The statute referred to, before its amendment in 1913, declared that: “From and after the 1st day of September, 1901, any person who shall practice medicine and surgery or osteopathy in the state of Kansas without having received and had recorded a certificate under the provisions of this act, or any person violating any of the provisions of this act, shall be deemed guilty of a mis demeanor, and upon conviction thereof shall pay a fine of not less than fifty dollars nor more than two hundred dollars for each offense.” (Gen. Stat. 1909, § 8091.) The amendment of this section consisted only in the omission of the words “or osteopathy.” (Laws 1913, ch. 290, § 11.) That a certificate, as provided in the act from which this quotation is made, was a condition precedent to the right to-practice chiropractic in this state was settled in The State v. Johnson, 84 Kan. 411, 114 Pac. 390, and adhered to in The State v. Peters, 87 Kan. 265, 123 Pac. 751, and The State v. Cotner, 87 Kan. 864, 127 Pac. 1, and is therefore not an open question. As the practice of chiropractic without such a certificate is a criminal offense, the petition which alleges such practice for two years shows upon its face violations of the law; and a criminal prosecution might be instituted for each specific act of practice defined in the statute (The State v. Cotner, supra), unless it should be presumed, without any averment of the fact, that the plaintiffs and others for whom they sue had such certificates. It will be observed that in passing the statute creating a chiropractic board the legislature did not attempt to condone past offenses, or relieve violators of the existing law in any way from its penalties. Assuming that the plaintiffs and others in the same situation have no such certificates, can this action be maintained ? The governor by constitutional mandate is charged -¡with the duty to see that the laws are faithfully executed. It is suggested that it is inconsistent with this high duty to require him to reward with office under one law those who have persistently broken another law upon the same general subject, which it is his equal- duty to enforce. It is not necessary, however, to decide whether this should be required, for we are persuaded that it was not within legislative contemplation that he should do so. It is entirely reasonable to suppose that it was intended that he should appoint the chiropractors upon the board from those who had complied with the statute regulating the profession of medicine and surgery. There is no necessary conflict in these provisions. Indeed, the act under which these appointments are sought seems to recognize the requirements of the previously existing law, for section 6 (6) contains this proviso: “. . . Provided, that applicants for license under this act shall be required to pass the same examination in physiology, anatomy, hygiene and systomatology required of licensed practitioners of medicine and surgery in this state.” (Laws 1913, ch. 291, § 6, sub-div. b.) Whether the clause quoted refers to an examination by the same board licensing practitioners of medicine and surgery or by the board created by this act is not clear, and is not important to the present inquiry. The important fact is that chiropractors must pass an examination upon the subjects named the same as other practitioners in medicine and surgery. It is a well-settled rule that different statutes relating to the same subject are to be construed together. (The State v, Young, 17 Kan. 414.) “Statutes are to be regarded as forming parts of one great and uniform body of law, and are not to be deemed isolated and detached systems complete in themselves.” (Robertson v. The State, ex rel. Smith, 109 Ind. 79, 87, 10 N. E. 582, 643.) The subject treated in the several statutes referred to, including the act of 1913, is the regulation of the practice of medicine and surgery. That this includes the method of treatment called chiropractic is settled by the Johnson case, and is recognized by the statute of 1913, under which these appointments are sought, wherein chiropractors are prohibited from performing “any minor surgery, only as hereinbefore stated.” (Laws 1913, ch. 291, § 6, subdiv. c.) We have not only the elementary rule of construction referred to, but we have in the statute of 1913 this express reference to, and adoption of, a provision of the prior law, clearly indicating that the legislative intent was to draw to the aid of this last statute the provisions of other laws then in effect, regulating the general subject of medicine and surgery, which are not repealed or modified by the new statutory enactment. The attorney-general presents a further reason why the governor has not appointed the three chiropractors on this board, and that is that he was not given power to appoint the two other members. No insurmountable obstacle, however, is found here. If the chiropractors should be appointed the board would then lack two members, and vacancies would therefore exist which might be filled by executive appointment. The statute in question in section 2 provides that the governor shall fill all vacancies. It was said in The State v. Holcomb, 83 Kan. 256, 111 Pac. 188, that: “An existing office without an incumbent is vacant. After the legislature created the office it was vacant until the appointment was made. . . . The decisions are in practical harmony upon this proposition, and the parties do not disagree about it.” (p. 258.) A general statute long in force also confers this authority concerning vacancies in state and county offices. (Gen. Stat. 1909, § 3178.) The appointments to these places, however, would serve no good purpose until three chiropractors can be appointed, for a minority of the proposed board would have no power to act. (Gen. Stat. 1909, § 9037, subdiv. 4.) While the petition does not disclose that the plaintiffs, or others represented by them, were authorized to practice medicine and surgery during the two years of their practice, as chiropractors, it will not be assumed that there are no chiropractors in the state otherwise qualified who held certificates to practice medicine and surgery' Nor will it be assumed that there are properly qualified chiropractors who held such certificates during the period referred to. The statutes being now construed and the law applicable to this matter settled, it is presumed that the governor will make the appointment if it should be made to appear that properly qualified persons are available. The writ will not be allowed.	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The opinion of the court was delivered by Mason, J.: Th First National Bank of Winfield brought an action to foreclose two mortgages executed by a guardian in behalf of a nümber - óf minor wards upon order of the probate court. Júdgment was rendered for the plaintiff and a separate appeal is prosecuted by each of two groups of defendants. It is contended that one of the mortgages is void upon two principal grounds: (1)' because it undertook to cover the whole property owned by the minors as tenants in common, without providing. for separate redemption: by each upon payment of- his due proportion of the debt; and (2) because it was given in part for an indebtedness not owed by any of the minors. The question raised by the first of these objections was involved in a California case. In deciding it the supreme court said: “It is next claimed that the order to mortgage is void because it purports to create a joint indebtedness of these five minors for the entire sum, and a single blanket mortgage is given to secure that indebtedness. We have no doubt but that the court was wanting in power to make an order for a mortgage which would bind the interest of each minor for the entire loan, and, if the necessary construction of this order was to bind each minor to that end, it could not stand. But a fair and reasonable construction of the order may be made, which will make it valid, and that construction we are bound to make. Each minor owned an undivided one-twentieth of the real estate, and it will be held in support of the validity of the order that each minor’s interest in the estate is only bound as security for one-fifth of the amount of the debt, and upon the payment of that amount his interest will be released from the effect of the mortgage.” (Howard v. Bryan, 62 Pac. 459, 460.) Upon a rehearing the mortgage was held to be void, two justices dissenting. (Howard v. Bryan, 133 Cal. 257, 65 Pac. 462.) The decision appears to be based on the view that it. is not safe to entrust a court with the power to authorize such a mortgage, the ground of the ruling being thus stated: “In this case the power of the court was exceeded, not only in attempting to mortgage the interest of the five minors to secure a sum in excess of their aggregate indebtedness, but also in the attempt to mortgage their separate interests for their aggregate debt. However advantageous it may have seemed in this instance to pursue that course, the proceeding can not be sustained without establishing a dangerous precedent, from which serious abuses would be certain to flow.” (Howard v. Bryan, 133 Cal. 257, 264, 65 Pac. 462.) We can not assent to the proposition that in this state the probate court has no jurisdiction to authorize a guardian to execute a mortgage upon real estate owned by several wards, giving a lien upon all the property for the whole debt secured. Obviously there ought not to be such -a complication of interests if it can well be avoided. But in some circumstances it may be unavoidable. If the mortgage is given to take up an existing encumbrance covering the whole property it is manifest that no injury can result. In a particular case the making of a mortgage may be absolutely , necessary to save the property to the minors, and at the same time it may be that no mortgage will be accepted except one in “blanket form” — the entire debt being' made a lien on all the property. Such a condition might exist where a tax lien is about to ripen into a title.' The probate court has jurisdiction to inquire and determine whether in a given case such a situation is presented, and if a mistake of judgment is made the mortgage is not thereby invalidated. Here the findings show that there was urgent need of a loan; the property had been sold at judicial sale upon a tax lien, the period within which redemption could be made was about to expire, and there was no other source from which the money to redeem it could be obtained. It must be presumed that the mortgage was procured upon as favorable terms as could be had under the circumstances. The Kansas statute, in addition to the specific authority for the execution by a guardian of a mortgage on his ward’s property, contains this provision : “Guardians of the property of minors must prosecute and defend for their wards. They must also in other respects manage their interests, under the direction of the court; they may thus lease their lands or loan their money during their minority, and may do all other acts which the court may deem for the benefit of the wards.” (Gen. Stat. 1909, § 3975.) This does not confer an unlimited authority upon the court, but it justifies a liberal interpretation of the powers elsewhere granted. It is argued that the result of this view is to make each of the wards personally liable for the debt of the others. This question is not involved because no personal judgment was rendered against any of the defendants, the decree simply providing for collecting the indebtedness out of the property. The basis of the second objection is that there was included in the amount for which one of the mortgages was given the sum of $1800, which was owed to the mortgagee by the father of a part of the minors. The ' findings disclose these facts: A life interest in the real estate involved was devised to a brother and sister, with a remainder to their' respective children, the two sets of minors already mentioned. The property included'a large hotel, in process of construction when the testator died. ' It was completed and opened to the public, being managed for the benefit of the estate by the father of one set of devisees. Furniture and fixtures for thé hotel had been procured and were held in his name and he had executed a mortgage upon them for $1800. To save the property from deteriorating and becoming unproductive the guardian took possession in behalf of the minors, and undertook to borrow enough money upon it to put it in condition to produce a revenue. In' effecting a loan sufficient for this purpose the item of $1800' (the lien on the furniture and fixtures) was included, and that amount of the mortgage debt is thus accounted for. The probate court directed this use of the borrowed money; as well as the other expenditures regarded as necessary to the preservation of the property in the interest of the minors. . . . .. • In. effect the- guardian took over the furniture• and fixtures by the assumption of the mortgage against it —purchased it for the wards, for the amount of the lien. In order that the hotel might be kept up as a going concern it was obviously necessary that some provision should be made for furniture and fixtures. Whether some better arrangement might have been made is not a matter for inquiry here. The plan pursued was reasonably adapted to the end in view, was approved by the probate court, and affords no sufficient basis for an - attack upon the validity of the mortgage. Nor can this proceeding be affected by any question of accounting between the owners of the life estate and the remaindermen. It is contended that the mortgages sued on are barred by the statute of limitations. They were more than five years overdue when action was brought, and are outlawed unless the statute is tolled by payments made upon the indebtedness by the guardian from the funds of his wards. The findings recite that the probate court did not authorize such payments. The fair in-' terpretation of this seems to be that no specific authority therefor was given in advance. There is no suggestion of anything clandestine in the matter. The wards have become of age and presumably the guardian has made an accounting which has been approved by the court. The approval of payments applied upon the mortgage would have the same effect as an original authority. The ordinary rule is that'a payment upon an indebtedness made by operation of law does hot affect the running of the statute of limitations. (25 Cyc. 1381-1383:) Thus a payment by an assignee for the benefit of creditors is effective only on the theory of an agency and consent. (Letson v. Kenyon, 31 Kan. 301, 1 Pac. 562.) But it is. held that while an administrator has no authority to revive barred claims against an estate, payments made by him before the statute has run will suspend its operation. (Note, 98 Am. St. Rep. 700.) A guardian stands upon a some what different footing from other representatives. He acts for his ward in all business matters. A payment properly made by him upon an indebtedness which he himself has created by authority of the court should obviously serve to prevent the running of the statute of limitations. We hold the mortgages sued on not to have been barred. One of the mortgages was executed by a successor of the guardian upon whose application the order therefor had been made. The authority given to one guardian passed to his successor. Such is the rule in the case' of executors and administrators (Albright v. Bangs, 72 Kan. 435, 438, 83 Pac. 1030), and no reason is apparent why the same rule should not apply in the case of guardians. Complaint is made that the decree undertakes to sell the right of possession of the property, • whereas the owner of a life interest was not a party. If the language of the judgment was inaccurate in this regard no injury resulted to the appellants. Complaint is also made that the amount of the judgment rendered upon one of the mortgages is somewhat in excess of the amount claimed in the petition. An appropriate amendment may be regarded as having been made. It is suggested that certain appearances by attorneys are not conclusively shown to have been authorized, and that this makes the title unmarketable. We think the objection not substantial. The judgment is affirmed.	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