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The opinion of the court was delivered by
Porter, J.:
The school district sought by mandamus to compel the defendant as county superintendent to certify to the county commissioners the amount necessary to aid the high school in the district for the school year 1914-1915. The defendant appeals from a judgment granting the peremptory writ.
The first contention is that chapter 263 of the Laws of 1911 is a special act on a subject which might have been covered by a general law and is therefore in conflict with the provision of section 17 of article 2 of the constitution. By the title and by section 1 the act is made to apply only to counties having a population of less than 10,000. The particular part to which defendant objects is section 12, which attempts to further limit the operation of the act by excluding from its provisions counties where high schools were already established under chapter 397 of the Laws of 1905 (Gen. Stat. 1909, §§ 7792-7801). The argument is that if the act is of any value it ought to be extended to all counties similarly situated. In the opinion of the legislature the fact that in certain counties high schools had already been established under the provisions of a former law was evidently considered sufficient to place those counties in a different class; but it is unnecessary to worry about the validity of section 12 since the defendant has no interest in that section, Stanton county having less than 10,000 population and never having had a high school in operation under the Laws of 1905. If section 12 were held void that would not destroy the rest of the statute. The same may be said as to certain objections raised concerning the provisions of section 5. (Harrod v. Latham, 77 Kan. 466, 469, 94 Pac. 11, and cases cited in the opinion.)
Testimony offered by the plaintiff and the admissions of the defendant in his testimony show that he refused to perform his duty to certify the amount necessary to maintain the high school because he fell out with the district board over the employment of a teacher. It seems that he recommended the hiring of a teacher at a salary of $150 per month. The board employed one at a salary of $85, who had taught the school for the last part of the previous year. While the statute (§4) places the high school under the supervision and control of the county superintendent and the district board, it does not give the superintendent the veto power over the board. It contemplates that they shall act together for the best interests of the school. It would hardly be reasonable to hold that the school may be closed or deprived of all aid from the county at the arbitrary will of the superintendent when ever the board differs with him about the employment of a teacher.
The only other reason stated by defendant’for his refusal to certify the amount necessary to aid the school for the year 1914-1915 is that after his disagreement with the directors he looked up the statute and construed its provisions to mean that any certificate made by him was to embrace the amount necessary to carry on the school, not for the coming year of 1914-1915, but for the previous year. It is true, the language of section 11 of the act is not as clear as it might be, and if construed literally leads to absurd results. It makes it the duty of the county superintendent to certify to the county commissioners on or before the first day of July in each year the amount necessary to aid the district in maintaining high schools under the provisions of the act “for the year ending on the 30th day of June preceding,” and then requires the commissioners to make the levy. The word “preceding” was obviously used by mistake and intended to mean “succeeding,” and it has received this construction generally by the public officers having charge of the enforcement of the law. The defendant had no quibble over the meaning of this section until his differences with the school board. He construed it in accordance with common sense the year previous and certified the amount necessary to aid the school for the year 1913-1914. Of course the legislature could not have intended that the superintendent should certify what was necessary to aid the school for the year that was past, or that the county board should make a levy of taxes'to pay something already paid. To give the construction to section 11 which the defendant now relies upon as an excuse for refusing to perform his duty would render the entire chapter of no force or validity whatever.
The defendant suggests no substantial reason for refusing to certify the amount to the board of commissioners, and the judgment will be affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action is one to test the validity of the oil inspection law. It takes the form of mandamus by the state to compel the state oil inspector to turn into the treasury certain oil inspection fees, which were paid to him under protest. Oil refining companies interested in the fees were made parties and made returns to the writ. Some testimony has been taken, and the cause is presented for decision on the writ, the returns, and the evidence, including some official documents of which the court takes judicial notice. The claim is that the law operates as a revenue measure and not as an inspection law for the protection of the people of the state, and that it violates the constitution of the United States and the constitution of the state of Kansas.
The law in question is chapter 200 of the Laws of 1913, which superseded sections 3938 to 3960, inclusive, of the General Statutes of 1909 (Laws 1899, ch. 170, as amended by Laws 1909, ch. 180), all of which were repealed. Kerosene, gasoline, benzine, and other petroleum products, whether manufactured in this state or not, must be inspected before being offered for sale or used for consumption for illuminating, heating, or power purposes in this state. Inspection is made by a state inspector, and a sufficient number of deputies to do the work, not exceeding six. The state inspector receives a salary of $2000 per year and his traveling expenses. Each deputy receives a salary of $1200 per year and his traveling expenses. Salaries and expenses are paid by warrants drawn on the state treasury. Inspection is secured by means of a system of penalties. It is a criminal offense for any one to sell or attempt to sell the oils required to be inspected without first having them inspected. Any agent, dealer, or vendor of oils who shall draw off such oils from a car tank or other vessel into a receiving reservoir before inspection and before receiving a certificate or car-tank seal authorizing the oil to be drawn off is guilty of a criminal offense. Every person, company or corporation in the state selling or dealing in oils required to be inspected is obliged to report in full and in detail to the auditor of state all receipts and invoices of oil on or before the tenth of every month. Neglect to do this is a criminal offense. The charge for inspection is ten cents per barrel of fifty gallons, which is paid to the inspector. The inspector forwards his collections to the state inspector, who pays them to the state treasurer, who places them in the general revenue fund. The state inspector is required to make an annual report on or before the twenty-fifth of December of each year of the inspections made by him and his deputies during the preceding year.
The act of 1913 superseded a law providing that inspection should be accomplished by a state inspector and a sufficient number of local inspectors to do the work. A schedule of inspection fees was prescribed, and local inspectors were authorized to keep one-half of their collections up to $50 per month as compensation for their services. The net profits to the general revenue fund of the treasury under that lav/ were as follows:
1909 .................................. $26,820.77
1910 .................................. 31,337.16
1911 .................................. 34,067.29
1912 .................................. 38,189.95
Under the new law the net returns to the state, as reported by the state inspector, have been as follows:
1913 .................................. $61,357.12
1914 .................................. 76,665.68
1915 .................................. 110,798.37
The following were the appropriations for the oil-inspection department made by the legislature of 1913:
19 u. 1915.
“State oil inspector................. $2000 $2000
Clerk hire ......................... 900 900
Salaries of six deputy oil inspectors ... 7200 Traveling and individual expenses including rent of office room for deputies and other expenses necessary for the transaction of the business of the office...................... 4000 7200 4000
Total ............. $14,100 $14,100”
(Laws 1913, ch. 26, § 1.)
The legislature of 1915 appropriated the same sums for the same purposes for the years 1916 and 1917.
The law of 1913 did not take effect until April first of that year. The state inspector’s report for 1913 covers the year beginning with December, 1912. The recapitulation of that report follows:
“Barrels of oil inspected.................... 419,945
Barrels of gáso. inspected .................. 414,265
Total ................................... 834,210
Amount of fees collected................ $80,240.13
Fees deducted for shipments to Mo....... 2,299.90
■ Total amount of expenses............... 18,248.19
Total amount net to State............... 61,357.12”
Recapitulations of the inspector’s reports for the years 1914 and 1915 follow:
(1914) “Barrels of oil inspected..................... 443,253
Barrels of gaso. inspected......•............. 456,650
Total ............. 899,903
Total amount of fees collected........... $89,990.42
Fees deducted for shipments to Mo....... 4,748.60
Total amount of expenses .............. 13,324.74
Total amount net to state............... 76,665.68”
(1915) “Total amount of fees collected........... $123,308.29
Fees deducted for shipments to Mo....... 7,635.12
Total amount of expenses............... 12,509.92
Total amount net to state............... 110,798.37
Barrels of oil inspected..................... 601,599
Barrels of gas. inspected.................... 631,481
1,233,080 (plus)”
For a long time oil was inspected by inspectors appointed by local authorities, mayors and councils of cities and township trustees. In 1889 the office of state oil inspector was created. In 1909 the scheme for inspection by local inspectors under the supervision of the state inspector was adopted. Before 19Q9 oil inspection was very profitable to the state. The net profits for the year 1906 were $18,011.95. For 1907 the net profits were $19,990.78. For 1908 the net profits were $20,-210.61. The law of 1909 not only afforded a large revenue to the state in excess of the cost of inspection, but it provided positions for the politically faithful who could be depended on “to look after things” in their respective localities. Year after year the state inspector’s reports pointed with pride to a substantial increase in net revenues to the state over preceding years. The law of 1913 corrected the political evils, left the service as adequate and as efficient as it had been, but clung to the profit to the treasury. The state inspector’s report to the governor at the close of the year 1913 reads, in part, as follows:
“Prior to April 1, 1913, at which time the present inspection law became effective, the oil inspection department comprised 124 local inspectors, located throughout the state at the various refineries and tank stations. Under the present law, the number of inspectors was reduced April 1st to six, without impairment of the efficiency of the service of the •department to the public, and with material financial saving to the state as is hereinafter set out. Six inspectors are now performing the same service as did 124 under the old system and the department has been freed from criticism on the score that its revenues were being dissipated to reward political favorites.
“The six deputy inspectors are located at the various refineries throughout the state, where all oil and gasoline is properly inspected and the inspection certificates issued therefor before it is unloaded from tank cars into receiving tanks,' or before it is barreled for shipment. Each of these deputy inspectors is fully provided with all necessary instruments, blanks and records for the proper and expeditious conduct of his duties.”
The same matter was inserted in the report made to the governor in 1914, just before the legislature of 1915 assembled. This report also contains the following:
“At this time there are twelve refineries actively in operation in the state. After the first of the year there will be thirteen in operation, twelve of which are operated as independent companies, not connected with the Standard Oil Company, and all of whom are refining and selling oil within the state. The reports on file in the office of this department and in the office of the auditor of state show that during the year ending November 30th, 1914, this department has inspected a total of 443,- 253 barrels of oil and 456,650 barrels of gasoline making a gross total of 899,903 barrels inspected by the department during the year. By referring to former reports of the department, you will note that this is ■ an increase, of 65,693 barrels of oil and gasoline inspected over the previous year.
“No reports of kerosene explosions filed in this office and no reports of inferior gasoline.”
The law requires the state auditor to make a biennial report, which he does shortly before the biennial sessions of the legislature. Sections 8873 and 8874 of the General Statutes of 1909 provide as follows:
“In such biennial reports the receipts and expenditures for each of the two fiscal years covered thereby shall be so stated as to correctly show the financial condition of the treasury for each of such years separately. He may also suggest plans for the improvement and management of the public revenues, when he deems it proper to do so.
“It shall be the duty of the auditor to include in his official report a detailed estimate of the expenditures to be defrayed from the treasury for the two next ensuing fiscal years, respectively, specifying therein each object of expenditure, and distinguishing between such as are provided for by permanent or temporary appropriations, and such as are required to be provided by law, and showing the means from which such expenditures are to be defrayed.”
In his estimate of probable income to the general revenue fund from fees for the years 1916 and 1917, the state auditor, in his report submitted on December 15,1914, included the sum ,of $80,000 for each year from oil inspection fees. In his estimate of appropriations to be made for the same years the auditor recommended only the usual appropriation of $14,100 per annum and proposed a saving of $4200 per year of this sum, as appears by the following suggestion: The legislature of 1915 made no reduction in the inspection force and made the usual appropriation, but, recognizing the indefensible disparity between the amount of inspection fees received and the cost of inspection, reduced the fee from ten cents per barrel to three cents per barrel. The governor vetoed the bill on two grounds, that the reduction was unreasonable and that it would impair the usefulness of the oil inspection department. The usefulness of the oil inspection department did not depend in any particular on the fees charged for inspection. The number of men employed, the compensation they received and the appropriation for their salaries and expenses remained exactly the same. The reasonableness of an inspection fee is governed by settled principles of law and depends solely upon the relation of cost of inspection to collections for inspection, allowing a fair margin for variation. At three cents per barrel the margin above cost of inspection for the year 1914 would have been more than the total cost of inspection, and the margin for the year 1915 would have been nearly twice the total cost of inspection.
“A saving of $4200 a year can be effected without any impairment in efficiency by abolishing the office of state oil inspector, doing away with one of his deputies, and cutting the contingent fund for oil inspection from $4000 to $3000 a year. The office work now being done by the oil inspector and one deputy could be done by the stenographer. This stenographer and the other five deputies could be attached to the state auditor’s department.
“As it is now, five deputies and the stenographer do practically all the work. The oil inspector and the office deputy are simply ‘middlemen.’ They transmit the report of the five deputy inspectors, prepared and checked by the stenographer, to the auditor’s office. For this service to the state the oil inspector receives $2000 and the deputy $1200 a year, with traveling expenses. Their work could just as well be done from the office of the state auditor.”
As the production and use of refined petroleum products increase inspection returns increase, and, as the state inspector’s reports and the evidence show, increase at a much greater rate than the cost of inspection. Before 1913 oil inspection had become a reliable source of revenue. The act of 1913 gave the treasury more money than ever before above the cost of inspection. Its revenue-producing qualities were fully demonstrated before the legislature of 1915 assembled. The proof shows that the oil refining companies memorialized the two houses of the legislature of 1915 on the subject of the operation of the inspection law. With this and abundant other information before it the legislature formally declared that three cents per barrel was a sufficient inspection fee by passing house bill No. 551. This bill, as originally introduced, provided for a fee of five cents per barrel. It was amended in the house to read three cents per barrel, and was passed by both houses in its amended form. The experience of the year 1915 confirms the legislative declaration, but the law was not changed and fees continue to be charged and collected which bear no rational relation whatever to cost of inspection.
In September, 1914, the refining companies commenced to pay under protest. This action was commenced in May, 1915. In December, 1915, the state inspector filed an affidavit, to be used as evidence in the case, containing the following:
“Affiant believes, after a careful consideration of all the information in his possession, and from the experience of the administration of his department, that the efficient administration of the work of the department for such full inspection of petroleum and its products, including gasoline and kerosene, will necessitate an appropriation by the state of Kansas of not less than $100,000.00 annually, and that the total revenue from the fees of such inspection, at the rate allowed and provided by law, will not materially exceed the necessary expenses of the administration of said law.”
The refining ' companies cross-examined him. On cross-examination he reduced his estimate, without contention, $30,000. His estimate of $70,000 included the employment of a force of thirty deputies at a salary of $2000 per annum each. In his affidavit he had this to say of the six men actually in the service receiving $1200 per year.
“Affiant further states that all of said deputy inspectors are competent and efficient men, and well skilled in the work of inspecting oils and the products of petroleum required by law to be inspected.”
On cross-examination he testified as follows:
“Q. Have you been forced to accept any inspectors under this law that you would not employ under the other law? A. Oh, no.”
In 1914, after substantially two years’ experience under the act of 1913, the state inspector reported that the efficiency of the service had not been impaired by reducing the number of deputy inspectors to six men, who were accepting $1200 per year as compensation for their services. The auditor was of the opinion that the chief inspector and one deputy might be dispensed with, and that the contingent fund might be reduced $1000 without impairing the efficiency of the service. In 1914 the department inspected nearly 900,000 barrels of oil. In 1915 it inspected more than 1,200,000 barrels of oil. This was done at a cost of less than the annual appropriation of $14,100 per year for the purpose. The court is inclined to think that if so many were necessary, twenty-four new men, competent to do the work, could be secured at the same price as those who are now serving, and that the state inspector’s original estimate could safely be reduced $24,000 more, bringing the amount necessary to conduct the department in a proper and efficient manner down to $46,000 per year. But whether the amount were $46,000 per year or $70,000 per year, the receipts for the year 1915, in which the necessity for an increased appropriation first arose, were $115,673.17, after deducting fees collected for inspecting oil shipped outside the state. If the present inspecting force and the present contingent fund were doubled, the net profit to the state on oil inspection would be enormously greater than the cost of inspection. All the evidence, however, as to what some other inspection law might accomplish and cost is beside the issue. The court has before it a definite inspection law, which the legislature chose to enact, and the results of its operation. If the legislature has adopted a limited and inefficient scheme which costs but little it can not charge and put into its treasury as clear profit on that scheme vast sums of money which might be expended on some other scheme if it were adopted.
Some deputy inspectors include in their affidavits statements that the fees received for inspecting foreign oil brought into the state does not defray the cost of inspection. Objection is made to the consideration of these opinions. Without the objection they would convey no information to the court, unaccompanied as they are by a presentation of the facts, if any there be, upon which they were based. The fact, if it be a fact, that the state is taxing its domestic oil industry to pay the cost of inspecting foreign oil is too important to be established by rule of thumb and might of itself imperil the law. The same impotence characterizes testimony given by the state inspector that the cost of inspecting the product of several small refineries, which he said “do a little once in a while,” is greater than the fees received. If facts were produced the court would be able to draw its own conclusions. In no event, however, has the cost of inspecting foreign oil and the products of small refineries been as much as $14,100 per year. Conceding that a considerable part of the annual appropriation has been consumed in such inspection, the collection of the great sums charged for inspecting other oil can not be justified. While certain inescapable inequalities in the operation of inspection laws are to be expected and must be endured, a law can not be an inspection law as to some who are within its provisions and a special property tax law as to others who are also within its provisions.
The object *f the law is to promote the safety of persons and property and to protect the people of the state from imposition and fraud. Authority to enact the law is derived from the police power of the s’tate, reserved to it from the grant of powers to the federal government. As an incident of the police power the state may reimburse itself for the cost of inspection by charging the necessary expense upon the business or commodity creating the necessity for inspection. When, however, adequate remuneration has been secured the police power is exhausted. Of course, the books need not precisely balance. It is not possible to determine in advance exactly what sums may be realized from the administration of an inspection law, and there is no objection that some revenue above the cost of inspection may result. Such revenue, however, must be purely incidental to the practical operation of the law, and whenever revenue and not recompense becomes the palpable and unmistakable object the law fails as an inspection law.
The court finds as a fact that the fee of ten cents per barrel chargeable for the inspection of kerosene, gasoline, benzine, and other petroleum products under section 8 of chapter 200 of the Laws of 1913 is clearly and grossly in excess of the amount reasonably necessary to effectuate the lawful purposes of the act; that at the time of its enactment, and ever since that time, the law was, and has been, depended on by the executive and legislative departments of the state government as a revenue measure to bring to the state treasury large sums of money in known excess of the cost of administering the law as an inspection law; that the legislature of 1915, although cognizant of the facts and although of the opinion that three cents per barrel was an adequate inspection fee, failed to change the law; and that the fee is charged and collected for revenue purposes and not merely to defray the cost of inspection. The conclusion of law is that the portion of section 8 fixing the fee at ten cents per barrel as an inspection fee is void; that section 1 of article 11 of the constitution, requiring a uniform and equal rate of assessment and taxation, forbids collection of the fee as a property tax; and that no other provision of law authorizes collection of the fee.
While the legislature probably would not pass an inspection act without providing for the collection of an inspection fee, the action of the legislature of 1915 clearly demonstrates that the present law would be continued in force without the provision for an inspection fee of ten cents. Consequently no occasion exists for declining to execute any provision of the law except the one held to be void and those subsidiary provisions which depend upon it.
The law is challenged as in contravention of certain provisions of the constitution of the United States. It is not necessary to discuss the very interesting questions thus raised. Certain features of the law are challenged as useless, in-efficacious and absurd. The court prefers to leave the determination of these questions to the next legislature.
The inspection fees paid by various defendants under protest should be returned to them. The provisions of the law were such as to coerce inspection, and as a consequence the payment of inspection fees. The statute did not provide for the payment of a reasonable inspection fee, and no officer of • the state had authority to accept less than the statutory fee if tendered. There being no valid law for the collection of any sum as an inspection fee, the state has no right to retain the funds indicated.
The peremptory writ is denied, and the custodian of the sums referred to as paid under protest is directed to return them to the proper parties.
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The opinion of the court was delivered by
WEST, J.:
The defendant appeals from a lump-sum judgment under the workmen’s compensation act.
Plaintiff was injured on June 12, 1914, while at work for the defendant in its mill. He testified that a doctor attended him beforé he was removed from the mill, that six or seven days after the injury he called up the mill and stated to the timekeeper that he wanted a settlement for his foot and wanted a doctor sent out, and was referred by the timekeeper to the company’s main office. On calling up the main office he was referred to a firm of attorneys, and in a day or two he called on these attorneys and then a doctor came. On or about July 15 he employed counsel and went with them to the office of the defendant’s attorneys for the purpose of obtaining a-settlement, and they there talked of the injury. Discussion was had as to the method of settlement, either by a certain sum by the week or by a lump sum, and some dissatisfaction with the workmen’s compensation act was expressed by one of the plaintiff’s attorneys. Shortly afterwards the action was begun, resulting in a judgment for plaintiff in the sum of $1027.87. The answer, after certain admissions, including the injury of the plaintiff, but denying the extent of such injuries or the consequent incapacity to be as great as alleged, averred that the plaintiff was entitled to compensation beginning at the end of the second week of disability, but that he did not notify the defendant of his accident or make any claim for compensation, but that the defendant on or about the 21st of July and prior to the filing of the suit notified the plaintiff that the defendant was ready and willing to pay such compensation then due and to continue the same as provided for by the statute during the time he should be disabled, which offer was by the plaintiff refused; that the defendant had at all times been ready and willing to pay under the terms and provisions of the act, and that the plaintiff was not entitled to maintain the action until he had made some effort to settle with the defendant.
The failure to give a written notice within ten days after the injuries was expressly waived when the case was reached for trial.-
A motion was made to dismiss on the opening statement of plaintiff’s attorney because no claim for compensation had been made and no effort to agree with the defendant upon the amount of compensation. The question was raised in the ways already mentioned, and also by demurrer to plaintiff’s evidence and by request for a peremptory instruction. In view of the knowledge which the defendant, through its various representatives, had of the injury and the desire of the plaintiff to be paid therefor, the claim required by section 6 of chapter 216 of the Laws of 1913 to be made within three months after the accident was rendered unnecessary within the principle announced in Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413, and Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530.
An argument is made against the propriety or legality of a lump-sum judgment, but the question has already been settled and disposed of. (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244; Cain v. Zinc Co., 94 Kan. 679, 148 Pac. 251; Roberts v. Packing Co., 95 Kan. 723, 728, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, 153 Pac. 525.)
Certain complaints are made touching instructions, the admission of evidence and the amount of the verdict, but we find nothing substantially prejudicial in the matters thus complained of.
The principal contention is that the suit could not be maintained until after an effort for settlement on the part of the plaintiff had failed. Section 36 of chapter 218 of the Laws of 1911 provides that “A workman’s right to compensation under this act, may, in default of agreement or arbitration, be determined and enforced by action in any court of competent jurisdiction.” It is forcibly urged that the purpose and policy of the act were to avoid lawsuits and substitute settlement instead (2 M. A. L. 471), and there is much in the language of the statute and the arrangement of its sections to lead to this conclusion. But when the precise matter came to be treated by the legislature the language just quoted was employed, and this means practically the same as if instead of the phrase “in default of agreement or arbitration” the words “in the absence or omission of an agreement or arbitration” had been used. (2 Words & Phrases, p. 1929; 13 Cyc. 759.) While the expression frequently means failure to perform a duty or obligation, other definitions are also given. “Default. A failing or failure; omission of that which ought to be done.” (Webster’s New Int. Diet. 1910.) “In default of, owing to lack or failure of.” (Funk & Wagnalls’ New Stand, Diet. 1913.) “Omission; neglect or failure; . . . default of- issue: Failure to have living children or descendants at a given time or fixed point.” (Black’s Law Diet., 2d. ed.)
Nothing can be found in the entire statute which requires that such a settlement be attempted by the plaintiff as a condition precedent to maintaining an action at law, and the courts can not add a requirement either purposely or carelessly omitted by the legislature. This question was decided in Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530, which decision is now approved and followed.
The judgment is affirmed.
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Per Curiam:
The Gossard Investment Company was a corporation for the loan of money, handling of securities, and for acting as agent for investors. Nathaniel Stevens, of New Hampshire, was a patron of the company. He made investments through it and it acted as his agent for the collection of moneys due upon his securities, payment of taxes for him, etc., etc. He died leaving John H. Stevens, a minor son, as an heir. The defendant was appointed by a probate court in New Hampshire as guardian of the minor. The Nathaniel Stevens estate had five thousand dollars in the hands of the Gossard Investment Company. The administrator of the estate allowed this sum to the defendant as a portion of the distributive share due his ward, John H. Stevens. Upon application of Mrs. Lilly D. Gregory, made to the Gossard Investment Company and forwarded to the defendant, he authorized the in vestment company to loan the money in its hands for him as guardian. This was done, security taken in the name of the investment company, and by it forwarded to the defendant.
He kept these securities in his possession, but shortly before the maturity of interest coupons thereon forwarded them to the investment company for collection. The company remitted the interest at maturity except in a few instances when payment was delayed. The amount loaned to Mrs. Gregory was secured by two different mortgages upon different pieces of property. One piece of this property was sold and conveyed by her to the plaintiff soon after the making of the loan upon it.. He assumed the mortgage and thereafter made the interest payments upon it. Before the maturity of the principal debt he made two payments upon it aggregating nineteen hundred dollars. These payments were made to the Gossard Investment Company. The plaintiff was aware that the company had sold thé mortgage securities, but supposed it to be still the owner. These payments of principal were not remitted to the defendant, and he was ignorant of the fact they had been made. At the maturity of the principal debt the plaintiff tendered the unpaid balance and demanded a surrender and cancellation of the mortgage. This was refused, whereupon he' instituted an action to compel its cancellation and to quiet his title against the claim of mortgage lien. The court below made findings of fact and rendered judgment in his favor. The material findings for the purposes of the case as we view it are as follows:
“31. That W. S. Meserve held and owned said note and mortgage as the guardian of John H. Stevens. That John H. Stevens was the son and heir of one Nathaniel Stevens. That said Nathaniel Stevens in his lifetime had been dealing with the Gossard Investment Company for several years, buying mortgages, and other securities, from it, and entrusting said company with the caring for his securities and with the collection of interest and principal thereon.
“That said W. S. Meserve as guardian for John H. Stevens took possession of his ward’s estate, including said mortgages and other securities negotiated by the Gossard Investment Company in 1889, and by correspondence and in person continued the handling of said securities through the Gossard Investment Company until about August 1, 1894. That said Gossard Investment Company collected all- the principal and interest that was collected on said mortgages, and as the same was collected gave W. S. Meserve as guardian credit therefor, on its books, except as hereinbefore stated.
“32. That there existed an open book account between said company and said guardian all the time since said guardian took charge of said estate, a part of the time said guardian being in overdraft with and indebted to said company and a part of the time said company being indebted to said guardian. That said company allowed said guardian interest at the rate of six per cent per annum on all balances of account in his favor, and said guardian allowed said company interest at the same rate on all balances in its favor. That said company debited said account with mortgages furnished and remittances made to said guardian, and credited said account with collections of principal and interest made on said securities.
“33. That said company had prior to October 1, 1891, made a number of collections on other mortgages on account of both principal and interest, without having the notes or mortgages or coupons therefor in its possession. That said W. S. Meserve, guardian, had no other agent or party representing him or collecting interest or principal, or giving his securities any care or attention, in Kansas City, than said company until 1894. That said company attended to foreclosing all mortgages and paying all taxes for said guardian whenever necessary.
“34. That all collections on account of interest made by said Gossard Investment Company on the mortgages in controversy in this suit were immediately credited to the account of said guardian but said payments on account of principal were carried in the ‘Certificate of Deposits’ account until August 1, 1894, when the said company credited the said guardian’s account with the sum of nineteen hundred dollars, on account of the principal of said mortgage.”
The above findings are decisive of the case in favor of plaintiff. .We have taken the trouble to examino them in the light of the evidence, particularly of the account of dealings between the parties, and the correspondence between them. They are well supported by the evidence. In fact, the evidence more positively establishes the fact of an agency in the Gossard Investment Company for defendant than the court has stated in its findings. Under the law the payment of money .to an agent authorized to receive it is a payment to the principal.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Flint Hills Rural Electric Cooperative (Flint Hills) claimed insurance coverage under a liability policy issued by Federated Rural Electric Insurance Corporation (Federated) for a punitive damage award entered against Flint Hills in a personal injury and wrongful death action. Federated denied coverage, arguing that notwithstanding K.S.A. 40-2,115, the public policy of Kansas precludes a corporation from obtaining insurance coverage for punitive damages assessed on the basis of the corporation s direct liability for the underlying wrongful act. The district court held that (1) K.S.A. 40-2,115 permits a corporation to obtain coverage for punitive damages and (2) the punitive damages awarded were covered under the contract of insurance. Federated appealed. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
In 1987, the Cerretti family was involved in an accident when their sailboat contacted an overhead electric line strung over Council Grove City Lake. Lynean Ann Cerretti was killed and Randall Cerretti was injured. The family filed a personal injury and wrongful death action against Flint Hills. See Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 837 P.2d 330 (1992). No action was brought against any employee of Flint Hills individually. Flint Hills was insured through liability and commercial umbrella policies with aggregate liability policy limits of $6,000,000 issued by Federated.
Federated tendered a defense for Flint Hills in the Cerretti lawsuit. The case proceeded to trial, and the Cerrettis were awarded $1,860,000 in actual and $75,000 in punitive damages. Flint Hills appealed, raising numerous issues including whether the award of punitive damages was proper. Flint Hills argued there was no clear and convincing evidence of wanton conduct on its part, as required by K.S.A. 1991 Supp. 60-3701(c), to support an award of punitive damages. It contended that a wanton omission or failure to act could not be the basis for a punitive damage award. Flint Hills asserted that because the original installation of its power line was neither negligent nor in violation of any safety standard, it created no substantial risk of injury. Flint Hills argued that subsequent events created by Coast Catamaran, the sailboat manufacturer, and its customers created the risk of injury. Flint Hills then stated that for punitive damages to be assessed against a corporate defendant, the wanton conduct had to be performed, expressly authorized, or ratified by a managerial employee of the corporation. 251 Kan. at 367. Flint Hills then argued: “[T]he only conduct suggested to meet this test is the failure of Gerald Ridenour [the general manager/CEO] to order relocation of the line after receiving a letter from Coast Catamaran.” 251 Kan. at 367-68.
In rejecting Flint Hills’ argument that a failure to act can never form the basis for an award of punitive damages, the Cerretti court noted the following facts found by the trial court when it denied Flint Hills’ motion for directed verdict on the punitive damages issue:
“[The trial court] noted Flint Hills CEO Gerald Ridenour was informed in 1982 that there was a Flint Hills 7200-volt line over the west end of the Council Grove City Lake that could interfere with sailboats. The power line was dangerous. After receiving notice, there was no action by Ridenour or anyone under him who inquired as to the lines or the use of the lake by sailboats. When warned of the hazard, Ridenour failed to determine the height of the line over the lake. The defendant did not refer to the [National Electric Safety Code] to determine the required clearance under the existing conditions.” 251 Kan. at 366.
In affirming thé award of punitive damages, the Cerretti court observed, that, based upon Kansas case law, wanton conduct may be found where the power company could be deemed to have realized the imminence of danger to another from its acts and to have refrained from taking steps to prevent injury because it was indifferent to whether the injury occurred or not. 251 Kan: at 368. The Cerretti court then stated:
“Here, the jury found there was clear and convincing evidence that Flint Hills’ officer was authorized to act. It determined that Flint Hills’.officer had wantonly failed to act when action was required, and the corporation should be punished so others would be deterred by die award of punitive damages. We find there is sufficient evidence to support the jury’s verdict.” 251 Kan. at 369.
Subsequently, Federated refused to reimburse Flint Hills for the punitive damages amoúnt, claiming that punitive damages were excluded by the express terms of its policy and by the public policy of Kansas. Flint Hills filed a petition in the District Court of Lyon County seeking recovery for the $75,000 it had paid to the Cerrettis for the punitive damage award. The petition initially sought recovery under contract and tort theories, but Flint Hills withdrew the tort claims and proceeded solely on the breach of a contract theory. Both sides filed motions for summary judgment.
The district court framed the issues as (1) whether the terms of Federated’s policy precludes the reimbursement for punitive damages by its terms and (2) whether Flint Hills was collaterally es- topped from arguing the status of Gerald Ridenour. With respect to the issue of coverage under Federated’s policy, the district court held that the policy, which obligated Federated to pay “all sums” assessed against Flint Hills due to personal injury, covered reimbursement for punitive damages. Federated also argued that K.S.A. 40-2,115 permits obtaining insurance coverage for punitive damages only in circumstances of vicarious liability. Federated asserted that since, in the underlying litigation, Flint Hills had been found to be directly liable on the basis of the wanton acts of their managerial employee, Ridenour, Flint Hills was collaterally estopped to reargue the basis for its liability in the second action. The district court rejected this argument, noting that the provisions of K.S.A. 40-2,115 essentially provide that the policy of this state permits insurance coverage against punitive damages when they arise as a result of the acts or omissions of the insured’s employees, agents, or servants.
The district court granted Flint Hills’ motion for summary judgment and awarded Flint Hills $75,000 plus interest accrued.
STANDARD OF REVIEW
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
" The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ ” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 445, 827 P.2d 24 (1992).
DISCUSSION
Federated argues that Kansas case law and K.S.A. 40-2,115 prohibit a corporation from obtaining insurance coverage for punitive damages for direct (not vicarious) liability. If Federated is correct, this court need not construe the applicable policy of insurance. To determine the issue, we are required to review decisions of this court and legislative enactments that occurred between 1980 and 1984.
A. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co.
In 1980, this court decided Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, 535, 618 P.2d 1195 (1980), overruled on other grounds 232 Kan. 76, 652 P.2d 665 (1982). The case arose out of Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). Guarantee sued Interstate, its insurer, to recover amounts for punitive damages assessed against Guarantee in Ford because of its breach of duty to accurately examine the title records and expenses. Guarantee alleged that (1) the errors and omissions indorsement on Guarantee’s liability insurance policy issued by Interstate covered punitive damages, and (2) Interstate was guilty of bad faith and negligence in the defense of Guarantee in Ford.
In Ford, Guarantee and its principal, Chicago Title Insurance Co., were found liable for the negligent and reckless acts of Carl Zimmerman, vice-president of Guarantee, for failing to obtain a deed in exchange for the payment of. the purchase pricé and for failing to issue a title policy or return the purchase price as demanded by the Fords. The jury returned a verdict of $8,687.65 in compensatory damages against Guarantee and Chicago Title and punitive damages of $35,000 against Guarantee and $70,000 against Chicago Title; On appeal, the court affirmed the award of compensatory damages and reduced the punitive damages by one half.
Subsequently, Guarantee filed an action alleging that Interstate was liable for all actual and punitive damages assessed against Guarantee and Chicago Title under the terms of the insurance policy. The trial court found punitive damages had been awarded against Guarantee and Chicago Title in Ford based upon Zimmerman’s reckless conduct and reasoned that conduct was covered under the policy. The trial court also found Zimmerman’s actions were not committed maliciously, nor had the corporation ratified his acts. The trial court stated a finding of malice or evidence of corporate ratification of Zimmerman’s actions were the. sole exceptions that would exclude coverage under the policy. Interstate appealed.
At the outset, the Guarantee court noted the case was not solely one of vicarious liability, so that the rule allowing insurance coverage for punitive damages in such cases was not applicable. 228 Kan. at 535. The court, citing Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 (1973), then stated:
“Nevertheless, we reject such a rule, regardless of whether liability is incurred Vicariously or directly. It is against the public policy of this state to allow a wrongdoer to purchase insurance to cover punitive damages [citation omitted], and we interpret that rule to include any person who has incurred such liability regardless of whether the liability resulted from the insured’s own acts or those of his employee, servant or agent.” 228 Kan. at 535.
B. K.S.A. 40-2,115
Three years after our decision in Guarantee, H.B. 2062 was introduced in the 1983 session of the Kansas Legislature in the House of Representatives, sponsored by Representative Robert Vancrum. The bill provided that it was not against the public policy of Kansas for a person or entity to obtain insurance covering liability for punitive damages assessed as a result of vicarious liability, without the actual prior knowledge of the insured. On February 24,1983, Rep. Vancrum testified before the House Committee on Insurance in favor of the bill. The bill was reported favorably by the House Committee on Insurance but was withdrawn from the 1983 calendar and referred back to the House Committee on Insurance. Minutes of House Committee on Insurance, February 24, 1983.
C. Kline v. Multi-Media Cablevision, Inc.
After H.B. 2062 had been introduced in the 1983 legislative session, but before it was enacted in the 1984 legislative session, this court decided Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983). Kline involved a certified question from the United States District Court for the District of Kansas. The question was certified because diere was no controlling precedent in the decisions of the Supreme Court and the Court of Appeals. K.S.A. 60-3201.
The certified facts of Kline are: In 1980, employees of MultiMedia Cablevision removed a manhole cover in the course of théir employment. Kline rode by the work sité on his bicycle, hit the open manhole, and was seriously injured. Kline filed suit in the McPherson County District Court against Multi-Media but not . against the employees individually. Kline’s petition alleged in part that “ ‘the failure to replace the cover on the open manhole, failure to warn that the cover was removed and failure to erect a barricade or barrier or to otherwise use safety devices around the open manhole’ ” supported a claim for compensatory and punitive damages. 233 Kan. at 989.
Multi-Media removed the case to federal district court and filed a motion for summary judgment on the punitive damage issue. The federal district judge, Judge Kelly, certified the following question to this court:
“ ‘Under Kansas law, may a corporation be held liable for punitive damages arising from an act of'an agent or employee, within the scope of the agent’s or ' employee’s employment,’ when the corporation, through its board of directors or an officer, has neither directed, authorized nor ratified the act?’ ” 233 Kan. at 989. ’
' In answering the question, the Kline court first noted the general rules that a corporation is liable for the torts of its agent when committed within the scope of the agent’s authority and course of employment even though it did not authorize or ratify the tortious acts. The court, citing Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 63, 643 P.2d 100 (1982), and Newton v. Hornblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978), then observed that (1) punitive damages are appropriáte when the elements of fraud, malice, gross negligence or oppression accompany the wrongful act; (2) such damages are awarded to punish the wrongdoer for his malicious, vindictive, willful, or wanton invasion of the injured person’s rights; and (3) they also serve as an example to restrain and deter others from the commission of such wrongs. 233 Kan. at 989-90.
The Kline court observed there were two possible answers to the question of when a corporation may be held liable for punitive damages for the wrongful acts of its employees committed within the course of their employment. First,-a corporation could be held hable for punitive damages whenever the employee was acting within the scope of employment. The Klim court noted this was the “vicarious liability” rule and was followed by a majority of the courts. The “vicarious liability” rule focused on the deterrence aspect of punitive damages. The theory was such a rule would encourage employers to exercise closer control over their employees and thereby reduce the probability of the occurrence of torts which would support a punitive damages award. 233 Kan. at 990.
The Klim court explained that the second possible answer to the question — and the minority rule — -was that a corporation might be held liable for punitive damages resulting from acts of its employees only when it has directed or ratified those acts. As authority, the court cited the Restatement (Second) of Torts § 909 (1977):
“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, .
(a) the principal or a managerial agent authorized the doing and the manner of the. act, or . , ■
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.”
The Kline court noted this was called the “complicity” rule and focused on the first reason for the award of punitive damages— punishment of the wrongdoer. The rule recognized that ordinarily it is improper to impose, the burden of punitive damages on one who is innocent of wrongdoing. 233 Kan. at 991. In adopting this rule, the Kline court explained that the “complicity” rule furthers the deterrence theory by putting the corporation on notice that if (1) a managerial agent authorizes, approves or ratifies the act, (2) the act is performed by a managerial employee acting within the scope of employment, or (3) the corporation or a managerial employee was reckless in employing or retaining the acting employee, the corporation may be liable for punitive damages, causing a corporation to exercise stricter control over its employees. 233 Kan. at 992-93. The court stated the red advantage of the complicity rule is that it provides for a determination of whether the corporation is actually blameworthy before awarding damages. The Kline court rejected a more restrictive rule which would have focused only upon whether corporate officers and directors authorized, ratified, or directed the employee’s wrongful conduct. It preferred the greater flexibility of die Restatement rule, which “¿lows the factfinder to consider the actions of the corporation or its nianageri¿ agents peculiar to the case.” 233 Kan. at 993.
The Kline court concluded that the answer to the certified question was: A corporation is not liable for punitive damages for an employee’s tortious acts committed within the scope of his employment unless (a) the corporation or its manageri¿ agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its manageri¿ agent was reckless in employing or ret¿ning him; (c) the employee was employed in a manageri¿ capacity and was acting in the scope of employment; or (d) the corporation or its manageri¿ agent ratified or approved the act of the employee.
Although the Kline decision limited a corporation’s liability to situations where the corporation is found to be direcdy rather than vicariously liable, the decision did not change the public policy against insurance for punitive damages rule of Guarantee Abstract, 228 Kan. 532.
Kline was followed by the court in Plains Resources, Inc. v. Cable, 235 Kan. 580, 682 P.2d 653 (1984) (upholding award of punitive damages against corporation where corporate employer was liable for negligent hiring and so directed and ratified acts of employee), and Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987) (upholding punitive damages award ag¿nst corporation based upon acts by manageri¿ personnel in the scope of their employment). For a subsequent statutory modification of Kline, see K.S.A. 60-3701(d)(1) (no punitive damages can be assessed against a principal or employer for acts of an agent or employee "unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer”); Smith v. Printup, 254 Kan. 315, 336-37, 866 P.2d 985 (1993).
Here the jury found that Flint Hills’ officer had wantonly failed to act when required. A corporation is liable for punitive damages for the tortious acts of a managerial agent acting within the scope of his or her employment.
D. K.S.A. 40-2,115 Enacted
H.B. 2062 was reintroduced in the 1984 legislative session as H.B. 2876. In his statement to the House Committee on Insurance, Rep. Vancrum stated:
“The bill would merely reverse the 1980 Supreme Court ruling in the Guarantee Abstract Case, in which the Supreme Court of Kansas stated that the public policy of Kansas does not permit an insurance company to reimburse an employer for punitive damages assessed against the employer due to the intentional acts of his employees or agents, even if he had no prior knowledge of the acts and had no way to prevent same. . . .
“Let me give you a brief example of instances in which this provision comes into play. Suppose a trucking company employs a driver for several years who then by his negligence causes an accident which causes serious injuries to the motorist. If a jury finds negligence, both he and the company are obligated to pay damages. The company of course did not authorize him to drive negligently, but they can at least obtain insurance to cover this liability. However, if the jury is sufficiently impressed that the driver’s actions were in reckless disregard of the law or rights of other motorists or if they find that he intentionally assaulted another individual, a jury might be permitted to award not only actual but punitive damages intended to ‘punish’ the wrongdoer against the trucking company. In such a case, the trucking company still did not authorize the actions and in fact may not have even been aware of them but in such a situation the Kansas Supreme Court ruling states that we are not going to permit insurance companies to reimburse the company, even if they have written an insurance policy which claims to cover punitive damages.
"The overwhelming majority of states permit the reimbursement of punitive damages to the innocent employer.” Minutes of House Committee on Insurance, February 24,1984.
In his statement supporting the bill, Todd Sherlock of the Kansas Association of Realtors made the following statement:
“The bill will allow for the employer to obtain insurance in the event that he is held hable for punitive damages assessed against him because of the intentional or reckless conduct of his employees, without the prior knowledge of the employer. Without such insurance protection, the employer is left wide open to acts done without his knowledge by his agent.” Minutes of House Committee on Insurance, February 24, 1984.
On March 30, 1994, HB 2876 was discussed in the Senate Judiciary Committee. Rep. Vancrum made a statement similar to that made before the House Committee. His statement was entitled “On HB 2876 — The Vicarious Liability for Punitive Damages Bill.” Testifying in support of the bill on behalf of the Kansas Bar Association, John Brookens stated:
“It is pubhc pohcy, and we think properly so, that one who commits an act for which punitive damages may be recovered should not be permitted to insure against pay-out of punitive damages.
“But if the employer had no knowledge of and did not acquiesce in the employee’s act which was malicious, willful, intentional, or in reckless disregard of the rights of others — the employer may still, under the doctrine of respondeat superior become, vicariously hable in punitive damages for the act of the employee. We see no logic in law or reason why the employer, under these circumstances, should not be able to protect himself against this type of punitive damages. The employer is not the actual wrong-doer, he did not have knowledge of the wrong, he did not acquiesce in the wrong.” Minutes of Senate Judiciary Committee, March 30, 1984.
H.B. 2876 was reported out of committee and passed by the legislature, and K.S.A. 40-2,115 became effective on April 26, 1984.
. K.S.A. 40-2,115(a) provides:
“It is not against the pubhc pohcy of this State for a person or entity to obtain insurance covering liability for punitive or exemplary damages assessed against such insured as the result of acts or omissions, intentional or otherwise, of such insured’s employees, agents or servants, or of any other person or entity for whose acts such insured shall be vicariously hable, without the actual prior knowledge of the insured.”
A review of the legislative history of the enactment of K.S.A. 40-2,115 clearly indicates that the statute was enacted as a limited exception to the public policy of Guarantee Abstract prohibiting insurance coverage for punitive damages.
E. Conclusion
In 1980, the Kansas public policy set out in Guarantee Abstract prohibited Flint Hills from purchasing insurance to cover liability for punitive damages in all cases. Kline, decided in 1983, did not alter the public policy of Guarantee Abstract, but held that punitive damages can only be assessed against a corporation if the corporation is direcdy liable. K.S.A. 40-2,115 is considered in our analysis only because the trial court applied that statute in determining there was coverage in the insurance contract for payment of punitive damages assessed against the insured. Since the claim against Flint Hills did not involve vicarious liability of a corporation, neither K.S.A. 40-2,115 nor the later enacted K.S.A. 60-3701(d) applies.
The accident in this case occurred on August 22; 1987. At trial, the jury determined that Flint Hills was directly liable, not vicariously liable, for the wrongful death and injury to the Cerretti family. The wanton act in Cerretti for which punitive damages was awarded to punish Flint Hills was the failure of its managerial employee, Ridenour, to order relocation of the electric line after receiving á letter warning that the line was dangerous. Insurance policies can be enforced as written so long as the terms do not conflict with pertinent statutes or public policy. House v. American Fam. Mut. Ins. Co., 251 Kan. 419, Syl. ¶ 3, 837 P.2d 391 (1992). Since the public policy of the state prohibits insurance coverage for any entity found directly liable for punitive damages, even if the insurance policy Flint Hills purchased from Federated purported to provide insurance coverage for Flint Hills, such coverage if included in the policywould be void as against Kansas public policy.
The decision of the district court is reversed.
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from convictions of premeditated first-degree murder, attempted first-degree murder, and unlawful possession of a firearm. The defendant, Larry J. Griffin, claims that the exclusion of a police report contradicting the trial testimony of an eyewitness requires reversal. The contents of the police report were read to the jury. The defendant also contends that juror misconduct requires reversal. Finding no reversible error, we affirm.
The defendant, his girlfriend, and several friends gathered at an apartment located in the Highland Park apartment complex in Topeka. Tony Pead rode through the apartment complex on his bike and thought he heard the group speaking to him. Pead challenged them, rode around in a circle exchanging comments with the men on the porch, and then rode away.
When the defendant left to drive his girlfriend home, Pead returned with several of his friends and attacked three of the defendant’s friends remaining on the porch. The defendant’s friends suffered several injuries and after Pead’s group left, an ambulance was called for one person who received a broken jaw. Michael Gibbs, who had stayed inside to avoid the fight, called the defendant, who then returned to the Highland Park apartment complex.
The trial testimony presents two conflicting versions of the incident giving rise to the charges. The State sought to prove that the defendant and his friends were seeking revenge. The defendant and two friends left the Highland Park complex for the neighboring apartment complex, Deer Creek, in the defendant’s car. They encountered Pead and Shawn Davis sitting ón a wall near a basketball court. Primarily through the testimony of Pead and an eyewitness who viewed the events from his bedroom window above the basketball court, the State established that the defendant approached Pead and Davis. Words were exchanged. The defendant turned away from Pead and Davis, pulled out a gun, turned back, and shot Davis. As Pead ran from the basketball court, the defendant shot him as well. One of the defendant’s companions struck the fallen Davis in the head with a brick. Davis died from his wounds. .
The defendant testified that he returned to the Highland Park complex and wanted to talk to Pead and Davis about the reasons they had attacked his friends. He decided to drive his friends home by way of the Deer Creek complex. They encountered Pead and Davis, and the defendant approached to talk to them. An argument arose. He turned his back at one point, .and shots rang out. The defendant and his friends ran, failing to see who shot the gun.
The defendant claimed that Lamar Tibbs, a person belonging neither to Pead’s nor to the defendant’s group, shot Davis. To support this theory, he called two witnesses. Crystal Perry testified that Tibbs arrived at her house following the shooting and asked her to hide his gun. The second witness, Florence Evans, was interviewed by the police 2 days after the incident. She told the police that she saw Tibbs shoot Davis. At trial, she denied telling this to the police. Defense counsel hánded her a copy of the police report and three separate times asked her if she did not tell the police that Tibbs shot Davis. On each occasion, Evans denied she told the police that Tibbs shot Davis.
The defendant also called Officer Walter Wywadis, who read verbatim the police report regarding Evans’ statement that she saw Tibbs shoot Davis. The defendant’s motion to admit the written police report was denied.
Exclusion of the Written Report
The defendant contends that the trial court erred by excluding the police report detailing the interview of Evans. He argues that the admission of the police report was essential to challenge the credibility of Evans, as well as to provide evidence that another person committed the crime. He argues that the report was admissible pursuant to K.S.A. 60-422(b), as extrinsic evidence of a prior contradictory statement. Further, he argues that the admission of the physical report was not cumulative to the officer’s reading the report into the record. He insists that the exclusion of the report substantially hindered his ability to present a complete defense.
The defendant called the officer who had the report and the officer who recorded Evans’ verbal statement. Both identified the report as the verbal statement taken from Evans 2 days after the incident. The report was marked as Defendant’s Exhibit No. 2. Immediately after the exhibit was marked, the judge said, “I’ll allow the testimony.” Defense counsel asked the officer to read the report. The officer then read the report verbatim to the jury. Counsel then asked that the defendant’s Exhibit 2 be admitted into evidence. The prosecution objected, stating, “[I]t’s already been read. No need to send it back.” The judge agreed, saying, “I’ll allow the testimony, but not the physical document.” Defense counsel responded, “All right.”
The evidence of Evans’ earlier statement to the police was properly admitted under the provisions of K.S.A. 60-422. The defendant acknowledges that the police report was admitted by the verbatim reading of the report to the jury. Nevertheless, the defendant argues that the written report itself should have been admitted.
The standard we apply in this case is:
“The admissibility of the written report was a matter of judicial discretion, and the trial court will not be reversed on appeal absent a showing of an abuse of discretion. [Citations omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” [Citation omitted]. State v. Baker, 255 Kan. 680, 691, 877 P.2d 946 (1994).
The defendant cites State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992), wherein we reversed a murder conviction on the basis that the trial court erroneously excluded expert testimony on the effect of sleep deprivation. However, the Baker court noted that in Humphrey, no testimony was permitted on the subject as opposed to excluding a written report offered after a witness has exhaustively testified on the subject. 255 Kan. at 691. In Baker, the defendant argued that the trial court’s refusal to admit a written report of its medical examiner into evidence denied him his constitutional right to present his defense. The trial court excluded the written report because the jury heard the testimony on direct and cross-examination. The court reasoned that allowing the report into evidence would let a witness testify twice and put undue influence upon that witness’ testimony.
The evidence the defendant complains was erroneously excluded was, in fact, admitted when the trial court permitted the officer to read the report verbatim to the jury. The exclusion of the written report, under the circumstances in this case, does not establish an abuse of discretion.
The defendant’s reliance on State v. Murrell, 224 Kan. 689, 585 P.2d 1017 (1978), is misplaced. In Murrell, the defendant sought to impeach a critical prosecution witness by the use of a prior inconsistent written statement the witness had made. Notwithstanding the clearly contradictory nature of the statement, the trial court refused counsel’s request to use the statement either during cross-examination or by introduction of the statement into evidence. In the case we now consider, the trial court permitted the use of the prior report during examination of the witness and admitted the statement into evidence.
Juror Misconduct
Following his conviction, the defendant filed a motion for a new trial on the basis of juror misconduct. The defendant attached the following affidavit from Kristina Kampsen:
“I was sitting outside, in front of the courthouse, on Wednesday afternoon of the jury trial of Larry J. Griffin, Jr., smoking a cigarette. I saw a young blond female juror whose position was in the front row center of the jury box; a black female juror, and an older white female wearing glasses who was normally seated in the rear row comer chair, talking while they were on break. I heard the blonde juror say ‘the witness and participants were all old enough to remove themselves from the situation’; one of the other two stated ‘yes,’ and I saw all three nod their heads ‘yes.’ ”
No other evidence of juror misconduct was offered. The trial court denied the defendant’s motion.
In State v. Hopkins, 257 Kan. 723, 725, 896 P.2d 373 (1995), we said:
“The granting of a new trial is a matter which lies within the sound discretion of the trial court, and appellate review of a trial court’s decision denying a new trial is limited to whether the trial court abused its discretion. [Citation omitted.]
. . .‘[J]uror misconduct in civil and criminal cases is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof.’ [Citation omitted.]”
The defendant argues that members of the jury violated the trial court’s admonishment made pursuant to K.S.A. 22-3420(2), which provides:
“If the jury is permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or allow themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them, and that such admonition shall apply to every subsequent separation of the jury.”
He contends that the jurors discussed the merits of the case before all evidence had been submitted. Finally, he contends that even if the trial court correctly concluded the affidavit alone did not support the granting of a new trial, the trial court should have inquired whether the misconduct had an impact on the juiy’s deliberations.
We recently discussed the provision of K.S.A. 22-3420(2) in State v. Hays, 256 Kan. 48, 60, 883 P.2d 1093 (1994). We examined whether the trial court’s decision to allow jurors to submit written questions to witnesses was proper. Part of our focus in Hays was whether the jurors’ discussion concerning the questions to be asked was appropriate. We stated:
“The fact that the jurors discussed among themselves what questions to ask is more troubling. While K.S.A. 22-3420(2) does not specifically preclude the jurors from discussing the case among themselves, the jurors do have the duty to keep an open mind until the case is submitted to them for deliberation. The jury’s questions indicate that the jurors were discussing the evidence thoroughly enough during the morning recess that they realized they had some questions. While jurors clearly cannot refrain from assimilating and evaluating the evidence as it accumulates during trial, the jurors should not begin deliberating on the case until it is submitted to them. In Spitzer v. Haims & Co., 217 Conn. at 545, the Connecticut court stated, “We properly expect jurors to refrain from deliberating on a case until it is submitted to them. [Citation omitted.] Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one’s fellow jurors. [Citation omitted.] It does not mean the absence of thought, however preliminary.” 256 Kan. at 60.
The affidavit in this case falls short of the discussion that occurred in Hays. We do not believe that the affidavit provides a basis for concluding that the three jurors began deliberation before the case was submitted to the entire jury. The jurors did not discuss the question of the defendant’s guilt or innocence, and the statements of the jurors are not inconsistent with the innocence of the defendant.
Even assuming that the discussion between the three jurors was preliminary deliberation, there is no showing that such deliberation affected the outcome of the trial. The misconduct, if any, is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof. The defendant fails to meet his burden of proof.
In Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993), we said:
“The granting of a new trial or recalling the jury to answer for misconduct is within the sound discretion of the trial court. K.S.A. 60-259. See State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621 (1989).
“. . . Where a parly alleges jury misconduct, the trial judge is required to recall the jury if the judge cannot determine that the evidence supporting the other party is substantial and that the jury misconduct did not relate to a material issue in dispute.” 252 Kan. at 729-32.
In this case, the trial court found that the allegations of juror misconduct were neither substantial nor related to the material issue of guilt. The trial court concluded that the defendant failed to carry his burden of showing substantial prejudice. We agree and conclude that the trial court did not abuse its discretion in not conducting further investigation.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a mandamus action brought by a practicing lawyer, David A. Ricke, against the City of El Dorado (City) and Doyle Eugene White, a municipal judge for the City. Ricke brought this mandamus action in an attempt to recover a reason able sum for legal work performed in the municipal court of El Dorado. The trial court denied mandamus, and Ricke appealed.
An indigent was charged in the municipal court of El Dorado with violations of several municipal ordinances, including driving under the influence of alcohol or drugs. The clerk of the court called Ricke and asked him if he would accept an appointment to represent the indigent in the DUI misdemeanor charge brought against her.
Ricke knew the appointment was not mandatory and that he could decline the appointment if he chose to do so. He had last accepted such employment in 1990. Neither Ricke nor the City discussed payment terms. The City had no contracts with any attorneys to provide indigent defense services.
The City contended it paid attorneys who were willing to accept appointments $100 to $150 per appointment. Ricke testified he had no knowledge of this understanding.
When the case was concluded, Ricke billed the City $325 (representing 6.5 hours at $50 per hour). The City sent a check to Ricke in the amount of $150. Ricke did not cash the check.
In a later case, which Ricke was appointed to while this dispute was pending, Ricke billed the City $140 for legal services performed for an indigent defendant charged with the violation of a city ordinance. The $140 bill amounted to 2.8 hours of work, billed at $50 per hour. The City paid the bill without protest.
Ricke makes an argument that he customarily billed the City $50 per hour. We place no significance on this argument. The only evidence concerning fees is the $140 bill incurred after the services that are the subject of this mandamus action, and that bill falls within the range the evidence shows the City pays to those attorneys willing to accept employment.
Ricke, the City, and Judge White attempted to work out their differences, without success, and Ricke then filed this mandamus action asking the trial court to compel payment of the full $325 bill for Ricke’s services. The trial court held that setting Ricke’s fee was a discretionary act and that mandamus was not a proper remedy.
Ricke assumes this is a case similar to State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987), which involved the compensation of court-appointed attorneys. We do not find this to be so. We view this case as a fee dispute case. Ricke was not required to accept employment. He voluntarily accepted appointment without making any inquiry as to how his fee would be computed. He made some assumptions that are not justified by the record before us.
The City has authority to contract for court-appointed attorney services and can contract at whatever rate an attorney is willing to accept. Here, there was a request for and acceptance of employment, and the City thought diere was a community-wide knowledge of the compensation terms. Ricke had no knowledge of the fee paid, but he did not inquire about compensation terms when he voluntarily accepted employment. We agree with the trial court that mandamus is not an appropriate remedy in this case.
“It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it he to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks. (Drainage District v. Wyandotte County et al., 117 Kan. 369, 232 Pac. 266, Gray v. Jenkins, 183 Kan. 251, 254, 326 P.2d 319.)” Lauber v. Firemen’s Relief Assn. of Salina, 195 Kan. 126, 128-29, 402 P.2d 817 (1965).
“ ‘[Mjandamus is an appropriate proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. . . .’
“Determining . . . whether an attorney has reasonably spent 10 or 100 hours representing a defendant in a criminal case [is a] discretionary matter[].” State ex rel. Stephan v. Smith, 242 Kan. at 348.
We do not in any manner depart from our prior cases concerning court appointments. We simply hold that a municipal court may contract for legal services for indigent defendants in a criminal case, and if it chooses that method, the market will set the price. If the market system does not produce effective counsel, then the municipality must adopt a mandatory appointment system and compensate the attorney so appointed as set forth in State ex rel. Stephan v. Smith, 242 Kan. 336. Under the facts of this case, mandamus is not a proper remedy. Thus, the trial court did not err, and Ricke is not entitled to attorney fees for bringing this action.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
This is an appeal by Mary Brown from the trial court’s denial of habeas corpus relief requested pursuant to K.S.A. 60-1501 after her parole had been revoked by the Kansas Parole Board (Board) due to her alleged assault on her husband with a butcher knife.
All of Brown’s contentions on appeal relate to her procedural rights when her parole was revoked. Reduced to the essential arguments, Brown makes three claims: (1) The notice she received from the Board as to her right to be represented by counsel was inadequate; (2) she did not waive her right to appointed counsel; thus, tire Board was required to determine if counsel must be appointed to protect her interests; and (3) her right to confront and cross-examine adverse witnesses was violated.
The rights of a parolee at a revocation hearing are not as extensive as Brown contends, nor as minimal as argued by the Board. However, we are satisfied the trial court reached the proper result under the facts of this case. This requires the facts to be related in considerable detail for, although legal issues are involved, in the final analysis our decision turns on the factual findings made by the trial court after an evidentiary hearing.
Factual background
Brown pled guilty to one count of second-degree murder in Wyandotte County, Kansas, in 1981. She was sentenced to a term of 6 to 25 years and was incarcerated. After serving 12 years, Brown was granted parole in June 1993. The Missouri Parole Board agreed to supervise her so that she could live near her family in Kansas City, Missouri.
Brown was arrested in Kansas City, Missouri, in January 1995, after Richard Crawford, her husband, told the police that Brown had assaulted him. The police report indicated the pair had argued about another woman who had been in Crawford's car the previous day. Crawford reported that Brown had said, “I’ll kill you for cheating on me” and had inflicted a deep laceration approximately 2 inches long and % inch deep on the top of his left wrist with a butcher knife. Crawford later dropped the charges.
A Missouri parole officer filed a violations report. Brown told this officer she had swung the knife in order to prevent Crawford from having sex with her after she had refused him. The officer recommended parole revocation and stated in part:
“This officer is extremely concerned with Brown’s potential for further violence. File material indicates the characteristics of Brown’s violent behavior has not changed over the years. In 1959 Brown was sent to a Nebraska mental hospital for shooting a man she said had raped and insulted her. In 1969 she was charged in Arizona for Aggravated Assault with Intent to Kill. In 1980 file material states Brown stabbed a boyfriend, but he did not want to press charges. In 1981 Brown was charged with the present offense. Brown poses a serious threat to any man, when she is in a relationship with the man. This officer believes if Brown is allowed to remain in the community, she will attempt to seriously harm or kill again.”
In May 1995, a preliminary hearing as required by Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), was held before Brent Morris, of the Missouri Board of Probation and Parole. Morris reported that prior to the hearing he had spoken with Brown’s mother and ex-husband, who offered character references. Brown told Morris she could not read or write well but she could understand the proceedings.
In response to the charges, Brown said she had caught Crawford having sex with another woman in his car. She kicked him out of the house, but he came back the following night and tried to force her to have sex. Brown admitted swinging the knife to keep him away and stated Crawford was cut when he refused to withdraw from the path of the knife.
Mdrris found probable cause to believe Brown had violated the conditions of her parole. His report indicated behavior of an assaultive nature.
Brown was returned to Kansas custody. On May 31, 1995, the Kansas Department of Corrections (DOC) sent Brown a notice of a parole revocation hearing. Sandy Hashman, a correction counselor at the Topeka Correctional Facility (TCF), read the notice to Brown. Brown signed the notice, acknowledging it had been received and fully explained to her. Hashman testified at the habeas corpus hearing that the notice was read word for word, that Brown seemed to understand it, and that she had no questions regarding it.
The notice informed Brown there was probable cause to believe a parole violation had occurred and she would be given a hearing before the Board. She was told that she could speak on her own behalf at the hearing and invite witnesses to appear for her. She was also informed that she could request adverse witnesses. The notice directed her to complete an attached form in order to request or waive witnesses. The notice also stated: “You are entitled to legal counsel at the hearing.” The notice went on to state that Brown would be notified of the Board’s decision after the hearing. Brown completed the top portion of the witness request form and asked that Crawford be invited to attend.
The parole revocation hearing was held on June 14,1995, before Marilyn Scafe, the chairperson of the Board. Hashman was present, along with Don Wegener, an institutional parole officer. Brown was not asked if she desired counsel, and she did not request representation. Crawford did not appear. Hashman and Wegener explained to Brown that she could wait for another hearing date or that they could proceed without Crawford’s presence. Brown modified her witness request form to indicate she waived the presence of Crawford so the hearing could continue.
Based on the Missouri parole report, the preliminary hearing report, and Brown’s statements, the Board, acting through its chairperson, decided to revoke Brown’s parole. Brown filed a written appeal to the entiré Board, which was denied in January 1996.
Brown then filed her K.S.A. 60-1501 petition in the Shawnee County District Court, requesting a new parole revocation hearing on the ground that her right to confront witnesses had been violated. She also alleged the Board had violated her due process rights by failing to provide her with counsel.
The trial court held an evidentiary hearing on the habeas petition in July 1996. Scafe testified that Brown’s parole was revoked “based on thé police report, the preliminary hearing report, and the statements of Ms. Brown.” Scafe opined that Brown understood the proceedings and stated, “I gave her options and she would respond, and the conversation seemed very normal to me.” Scafe testified she did not offer Brown legal counsel and indicated to the court that the Board does not provide attorneys.
Hashman testified that Brown was not asked at the hearing if she wished to have counsel, but that she “represented herself to the best of her ability, as everybody else does.” Hashman was aware that Brown could not read and stated most things were explained to her. Hashman said she had read the notice of the revocation hearing to Brown word for word. Hashman also testified she and Wegener had explained to Brown her right to have the revocation hearing continued because Crawford was not present, but said Brown had waived Crawford’s presence by initialing her change of the witness request form. Hashman related that Brown questioned anything she did not understand, and when she was asked, “Does very much get by Mary Brown?”, replied, “Nothing gets by Mary Brown.”
Chris Patterson, previously a legal intern at the Washburn Law Clinic, testified that when he had interviewed Hashman, he had asked her if Brown could represent herself sufficiently. He stated Hashman had answered, “No.” A clinical evaluation update of Brown from 1990 was also admitted, indicating Brown had an IQ of 66, which is in the mildly retarded range. The evaluation showed she was functionally illiterate.
The trial court took the matter under advisement and in its written opinion specifically found that Brown had been given notice of the revocation hearing, which included her entitlement “to legal counsel at the hearing,” as well as her right “to call witnesses.” The court also found that “Petitioner signed this form acknowledging that ‘the [notice] had been read and fully explained to me and I hereby acknowledge receipt of this Revocation hearing/ ”
The trial court’s opinion as to the issue of the claimed failure to inform Brown of her right to be represented by counsel quoted from the controlling United States Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778, 789, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). Gagnon held that a parolee in a revocation hearing has no “inflexible constitutional” right to have counsel appointed, but the appointment of counsel in such situations is to be determined “on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the . . . parole system.” 411 U.S. at 790.
The trial court then focused on the wording of Gagnon, which stated counsel should be provided in cases where, after being informed of the right to request counsel, the “parolee makes such a request.” 411 U.S. at 790. While recognizing Brown’s “somewhat limited educational capacities,” the trial court held the notice to be sufficient, and determined that in failing to request counsel, Brown “waived her right to the possible appointment of counsel.”
The trial court listed its findings as “CONCLUSIONS OF LAW” and made what appears to be a negative finding when it held:
“Therefore, it is impossible for this court to affirmatively determine that Petitioner was unable to comprehend the ‘single clause’ in the Notice which advised Petitioner that she was '. . . . entitled to legal counsel at this hearing . . . .’ In addition, the fact that the corrections officer was satisfied that petitioner understood what was read to her further supports the Court’s determination that the Notice sufficiently notified Petitioner of her right to request counsel at the hearing.”
The trial court then recognized that the burden of proof in a habeas corpus action
“ ‘rest[s] squarely on the prisoner, and if he fails to sustain that burden, the courts will not interfere with the board’s decision.’ [Citation omitted.] In this case, to be successful Petitioner must establish that her constitutional rights have been violated by the procedure. The naked complaint that counsel was not furnished to a person with limited intelligence ... is insufficient to carry this burden.”
The trial court in effect concluded that Brown had failed to satisfy either the factual or legal burden which would require the writ to be granted.
Finally, the trial court paraphrased Morrissey, 408 U.S. at 480: “[R]evocation of parole is not part of a criminal prosecution, and thus the full panoply of rights due to a defendant in such proceeding does not apply to parole revocation hearings.” The court also outlined the minimum due process requirements for a parole revocation hearing as listed in Gagnon:
“(1) written notice of the claimed violation;
“(2) disclosure to parolee of evidence against him;
“(3) opportunity to be heard in person and to present witnesses and documentary evidence;
“(4) right to confront adverse witnesses [if any are called];
“(5) a neutral and detached hearing body such as a traditional parole board; “(6) a written statement by the fact-finders as to the evidence relied on and reasons for revoking parole.”
See Gagnon, 411 U.S. at 786.
The court then decided: “A review of the record, indicates that the Parole Board afforded Petitioner all of the aforementioned due process requirements.”
The trial court made no specific holding relating to Brown’s claim that she was denied her right to confront and cross-examine adverse witnesses.
The writ was denied. Brown appeals, raising the issues discussed herein.
Standard of review
The trial court’s decision is in part a negative finding, which indicates the party upon whom the burden of proof is cast did not sustain the requisite burden. On appeal, such a negative finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989). As to the findings of fact and conclusions of law made by the trial court, the function of an appellate court is to determine if the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). The first is a deferential standard of review, and the second involves conclusions of law based upon given facts. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P.2d 73 (1996). As to questions of law, our standard of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
Extent of relief that may be afforded
Although Brown asks that we order the Board to place her on parole, we would not do so under any circumstances. The applicable rule under which we operate is found in Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 3, 812 P.2d 761 (1991), where the Court of Appeals stated:
“As parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace exercised by the parole board, an appellate court’s review of the denial of parole is limited to whether the parole board complied with applicable statutes and whether its action was arbitrary and capricious. Neither the district court nor an appellate court has authority to substitute its discretion for that of the paroling authority by granting parole. If error is found in the board’s interpretation and application of statutes, the case must be remanded to the parole board with instructions to conduct a proper hearing pursuant to the applicable statutes and make the proper findings.”
In Payne v. Kansas Parole Board, 20 Kan. App. 2d 301, 307, 887 P.2d 147 (1994), the Court of Appeals again recognized that while habeas corpus is the appropriate procedure for reviewing decisions of the Board, appellate review is limited to determining if the Board complied with the applicable statutes and whether its action was arbitrary or capricious.
We have no authority to order the restoration of Brown’s parole status. At most, we have the power to remand the case to the Board for a new revocation hearing.
Notice of right to counsel
Brown argues the single statement in the notice she received “You are entitled to legal counsel at the hearing,” is constitutionally insufficient. She contends the Board is required to further inform parolees of their right to appointed counsel and to make more detailed inquiries into parolees’ possible defenses and their ability to present them at a hearing.
The Board argues Kansas law does not require the Board to appoint counsel and that this is codified in K.A.R. 45-9-2(f), which states: “Representation by legal counsel may be allowed at the discretion of the board and at the parolee’s expense.” The Board appears to further argue that Johnson v. Stacker, 203 Kan. 253, Syl. ¶ 1, 453 P.2d 35, cert. denied 396 U.S. 904 (1969), and State v. LeVier, 203 Kan. 626, Syl. ¶ 1,455 P.2d 534, cert. denied 397 U.S. 949 (1970), which held there was no constitutional requirement for counsel to be present at parole revocation hearings and that “[a]n indigent prisoner has no constitutional or statutory right to court-appointed counsel upon a proceeding . . . before the state board of probation and parole,” is still the law in Kansas. The Board’s argument fails to recognize that Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778, were decided in 1972 and 1973, subsequent to the Johnson and LeVier decisions, whose authority must be limited by the later clear statements by the United States Supreme Court. This was recognized by the trial court herein, which applied the tests of Morrissey and Gagnon in reaching its decision.
It is not controverted that Brown received and was read the notice of the parole revocation hearing. The finding that the notice was sufficient and that Brown understood this notice is essentially a negative finding, which is conclusive based on our stated standard of review. If we were to hold otherwise, we would be required to retry the habeas corpus action.
While we will later discuss the issue of waiver of the right to counsel by the failure of the parolee to so request, we look briefly to the wording of Gagnon, 411 U.S. 778, for guidance regarding the Board’s obligations in cases such as this.
Although Justice Douglas dissented and contended due process required the appointment of counsel, the other eight members of the United States Supreme Court in Gagnon, speaking through Justice Powell, expressed the view that the State was not under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases, but that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of sound discretion by the state authority charged with responsibility for administering the probation and parole system. Gagnon listed guidelines to be applied by those charged with conducting a revocation hearing in determining whether assistance of counsel is constitutionally necessary. The opinion specifically stated:
“Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.
“It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in prehminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succincdy in the record.” 411 U.S. at 790-91.
We are required to follow and apply the rules set forth by the court in Gagnon. The Board may not ignore these requirements, nor may it promulgate or enforce a regulation such as K.A.R. 45-9-2(f) which fails to comply with them. The Board is obligated to redraft this regulation to ensure constitutional compliance.
The principal reason the trial court found the requirements of Gagnon had been satisfied was that Brown did not request counsel. At the revocation hearing, Brown appeared to have argued that she did not commit the alleged violation and there were substantial reasons making revocation inappropriate, although the issues were not complex or difficult to develop or present. The Board, however, simply exercised its discretion based on a record which showed a lifetime of violent actions and revoked Brown’s parole in this case. The Board was not obligated to volunteer to appoint counsel in the absence of a request by Brown, and it is difficult to see how the presence of counsel would have resulted in a different determination under the facts of this case.
The issue before us is not whether K.A.R. 45-9-2(f) complies with the constitutional requirements set forth in Gagnon. The provisions of K.A.R. 45-9-2(f) are unduly restrictive and fail to implement the broad case-by-case testing guidelines of Gagnon. Notwithstanding this deficiency, Brown did not request counsel and no detriment to her was shown by the improper application of this regulation.
The trial court correctly concluded that the constitutional requirements of Gagnon, were not violated by the Board. The habeas corpus relief was properly denied.
Board’s duty to determine need for counsel
The decision as to this issue is governed by the result we reached in the previous question. The trial court made what is in effect a negative finding that Brown failed to show her condition required further inquiry by the Board beyond the limited statement in the notice of the revocation hearing or that fundamental fairness required the Board to begin its hearing with an inquiry into the ques tion of providing Brown with counsel notwithstanding her failure to so request. Gagnon should not be read to require the Board to sua sponte begin each hearing with a determination of whether to appoint counsel in the absence of a request by the parolee who has been informed of the right to have counsel present at the hearing or in the absence of a clear showing the parolee did not understand the process. These factors are all contrary to the trial court’s specific findings in this case, which are supported by substantial competent evidence provided by the testimony of Scafe and Hashman.
Right to confront and cross-examine adverse witnesses
There are no specific factual findings or legal conclusions from the trial court on this issue. Yet, it is clear from the record that Brown knowingly and affirmatively waived the presence of Crawford at the parole revocation hearing.
It is further clear that Brown made the point she wished to have made at the revocation hearing by Crawford’s presence. During redirect examination of Hashman by Brown’s counsel at the habeas corpus hearing, the following colloquy occurred:
“Q. When you informed her that Mr. Crawford was not present, did she state, ‘It doesn’t matter’?
“A. I don’t know her exact words, but she conveyed to us that she was willing to proceed with the proceeding without Mr. Crawford there. She, I believe — I believe she said it wasn’t so much Mr. Crawford she was wanting as documents of bringing up that those charges listed on that piece of paper have been dropped from Missouri. It wasn’t a matter of Mr. Crawford himself, so much as documentation.
“MS. BOS: No further questions.
“THE COURT: Apparently believing if they had been dismissed that somehow would let her out of the proceeding?
“MS. HASHMAN: Right.
“THE COURT: Did she say anything that caused you to conclude that, or was that your impression?
“MS. HASHMAN: She had stated — well, she had stated to me that if those charges had been dropped, there shouldn’t have been cause to be revocated.
“THE COURT: Rather common misconception; isn’t it?
“MS. HASHMAN: Very much so.”
This shows the information Brown wished to have developed by Crawford was in fact before the Board, although it did not have the result she had hoped for.
Parole revocation proceedings are such that it was not improper for the Board to consider the reports of persons in the parole and probation system, notwithstanding their failure to appear personally and provide testimony. The Board’s presumption of regularity was not violated, and Brown’s express waiver of Crawford’s presence results in this issue having no merit.
Affirmed.
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The opinion of the court was delivered by
Larson, J.:
This is a sales tax appeal. Atchison Cablevision L.P. (Cablevision) appeals a decision of the Kansas Board of Tax Appeals (BOTA) allowing the Kansas Department of Revenue (KDR) to impose sales tax upon cable television franchise fees collected from subscribers.
Factual background
Cablevision owns and operates a cable television system in the City of Atchison (City) under the authority of a franchise agreement pursuant to City Ordinance 5440, as permitted by K.S.A. 12-2006. The ordinance requires Cablevision to pay a franchise fee of 5% of its gross receipts semi-annually for the right to use public ways for the transmission of its cable service. The applicable provision of the ordinance is Section 11, titled Franchise Payments, which reads:
“In consideration for the rights, privileges and franchise hereby granted, and as compensation to the City for the use of its public ways and places by the franchisee and in lieu of all occupation and license taxes, the Franchisee shall, on or before the 31st day of January and the 31st day of July of each year in which this franchise is effective, pay to the City a sum equal to five percent (5%) of the gross receipts, subject to Federal Communications Commission approval, accompanied by a certified notarized statement, from the sale of community antennae and closed-circuit electronic service within the then existing corporate limits of the City for the preceding six (6) month period ending on the 31st day of December and the 30th day of June, respectively. Copyright tax, local and state sales tax, shall be an add-on to rates and shall be automatically passed through to subscriber. These costs shall be shown separately on billing to subscribers.”
Cablevision is authorized by 47 U.S.C. § 542 (1994) to pass on the franchise fee charged by the City to its subscribers by adding a charge of 5% of the basic cable service cost to the bill and separately identifying the charge as the franchise fee. Cablevision excluded franchise fees when calculating the total amount subject to the sales tax on each customer bill. For example, on a typical billing statement, a customer would pay $11.95 for basic service, a 5% franchise fee of $.60, and 5.9% sales tax computed on the $11.95 basic service charge, amounting to $.71.
KDR audited Cablevision’s revenues from June 1, 1990, to May 31, 1993, and assessed retailers’ sales tax and penalties of $6,222 on unreported gross receipts derived from franchise fees collected from customers. KDR asserted that Cablevision should have been paying sales tax on the franchise fees collected from subscribers. This would convert the amount of sales tax due in the example above from $.71 to $.74.
The assessment was first appealed to the Director of Taxation (Director), who ruled the franchise fee payments are part of the “total cost to the consumer” under K.S.A. 1996 Supp. 79-3602(g) and constitute taxable “gross receipts” under K.S.A. 1996 Supp. 79-3602(h).
This order was appealed to BOTA and submitted on an agreed record with briefs. In a 3-2 decision, BOTA determined that franchise fees were not part of gross receipts and the failure to pay tax on these fees was reasonable. .
After two BOTA members who had voted with the majority were replaced, a petition for reconsideration was granted. BOTA then issued its final order on reconsideration, a 4-1 decision, reversing its previous order and upholding the Director’s assessment of the sales tax.
Cablevision appealed. The case was transferred to our court pursuant to K.S.A. 20-3017.
Standard of review.
BOTA orders are subject to our review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. We have authority to grant relief when we conclude “the agency has erroneously interpreted or applied the law.” K.S.A. 77-621(c)(4). Where our decisions are based on stipulated facts, we exercise de novo review, and where the issue is one of statutory construction, it is subject to unlimited review. Steele v. City of Wichita, 250 Kan. 524, 527, 826 P.2d 1380 (1992). However, we also must consider the special rules applicable to review of an agency’s actions. In In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 221-22, 883 P.2d 1194 (1994), we stated:
“ ‘The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]fthere is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.’ State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
“Deference to an agency’s interpretation is especially appropriate when ‘the agency is one of special competence and experience.’ Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). However, the final construction of a statute always rests with the courts. In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 (1994).”
Cablevision asserts that BOTA’s final order should be afforded minimal deference due to the fact that a different panel reached an opposite conclusion and the earlier order was reversed solely as a result of the change in the composition of the board. We make our required review cognizant of the above authorities and arguments.
Arguments and authorities.
We first set forth the statutory provisions and administrative regulations involved in this controversy. The obligation for payment of sales tax by Cablevision was set forth in K.S.A. 1996 Supp. 79-3603, which provides:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable wider this act, there is hereby levied and there shall be collected and paid a tax at the rate of 4.9%:
“(k) the gross receipts from cable, community antennae and other subscriber radio and television services.”
The statutory definition of gross receipts is set forth in K.S.A. 1996 Supp. 79-3602(h), which reads:
“ ‘Gross receipts’ means the total selling price or the amount received as defined in this act, in money, credits, property or other consideration valued in money from sales at retail within this state; and embraced within the provisions of this act.”
“Selling price” as set forth above is defined in K.S.A. 1996 Supp. 79-3602(g) as:
“the total cost to the consumer exclusive of discounts allowed and credited, but including freight and transportation charges from retailer to consumer.”
The administrative regulations slightly expand upon but largely mirror the statutory provisions. Those applicable are as follows: K.A.R. 92-19-71 states:
“(a) Sales tax shall be imposed on the gross receipts received from cable, community antennae, subscriber radio and television services. . . .
“(b) Sales tax shall be imposed on the total cost to the consumer without any deduction or exclusion for:
(1) The cost of the property or service sold;
(2) services used or expended;
(3) materials used;
(4) losses, overhead or any other cost of expense; or
(5) profit, regardless of how any contract, invoice or other evidence of the transaction is stated or computed, and whether separately billed or segregated on the same bill.”
K.A.R. 92-19-46 relates to selling price and provides:
“(a) Selling price is the total consideration given in each transaction, whether in the form of money, rights, property, promise or anything of value, or by exchange or barter. The key element in imposing sales tax on a transaction is not based on what a transaction may be called or termed, but on the operation of the transaction. The term selling price includes the following:
“(1) The total monetary value of the consideration of all those things which in fact are, or are promised to be paid by the consumer to a seller in the consummation and complete performance of a retail sale, whether or not the seller receives any benefit from the consideration;
“(2) the total cost to the consumer without any deduction or exclusion for the cost of the property or service sold, labor or service used or expended, materials used, losses, overhead or any other costs or expenses, or profit, regardless of how any contract, invoice, or other evidence of the transaction is stated or computed, and whether separately billed or segregated on the same bill; and
“(3) all transactions in which a person secures for a consideration, the use of tangible personal property or services and includes transactions which may be termed royalties or licenses.”
Cablevision contends that because tax statutes are penal in nature, those imposing a tax are to be strictly construed in favor of the taxpayer, citing J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 680 P.2d 291 (1984), and National Cooperative Refinery Ass’n v. Board of McPherson County Comm’rs, 228 Kan. 595, 618 P.2d 1176 (1980). KDR argues that Cablevision is claiming an exemption from the retailers’ sales tax under K.S.A. 1996 Supp. 79-3606(a), which reads: "The following shall be exempt from ihe tax imposed by this act: (a) All sales of motor-vehicle fuel or other articles upon which a sales or excise tax has been paid, not subject to refund, under the laws of this state.” KDR contends exemption statutes are to be strictly construed against the one requesting the exemption. Farmers Coop. v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985).
Cablevision denies that it is claiming any type of exemption, but rather asserts that the definition of gross receipts simply does not encompass the franchise fees collected from subscribers.
The issue does not appear to involve a claimed exemption. Rather, it involves whether franchise fees collected from subscribers are part of the total selling price of the cable television service and, thus, are taxable as part of the gross receipts. As such, we are interpreting a statute imposing a tax, not one of exemption, and must follow the strict construction rules. This does not, however, permit us to disregard manifest legislative intent appearing in the plain and unambiguous language of the statute. J.G. Masonry, 235 Kan. at 500. Nor should a statute be read as to add what is not easily found therein or to remove what ordinary language would include. National Cooperative Refinery, 228 Kan. at 597.
The only additional statutes involved in this appeal are those allowing cities to grant franchises, found at K.S.A. 12-2001 et seq. The provision allowing the City to collect compensation under such a franchise is found at K.S.A. 12-2010, which states:
“Cities, may, by ordinance, levy a franchise fee or tax, including annual fixed charges as may be prescribed in the franchise ordinance. Such fixed charge may consist of a percentage of the gross receipts derived from the service permitted by the franchise from consumers or recipients of such service .... Such levies, taxes or fees including all forms of consideration to such city and including initial lump sum payments must be reasonable and shall be generally in conformance with standards, if any, established by federal communications commission regulations or other applicable laws.”
47 U.S.C. § 542(b) specifically mandates that the franchise fee paid by a cable operator shall not exceed 5% of the cable operator’s gross revenues. This provision also allows a cable operator to identify as a separate line item on each regular bill the amount of the total bill assessed as a franchise fee and the franchising authority to which the fee is paid. Although the state and federal laws upon which the franchise agreement is based speak of gross revenues for computation of the franchise fee, there is little basis to rely upon either for resolution of our question of whether franchise fees are part of gross receipts for sales tax purposes under the applicable Kansas law.
The initial BOTA order finding that collected franchise fees were not part of “gross receipts” relied heavily on the assertion that franchise fees are not imposed at a point prior to the retail sale, citing Blackmon v. Coastal Service, Inc., 125 Ga. App. 28, 29, 186 S.E.2d 441 (1971). As such, it concluded that franchise fees were not an element of the cost of the service sold and, therefore, were not part of the taxable retail sales price. The order stated there was no legal significance in the fact that the pass-through of sales tax is statutorily mandated, while the pass-through of the franchise fees under Cablevision’s franchise is merely permitted. This first opinion appeared to believe that imposing sales tax upon the collected franchise fees would impose a tax upon a tax.
BOTA’s final order rejected the conclusions in the first order and relied heavily upon the wording of the various statutes at issue. This order first cites United States v. City of Leavenworth, Kan., 443 F. Supp. 274, 282 (D. Kan. 1977), to point out the fact that a franchise fee burden passed on economically to a consumer is not determinative of the incidence of the tax. This led BOTA to declare that the franchise fee assessed to the cable operator for its use of public ways and for the privilege of doing business is simply a cost of doing business passed on to the consumer. BOTA also asserted the franchise fee is a fee and not a tax, so no double taxation occurs by including the fee within the taxable base for purposes of computing the sales tax.
BOTA then turned to In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 753 P.2d 304, rev. denied 243 Kan. 779 (1988), to argue that because the franchise fee charges on the customers’ bills are mandatory, the franchise fee becomes part of the cost to the customer. Therefore, franchise fees are taxable as part of the gross receipts just the same as are service charges added to the cost of alcoholic beverages and meals by the Newton County Club.
Cablevision relies on United Artists Cable of Baltimore, 10 F.C.C. Rec. 7250 (1995), and the unpublished opinion Kansas City Cable Partners v. City of Kansas City, Kansas, 1994 WL 583133 (D. Kan. 1994), to support its position. Those cases, however, relate more to franchise fees and the provisions of 47 U.S.C. § 542 and are not applicable authority to assist us in this case. The decisions there were based upon “gross revenues,” under the Federal Communications Act § 622, while here we seek to define “gross receipts” under a completely different tax-related provision. Neither does the federal cap on the amount of franchise fees that a franchisor can charge a cable operator have any correlation to state and local governments’ ability to levy other taxes, such as property or sales taxes.
Cablevision attempts to distinguish the holding of Newton Country Club on the grounds that although a franchise fee is a mandatory charge included in the billings, it, unlike the Newton Country Club, receives no benefit from this charge and, therefore, should not be taxed upon it. The Newton Country Club decision examined various tests to determine the taxability of gratuities, including a “mandatory” test and a “benefit” test. It rejected the benefit test and, finding that the gratuities were mandatory, concluded that under the plain language of the retailers’ sales tax statute, the gratuities were part of the “total cost to the consumer” and taxable as “gross receipts.” 12 Kan. App. 2d at 644. This argument plays well for KDR under the facts of our case.
As the Newton Country Club opinion rejected the benefit analysis and as Cablevision admits the franchise fee is a mandatory part of the bill, our case is placed squarely within Newton Country Club’s interpretation of “gross receipts.” This requires inclusion of the franchise fee in that part of the gross receipts subject to the sales tax. Additionally, Newton Country Club’s analysis of the plain meaning of the statutes at issue here appears to be sound. See 12 Kan. App. 2d at 644.
Cablevision argues that as 79-3603 does not contain authority to impose retailers’ sales tax on a pass-through franchise fee, we are required to strictly construe the statute in its favor and find the statute prohibits such an imposition. Cablevision asserts the legislature could have expressly subjected franchise fees to the sales tax, but did not do so. However, nowhere in the statute is there authority to impose sales tax on mandatory gratuities tacked on to bills, yet the Newton Country Club court found these gratuities were taxable under the plain language of the statute.
Cablevision is hard pressed to make a plausible argument that when the franchise fee is paid by the subscriber, it does not become, as K.A.R. 92-19-46 specifically states in defining the selling price, a part of “the total cost to the consumer” pursuant to sub-paragraph (2) of that regulation. The wording of the regulation makes “gross receipts” include “the selling price” and
“the total cost to the consumer without any deduction or exclusion for the cost of the property or service sold, labor or service used or expended, materials used, losses, overhead or any other costs or expenses, or profit, regardless of how any contract, invoice, or other evidence of the transaction is stated or computed, and whether separately billed or segregated on the same bill.”
Clearly, the regulation intended to include within gross receipts whatever the customer must pay to receive cable services. It is unnecessary to singularly designate every type of receipt that is taxable when the statute clearly denotes its inclusive character.
We are not impressed with Cablevision’s argument that the simultaneous nature of the imposition of the franchise fee and sales tax is determinative of this matter. This appears to be a distinction without a difference and does not aid our construction of the statutes and regulations in any way.
Cablevision claims that BOTA’s failure to mention Blackmon v. Coastal Service, Inc., 125 Ga. App. 28, in its final order is a fatal flaw. Blackmon, however, does not support Cablevision’s or the first BOTA decision’s construction. Although the case does discuss the point in time in which tax liability is imposed, it relies heavily on determining the entity upon which the tax incidence falls. Blackmon clearly found that new amendments to the Georgia statutes removed the incidence of the tobacco tax from the seller and placed it upon the ultimate consumer. The seller there was simply a collector of the tax, in the same way retail sellers are collectors of the retailers’ sales tax.
A contrary situation exists here, as the imposition of the franchise fee clearly falls upon Cablevision. While it is obviously a financial benefit for Cablevision to pass this fee on to its subscribers, it is not required to do so and would still have the obligation of making the payment itself irrespective of whether the fee is a part of its rate structure or the subject of a separate charge to its subscribers. The decision BOTA finally reached is supported by the fact the franchise agreement imposes the obligation to pay the fee on the cable operator for the privilege of utilizing City property. As such, it logically follows that the franchise fee is nothing more than a cost of a doing business and, therefore, a part of the total cost to the consumer included within the selling price and a part of the gross receipts under 79-3606(a), upon which sales tax is collected.
Cablevision’s argument that franchise fees and sales taxes are so similar that it makes no sense to conclude “gross receipts” include franchise fees but not sales tax collected from customers is not persuasive. The franchise fee and the sales tax have different pur-. poses, and the legal incidence for each falls upon totally different entities. It makes sense that a statute imposing a retailers’ sales tax upon gross receipts would not include the sales tax collected on those gross receipts within the taxable base. However, logic does not reject the idea of including within the gross receipts amounts collected in order for Cablevision to make required payments for the use of the City’s property and to do business therein.
The weight of authority from other jurisdictions also contradicts Cablevision’s position. Because definitions in taxation statutes vary from state to state, neither party could cite cases exactly on point from other jurisdictions. But, several other jurisdictions have passed on the issue of the taxability of franchise fees or similar types of privilege-of-doing-business taxes under “gross receipts” statutes worded similarly to ours.
In GTE Southwest v. Tax. & Rev. Dept. 113 N.M. 610, 830 P.2d 162 (Ct. App. 1992), the court examined whether a tax on “gross receipts” defined as “the total amount of money or the value of other consideration received from . . . performing services in New Mexico,” 113 N.M. at 618, applied to franchise fees passed on to customers by a telephone company. The court stated:
“In some circumstances a pass-through is not a gross receipt. “Where the tax is imposed on the buyer and the seller merely acts as the collector of the tax, the amounts collected by the seller can be excluded from the gross receipts[.]’ [Citation omitted.] That, however, is not the case here. The municipal franchise fee is imposed on GTE, not on customers of GTE. It is a cost of doing business, just as rent and wages are. . . . The line item on the customer’s bill for a share of the municipal franchise fee is part of the charge to the customer for receiving telephone services, and payment of that amount by the customer is a gross receipt by GTE for provision of telephone services.” 113 N. M. at 618.
This holding, although based on the legal incidence of the fee, clearly includes collected franchise fees within gross receipts for sales tax purposes. The GTE case also cited other cases in support of its position and declared it was unpersuaded by the one case provided by the telephone company, as that case turned on statutory language.
The court in South Cent. Bell Telephone Co. v. Olsen, 669 S.W.2d 649, 650 (Tenn. 1984), decided that collected “retail sales taxes” were part of the gross receipts for the state gross receipts tax under a statute defining “gross receipts” as “total receipts before anything is deducted.” The apparent confusion is this decision lies in the different terminology. This is not a case where a tax is placed upon collections of the same tax. Essentially, in South Cent. Bell, the “retail sales tax” is a privilege tax levied on the seller, only incidentally passed on to the consumer, which is equivalent to the franchise fee in our case. The "gross receipts tax” in South Cent. Bell is our equivalent of the retailers’ sales tax. Therefore, the end result is the same as in GTE.
Much of KDR’s brief addresses the issue of whether a franchise fee is a tax which qualifies for an exemption under 79-3606(a). Cablevision does not meet or address this argument, which in our view is not relevant to the issue we must determine.
We believe the wording of BOTA’s final order succinctly states ■ our holding in this matter. It found:
“Under the plain language of the statute, sales tax is to be levied upon the gross receipts from cable television services. Gross receipts is defined as the total selling price which means the total cost to the consumer. The total cost to the consumers of the Taxpayer includes the franchise fee. As such, it is a part of the gross receipts received by the Taxpayer and is subject to sales tax.”
Based upon our stated standard of review and all of the authorities set forth herein, we hold BOTA reached the correct result, and we therefore affirm.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Anthony D. Stallings, who was convicted of one count of first-degree murder, two counts of aggravated assault, and one count of unlawful possession of a firearm. The defendant appeals, contending the evidence is insufficient to convict him of premeditated first-degree murder and that the trial court erred in restricting the scope of Debra Reese’s testimony at trial and in refusing to grant a continuance on the morning of trial so that additional investigation could be accomplished.
In determining whether the evidence is sufficient to convict a defendant of premeditated first-degree murder, the appellate court reviews all of the evidence, viewed in the light most favorable to the prosecution, and then makes a determination whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Pierce, 260 Kan. 859, Syl. ¶ 7, 927 P.2d 929 (1996).
The victim, Reginald Jefferson, was shot to death outside an after-hours club in Kansas City, Kansas, on June 21, 1993. Four witnesses identified the defendant as the shooter. All four of the witnesses were friends of the victim and did not know the defendant.
There were minor discrepancies in the witnesses’ testimony. These discrepancies concerned the number of shots fired (five shots entered the victim’s body) and whether the victim was shot in the back (he was not). All of the witnesses clearly testified that the victim was walking away from a confrontation with the defendant, apparently going to his car, when the defendant started shooting.
The defendant fled the scene of the shooting and concealed himself for approximately 3 months. After his picture was published in the newspaper and shown on television, the defendant turned himself in.
One of the five shots fired at the victim entered his left calf. The pathologist testified that this bullet shattered the leg bone. The pathologist was of the opinion that the victim could not have taken more than one or two steps after being shot in the leg. The pathologist agreed that four out of the five gunshot wounds would be consistent with the victim lying on the ground and turned slightly away from the shooter standing over him. There was no evidence that the victim possessed a gun, and there was ample evidence that the unarmed victim was walking or running away from the confrontation when the first shot was fired.
The State presented four eyewitnesses to the killing. All of the witnesses testified that a confrontation occurred in front of Wilson’s, a bar in Kansas City, Kansas, between the defendant and the victim. These four witnesses testified that the victim began to walk away as the defendant pulled his gun and opened fire. The defendant first shot the victim in the leg, causing the victim to fall down holding, his leg. The defendant then moved closer and shot the victim four more times. The defendant then pointed the gun at one of the witnesses and said, “Do you want some, too?”
We conclude that after reviewing all of the evidence, viewed in the light most favorable to the State, a rational factfinder could have found the defendant guilty of premeditated first-degree murder beyond a reasonable doubt. “The credibility of witnesses is a determination for the finder of fact, in this case the jury. Witness credibility should not be second-guessed by an appellate court, which only has access to the cold transcript of the trial proceedings.” State v. Wade, 244 Kan. 136, 146, 766 P.2d 811 (1989).
The defendant also claims that the trial court erred in restricting the scope of a defense witness’ testimony at trial. The testimony in question is that of Debra Reese. She had been friends with the defendant since 1987, and she dated the defendant from 1990 to 1991. Reese was also acquainted with the victim because the victim dated her roommate. The victim made a number of negative comments to Reese about the defendant. Reese relayed these comments to the defendant. Reese planned to testify that the victim had also physically threatened the defendant and that she had relayed those threats to the defendant. One of those threats was allegedly made about 1 month before the shooting.
The trial court granted a motion in limine prohibiting Reese from testifying about the threats the victim had made toward the defendant. Reese was only allowed to testify that the victim had downplayed the defendant’s character to her and that she had relayed the victim’s comments to the defendant. The court based this ruling on the fact that the defendant, who testified before Reese, had not mentioned in his testimony that anyone had relayed a threat from the victim to him. The defendant testified that the victim had made negative remarks concerning the defendant’s character to Reese and that Reese had relayed this information to him. As a result of the defendant’s testimony, the trial court reasoned that any threat made by the victim was not a factor in the defendant’s actions on the night of the shooting or the defendant would have testified about it. There was no testimony from the defendant that the victim had threatened him in any manner, other than the defendant’s testimony that he shot the victim because the victim was advancing toward him and the defendant felt he was in ■danger of imminent bodily harm. When the defendant wanted to retake the stand to testify that he was aware of the victim’s threats made to Reese, the trial court ruled that he could not do so.
“When reviewing a trial court’s suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court’s suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995).
The United States Supreme Court has considered a trial court’s erroneous exclusion of evidence and said:
“ '[An] omission [of evidence] must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’ ” United States v. Valenzuela-Bernal, 458 U.S. 858, 868, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982).
Here, in Reese’s proffered testimony, she said that the victim had criticized the defendant’s character over the past 5 years. She estimated that possibly five of those comments would have constituted a threat. She could not remember what the victim said or when he made such threats. Since Reese’s testimony regarding threats was so sketchy, we conclude that any of Reese’s threat testimony which was improperly suppressed was harmless error.
“An error of constitutional magnitude is serious and may not be held to be harmless unless the' appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.” State v. Johnson-Howell, 255 Kan. 928, 944-45, 881 P.2d 1288 (1994).
“Where the evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission [or suppression] of certain other evidence could not have affected the result of the trial, such admission [or suppression] is harmless error.” State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976).
The defendant’s third issue is that the trial court erred when it refused to grant the defendant a continuance. A pretrial conference was held on December 28, 1994. The trial was set to begin on March 13, 1995. On that morning, the defense counsel asked the court for a week’s continuance, stating that the defendant had contacted him the previous Thursday and informed him about the location of more witnesses who might be material to the. case of self-defense. The defense counsel was unable to talk to the defendant about the witnesses until the day before the trial. The defense counsel attempted to locate the witnesses and apparently did contact some of them, but not all of them. One of thosé witnesses was a photographer who was known to all. of the parties from the night of the shooting through the trial. The defendant did not tell the court any of the witnesses’ names, other than the photographer’s name, nor did the defendant proffer any evidence to indicate what the witnesses would testify to and why the defendant was not aware of their names and what their testimony would be until such a late date.
The trial court based its denial of the request for a continuance on the fact that the defendant had adequate time to prepare for a trial because there was a 3-month time period between the pretrial conference and the trial. Based on the record before us, we are unable to say that the trial court abused its discretion or that the substantial rights of the defendant have been prejudiced.
“In the trial of a criminal charge, the matter of a continuance is -within the discretion of the trial court and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced.” State v. Dunn, 243 Kan. 414, 427, 758 P.2d 718 (1988).
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995).
“ ‘One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion.’ ” State v. Davis, 256 Kan. 1, 26, 883 P.2d 735 (1994).
Here, the defendant had almost 2 years from the date he was charged and 3 months from the pretrial conference to prepare for trial. He never proffered any information concerning the witnesses, except for one. Other than the photographer, who might have witnessed the verbal confrontation, the court received neither the names of the witnesses nor any information as to what they would testify to. The defense counsel only made the general statement that the witnesses might be helpful in proving self-defense. From the defendant’s own testimony, it does not appear that the photographer even witnessed the shooting. The testimony from the defendant was that once the defendant and the victim began yelling at each other, the photographer went back into the bar. In any event, the photographer’s name appears to have been known to all of the parties from the date of the shooting and available through the police reports. There was no indication that the photographer could not be located or that his address was unavailable to the defendant.
The defendant has failed to carry his burden of showing that the trial court abused its discretion. The defendant never offered the names of six of the witnesses to the trial court, nor did he give their names to the appellate court or set forth the substance of their testimony. He makes no explanation as to why he had not discovered the witnesses earlier and previously informed his attorney about the significance of these witnesses. We find no abuse of discretion.
Affirmed.
Six, J., concurs in the result.
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The opinion of the court was delivered by
Abbott, J.:
The 1993 Kansas Legislature passed sweeping changes to die Workers Compensation Act (Act). Five of those amendments are challenged in this appeal, as well as the Act as a whole. The plaintiffs contend the amendments and the Act as a whole unconstitutionally violate due process, equal protection, and the separation of powers doctrine. The plaintiffs are a variety of individuals, groups, and labor organizations. The standing of the plaintiffs and the procedure they used to reach this court (declaratory action) are not an issue. The trial court held the Act and the amendments are constitutional, and this appeal followed.
At the start of the 1993 legislative session, legislators had before them the reports of the Governor’s Task Force on Workers Compensation, the Insurance Commissioner’s Workers Compensation Task F orce, and the Legislative Post Audit Committee, all of which suggested areas of the workers compensation system that the various committees determined needed reform. Over the course of the session, the House Committee on Labor and Industry and the Senate Committee on Commerce conducted hearings and heard from witnesses representing employees, employers, trial lawyers, labor organizations, and business associations. S.B. 307, which dealt with safety issues, was used as the vehicle for workers compensation reform. The legislation passed unanimously in both the House and Senate, and Governor Finney signed the bill into law.
Once the bill passed in 1993, several parties filed a petition for declaratory judgment in Shawnee County District Court, asking the trial court to declare nine of the Act’s amendments unconstitutional and void. These plaintiffs filed their declaratory judgment action against George Gomez, then the Director of the Division of Workers Compensation, and against Joe Dick, then the Secretary of Human Resources, who oversaw the Division of Workers Compensation and the implementation of the Act. Wayne L. Franklin is now the Secretary of Human Resources, and Philip S. Harness is the Director of Workers Compensation. These parties are now the named defendants in the declaratory judgment case.
The trial court heard oral arguments on summary judgment motions filed by both the plaintiffs and the defendants. On June 4, 1996, the trial court filed a memorandum decision and order. The court denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion for summary judgment, finding that all nine challenged amendments to the Act withstood constitutional scrutiny. The plaintiffs timely filed a notice of appeal with the Court of Appeals. This court granted the plaintiffs’ motion to transfer the case to the Supreme Court.
On appeal, the plaintiffs raised only five issues instead of the nine issues that they raised at the trial court level. The four issues which were abandoned raised the constitutionality of certain amendments that were the only amendments affecting some of the individual plaintiffs. These plaintiffs still have standing in this appeal because they also challenge the constitutionality of the entire Act, not just certain amendments.
In a separate action, plaintiff Oliver C. Gettle filed a workers compensation claim with the Division of Workers Compensation on March 8, 1994. Gettle was a 64-year-old Wal-Mart employee who injured his right hand, right arm, and right shoulder while he was moving paint cans to overhead shelving. Upon treatment, it was discovered Gettle had partially tom the rotator cuff in his shoulder. Based on the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed. 1995) (AMA Guides), Gettle’s doctor found that Gettle had a partial permanent impairment to the right shoulder of 15%, which was equivalent to 9% of the whole body.
The Division of Workers Compensation heard Gettle’s workers compensation claim and awarded him compensation. The issue at the hearing was whether “K.S.A. 44-510d(a)(13), stating that the loss of an arm, including the shoulder joint, shoulder girdle, shoulder musculature or any other shoulder structures is a scheduled injury with recovery limited to 225 weeks [,is], constitutional?” The administrative law judge found that he had no jurisdiction to determine whether K.S.A. 44-510d was constitutional. Thus, following the statute, the judge limited Getde to a 15% scheduled impairment to his right shoulder widi benefits calculated for 225 weeks. The judge awarded Getde compensation for 25.5 weeks at a rate of $101.88 per week, or $2,597.94, followed by 29.92 weeks at $101.88 per week, or $3,048.24, making a total award of $5,646.18.
Gettle filed an application for review with the Workers Compensation Board (Board). Gettle asked the Board to review the administrative law judge’s award and challenged the constitutionality of K.S.A. 44-510d(a)(13), which classifies shoulder injuries as scheduled injuries. On August 28, 1996, the Board ruled that it was not a Kan. Const, art. Ill court and that it did not have the authority to hold an áct of the Kansas Legislature unconstitutional. Thus, the Board found that it was obligated to enforce the provisions of K.S.A. 44-510d(a)(13), as enacted, and treat Gettle’s shoulder injury as a scheduled injury. The Board affirmed the award entered by the administrative law judge.
Gettle appealed to the Court of Appeals and filed a motion to consolidate his case with this declaratory judgment case. This court granted Gettle’s motion. Pursuant to K.S.A. 20-3018(c), Gettle’s case, No. 77,561, was transferred to this court and consolidated for review and determination under case No. 77,142. See Supreme Court Rule 2.06 (1996 Kan. Ct. R. Annot. 16).
“Determining whether a statute violates the constitution is a question of law. When determining a question of law, this court may exercise an unlimited de novo standard of review. See State v. Mertz, 258 Kan. 745, 748, 907 P.2d 847 (1995). ‘A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.’ State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994); Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992). ‘This court not only has the authority, but also the duly, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.’ State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).” Lemuz v. Fieser, 261 Kan. 936, 943, 933 P.2d 134 (1997).
I. 10-DAY NOTICE OF INJURY RULE
Prior to 1993, the Act required a worker to file a workers compensation claim within 200 days of an injury and to give notice of such injury to his or her employer within 10 days of the injury as a condition precedent to filing a valid workers compensation claim, unless the employer or its agent had actual knowledge of the injury. K.S.A. 44-520 (Ensley 1986); K.S.A. 44-520a (Ensley 1986). This notice of claim requirement specifically provided:
“Proceedings for compensation under the workmen’s compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the date of the accident: Provided, That actual knowledge of the accident by the employer or his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless' the employer prove that he has been prejudiced thereby.” K.S.A. 44-520 (Ensley 1986). (Emphasis added.)
Under this notice of claim requirement, if the worker did not give notice of an injury within 10 days of the injury, lack of notice was not a bar to the workers compensation claim unless the employer could prove that such lack of notice was prejudicial to it.
In 1993, the legislature amended the Act so that the failure to provide an employer with notice of an injury within 10 days of the injury acts as a bar to a workers compensation claim unless the employer or its ágent had actual notice of the injury or the employee had “just cause” in failing to provide notice. Further, this 1993 amendment bars a workers compensation claim if an employee fails to give notice of an injury to the employer within 75 days of the injury, even if the employee had just cause for such failure, unless the employer or its agent had actual notice of the accident, the employer was unavailable to receive notice, or the employee was physically unable to give notice. L. 1993, ch. 286, § 42. Specifically, this amendment provided:
“Except as otherwise provided in this section, proceedings for compensation under the workers compensation act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, is given to the employer within 10 days after the date of the accident, except that actual knowledge of the accident by the employer or the employer’s duly authorized agent shall render the giving of such notice unnecessary. The ten-day notice provided in this section shall not bar any proceeding for compensation under the workers compensation act if the claimant shows that a failure to notify under this section was due to just cause, except that in no event shall such a proceeding for compensation be maintained unless the notice required by this section is given to the employer within 75 days after the date of the accident unless (a) actual knowledge of the accident by the employer or the employer s. duly authorized agent renders the giving of such notice unnecessary as provided in this section, (b) the employer was unavailable to receive such notice as provided in this section, or (c) the employee was physically unable to give such notice.” K.S.A. 44-520.
Under the 1993 amendment, the employer does not have to prove that lack of timely notice prejudiced it in order for the lack of timely notice to act as a bar to an employee’s workers compensation claim. Based on this new notice of claim requirement, workers compensation plaintiffs have to notify the employer of an injury within 10 days of the occurrence of an injury, or within 75 days at the most, while typical tort victims have to file suit and notify the defendant of the injury within 2 years of the discovery of an injury, or in some cases within 8 years of the occurrence of the injury.
The plaintiffs challenge the new notice of claim requirement as a violation of equal protection and due process.
A. Equal Protection
The plaintiffs contend that K.S.A. 44-520 unconstitutionally violates the Equal Protection Clause of the United States Constitution. The principle of equal protection relevant to the plaintiffs’ claim is embodied in § 1 of the Kansas Constitution Bill of Rights. See Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 127-28, 631 P.2d 222 (1981). This section provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The equal protection provision of the United States Constitution is found in the 14th Amendment, which provides:
“All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of Ufe, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
“ ‘ “ ‘Equal protection’ . . . emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” ’ ” Ernest v. Faler, 237 Kan. 124, 129, 697 P.2d 870 (1995) (quoting Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437 [1974]). Thus, equal protection is only implicated when a statute treats “arguably indistinguishable” classes of people differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993). People injured on the job and people injured elsewhere are arguably indistinguishable in a legal sense. Neither party argues otherwise. Since K.S.A. 44-520 treats these two arguably indistinguishable groups differently in regard to the notice of claim requirement, K.S.A. 44-520 implicates equal protection.
The rational basis standard (sometimes referred to as reasonable basis test) is applied to laws which result in a shorter statute of hmitations or a shorter notice of claim statute for a certain non-suspect class of citizens. Stephens, 230 Kan. at 130; see Ernest, 237 Kan. at 129-30. Under this standard, a law is constitutional, despite some unequal classification of citizens, if the “classification bears some reasonable relationship to a valid legislative objective.” Earley v. Engelken, 241 Kan. 663, Syl. ¶ 3, 740 P.2d 1058 (1987).
Leiker v. Gafford, 245 Kan. 325, 363-64, 778 P.2d 823 (1989), explains the rational basis standard as follows:
“The ‘reasonable basis’ test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
In Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 258-59, 930 P.2d 1 (1966), Cert. denied 520 U.S. 1229 (1997), this court elaborated on the rational basis standard:
“The rational basis standard is a very lenient standard. All the court must do to uphold a legislative classification under the rational basis standard is perceive any state of facts which rationally justifies the classification. Kellems v. Commissioner of Internal Revenue, 58 T.C. 556, 558 (1972), aff’d 474 F.2d 1399 (2d Cir.), cert. denied 414 U.S. 831 (1973). ‘Relevance is the only relationship required between the classification and the objective.’ Stephenson, 250 Kan. at 774. See also Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 129, 631 P.2d 222 (1981) (stating that a classification which may result in some inequality only violates equal protection if the classification is ‘irrelevant’ to the goals the State intended to achieve through passage of the statute). A classification is ‘relevant’ to its intended goal if it is rationally related to the legitimate legislative purpose behind the statute. Thompson v. KFB Ins. Co., 252 Kan. 1010, 1018, 850 P.2d 773 (1993). However, a statute cannot classify persons into groups based on a criteria which is ‘wholly unrelated’ to the goal of the statute. Henry, 213 Kan. at 753-54. A classification ‘ “ ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” ’ Thompson, 252 Kan. at 1018 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 [1920]).
“Although the rational basis standard requires that the discriminatory classification . . . be rationally related to valid state interests or goals, the standard does not require that the classification be the perfect solution to achieve such goals. See Thompson, 252 Kan. at 1021 (When the legislature must draw a line and ‘ “ ‘there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless [the court] can say that it was very wide of any reasonable mark.’ ” ’); Liggett, 223 Kan. at 619 (‘Establishment of classifications with mathematical precision is not required.’).”
The State’s espoused purpose of K.S.A. 44-520 is to speed up the claim process and to reduce fraudulent claims. The defendants point to the Legislative Post Audit Committee Report, which identified the five most significant workers compensation problem areas as stated by insurers, employers, attorneys, judges, and officials. The report stated that two of these five concerns were the length of the workers compensation claim process and the frequency of fraudulent claims. In listing these concerns, the report cited the New York Times, which estimated that as much as 30% of all workers’ compensation claims could be fraudulent. These two concerns are valid legislative objectives.
The new notice of claim requirement is rationally related to these valid state objectives. The amendment speeds up the claim process because it requires the entire claim process to begin earlier than it otherwise would have. K.S.A. 44-520 does not require a worker to actually file a claim earlier than previously required (200 days after injury). However, K.S.A. 44-520 does strongly encourage a worker to provide an employer with timely notice of an injury by imposing harsher consequences if timely notice is not provided. A worker will more likely give timely notice of an injury, and the employer can begin investigations, medical treatment, and settlement evaluations earlier than it previously would have. Thus, even though K.S.A. 44-520 does not require an employee to actually file a claim earlier than previously required, the new notification requirement does require the entire claim “process” to begin earlier than it otherwise would have, thereby speeding up the claim process.
Since K.S.A. 44-520 encourages employees to give timelynotice, an employer will typically have notice of any injury sooner than it otherwise would have. This early notification allows an employer to investigate claimed injuries while the work place is still set up the same way and while tire facts of the incident are still fresh. This early investigation will allow an employer an opportunity to discover fraudulent claims and to defend against them. The new notification requirement should lead to a reduction in the number of fraudulent claims, if there are any. Thus, the new notice requirement is rationally related to two valid state objectives — speeding up the claim process and reducing fraudulent claims.
There has always been a 10-day notice of claim requirement in the Act. The original notice of claim statute did not bar a claim for workers compensation if the notice was untimely unless the employer could prove it was prejudiced by the untimely notice. The original purpose of this notice requirement was to “afford the employer an opportunity to investigate the accident and to furnish prompt medical treatment.” Pike v. Gas Service Co., 223 Kan. 408, 409, 573 P.2d 1055 (1978). This court considered this to be. a valid purpose for the notice requirement. As such, the original notice statute was rationally related to valid legislative objectives — allowing an employer the opportunity to investigate an accident and furnish prompt medical treatment.
Based on Ernest v. Faler, 237 Kan. 125, the plaintiffs argue that the similar notice of claim statute at issue herein violates equal protection because it is not rationally related to the legislative objectives sought of speeding up the claim process time or reducing fraudulent claims. The plaintiffs point out that neither the Legislative Post Audit Committee Report nor any other material submitted suggests that barring claims after 10 days will reduce fraud or speed up the claim process.
The plaintiffs point out that, according to the Kansas Workers Compensation Handbook § 14.01, p. 14-2 (rev. ed. 1990), no cases were reported where an employer was able to show prejudice from an employee’s untimely notice under the original notification requirement. The plaintiffs apparently interpret this information as indicating that no fraudulent claims were filed or allowed to proceed; thus, no prejudice to the employer occurred under the old notification statute. Since fraud was not encouraged by the original notice provision, the plaintiffs claim it will not be discouraged by the new provision. Thus, the plaintiffs assert that the new notice requirement is not rationally related to the legitimate State interest of reducing fraudulent claims.
Further, even if the new notice of claim statute does actually reduce fraudulent claims more than the original notice of claim statute did, the plaintiffs argue that the new notice of claim statute must have a rational reason for only applying to one particular class of people. According to the plaintiffs, ¿here must be a reason to constitutionally justify why workers compensation plaintiffs have a different notice requirement applied to them than the notice requirement applied to all other tort plaintiffs, and such a reason does not exist here. The plaintiffs claim that the mere fact a plaintiff is injured at work does not create such a potential for fraud that a worker’s notification time period should be reduced from 2 years, as allowed for most torts, to 10 days. The plaintiffs claim that the new notice of claim requirement, applied only to claimants injured on the job, is not rationally related to the legitimate state interest of reducing fraudulent claims.
Finally, even if there is a justification to apply the new notice of claim statute only to injured workers, ¿he plaintiffs claim that there is no basis for the 10-day/75-day rule as opposed to a 20-day/100-day rule. According to the plaintiffs, there is no rational reason why the new 10-day/75-day rule reduces fraudulent claims or speeds up the claim process any better than a 20-day/100-day rule would. As such, the plaintiffs assert that the new notification requirement is not rationally related to the valid state objectives of speeding up the claim process or reducing fraudulent claims.
The plaintiffs have attacked the new notice statute as facially unconstitutional; thus, the plaintiffs, must establish that no set of circumstances exist under which the amendment would be valid. Simply pointing out that the amendment might not be rationally related to the state objectives sought under one set of facts is not enough to declare the amendment unconstitutional on its face. See United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987).
The new. notice requirement can cut off nonfraudulent claims. However, this does not take away from the fact that the notice requirement also cuts off fraudulent claims and is rationally related to this goal. The mere fact that the notice requirement is overbroad in achieving its goals is not a reason to find that it violates equal protection. See Peden, 261 Kan. at 258 (“Although the rational basis standard requires that the discriminatory classification ... be rationally related to valid state interests or goals, the standard does not require that the classification be the perfect solution to achieve such goals.”). Further, the new notice requirement includes provisions to prevent the statute from being applied in an overbroad manner and barring nonfraudulent claims. For instance, the new notice requirement does not bar a claim for untimely notice (after 10 days) if the employee can show just cause. While the requirement does bar a claim if notice is not given within 75 days of injury, even with just cause, the statute does provide exceptions for a few of the most common reasons for such a delay in notice — the employer already knew about the accident, the employer was unavailable to receive notice, or the employee was unable to give notice. Thus, the legislature has taken care to make sure the new notice requirement is not applied in an unreasonably overbroad manner.
Further, even if the statute could be applied in an unreasonably overbroad manner by dismissing numerous nonfraudulent claims, this does not mean that it will be. “Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Leiker, 245 Kan. at 363-64. Such a state of facts can be conceived here in which the amendment will be applied narrowly with a focus on dismissing untimely filed fraudulent.claims.
The plaintiffs also claim that the amendment is not rationally related to the goal of reducing fraudulent claims because the orig inal notification requirement already did a good job of cutting off fraudulent claims. The plaintiffs base this contention on the fact that few, if any, employers could show prejudice from untimely notice under the old provision. Thus, the plaintiffs argue fraudulent claims rnust not have been filed, or the employers could have proven prejudice. The very fact that few, if any, employers could prove prejudice for untimely notice under the old notification requirement indicates how difficult it is for an employer to discover a fraudulent claim and prove prejudice from it. To believe, as the plaintiffs do, that simply because prejudice (i.e., fraudulent claims) cannot be proven under the original notice provision means that fraudulent claims do not exist is not a justified conclusion. Even if the old notice requirement does a great job of discouraging fraudulent claims, this does not mean that a new, stricter notice requirement could not do an even better job.
Next, the plaintiffs question why the new notice requirement is only applied to injured workers and not to all injured plaintiffs and how this classification is rationally related to the objectives sought. The new notice provision is only applied to workers compensation plaintiffs because it is more important to achieve the goals sought by the notice requirement in the workers compensation area than in any other area of compensable injury. In 1911, the legislature abolished a plaintiff’s right to sue an employer for damages caused by the negligence of the employer. In place of this right, the legislature gave employees the Workers Compensation Act, which is supposed to provide a quick, set amount of money, without proof of employer negligence, for all employees injured on the job. The fact that a claim will be speedily processed is a part of the quid pro quo for the abrogation of the plaintiff’s common-law right to sue a negligent employer. Thus, it is important that claims in workers compensation cases be quickly processed. Workers compensation claims do not require proof of negligence, only proof of an injury. Thus, it makes sense that the opportunity to file fraudulent workers compensation claims is much greater than the opportunity to file fraudulent tort claims. It is easier to fake the cause of an injury than to fake negligence. Since the goals of the new notice requirement-speed up claim process time and reduce fraudulent claims — are more of a concern in the workers compensation area, it makes sense that the means to achieve these goals — the new notice requirement — should only be applied to the class of plaintiffs subject to the Act and not to all plaintiffs.
Finally, the plaintiffs claim that there is no basis for the 10-day/75-day rule as opposed to a 20-day/100-day rule. It is true that a 20-day/100-day rule might have been able to achieve the same goals which the notice statute at issue was enacted to achieve, with the same success. “When the legislature must draw a line and
‘there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless [the court] can say that it was veiy wide of any reasonable mark.’ ” ’ ” Veden, 261 Kan. at 258-59 (quoting State ex rel. Schneider v. Liggett, 223 Kan. 610, 619, 576 P.2d 221 [1978]). This court cannot say that the 10-day/75-day rule was wide of any reasonable mark in obtaining the legislative goals sought.
Finally, the main case relied on by the plaintiffs in support of their position, Ernest, 237 Kan. 125, is distinguishable from the case at hand. Ernest involved a notice of claim statute, but the notice required did not allow for a quick investigation, nor did the notice help speed up the process. Here, the notice of claim statute, which requires that notice be given to the defendant/employer and not to an irrelevant third party, does bear a rational relationship to the valid legislative objectives sought of speeding up the claim process time and reducing fraudulent claims. The new strict notice of claim statute does not violate equal protection.
B. Due Process
The plaintiffs contend that K.S.A. 44-520 unconstitutionally violates die Due Process Clause of the Kansas Constitution. Due process is embodied in § 18 of the Kansas Constitution Bill of Rights, which provides: “Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” The due process provision of the United States Constitution is found in the 14th Amendment, which provides in pertinent part that no state shall “deprive any person of life, liberty, or property, without due process of law.” “ ‘ “ ‘Due process’ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.” ’ ” Ernest, 237 Kan. at 129 (quoting Ross v. Moffitt, 417 U.S. 600).
The plaintiffs claim that their due process rights have been violated because their remedy in a workers compensation claim has been restricted due to a more stringent notice of claim statute. In analyzing a potential due process violation, tihe following test should be utilized:
“ ‘If a remedy protected by due process is abrogated or restricted by the legislature, “such change is constitutional if ‘[1] the change is reasonably necessary in the public interest to promote the general welfare of the people of the state,’ Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974), and [2] the legislature provides an adequate substitute remedy” to replace the remedy which has been restricted.’ Bonin v. Vannaman, 261 Kan. 199, 217, 929 P.2d 754 (1996) (citing Aves v. Shah, 258 Kan. 506, 521, 906 P.2d 642 [1995]).” Lemuz v. Fieser, 261 Kan. 936, 946-47, 933 P.2d 134 (1997).
Under Step 1 of this due process test, the first question to ask is whether the new notice of claim statute imposed on plaintiffs injured at work, which restricts the plaintiffs’ right to a workers compensation remedy, is reasonably necessary in the public interest tó promote the general welfare of the people of the state. Another way to state this test is whether the legislative means selected (the notice requirement) has a real and substantial relation to the objective sought. See Bonin v. Vannaman, 261 Kan. 199, 217, 929 P.2d 754 (1996) (citing Liggett, 223 Kan. at 614; Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974); Ernest, 237 Kan. at 129).
Step 1 of a due process analysis is similar to the rational basis standard of an equal protection analysis. “In referring to an analysis under Step 1 of the § 18 test, the Bonin court stated that ‘ “[t]he test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors.” ’ Bonin, 261 Kan. at 218 (quoting Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 [1988]).” Lemuz, 261 Kan. at 948. As previously analyzed in the equal protec tion section, the State has a legitimate interest in speeding up claim process and reducing fraudulent claims. Further, the new notice requirement is rationally related to these valid objectives. In other words, the new notice requirement is a legislative means which has a real and substantial relation to the objectives sought — speeding up the claim process and reducing fraudulent claims. Thus, the new notice requirement satisfies Step 1 of the due process test.
“However, this is not where the [due process] review stops. ‘[E]ven if the modification of a common-law remedy is consistent with public policy, this does not necessarily satisfy the due process concerns. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy ... is modified or abolished.’ ” Lemuz, 261 Kan. at 948 (quoting Aves v. Shah, 258 Kan. 506, 522, 906 P.2d 642 [1995]).
See Bonin, 261 Kan. at 218.
In applying Step 2 of the due process test, it is important to realize that the workers compensation remedy is not a common-law remedy. Rather, it is an adequate substitute remedy itself (or quid pro quo) for the abrogation of a worker s right to sue an employer for an on-the-job injury caused by the employer’s negligence.
In 1911, the legislature stripped employees of their common-law right to bring a civil action against employers for injuries caused by an employer’s negligence. “The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.” Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 350, 757 P.2d 251 (1988), overruled in part on other grounds Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991). Thus, when the legislature abolished the employees’ common-law right to sue employers for injuries, the legislature provided the employees with an adequate substitute remedy (or quid pro quo) for the right abolished — the Workers Compensation Act. The Act allowed employees to quickly receive a smaller, set amount of money for injuries received at work, whether they were caused by negligence or not, as long as the notice requirement was met. Now, the legislature has made the notice requirement more strict so that workers compensation benefits are more difficult to receive, making the quid pro quo for abrogation of the employee’s right to sue an employer for negligence less than what it once was. Thus, the question under Step 2 of the due process test is not whether the legislature provided an adequate substitute remedy for taking away the lenient notice requirement in the Act. Instead, the question becomes whether it has, under the Act, with its stricter notice requirement, become so difficult to receive an award that the Act is no longer an adequate substitute remedy for abrogation of employees’ right to sue employers for negligence. If so, then the stricter notice requirement, making the quid pro quo inadequate, violates due process. The plaintiffs make a number of other arguments concerning an adequate quid pro quo, and we will consider this matter under issue V later in this opinion.
II. SHOULDER INJURIES
The Act recognizes two different classes of injuries which do not result in death or disability — permanent disability to a scheduled body part or permanent partial general disability. K.S.A. 44-510d; K.S.A. 44-510e.
Prior to 1993, both shoulder and hip injuries were treated as permanent partial general disabilities. See Bryant v. Excel Corp., 239 Kan. 688, 722 P.2d 579 (1986); K.A.R. 51-7-8(d)(3). In the 1993 amendments to the Act, the legislature reclassified shoulder injuries as a permanent disability to a scheduled body part, making an employee with an injured shoulder entitled to 66%% of the employee’s average weekly gross salary for 225 weeks, regardless of the employee’s lost earning capacity, because of the employee’s inability to perform work of the same type or character as the work performed before the injury occurred. Hip injuries are still classified as permanent partial general disabilities. In fiscal year 1990, 2,614 shoulder injuries were reported to the Division of Workers Compensation, while only 528 hip injuries were reported that year. 16th Annual Statistical Report of the Division of Workers Compensation, pp. 25-26 (1990). In fiscal year 1994, 3,492 shoulder injuries were reported to the Division of Workers Compensation, while only 602 hip injuries were reported. 20th Annual Statistical Report of the Division of Workers Compensation, pp. 25-26 (1994).
The plaintiffs contend that this change was made in the Act because over the past 15 years, certain industries in Kansas have experienced a high incidence of repetitive overuse injuries to arms and shoulders, which qualified as general disabilities. These industries experienced increases in their workers compensation claims and payments, resulting in an increase in their workers compensation insurance premiums. The plaintiffs challenge K.S.A. 44-510d(a)(13), which reclassifies a shoulder injury as a scheduled injury, as a violation of equal protection and due process.
A. Equal Protection
The plaintiffs contend that K.S.A. 44-510d(a)(13) classifies workers with a shoulder injury differently from workers with a hip injury and allows less compensation to the shoulder injury victims. According to the plaintiffs, this distinction creates a disparity between two classes of similarly situated persons without a rational basis, thereby violating equal protection.
A law is constitutional, despite some unequal classification of citizens, if the “classification bears some reasonable relationship to a valid legislative objective.” Farley v. Engelken, 241 Kan. 663, Syl. ¶ 3, 740 P.2d 1058 (1987). Equal protection is only implicated when a statute treats “arguably indistinguishable” classes of people differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993).
The first question to ask in an equal protection analysis is whether the two classes of people who are treated differently by the legislature are “arguably indistinguishable.” The plaintiffs contend that victims of shoulder injuries are similarly situated or “arguably indistinguishable” from victims of hip injuries because both the shoulder joint and the hip joint “connect” scheduled extremities (arms and legs) to the trunk of the body. Further, both the shoulder and the hip have muscles, ligaments, bones, bloodvessels, and nerves that attach to, or affect, various structures that are considered to be part of the trunk of the body. In support of their argument, the plaintiffs cite to Stephenson v. Sugar Creek Packing, 250 Kan. 768, 830 P.2d 41 (1992), which, in their view, holds that arm injuries and leg injuries are arguably indistinguishable.
In Stephenson, the plaintiff was injured on the job due to carpal tunnel syndrome she experienced in both arms. Based on a 1987 amendment, under 44-510d(a)(23), Stephenson was awarded compensation as if she had a scheduled injury instead of a general injury. Prior to the enactment of 44-510d(a)(23), an employee who suffered the same injury in both opposite extremities was considered to have a general disability. The amended statute provided that repetitive use injuries occurring in opposite upper extremities should be treated as scheduled injuries rather than a general disability. Stephenson appealed her workers compensation award, challenging the statute as an unconstitutional violation of equal protection. Stephenson argued that 44-510d(a)(23) violated equal protection because it classified repetitive injuries to the opposite upper extremities differently from single trauma injuries to the opposite upper extremities and awarded the victims of repetitive use injuries less compensation without a rational basis.
In analyzing Stephenson’s argument, this court found that the statute also classified repetitive injuries to opposite upper extremities (arm injuries) differently from injuries to the lower opposite extremities (leg injuries). The court found that an employee who suffers an injury to both arms and an employee who suffers an injury to both legs are similarly situated. Since the State did not enumerate a rational basis to justify treating these two similarly situated groups differently, this court found the statute was. an unconstitutional violation of equal protection. 250 Kan. at 781-82. In so holding, the court stated:
“In the present case, Stephenson’s argument unnecessarily narrows the focus of our inquiry. The workers dissimilarly treated are not just those sustaining carpal tunnel conditions from sudden versus repeated trauma, but all workers with bilateral repetitive use conditions of the upper extremities and workers who suffer any other injuries to both opposite extremities. These classifications of workers are similarly situated with respect to the goal of cost cutting, but they do not receive like treatment. The equal protection guarantee of the United States Constitution does not preclude the State from classifying persons for purposes of legislation, but it does require that persons similarly situated be treated alike.” 250 Kan. at 781-82.
Since workers with injuries to both upper extremities (injuries to both arms) are similarly situated to workers with injuries to both lower extremities (injuries to both legs), the plaintiffs assert that workers with shoulder injuries are also similarly situated to workers with hip injuries.
Workers with shoulder injuries are not similarly situated or arguably indistinguishable from workers with hip injuries. Thus, the two classifications of injured workers can be treated differently— one classified as a worker with a general injury and. one classified as a worker with a scheduled injury — without impheating equal protection concerns. Workers with shoulder injuries are not similarly situated to workers with hip injuries because it is medically rational to treat a shoulder injury as an impairment to an upper extremity but it is not as medically rational to treat a hip injury as an impairment to a lower extremity. The affidavit of Dr. Baker noted that the AMA Guides evaluate a shoulder injury as an upper extremity impairment. According to Dr. Baker, all shoulder injuries are medically considered impairments of the upper extremity. Not only did Dr. Baker testify that it was rational to consider a shoulder injury to be an upper extremity impairment, he stated that it was “medically illogical” to define a shoulder injury as a whole body impairment. Thus, the two types of injuries can be classified and treated differently without implicating equal protection.
Dr. Baker’s testimony was not unopposed. Dr. John J. Wertzberger submitted an affidavit which concluded that it makes “anatomical sense to characterize the shoulder as part of the trunk of the body because the muscles that make up the shoulder originate directly or indirectly on the trunk of the body.”
We hold the two types of injuries are not “arguably indistinguishable” and that different classification of the injuries under the Act does not implicate equal protection. It is true that the plaintiffs presented an affidavit to rebut Dr. Baker’s affidavit stating that a shoulder injury is logically an arm injury. However, it is not the place of this court to determine which medical evidence the legislature should have relied on or if it needed to rely on any medical evidence at all. The legislature chose to accept that it is anatomically illogical to treat a shoulder injury as a whole body impairment but not as anatomically illogical to treat a hip injury as a whole body impairment. Based on this medical evidence, shoulder injuries and hip injuries are not arguably indistinguishable.
The plaintiffs also argue in their reply brief that unequal classifications have been created between workers who injured their shoulders prior to the effective date of the 1993 amendment at issue and workers who injured their shoulders after the amendment became effective. This type of class distinction will occur upon the enactment of any new amendment and is not a valid classification on which to base an equal protection argument.
B. Due Process
The plaintiffs contend that K.S.A. 44-510d(a)(13), which classifies a shoulder injury as a scheduled injury instead of as a whole body injury, violates due process.
The two-step test which is used to analyze a potential due process violation is set out in Lemuz, 261 Kan. at 946-47.
Under Step 1 of this test, the first question is whether the shoulder rule, which restricts an employee with a shoulder injury from receiving a nonscheduled remedy, is reasonably necessary in the public interest to promote the general welfare of the people of the state. Another way to state this test is whether the legislative means selected (the shoulder statute) has a real and substantial relation to the objective sought. See Bonin, 261 Kan. at 217 (citing Liggett, 223 Kan. at 614; Manzanares, 214 Kan. at 599; Ernest, 237 Kan. at 129).
One objective sought by the shoulder statute was to make the Act more medically rational. According to the testimony of Dr. Baker, the AMA Guides evaluate an injury to the shoulder as an impairment of an upper extremity, not as an impairment of the whole body. Further, Dr. Baker testified that it was “medically illogical” to consider a shoulder injury as a whole body impairment. He testified that it was rational to evaluate a shoulder injury as an upper extremity impairment. As such, classifying a shoulder injury as a scheduled injury instead of a whole body injury is a legislative means which is substantially related to the valid state objective of making the Act more medically sound.
The plaintiffs point out that the legislative history of S.B. 307 contains no testimony that the Act was illogical because the shoulder was treated as part of the body as a whole. The plaintiffs assert that there is no evidence in the legislative history that supports the “medically illogical” argument as having been the genesis of the shoulder legislation. Instead, the plaintiffs allege that the legislative history only demonstrates that employers desired to limit workers compensation payments so their workers compensation premiums would decrease. Despite the fact that the legislature did not enunciate this goal as a reason for passing the amendment at the time, the plaintiffs understand that the goal of making the Act more medically sound may still qualify as a legitimate state objective which the shoulder statute seeks to obtain.
The plaintiffs argue that even if the trial court reasonably relied solely on Dr. Baker’s affidavit stating that a shoulder injury is logically seen as a scheduled impairment, the amendment which classifies a shoulder injury as a scheduled impairment is not related to the valid state objective of making the Act more medically and anatomically sound. The plaintiffs contend that it is particularly difficult under the shoulder statute to determine when an injury is merely a scheduled shoulder injury and when an injury crosses the fine into the trunk of the body and becomes a whole body injury because many muscles, ligaments, nerves, blood vessels, and bones involve both the shoulder and the trunk of the body. Due to the difficulty in determining whether an employee has suffered a scheduled shoulder injury or a whole body trunk injury, the plaintiffs claim that the shoulder injury amendment will be applied in an inconsistent, irrational, and unpredictable manner. Application of the amendment in an irrational and inconsistent manner cannot result in making the Act more medically sound. Thus, the plaintiffs contend the statute is not related to this state objective.
The plaintiffs concede that it is possible for the shoulder statute to be applied in a rational and consistent manner. However, according to the plaintiffs, the only way this could occur is if all the injuries to muscles, ligaments, nerves, bloodvessels, and bones that have anything whatsoever to do with the shoulder are treated as nonscheduled shoulder injuries. This would result in much of the anatomy related to the shoulder, between the skull and lower rib cage, being treated as a scheduled body part and not as a part of the body as a whole for workers compensation purposes. The plaintiffs claim that the only injury which would qualify as a nonscheduled injury would be an injury to the skull, brain, internal organs, abdominal musculature, pelvis, and hips. Under this application of the amendment, the plaintiffs allege that a greater percentage of the body would be defined as a “scheduled” body part rather than as part of the body as a whole. According to the plaintiffs, such a result does not make any medical or anatomical sense. As such, the plaintiffs assert that the consistent application of the shoulder statute is not related to the legitimate state interest of making the Act more medically and anatomically correct. The plaintiffs conclude that neither a consistent nor an inconsistent application of the statute is substantially related to this valid state objective. Thus, according to the plaintiffs, the shoulder statute violates due process.
We disagree with the plaintiffs’ analysis. The goal to make the Act more medically and anatomically accurate is a legitimate state objective. Further, the shoulder statute, which classifies a shoulder injury as a scheduled injury instead of an injury to the body as a whole, is in line with medical evidence. Thus, the shoulder statute is a legislative means which is substantially related to the valid state objective of making the Act more medically sound. The plaintiffs contend that the statute’s objective is an after-the-fact rationalization which was never espoused by the legislature as a purpose for the statute. This may be true; however, it does not matter.
“ ‘ “Under the reasonable basis test, it is unnecessary to ascertain the specific purpose the Kansas Legislature espoused, if any, in establishing the challenged [statute].” ’ [Quoting Bair v. Peck, 248 Kan. 824, 834, 811 P.2d 1176 (1991).] . . .
“[B]ecause a legislature is not required to articulate reasons for enacting a statute, ‘it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged [statute] actually motivated the legislature.’ [F.C.C. v Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993)].” Peden, 261,Kan. at 253-54 (refers to equal protection test, but also applies to Step 1 of the due process test because the two tests weigh the same factors).
Thus, it is irrelevant whether the legislature actually verbalized the goal of making the Act more medically sound when it passed the shoulder statute. The fact is that the shoulder statute is a legislative means which does in fact fulfill this valid state objective.
The legislature heard all the evidence and relied on the evidence it found to be the most persuasive. It is not this court’s job to second-guess the legislature’s decision-making process. All the State had to do was offer " ‘any state of facts [which] reasonably may be conceived to justify’ ” the shoulder statute. Peden, 261 Kan. at 252-53. The State did this by offering the facts, according to Dr. Baker’s affidavit, that it is medically accurate to treat a shoulder injury as a scheduled body part injury. This fact reasonably justifies the shoulder statute and its goal to make the Act more medically sound.
Finally, the plaintiffs claim that the shoulder statute is not related to the state objective of making the Act more medically accurate because the statute will either be applied inconsistently so that some shoulder injuries are treated as whole body injuries or the statute will be applied consistently so that many injuries of the torso which are tangentially related to the shoulder will be treated as scheduled body part injuries. In either case, medically inaccurate results will occur according to the plaintiffs, and this indicates that the shoulder statute does not further the goal of making the Act more medically accurate.
In other words, the plaintiffs seem to argue that the shoulder statute can be applied in either an overinclusive or underinclusive manner and not further the objective sought. Doctors have been drawing these lines for years, deciding whether an injury is a whole body injury or a scheduled injury under the Act. There is no reason doctors cannot continue to do so under this new amendment. The possibility that the statute might be applied in an overinclusive or underinclusive manner should not destroy the substantial relationship between the amendment and its objective. “ '[C]ourts are compelled under a rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis reviewbecause it “is not made with mathematical nicety. . . [Citations omitted.]’ ” Peden, 261 Kan. at 257 (rule refers to an equal protection test but also applies to Step 1 of due process because the two tests weigh the same factors).
Thus, despite any overinclusion or underinclusion which might occur, the shoulder statute, properly applied, is a legislative means which is substantially related to the valid state objective of making the Act more medically and anatomically accurate. As such, the shoulder statute, which treats shoulder injuries as scheduled injuries, satisfies Step 1 of the due process test.
However, this is not where the due process review stops. Even if the modification of a remedy is consistent with public policy, this does not necessarily satisfy due process concerns. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy is modified, restricted, or abolished. Lemuz, 261 Kan. at 948; Bonin, 261 Kan. at 218. Whether there is an adequate quid pro quo for this amendment and for the Act as a whole will be discussed under issue V.
III. OFFSET OF RETIREMENT BENEFITS
K.S.A. 44-501(h), enacted in 1993, created offsets against the workers compensation benefits to which an injured worker would otherwise be entitled when the worker receives social security retirement benefits or selected private pension retirement benefits. The new subsection provides:
“(h) If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
The plaintiffs claim that the offsets against workers compensation benefits allowed for social security benefits and for private pension benefits are in violation of equal protection.
A. Social Security
Subsection (h) allows an offset against workers compensation benefits to which an injured worker would otherwise be entitled for each dollar of social security retirement benefits received by the injured worker, as long as the workers compensation benefits do not dip below the workers compensation benefits payable for the employee’s percentage of functional impairment. The plaintiffs point out that this offset is allowed regardless of whether the employer made any contribution to social security on behalf of the injured worker and regardless of the proportion of contributions to social security made by the injured worker or by other employers. The plaintiffs contend that this social security offset provision violates equal protection because it classifies those workers compensation beneficiaries who are receiving social security benefits differently than it classifies those workers compensation beneficiaries who are not receiving social security benefits. Because the statute treats these two classes of people with disparity, by reducing the workers compensation benefits of those who are receiving social security benefits, the plaintiffs claim that the social security offset provision violates equal protection.
The Kansas workers compensation law previously had retirement benefit offset provisions. Those provisions were all held to be constitutional.
In Baker v. List and Clark Construction Co., 222 Kan. 127, 563 P.2d 431 (1977), a worker was killed on the job. His dependents filed a workers compensation claim for death benefits against the employer. The dependents were also eligible for social security death benefits based on the death of their father. As such, the Workers Compensation Director reduced the claimants’ workers compensation benefits in relation to the social security benefits received. This reduction in workers compensation benefits was based on K.S.A. 1975 Supp. 44-510b(j) (since repealed), which provided:
“When any benefits are being paid under the federal social security act because of the death of an employee whose dependents are entitled to compensation under this section, the amount of compensation due under this section shall be reduced by an amount equal to one-half (Vi) of the amount of such social security payments during the time such social security payments are being made to the workman’s dependents. The employer shall receive credit on the payment of future compensation otherwise due under the workmen’s compensation act for an amount equal to one-half (%) of the total amount of social security payments made subsequent to a period during which compensation payments were made by the employer, but which are attributable to such period.”
The claimants challenged K.S.A. 1975 Supp. 44-510b(j) and its required reduction of their workers compensation benefits as an unconstitutional violation of equal protection. The claimants contended the offset provision discriminated between classes of claimants by reducing workers compensation death benefits of those who were eligible for social security benefits, widows with minors, but not reducing workers compensation death benefits of those claimants who were not eligible for social security benefits, widows without minors.
Applying the rational basis standard, this court held that the offset statute was constitutional. In so holding, this court stated that the offset provision exists
“to prevent duplication of benefits under the Workmen’s Compensation Act and the Social Security Act. . . . This statutory scheme appears to be consistent with a leading treatise on workmen’s compensation:
‘Once it is recognized that workmens compensation is one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed. Since most social legislation in the United States has appeared in unrelated fragments, lack of coordination resulting in cumulation of benefits is quite common; but newer legislation, including the Social Security compensation offset provision, is more carefully drawn to prevent this result.’ 4 A. Larson, The Law of Workmen’s Compensation, Sec. 97.00 (1976).
“The treatise goes on to state:
Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmens compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.’ Id. at Sec. 97.10.
“Based on the foregoing, we conclude K.S.A. 1975.Supp. 44-510b(j) does not offend the equal protection guarantee. When the system of wage-loss protection is viewed as a whole, avoiding duplication or overlapping of benefits appears to be a reasonable legislative objective. It may be said that the classification created by the statute has a rational basis, is not arbitraiy, and affords like treatment to persons similarly situated.” 222 Kan. at 130-32. (Emphasis added.)
Justice Schroeder, joined by Justice Owsley, dissented in this opinion. Justice Schroeder was of the opinion that the statute unconstitutionally violated equal protection because it only reduced the workers compensation death benefits of those claimants who also received social security benefits and did not also reduce the workers compensation death benefits of those claimants who received private insurance monies, veteran’s administration death benefits, or Kansas Public Employees Retirement System death benefits. Further, Justice Schroeder noted that the offset against workers compensation benefits for social security benefits reduces an employers workers compensation payments and premiums, thereby discouraging an employer from adopting a safety program to prevent employee deaths in the future. Thus, Justice Schroeder was of the opinion that the offset statute singled out a class of persons for distinctive treatment without a rational basis, thereby violating equal protection. 222 Kan. at 137-38.
In Boyd v. Barton Transfer & Storage, Inc., 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978), the plaintiff, who was 62 years old and receiving social security benefits, was injured while working at his part-time job. The plaintiff worked at the part-time job to supplement his social security benefits. He was aware of how much money he could earn before becoming ineligible for social security, and he did not intend to exceed that amount. The plaintiff filed a workers compensation claim for his work-related injury, but he was denied benefits based on K.S.A. 1976 Supp. 44-510f(c) (since repealed), which provided:
“An employee shall not be entitled to compensation benefits for permanent total disability, temporary total disability or partial disability, under the workmen’s compensation act, from and after the date when he shall be entided to and during such period as he shall receive federal old age social security benefits, reduced or unreduced.”
The Workers Compensation Director affirmed the denial of the benefits, and the plaintiff appealed to the district court, claiming that K.S.A. 1976 Supp. 44-510f(c) was unconstitutional. The district court held that tire statute was constitutional and affirmed the denial of the benefits.
The Court of Appeals did not rule on the constitutionality of the statute. Instead, the court interpreted the offset statute and found that it did not apply to the plaintiff’s workers compensation benefits. In so holding, the court stated:
“As we read K.S.A. 1976 Supp. 44-510f(c), an ambiguity exists as to whether it applies to those who like plaintiff are injured while employed in a part-time job after normal retirement and after they have started to receive social security old age benefits. We conclude that the legislature did not intend the statute to so apply and, therefore, reverse the denial of compensation.
“ ... As long as workmen’s compensation is not viewed as a substitute for tort recovery but as wage-loss protection only, the cutoff of workmen’s compensation at the time of retirement and initial receipt of old age social security benefits would be reasonable. The worker would suffer only one wage loss, but continued workmen’s compensation after retirement would duplicate the wage-loss replacement of the old age social security benefits which begin at that time.
“On the other hand, workers such as the plaintiff here, who are already retired and receiving social security old age benefits before starting work on a part-time job to supplement those benefits, suffer a second wage loss when they are injured in the course of their employment. Should K.S.A. 1976 Supp. 44-510f(c) be applicable to such workers, it would totally preclude any replacement of the wages which they are entitled to earn over and above old age social security benefits. As such, it would not prevent ‘duplication’ but would operate to preclude the wage replacement which it was the intent of the legislature to provide through the Workmen’s Compensation Act.
“It is a fundamental rule of statutoiy construction that the legislative intent behind a statute be ascertained wherever possible, and the legislative intent governs its construction even though the literal meaning of the words used therein is not followed. State, ex rel, v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974). In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). When the interpretation of a section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be read according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. State, ex rel., v. Kalb, 218 Kan. 459, 543 P.2d 872 (1975), modified on other grounds, 219 Kan. 231, 546 P.2d 1406 (1976).
“From what has been said, we conclude that the legislature did not intend K.S.A. 1976 Supp. 44-510f(c) to apply to plaintiff and those similarly situated, even though the literal wording of that provision might seem to include them. It follows that plaintiff should not have been denied compensation under the act.” 2 Kan. App. 2d at 426-29.
In Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 599 P.2d 1031 (1979), aff’d 227 Kan. 645, 608 P.2d 1356 (1980), the claimant filed for and received an award for workers compensation from the Kansas Workers Compensation Fund. Sixteen months later, the claimant turned 65 years old and began receiving social security benefits. One month later, the Fund filed a motion for modification and termination of the claimant’s workers compensation disability benefits, based on K.S.A. 1974 Supp. 44-510f(c) (since repealed), which provided:
“An employee shall not be entitled to compensation benefits for permanent total disability, temporary total disability or partial disability, under the workmen’s compensation act, from and after the date when he shall be entided to and during such period as he shall receive federal old age social security benefits, reduced or unreduced.”
The workers compensation examiner granted the Fund’s motion and terminated the claimant’s disability benefits, stating that the Workers Compensation Fund would not be liable for further benefits to the claimant so long as he received social security benefits. The Workers Compensation Director sustained the termination order, and the district court affirmed the termination order. The plaintiff appealed the order to the Court of Appeals, alleging, inter alia, that K.S.A. 1974 Supp. 44-510f(c) unconstitutionally violated equal protection by creating a classification based on age and receipt of social security benefits. Relying on Baker, 222 Kan. 127, the Court of Appeals upheld the constitutionality of K.S.A. 1974 Supp. 44-510f(c). In so holding, the court stated:
“The setoff provision challenged in this action withstands allegations of unconstitutionality on grounds similar to those described in Baker. When viewed as part of a wage-loss compensation program, the termination of benefits under 44-510f(c), like 44-510b(j), does not really penalize the injured worker. By preventing a duplication of benefits under the Workmen’s Compensation Act and the Social Security Act, the provision places the worker in the same position as fellow workers who have retired and are drawing old age social security benefits. At that point he is no longer subject to wage loss. It is only his disability benefits that are affected. After retirement the wage loss experienced by a worker is not caused by injury, but by retirement. A worker could retain workmen’s compensation benefits by staying in the labor market and not retiring. The setoff provision of 44-510f(c) does not apply to any medical compensation that might be owed under an award of compensation.
“The claimant argues that the purpose of the Workmen’s Compensation Act ‘is to burden the industry with the economic loss to a workman, or his dependents, resulting from accidental injury sustained by the workman arising out of and in the course of his employment,’ Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 180, 211 P.2d 89 (1949), and that the “arbitrary” classification under 44-510f(c) frustrates this statutory purpose by shifting the economic loss to the employee. However, as already discussed above, this contention is without merit.
“ . . . The wage-loss theory provides a reasonable basis for the offset, even if the social security benefits are lower than the workmen’s compensation benefits, since the former amount is the same the worker would have received even if he had retired without having been injured. We therefore find that 44-510f(c) is constitutional.” 3 Kan. App. 2d at 654-55.
This court affirmed the Court of Appeals’ decision.
The plaintiffs acknowledge the case law which holds that similar pension offsets are constitutional. However, the plaintiffs ask this court to reconsider its decision in Baker and Brown and find the offset for social security retirement benefits in K.S.A. 44-501(h) to be an unconstitutional denial of equal protection for the reasons set out in the dissent by Justice Schroeder in Baker.
The analysis relied upon in Baker and Brown is still valid. Thus, based on Baker and Brown, the social security offset in K.S.A. 44-501(h) is rationally related to the valid state interest of preventing the duplication of wage loss replacement benefits. The pension offset does not unconstitutionally violate equal protection.
In the alternative, ihe plaintiffs ask this court to judicially limit the offset and find that it does not apply to employees who are injured while they are working on a job to supplement the social security benefits they were currently receiving, just as the Court of Appeals did in Boyd, 2 Kan. App. 2d 425. Moreover, the plaintiffs ask this court to find that the offset should not apply to employees injured before they received social security retirement benefits but who would have continued to work to supplement their social security benefits, once the time came, had it not been for their injuries. According to the plaintiffs, these workers are similarly situated to workers who were injured after receiving their first pension check and no rational basis exists for treating them differently. Finally, the plaintiffs point out that in both situations the social security retirement benefits do not replace the same wage loss replaced by the workers compensation benefits; thus, social security benefits should not be used to offset the workers compensation benefits. To do so, the plaintiffs claim, results in a violation of equal protection.
As in Boyd, all of these questions deal more with the interpretation and application of the offset statute than with the constitutionality of tire statute. The plaintiffs have only appealed the constitutionality of the statute; they have not appealed its specific interpretation or application. Thus, an analysis of these questions is best saved until a more appropriate time.
B. Private Pensions
K.S.A. 44-501(h) also allows an offset against workers compensation benefits, which an injured worker would otherwise be entitled to, for selected private pension retirement benefits, but only if the employer has contributed to the private pension, and even then no offset against the workers compensation benefits is allowed for the pension benefits attributable to an employee’s contribution.
The plaintiffs claim that the private pension offset provision violates equal protection because it treats pension plans in which an employer has directly contributed funds different from all other retirement plans, without a rational basis. According to the plaintiffs, all private pension plans are actually paid for by employees through years of labor. Thus, retired injured workers who receive private pensions are all similarly situated. Yet, they receive different amounts of workers compensation benefits depending on how much money, if any, their employer directly contributed to a private pension fund. The plaintiffs claim that no legitimate purpose is served by this disparate treatment of similarly situated injured employees which K.S.A. 44-501(h) requires. Thus, the plaintiffs assert that K.S.A. 44-501(h) violates equal protection. See Stephenson v. Sugar Creek Packing, 250 Kan. 768,830 P.2d 41 (1992).
We hold the legislature intended to prevent duplication of wage loss replacement with the offset provision. The legislature concluded that it did not make sense to prevent duplication of replacement wages from social security benefits that were partially employer funded and not prevent such duplication of wages from employer-funded private pensions. Thus,' the legislature allowed employer contributions in private pension plans, paid to retired injured workers, to offset employer-funded workers compensation benefits paid to the same injured workers, so as to prevent duplication of wage loss replacement. This is a public policy issue. The legislature believes such an offset will encourage employers to furnish retirement plans for employees because the employer will not be required to duplicate wage replacement should an injured worker retire. The prevention of wage loss duplication is a legitimate State goal, and the offset provisions for employer-funded retirement plans (social security or private pensions) are rationally related to this goal. K.S.A. 44-501(h) does not violate equal protection.
IV. ATTORNEY FEES
Prior to 1993, the Act imposed a flat 25% limit on the contingency fee an injured worker could agree to pay a lawyer out of the benefits the worker might be awarded in a workers compensation action. This limitation specifically provided:
“With respect to any and all proceedings in connection with any initial or original claim for compensation, no claim of any attorney for services rendered in connection with the seeming of compensation for an employee or the employee’s dependents, whether secured by agreement, order, award or a judgment in any court shall exceed a reasonable amount for such services or 25% of the amount of compensation recovered and paid, whichever is less, in addition to actual ex-' penses incurred, and subject to the other provisions of this section. Except as hereinafter provided in this section, in death cases, total disability and partial disability cases, the amount of attorney fees shall not exceed 25% of the sum which would be due under the workers compensation act for 415 weeks of permanent total disability based upon the employee’s average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in K.S.A. 44-510c and amendments thereto.” K.S.A. 1992 Supp. 44-536(a).
In 1993, the legislature amended this limitation on attorney fees in the Act. The amendment provided:
‘With respect to any and all proceedings in connection with any initial or original claim for compensation, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or the employee’s dependents, whether secured by agreement, order, award or a judgment in any court shall exceed (1) a reasonable amount for such services or (2) the amount équal to the total of 25% of that portion of total compensation recovered and paid which is less than $10,001, 20% of that portion of total compensation recovered and paid which is greater than $10,000 and less than $20,001, and 15% of that portion of the total amount of the compensation recovered and paid which is in excess of $20,000, whichever is less, in addition to actual expenses incurred, and subject to the other provisions of this section. Except as hereinafter provided in this section, in death cases, total disability and partial disability cases, the amount of attorney fees shall not be based upon compensation which would be due under the workers compensation act beyond 415 weeks of permanent total disability based upon the employee’s average gross weekly wage prior to the date of the accident and subject to the maximum weekly benefits provided in K.S.A. 44-510e and amendments thereto.” K.S.A. 44-536(a).
The 1993 amendments made three significant changes to the rule allowing contingent attorney fees in workers compensation cases. The amendments imposed a graduated contingency fee rate, a limit on fees after a settlement offer, and a restriction against fees being paid out of vocational rehabilitation benefits. The 1997 Kansas Legislature amended the attorney fee rates again, returning them to their pre-1993 form, a flat 25% contingency fee limitation. Thus, the constitutionality of the 1993 attorney fee contingency rates is moot as to all future workers compensation claimants. The 1993 limit on fees after a settlement offer was also amended again in 1997. However, the 1997 amendments did not return the settlement attorney fee rates back to the pre-1993 status. Instead, the 1997 amendments created new settlement attorney fee rates. The constitutionality of the 1997 settlement fee amendments is not an issue in this case. The 1993 restriction against fees paid out of vocational rehabilitation benefits was not altered in 1997, and this 1993 amendment is still effective.
The 1997 amendments are substantive amendments which do not contain language indicating that the legislature intended for them to be applied retroactively. Hence, the 1997 workers compensation amendments are to be applied prospectively only. See KPERS v. Reimer & Roger Assocs., Inc., 261 Kan. 17, 43, 927 P.2d 466 (1996) (“ ‘statute will operate prospectively rather than retrospectively unless its language clearly indicates that the legislature intended the latter/ ”) (quoting Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, Syl. ¶ 1, 552 P.2d 998 [1976]).
The plaintiffs’ challenge to the 1993 amendments focuses mainly on the graduated contingency fee rate. Since the 1997. attorney fee amendment has been enacted and applied prospectively, the only people who are affected by the 1993 contingency fee amendment are those workers compensation claimants who filed their claims between the date the 1993 amendment became effective, July 1, 1993, and the date the 1997 amendment became effective, July 1, 1997. The plaintiffs claim that this amendment, as applied to the narrow segment of claimants defined above, arbitrarily reduced the percentage of contingency fees which were allowed for representing injured workers, thereby violating equal protection and thé separation of powers doctrine.
A. Separation of Powers
The plaintiffs argue that the regulation of the practice of law in Kansas, including the fees which attorneys may charge for their services, is a judicial, not a legislative function. Thus, according to the plaintiffs, when the legislature regulated contingency fees in workers compensation cases by enacting the 1993 amendments, the legislature was usurping the judicial power to regulate fees, thereby violating the separation of powers doctrine. The plaintiffs concede that the legislature has previously regulated attorney fees in the pre-1993 attorney fee statute, which set the contingency fee limit at a flat 25% rate. However, the plaintiffs assert that this statute was not a true legislative regulation of attorney fees, but was simply a codification of a prior judicial rule setting the contingency fee rate at 25% in workers compensation cases.
Pointing to Model Rule of Professional Conduct (MRPC) 1.5 (1996 Kan. Ct. R. Annot. 276), the plaintiffs claim that this rule is the current judicial limit on contingency fees. The plaintiffs claim that to the extent the 1993 amendments conflict with MRPC 1.5 by imposing a graduated contingency fee rate, the 1993 amendments are unconstitutional as a violation of the court’s inherent power to regulate the practice of law.
The plaintiffs claim that the graduated contingency fee agreement, which limits an attorney’s percentage of recovery the greater the attorney’s success, will induce an attorney to improperly curtail services for the client and receive a lesser award, as a larger award will not necessarily result in a higher attorney fee. Thus, the plaintiffs assert that the graduated contingency fee rates in the 1993 amendments conflict with the MRPC 1.5 and its Comment, thereby interfering with the court’s power to regulate the practice of law and unconstitutionally violating the separation of powers doctrine.
The Comment to MRPC 1.5 provides:
“An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. When there is doubt whether a contingent fee is consistent with the client’s best interest, the lawyer should offer the client alternative bases for the fee and explain their implications. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage." (Emphasis added.)
MRPC 1.5 and this accompanying Comment were intended to prevent clients from having to bargain for further assistance in the midst of a proceeding or transaction. This result will not happen when the graduated contingency fee rates are utilized. A lawyer does not receive any fee under a contingency fee agreement unless an award is recovered. As such, under a contingency fee agreement, a lawyer is induced to pursue a claim to its final outcome — an award or setdement. Utilizing a contingency fee payment plan, a client will not have to bargain for an attorney to pursue the claim to its final outcome in the midst of a proceeding or transaction. The lawyer will desire to do so; otherwise, he or she will not receive a fee at all. Since the rationale for the Rule and its Comment — to prevent clients from having to bargain for further assistance — will not be a problem with graduated contingency fee rates, then the Rule and the Comment — which prohibit fee agreements that induce an attorney to improperly curtail services — do not apply to or conflict with the graduated contingency fee rates in the 1993 amendments. The graduated contingency fee rates in the 1993 amendments do not interfere with the court’s inherent power to regulate the practice of law or unconstitutionally violate the separation of powers doctrine.
In addition, MRPC 1.5 and its Comment specifically allow for statutory restrictions on contingent attorney fees. For instance, MRPC 1.5(f)(3) provides: “A lawyer shall not enter into an arrangement for, charge, or collect: ... a contingent fee in any manner in which such fee is precluded by statute.” Also, the Comment to MRPC 1.5 states in pertinent part: “Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage.” Any legislative regulation, i.e., a statutory law, which regulates or limits contingency fee rates does not conflict, but is consistent, with the judicial regulation of attorney fees in the MRPC, which specifically allows for the statutory regulation of contingency fees.
B. Equal Protection
The plaintiffs claim that the 1993 amendments changing the contingent fee rates for workers compensation cases, set out at K.S.A. 44-536(a), violate the Equal Protection Clauses of the Kansas and United States Constitutions.
Equal protection is implicated when a statute treats classes of people, who are “arguably indistinguishable,” differently. Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993). The plaintiffs claim that K.S.A. 44-536(a) treats classes of people, who are “arguably indistinguishable,” differently in two ways. First, the plaintiffs claim that the statute treats the class of workers who were injured or filed a workers compensation claim between July 1, 1993, and July 1, 1997, differently than the class of workers who were injured or filed a claim before July 1, 1993, or after July 1, 1997, even though these two classes of people are “arguably indistinguishable.” This is not a valid equal protection argument. When a new statute is amended, it will always treat those citizens who are affected by the statute before the effective date of the amendment differently than it will treat those citizens who are affected by the statute after the effective date of the amendment. If such different treatment implicates equal protection concerns, then every amendment ever enacted will be subject to an equal protection challenge. This is not reasonable or valid. Instead, equal protection concerns are only implicated when a statute, evaluated independently and without regard to previoiis versions of the statute, treats two classes of people differently, even though the classes are arguably indistinguishable.
The plaintiffs also claim that K.S.A. 44-536(a), evaluated independently, violates equal protection because it treats two classes of people differently — the injured worker class in a workers compensation case and the employers and insurance company class in a workers compensation case — even though the two classes are arguably indistinguishable. The plaintiffs point out that K.S.A. 44-536(a) only applies the new graduated contingency fee rates to attorneys hired by an injured employee or by the employee’s dependents in a workers compensation case. The new rates do not apply to or restrict the payment of an attorney hired by an employer or an employer’s insurance company in a workers compensation case. According to the plaintiffs, the reduced attorney fee rates make it more difficult for an injured employee to secure a competent, aggressive attorney to represent the employee in a workers, compensation case. Since the reduced rates do not apply to em ployers or their attorneys, the plaintiffs argue that an employer will not have a difficult time in securing a competent attorney to defend the employer in a workers compensation action. Thus, the plaintiffs claim that K.S.A. 44-536(a) treats the class of injured employees in a workers compensation case differently and disparately than it treats the class of employers in a workers compensation case, even though the two classes are arguably indistinguishable. As such, the plaintiffs assert that K.S.A 44-536(a) implicates equal protection.
K.S.A. 44-536(a) states in pertinent part:
“(a) With respect to any and all proceedings in connection with any initial or original claim for compensation, no claim of any attorney for services rendered in connection with the securing of compensation for an employee or the employee’s dependents-, whether secured by agreement, order, award or a judgment in any court shall exceed (1) a reasonable amount for such services or (2) [the graduated contingency fee rates], whichever is less, in addition to actual expenses incurred, and subject to the other provisions of this section.” (Emphasis added.)
K.S.A. 44-536(a) clearly treats the class of injured workers in workers compensation cases differently that it treats the class of employers in workers compensation cases — by applying the graduated contingency fee rates only to lawyers hired by employees and not to lawyers hired by employers. Thus, the question to ask is whether these two classes of people, who are treated differently by the statute, are arguably indistinguishable.
Clearly, these two classes of people are not arguably indistinguishable. We are dealing with apples and oranges. Employers are not able to win an award in defense of a workers compensation case. There is no recovery of a sum of money at the end of a case from which an employer could pay out a contingent fee. Employees, on the other hand, often do not have the money to pay an attorney by the hour to pursue a workers compensation claim. Should the attorney win the case, the employee will be awarded a. sum of money at the end of the proceedings, out of which the employee could pay the attorney. Thus, employees almost always compensate the attorneys they hire to represent them in a workers compensation case on a contingent fee basis. In this way, the two classes of people are not indistinguishable — one class compensates attorneys on a contingent fee basis and one class compensates at tomeys on an hourly basis. Thus, K.S.A. 44-536(a) does not implicate equal protection because it does not treat two arguably indistinguishable classes differently.
In any event, the United States Supreme Court considered an analogous issue in Department of Labor v. Triplett, 494 U.S. 715, 108 L. Ed. 2d 701, 110 S. Ct. 1428 (1990).
Triplett involved a due process challenge of the Black Lung Benefits Act, which required that the fees for an attorney representing a benefits claimant under the Act be approved by the Department of Labor as “reasonable.” The respondent, George Triplett, violated the attorney fee restrictions by receiving a 25% contingency fee before it had been approved as reasonable. Triplett argued the attorney fee restrictions in the Act violated the due process rights of Black Lung Benefits Act claimants because it deprived such claimants of available attorneys to represent them in pursuing benefits. According to Triplett, no attorneys were willing to represent claimants under the current Black Lung Benefits Act attorney fee restrictions. The Supreme Court found this assertion to be unsupported by evidence. In so ruling, the Court stated:
“Here, we need not reach the [attorney availability] issue unless respondent has proved what was assumed in [Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985),] viz., that the regime made attorneys unavailable to his prospective clients at the time respondent violated the Act. That showing contains two component parts: (1) that claimants could not obtain representation, and (2) that this unavailability of attorneys was attributable to the Government’s fee regime. That is no small burden, and respondent has failed to bear it.
“ . . . The ‘factual record’ upon which the [trial] court relied to invalidate this federal program consisted of testimony by two lawyers in the disciplinary proceeding, five affidavits attached to an amicus brief to the court, and statements by attorneys in hearings before a House of Representatives Subcommittee in 1985. Since it is critical to our disposition of the case, we shall describe the evidence the court relied upon in some detail.
“As to the first issue — unavailability of attorneys — the court relied upon three lawyers’ assessments. One stated that ‘fewer qualified attorneys are accepting black lung claims,’ and that more claimants are proceeding pro se. 180 W. Va., at 541, 378 S.E.2d, at 90. According to a second attorney, ‘few attorneys are willing to represent black lung claimants.’ Ibid. A third lawyer’s evaluation was not contained in the record, but consisted of his 1985 testimony to the House subcom mittee that ‘many of his colleagues had “. . . stated unequivocally that they would not take black lung cases ....”’ Id., at 542, 378 S.E.2d, at 91 (quoting Hearings on Investigation of Backlog in Black Lung Cases before the Subcommittee on Labor Relations of the House Committee on Education and Labor, 99th Cong., 1st Sess., 188 [1985]). (The court did not mention the testimony of other witnesses before the Subcommittee to the opposite effect. See, e.g., id., at 45.)
“This will not do. We made clear in Walters that this sort of anecdotal evidence will not overcome the presumption of regularity and constitutionality to which a program established by Congress is entitled. 473 U.S., at 324, n.11. The impressions of three lawyers that the current system has produced ‘few’ lawyers, or ‘fewer qualified attorneys’ (whatever that means), and that ‘many’ have left the field, are blatantly insufficient to meet respondent’s burden of proof, even if entirely unrebutted.” 494 U.S. at 722-23.
The plaintiffs try to distinguish Triplett by claiming that only two affidavits were submitted in Triplett and that these affidavits did not indicate individual claimants were going unrepresented. Here, the plaintiffs claim, the evidence in Triplett is well exceeded by seven affidavits which establish that many attorneys have reduced their workers compensation practice and that many claimants are going unrepresented. However, the plaintiffs are mistaken about the amount of evidence considered in the Triplett case. The Triplett court actually considered the testimony of two lawyers, five affidavits attached to an amicus brief, and the testimony of an attorney before a House of Representatives subcommittee meeting. This amount of evidence is comparable to the amount of evidence presented herein. The United States Supreme Court found that the amount of evidence presented in Triplett was insufficient to prove that the attorney fee restrictions in the Act would prevent claimants from being able to secure competent representation, even though the evidence presented was unrebutted.
Here, the defendants presented the affidavit of Philip Harness, the Director of the Division of Workers Compensation. Harness stated that since the effective date of the 1993 amendments, “the Division [of Workers Compensation] has not received one complaint from an injured worker that he or she was unable to obtain legal counsel as a result of changes made to the workers compensation laws.” Thus, the defendants assert there is not sufficient evidence to prove that K.S.A. 44-536(a) will prevent injured workers from being able to secure competent representation. We hold that K.S.A. 44-536(a) does not treat employees disparately and thus does not implicate equal protection.
C. Due Process
The plaintiffs contend that K.S.A. 44-536 unconstitutionally violates the Due Process Clauses of the United States and Kansas Constitutions. The plaintiffs claim that their due process rights have been violated because their remedy for injuries suffered on the job, a workers compensation award, is now more difficult to achieve.
Even assuming that the plaintiffs’ remedy is more difficult to achieve because competent attorneys are less likely to take workers compensation cases with reduced attorney fees, K.S.A. 44-536(a) does not violate due process. The two-step test which is used to analyze a potential due process violation is set out in Lemuz v. Fieser, 261 Kan. 936, 946-47, 933 P.2d 134 (1997).
Step 1 of the due process test is similar to the rational basis standard of an equal protection analysis. “In referring to an analysis under Step 1 of the § 18 test, the Bonin court stated that ‘ “[t]he test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors.” ’ Bonin, 261 Kan. at 218 (quoting Clements v. United States Fidelity if Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 [1988]).” Lemuz, 261 Kan. at 948. The State has a legitimate interest in protecting the interest of employees by allowing them to keep more of their workers compensation award. Further, graduated contingency fee rates are rationally related to this valid legislative objective. In other words, the graduated contingency fee rates are a legislative means which have a real and substantial relation to the objective sought — protecting the interests of employees by allowing them to keep more of their workers compensation award. Thus, graduated contingency fee rates satisfy Step 1 of the due process test.
Under Step 2 of the due process test, the question is not whether the legislature provided an adequate substitute remedy for taking away the higher attorney fee rates in the Act. Instead, the question becomes whether the Act, with its reduced attorney fee rates, presumably causing the reduced availability and quality of workers compensation attorneys, has made it so difficult to receive a workers compensation award that the Act is no longer an adequate substitute remedy for the abrogation of the employees’ right to sue employers for negligence. If so, then the limits on contingency fee rates, making the quid pro quo inadequate, violate due process. This question will be discussed under issue V.
V. ADEQUATE QUID PRO QUO
The plaintiffs claim that their due process rights have been violated because their remedy in a workers compensation action has been limited due to a more stringent notice of claim statute, a limitation in the recovery available for shoulder injuries, and various other limitations set forth above that were placed on workers compensation recovery. In analyzing a potential due process violation, the following test should be utilized:
“ ‘If a remedy protected by due process is abrogated or restricted by the legislature, “such change is constitutional if ‘[1] the change is reasonably necessary in the public interest to promote the general welfare of the people of the state,’ Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974), and [2] the legislature provides an adequate substitute remedy” to replace the remedy which has been restricted.’ Bonin v. Vannaman, 261 Kan. 199, 217, 929 P.2d 754 (1996) (citing Aves v. Shah, 258 Kan. 506, 521, 906 P.2d 642 [1995]).” Lemuz, 261 Kan. at 946-47.
As previously set forth in this opinion, Step 1 of the due process test in Lemuz is satisfied.
In applying Step 2 of the due process test, it is important to realize that the workers compensation remedy is not a common-law remedy. Rather, it is an adequate, substitute remedy itself (or quid pro quo) for the abrogation of a plaintiff’s right to sue an employer for an injury incurred on the job due to the employer’s negligence. In 1911, the legislature stripped employees of their common-law right to bring a civil action against employers for injuries caused by employers’ negligence. “The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.” Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 350, 757 P.2d 251 (1988). Thus, when the legislature abolished the employees’ common-law right to sue employers for injuries, the legislature provided employees with an adequate substitute remedy — the Workers Compensation Act. The Act allowed employees to quickly receive a set but possibly smaller sum of money for injuries received at work, regardless of whether the injuries were the result of the employer’s negligence. This made the Act an adequate substitute, remedy for the abrogation of the employees’ common-law right to sue an employer for negligence. Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, aff’d on rehearing 93 Kan. 257, 144 Pac. 249 (1914).
Now, the legislature has made the Act’s notice of claim statute more strict, making it more difficult than it was prior to the 1993 amendments for injured employees to timely notify an employer of an injury so the worker can recover compensation. The legislature has also classified shoulder injuries as scheduled injuries, which typically means that those employees who suffer a shoulder injury under the new Act will receive less compensation than they would have under the pre-1993 Act. The legislature also allowed workers compensation benefits to be offset by the amount of money an injured employee receives in retirement benefits from social security or from a private pension plan funded by the employer. Further, the legislature enacted various other amendments to the Act which make it more difficult than it was prior to 1993 for an injured worker to receive workers compensation benefits. For instance, the legislature disallowed recovery for the aggravation of a preexisting injury even though the aggravation of the injury was due to a work-related activity. The 1993 amendments repealed an employee’s right to vocational rehabilitation, allowing an employer to provide vocational rehabilitation only if the employer chose to do so. The legislature limited the healing period for scheduled injuries only to cases involving amputations. The reform bill placed a cap on the top wage rate an employee can be compensated at ($450 per week), regardless of an employee’s actual earnings, and placed a cap on the amount of compensation an employee can receive for functional impairment ($50,000), regard less of the severity of the employee’s impairment. Finally, the legislation made conclusive the prior presumption against work disability when an employee earns a comparable wage. L. 1993, ch. 286.
These changes in the Act indicate that the quid pro quo for the abrogation of the employees’ common-law right to sue an employer for negligence is less than what it was prior to 1993. The plaintiffs claim that the quid pro quo is so much less that it is no longer an adequate substitute remedy for the abrogation of their right to sue an employer for negligence. Thus, the plaintiffs claim that the Act, or at least portions of it — the portions which dilute the quid pro quo, are an unconstitutional violation of due process.
Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991), was the first case to express that an originally adequate quid pro quo for the abrogation of a common-law right might become so cut down and diluted that it would no longer be adequate to support the abrogation of the common-law right and would thus violate due process. In analyzing this issue, Bair identified a test to use in order to determine whether the legislature has altered the original statutory replacement to such an extent to make it unconstitutional. In Bair, this court stated:
“[W]e are directly faced with a determination of whether the comprehensive remedy of mandatory insurance and excess coverage from the [Health Care Stabilization] Fund, provided by the original [Health Care Insurance Availability] Act, is a sufficient quid pro quo for this subsequent amendment or modification of the Act.
‘We have long recognized, at least tacitly, that major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. Provisions of the original Workmen’s Compensation Act adopted in 1911 and upheld as constitutional in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, aff’d on rehearing 93 Kan. 257, 144 Pac. 249 (1914), have been repeatedly amended without the adoption of an additional quid pro quo each time an amendment operated to the detriment of the employee. The original quid pro quo providing recovery for injury regardless of fault or negligence has been deemed sufficient to support dozens of amendments to the original act, many of which involved the abrogation of an existing common-law right.
“In Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983), the court, in a unanimous opinion, found that the Kansas Workmen’s Compensation Act, in providing immunity to fellow employees when compensation is recoverable under the Act, did not violate Section 18. In doing so, the court expressly stated that it did not ‘view as significant’ the fact that fellow employee immunity was not enacted until 1967. ‘The Workmen’s Compensation Act removes certain common law remedies for injured employees but provides a statutoiy substitute therefor.’ 233 Kan. at 441. While not specifically stated, the court obviously held that the 1967 amendment, which provided fellow employee immunity, did not require a new quid pro quo because the comprehensive remedy afforded by the Workmen’s Compensation Act, already in existence, was sufficient.
“In considering the adequacy of the quid pro quo of comprehensive legislation, which substitutes a statutory remedy for one that formerly existed at common law, and its sufficiency to support subsequent amendments or modifications which diminish the substitute remedy originally granted, no hard and fast rule can apply to all cases. It is obvious that the needs and goals of comprehensive legislation such as the Workers Compensation Act, the Kansas Automobile Injury Reparations Act and the Health Care Provider Insurance Availability Act will change with the passage of time and the needs of a fluctuating society. It would take the wisdom of Solomon to devise comprehensive remedial legislation, such as that now before us, which would never need fine tuning, change, or modification. The Act is a piece of ongoing legislation which will, of necessity, require continuous modification to accomplish its goals.
“At the time of the malpractice alleged by the plaintiff in this case, each individual health care provider who was alleged to be negligent was required to maintain $200,000 malpractice coverage and, in addition, the Fund provided $3,000,000 excess coverage for each tortfeasor. Without the Act, there would be no guarantee that a plaintiff injured because of the negligence of a health care provider could ever recover for his injuries, let alone have an assured fund available of $3,200,000. That is a sizeable quid pro quo, established by the Act, and certainly is an adequate substitute remedy for the common-law rights given up by injured malpractice victims. No argument is made that if the elimination of the employer’s vicarious liability had been a part of the original Act, the quid pro quo would somehow be insufficient. We conclude that in reviewing the sufficiency of the substitute remedy as it applies to amendment or modification of comprehensive remedial legislation, each determination must be made on a case-by-case basis. Recognizing that all such legislation may need periodic modification, we think the proper test to apply is whether the substitute remedy would have been sufficient if the modification had been a part of the original Act. If so, then no new or additional quid pro quo is necessary to support the modification against a Section 18 attack. Any other holding would require that every modification of a substitute remedy provided by comprehensive legislation that originally abrogated a common-law remedy would require a new and additional substitute remedy. As already noted, it would be virtually impossible to draft such legislation in a form that would anticipate all contingencies and which would not thereafter need change and modification.
“We recognize that there is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished. The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy. K.S.A. 1990 Supp. 40-3403(h) does not amend the Act to such a degree that the substitute remedy is no longer sufficient and we hold that the statute is not unconstitutional under Section 18 of the Kansas Bill of Rights.” (Emphasis added.) 248 Kan. at 841-44.
Relying on the Bair test, the plaintiffs contend that the substitute remedy for the abrogation of an employee’s common-law right to sue an employer for negligence — the Act — would not have been a sufficient quid pro quo when the common-law right was originally abrogated if the current amendments at issue had been a part of the original Act. The plaintiffs concede that the legislature provided an adequate substitute remedy for the abrogation of an employee’s common-law right to sue an employer for negligence— the original Act. However, once having established this substitute remedy (the Act), the plaintiffs claim that the legislature has proceeded to emasculate the remedy (the Act), by amendments, to a point where it is no longer a viable and sufficient substitute remedy. Thus, the plaintiffs assert that the Act, or the certain amendments which emasculate the adequacy of the remedy as a quid pro quo, violate due process under Section 18 of the Kansas Constitution Bill of Rights.
In support of their contention that the adequate substitute remedy of the original Act has been emasculated by amendments, the plaintiffs point out that the Act no longer provides a speedy remedy. Litigants may wait months for a final award to be issued. According to the plaintiffs, requests for review of an award by the Workers Compensation Board may take months to be scheduled for argument, and many more months waiting decision. Further, the plaintiffs contend that a workers compensation proceeding is no longer an inexpensive undertaking. Expert witnesses are usually necessary, and unauthorized medical benefits may no longer by used by the injured worker to obtain an independent disability evaluation.
The plaintiffs concede that this court has approved previous amendments to the Act. See Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983). However, the plaintiffs contend that none of those changes were of the cumulative magnitude of the 1993 amendments. According to the plaintiffs, it is one thing for the legislature to make relatively minor adjustments to one or two sections of the Act, but it is an entirely different matter when the legislature makes major changes designed to reduce or eliminate compensation for workers.
Lemuz v. Fieser, 261 Kan. 936, sheds further light on this issue. In Lemuz, the question was whether the Health Care Provider Insurance Availability Act and the Health Care Stabilization Plan, which were considered adequate substitute remedies or quid pro quos for the abrogation of some of the plaintiff’s common-law rights in 1976, were still considered adequate remedies for the continued abrogation of those same rights, in light of amendments the Act and the Fund had undergone in 1989 which reduced the statutory benefits available to the plaintiff. This court held that the Act and the Fund were both still adequate substitute remedies for the abrogation of the plaintiffs’ common-law rights despite any amendments the Act and the Fund had undergone. 261 Kan. at 950-58. In so holding, this court stated:
“In summary, this court struggles with the bottom line figure as to how much a quid pro quo can be amended and still remain an adequate quid pro quo. As in Bair, 248 Kan. at 844, this court realizes that an original quid pro quo cannot be emasculated to a point where it is no longer a viable and sufficient substitute remedy. Here, the legislature did not emasculate the quid pro quo provided in the Act, the Plan, and the Fund, through the 1989 amendments, to a point where it was no longer an adequate substitute remedy .... Under the amended Fund, the minimum amount of medical malpractice insurance the doctor is now required to carry is $300,000. If they can prove negligence, the plaintiffs will recover at least $300,000. Without the Act and the Fund, the doctor might not have been insured at all and the plaintiffs might have recovered nothing. In a medical malpractice case, the doctor has his or her personal fortune at stake if' adequate insurance is not purchased. It is basically the doctor who has little to risk who carries the minimum insurance. The public is benefitted by any insurance that is carried by that doctor. This is, and should he to some extent, a legislative call and we are unable to say that requiring $300,000 minimum to be available in every case is so inadequate that it is an inadequate quid pro quo. The plaintiffs herein will personally receive the benefit of the portion of the original quid pro quo that remains — required primary medical malpractice insurance and guaranteed excess medical malpractice insurance. . . . Thus, the legislature has provided an adequate quid pro quo for the statutory abrogation of the plaintiffs’ common-law remedy to sue a hospital for corporate negligence.” 261 Kan. at 959-60. (Emphasis added.)
Here, S.B. 307 passed unanimously in both the Kansas House and the Kansas Senate, and Governor Finney signed the bill. At the start of the 1993 session, legislators had before them the reports of the Governor s Task Force on Workers Compensation, the Insurance Commissioner’s Workers Compensation Task Force, and the Legislative Post Audit Committee, all of which suggested areas of the workers compensation system which needed reform. Before passing the bill, the House Committee on Labor and Industry and the Senate Committee on Commerce conducted many hearings and heard from many witnesses representing employees, employers, trial lawyers, labor organizations, and business associations. The bill was the product of a comprehensive reform effort that attempted to balance the interests of employees, employers, labor, and business organizations.
The amended Act still provides compensation for injured workers without proof of negligence or fault, a benefit not allowed under typical tort law. While several of the amendments at issue do restrict an employee’s right to receive workers compensation benefits, several other amendments have also been enacted with the intent to expand an employee’s rights. (However, the expansion pales in comparison to what was taken away.)
With these rights still available to injured workers under the amended Act, it cannot be said that the Act, which originally provided an adequate substitute remedy for the abrogation of an employee’s common-law right to sue an employer for negligence, has been emasculated to the point where it is no longer an adequate quid pro quo. Neither the Act as a whole nor the individual 1993 amendments violate due process.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Prisoner David R. McDonald appealed the district court’s summary denial of a petition for writ of habeas corpus, K.S.A. 60-1501. The Court of Appeals dismissed the appeal for lack of jurisdiction, holding that McDonald’s notice of appeal was untimely filed. McDonald filed a petition for review claiming the expanded unique circumstances doctrine should be applied and he should be permitted to proceed. We granted his petition for review and we now reverse the order of the Court of Appeals.
We set out the procedural facts of the case in detail to show the sequence of events:
On October 6, 1994, McDonald was arrested in Wyandotte County case No. 94C1830 for possession with intent to sell marijuana in violation of K.S.A. 65-4127b. The offense date in the case was June 9, 1994, at which time McDonald was on parole for crimes committed prior to the effective date of the Kansas Sentencing Guidelines Act (July 1, 1993). The date of McDonald’s conditional release on the prior crimes was August 18, 1994. On February 21, 1994, the Department of Corrections determined that McDonald was not eligible for conversion under the new sentencing guidelines.
On June 17, 1994, McDonald was listed as absconding, and a warrant was issued on October 6, 1994. McDonald was incarcerated on October 7, 1994. On December 2, 1994, McDonald pled no contest in case No. 94C1830, and the court sentenced him to 22 months in prison. On March 14,1995, the Kansas Parole Board revoked his conditional release.
On March 15, 1995, McDonald contacted the records department at the Hutchinson Correctional Facility, claiming that pursuant to K.S.A. 22-3717, he was entitled to begin serving his new sentence on the conditional release date of the prior offenses, August 18, 1994. The records department denied his request.
On May 2,1995, McDonald filed a writ of habeas corpus, K.S.A. 60-1501, in Reno County District Court. In a memorandum in support of a motion to dismiss, the Department of Corrections asserted that a conditional release date would have no meaning if an inmate is not under the supervision of the Secretary of Corrections in a correctional facility. The district court filed a journal entry summarily dismissing the writ on June 13, 1995. McDonald states that he did not receive notice of the dismissal.
On August 7, 1995, McDonald wrote to the Reno County District Court requesting a copy of the appearance docket and asking whether a hearing had been scheduled in the case. Upon receiving a copy of the docket on August 12, 1995, McDonald discovered that the case had been dismissed, and he mailed a notice of appeal to Reno County District Court the same day. The notice of appeal was filed in Reno Couniy on August 21, 1995.
On January 17, 1996, the district court appointed Cheryl Allen of Legal Services for Prisoners, Inc., to represent McDonald. On January 24, 1996, Allen filed a Motion to Allow Late Filing of Notice of Appeal in the district court. Allen alleged that a late notice should be allowed because (1) McDonald was an indigent prisoner without training or education in the law; (2) the appeal time was allowed to run “through no fault of his own”; and (3) McDonald was “unaware of the statutes and Supreme Court Rules applicable to him.” The district court granted the motion on January 24,1996. The journal entry did not explain the district court’s rationale for granting the motion, but merely stated: “WHEREUPON, after considering petitioner’s motion, the Court orders that petitioner be allowed to file his Notice of Appeal in the District Court and proceed with his appeal in the above captioned case.” Allen filed a notice of appeal in the district court on January 24, 1996, and a docketing statement with the Court of Appeals on February 7, 1996.
On March 11, 1996, the Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction. The court noted the district court’s journal entry allowing the late filing of the notice of appeal, but pointed out that the district court’s order was not clear and ordered the parties to address the district court’s reasoning in their responses to the order to show cause.
On March 20, 1996, the district court heard argument on the second notice of appeal and issued an order nunc pro tunc stating:
“The Order in the above-captioned case is hereby amended to clarify the basis for the Trial Court’s Order allowing the Petitioner to file a Notice of Appeal Out of Time.
“The Order was issued for the following reasons:
“1. That he is an indigent prisoner in the custody of the Secretary of Corrections and is without training or education in the law.
“2. That the normal time limit for the filing of a Notice of Appeal was allowed to run through no fault of his own, and he was unaware of the statutes and Supreme Court Rules applicable to him.
“WHEREFORE, it is ordered that the Petitioner be allowed to file his Notice of Appeal Out of Time.”
On March 20, 1996, McDonald responded to the Court of Appeals’ March 11, 1996, order to show cause. He stated, through Allen, that he had filed a notice of appeal when he first learned of the district court’s judgment. Allen also attached the district court’s nunc pro tunc order allowing the late filing because of McDonald’s indigency and his lack of knowledge of the law, and because the appeal time was allowed to run through no fault of his own.
On April 11, 1996, the Court of Appeals interpreted the district court’s nunc pro tunc order not to have found excusable neglect for failure to learn of the entry of judgment and dismissed the appeal. The Court of Appeals dismissed the appeal for lack of jurisdiction, noting that the only way a court can extend the deadline for filing a notice of appeal is by finding “excusable neglect for appellant’s failure to learn of the entry of judgment” under K.S.A. 60-2103(a).
Allen filed a motion for rehearing in which she set out the events prior to her appointment. Allen asserted to the Court of Appeals that McDonald’s August 7, 1995, letter requesting a copy of the appearance docket was evidence that McDonald was unaware that his case had been dismissed. She also attached McDonald’s notice of appeal mailed on August 12,1995, and filed on August 21,1995. Allen argued that the notice of appeal filed on August 21, 1995, was timely filed because McDonald had mailed his notice of appeal on the day he received a copy of the district court appearance docket and learned his case had been dismissed by the judge without a hearing.
The Court of Appeals denied the motion for reconsideration on May 6,1996, noting it never received a certified copy of the August 12, 1995, notice of appeal and, even if it had, that notice was filed beyond the 30-day limitation set out in K.S.A. 60-2103(a). The Court of Appeals also pointed out that McDonald had not provided a district court order allowing the filing of a late notice of appeal based upon excusable neglect for failure to learn of the entry of judgment pursuant to K.S.A. 60-2103(a). This court granted McDonald’s petition for review.
RIGHT TO APPEAL
The right to appeal is entirely statutory and not a right contained in the United States of Kansas Constitutions; subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Jones v. Continental Can Co., 260 Kan. 547, Syl. ¶ 1, 920 P.2d 939 (1996). An appellate court has the duty of questioning jurisdiction on its own motion. If the record discloses a lack of jurisdiction, the appeal must be dismissed. Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 373, 789 P.2d 211 (1990).
McDonald claims that the unique circumstances doctrine adopted in Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), should allow him to proceed with the appeal even if his notice of appeal was filed out of time. The Schroeder court held that in the interests of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if (1) an appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant files a notice of appeal within the period apparently judicially extended. 242 Kan. 710, Syl. The doctrine of unique circumstances was expanded in Slayden v. Sixta, 250 Kan. 23, 825 P.2d 119 (1992) (untimeliness of appeal resulted from error by clerk of district court), and In re Tax Appeal of Sumner County, 261 Kan. 307, 930 P.2d 1385 (1997) (doctrine extended to error by administrative agency which covered untimely filing of petition for reconsideration). Here, we need not determine if the application of the doctrine of unique circumstances applies since McDonald’s appeal was timely.
“Prior to the adoption of the 1964 Code of Civil Procedure, pleadings were technical and the failure to strictly follow rules generally was fatal. The new code attempted to bring a relaxed atmosphere to the legal practice. Notice pleading was adopted and substantial compliance, so long as the opposing side was not prejudiced, became the general rule. The theory was that, within reason, the litigants are to have their case decided in court on the merits and that judges should not be hypertechnical in interpreting statutes and rules to defeat the parties having their day in court. Jurisdictional statutes and rules, of course, must be followed; however, there are exceptions even in jurisdictional matters.” Honeycutt v. City of Wichita, 251 Kan. 451, 459, 836 P.2d 1128 (1992).
K.S.A. 60-2103(a) provides that when an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken is 30 days from the entry of judgment, as provided in K.S.A. 60-258 and amendments thereto, except that upon a showing of excusable neglect based upon a failure of a parly to learn of the entry of judgment, the district court in any action may extend the time for appeal for a period not exceeding 30 days from the expiration of the original time herein prescribed.
We note that although a journal entry is an effective judgment upon signing and filing with the clerk of the court, the time in which to file a notice of appeal does not begin to run until there has been compliance with K.S.A. 60-258, which provides no judgment shall be effective until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. K.S.A. 60-258 provides further that when a judgment is entered by judgment form, the clerk shall serve a copy of the judgment form on all attorneys of record within 3 days. In addition, Kansas Supreme Court Rule 134 (1996 Kan. Ct. R. Annot. 157) requires that judgments be mailed to the parties if the judgment is not rendered at a hearing at which the parties are present.
The application of these statutes was discussed in Daniels v. Chaffee, 230 Kan. 32, 630 P.2d 1090 (1981), which involved a civil appeal of the district court’s denial of a motion to vacate a default judgment. The journal entry denying the motion to vacate was filed without notice, and copies of the order were never mailed to counsel or the parties. Subsequently, the district court granted defendant’s motion for rehearing and entered an order setting aside and vacating the default judgment. On appeal, plaintiffs argued that the district court’s order setting the default judgment aside was invalid. Plaintiffs contended that the district court was without jurisdiction to grant the motion for rehearing since defendants faded to file a notice of appeal within 30 days of the entry of the default judgment. Plaintiffs argued that defendant’s failure to file the appeal within 30 days was not affected by the district court’s failure to serve the parties with a copy of the judgment as required by K.S.A. 60-258. The Court of Appeals agreed with plaintiffs.
This court granted the defendant’s petition for review and found the interpretation adopted by the Court of Appeals “unjust and inequitable,” 230 Kan. at 37, stating:
“Applying a liberal interpretation of K.S.A. 60-258 and construing that statute along with the other statutes mentioned and Rule No. 134, we hold that, where a trial court enters judgment without giving notice to the parties or counsel as required by K.S.A. 60-258 and Rule No. 134, a valid judgment is entered which is subject, however, to being set aside when attacked by post-judgment motions and proceedings. The time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been a compliance with K.S.A. 60-258 and Rule No. 134. In each individual case, a rule of reason must be applied to insure that the rights of the parties are protected and that they are not denied their legal rights through forces beyond their control., We hold that, under the circumstances of this case, where counsel for the defendant, upon receiving notice of the trial court’s judgment, promptly filed a motion for rehearing, the. trial court had jurisdiction to hear the motion for rehearing and to reconsider its judgment. ...” 230 Kan. at 38.
In Danes v. St. David’s Episcopal Church, 242 Kan. 822, 827, 752 P.2d 653 (1988), we considered whether the appellant filed a timely motion for new trial within 10 days of the entry of judgment. The clerk of the court mailed the entry of judgment on the date if was filed, September 2,1986. The appellant filed a motion for new trial 13 calendar days later, on September 15, 1986. The appellee argued to the district court that the motion was untimely. The district court rejected that argument, holding that K.S.A. 60-206(e) added 3 days to the period in which to file a motion for new trial when judgments are mailed to the parties. 242 Kan. at 827. On appeal, the appellee attempted to distinguish Daniels on the ground that the district court in Daniels failed to comply with Su preme Court Rule 134, requiring service of judgments on the parties, while in Danes the clerk had mailed the notice of the judgment. The Danes court rejected the claimed distinction, pointing out the policy arguments set forth in Daniels for a liberal interpretation of the civil procedure code to secure the just, speedy, and inexpensive determination of the parties’ rights. 242 Kan. at 825.
In Daniels, the court did not specify how the defendant received notice of the judgment he sought to attack, but the court noted that “shortly after receiving notice of the court’s journal entry, the defendant filed a motion for rehearing.” 230 Kan. at 34. However, the court considered the defendant’s action a timely attack on the validity of the judgment sufficient to “extend” the jurisdiction of the district court to rule on subsequent matters. Therefore, the rule of Daniels and Danes is that a party’s prompt action within 10 days (for a motion specified in K.S.A. 60-2103[a]), or within 30 days (for filing a notice of appeal pursuant to K.S.A. 60-2103[a]) from the date upon which he or she learns of the entry of judgment is sufficient to preserve the right to attack the judgment. See also Nicklin v. Harper, 18 Kan. App. 2d 760, 764, 860 P.2d 31 (1993) (surety’s time to appeal from judgment which resulted from hearing where surety was not present began running on the date surety received written notice of the judgment); Scott v. U.S.D. No. 377, 7 Kan. App. 2d 82, 85, 638 P.2d 941 (1981) (althoúgh a “judgment form” was filed, it was never served on plaintiff’s attorneys, and time for filing a motion to alter or amend did not begin running until a later journal entry was signed and served).
Under most Kansas statutes, the time for taking an appeal under the civil code does not commence to run until the party entitled to appeal has received notice of the judgment or order or the judgment is filed with the clerk of the court. The reason to require notice to the party is to insure that the party having the right to appeal has actual knowledge that an adverse judgment has been rendered. Atkinson v. U.S.D. No. 383, 235 Kan. 793, 797,684 P.2d 424 (1984).
Thus, the time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been compliance with K.S.A. 60-258 and Supreme Court Rule 134. In each case, a rule of reason must be applied to insure that the rights of the parties are protected and that the parties are not denied their legal rights through forces beyond their control.
Here, McDonald states he learned of the entry of judgment on August 12, 1995, when he received a copy of the appearance docket. The record, which included his August 7, 1995, letter to the clerk requesting a copy of the appearance docket, supports his claim that he was unaware that judgment had been entered on June 13, 1995. His notice of appeal was mailed immediately and filed on August 21, 1995. The Court of Appeals failed to consider that McDonald’s notice of appeal filed August 21,1995, was timely if he did not learn of the district court’s. June 13 entry of judgment until hé received the appearance docket on August 12, 1995. The record before the Court of Appeals, including McDonald’s August 7 letter and August 12 notice of appeal filed on August 21, 1995, indicated that the appeal was timely. The Court of Appeals applied an overly strict interpretation of the timely notice of appeal rule under K.S.A. 60-2103(a) and placed the burden of proving jurisdiction on the wrong party.
Applying a liberal interpretation of K.S.A. 60-258, construing that statute along with the other statutes mentioned and Supreme Court Rule 134, and based on the record, we find that the trial court entered judgment without giving notice to the parties or counsel as required by K.S.A. 60-258 and Supreme Court Rule 134. Although the district court entered a valid judgment, the judgment was subject to being set aside when attacked by post-judgment motions and proceedings.
We hold, under the circumstances of this case, that McDonald, upon receiving notice of the trial court’s judgment, promptly filed a motion to allow a late notice of appeal based upon excusable neglect for failure to learn of the entry of judgment in the district court. The findings of the district court were sufficient for the Court of Appeals to exercise jurisdiction to hear the appeal.
Reversed and remanded to the Court of Appeals for further proceedings.
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The opinion of the court was delivered by
LOCKETT, J.:
Defendant Doil E. Lane appeals his convictions of aggravated kidnapping, K.S.A. 21-3421 (Ensley 1988), first-degree murder, K.S.A. 1990 Supp. 21-3401(a), and rape, K.S.A. 21-3502 (Ensley 1988). Defendant claims that the trial court erred in (1) failing to suppress his confession and (2) admitting evidence of a prior conviction for first-degree murder to show intent, identify, and knowledge pursuant to K.S.A. 60-455.
On July 30, 1990, N.S., a nine-year-old female, disappeared while on an errand near her home in Wichita, Kansas. Her remains were discovered on February 18, 1991 in a rural area near-Belle Plain, Kansas. Defendant became a suspect in N.S.’s death when several individuals informed the police that Lane might have been involved in N.S.’s murder.
Detectives Snyder and Moore of the Wichita police department went to Lane’s residence on April 25, 1991. They asked if Lane would come down to the police department’s Exploited ánd Missing Children’s Unit (EMC unit) for an interview regarding N.S. Lane drove to the unit with his mother, Murlene Broughton. Lane made comments to the detectives about a man who Lane claimed had falsely informed the police that Lane was involved in N.S.’s murder. Detective Moore advised Lane of his Miranda rights. Lane indicated he understood each right and agreed to talk. The officers then explained to Lane that he was not under arrest and could leave at any time. During the interview, Lane agreed to allow the police to search his home and car and signed a consent to search form. Lane provided an alibi that was later determined by police to be false. When Lane indicated he wanted to speak with an attorney, the interview ceased. After the interview, detectives searched Lane’s home and found numerous missing person posters with N.S.’s picture, boxes of children’s clothing, and hundreds of girls’ panties. Lane told the detectives that he was not involved in N.S.’s murder.
While Lane was being interviewed by the police, SRS workers interviewed his mother. Broughton told the SRS workers that she had recently moved to Wichita from Texas and that she was out of her prescription medicine. She stated to the SRS workers that Lane was not involved in the death of N.S. and also volunteered that he was not involved in the death of B.M., an eight-year-old girl who had been abducted, sexually assaulted, and murdered in San Mar cos, Texas, in 1980. Subsequent investigation by the police revealed that Lane had lived in San Marcos in 1980 and had been a suspect in B.M.’s death since 1989.
After the April 25,1991, interview and search of his home, Lane initiated numerous contacts with law enforcement officials either offering alibis or criticizing individuals who had told police Lane was involved in N.S.’s murder. On April 26, 1991, detectives Snyder and Moore stopped at Lane’s house to talk to Lane’s mother about her medication. Lane initiated a conversation in which he gave the officers the names of two persons who would verify that he had no means of transportation at the time N.S. disappeared. (On cross-examination at defendant’s trial, Detective Snyder testified that the officers had a subsequent discussion with an attorney who told them that if Lane initiated contact, the detectives could talk with him without an attorney being present.)
Between April 29 and May 1, Lane made numerous telephone calls to the EMC unit. On April 29, Lane called Detective Moore to ask him whether Moore had spoken to Lane’s nieces, who had previously made allegations of molestation against Lane. Lane denied the allegations. The detectives continued to receive messages that Lane had called the unit. During a conversation initiated by Lane on May 1, Detective Snyder reminded Lane that he had asked for an attorney during the first interview. Hé told Lane that he could not initiate conversation with him, but that Lane could make an appointment at the EMC unit if he wanted. During that conversation, Lane inquired as to the status of a theft report-he had filed against Duane Peterson for allegedly taking some of Lane’s property.
On May 2, the detectives returned to Lane’s house to verify that Broughton had received her medication. Lane came out of the house and asked if the detectives had interviewed the persons whose names Lane had given them. Lane told Detective Snyder he should talk to Lane’s neighbors and investigate Donald Wacker. Lane asked the detectives to return the next day. He told the detectives he had some wheels for skates he wanted the detectives to deliver to his nieces. The following day, May 3, Lane gave the detectives a videotape of a local newscast that showed him partic ipating in the search for N.S. On May 6, Lane called Detective Snyder at the EMC unit and again denied he had anything to do with N.S.’s death. Lane informed Snyder that whoever had killed N.S. was sick and would probably kill again. Lane spent the rest of May and June in Texas.
On July 9, the detectives visited Lane’s home and spoke with his mother. She expressed concern about Lane’s state of mind. She showed the detectives Lane’s room where they observed girls’ panties and a movie screen with two notes taped to it. One note read “black girl” and the other “white girl in a dress getting the piss beat out of her.” Subsequently, the police ordered around-the-clock overt surveillance on Lane. Unmarked police cars were parked in front of Lane’s house. Lane complained to Detective Snyder that the surveillance team shined flashlights in his windows at night.
Detectives Snyder and Moore visited Lane’s mother on July 10. Broughton told police Lane had threatened her, his stepfather, and two officers on the surveillance team. Broughton was then provided bus transportation to San Marcos, Texas. Later on July 10, Lane stopped the detectives and told them he had a cantaloupe at his house to give them. They gave Lane a ride home. On July 11, Lane again telephoned the EMC unit, asked for Detective Snyder, and told Snyder he wanted to drive to Texas. Detective Snyder explained to Lane he couldn’t drive to Texas because Lane’s driver’s license was suspended. Detective Snyder told Lane Snyder was the only person who could help him and told Lane to call him if he wanted to talk.
On July 12, the detectives met with an FBI behavioral scientist, Tom Saulk, to discuss productive interview techniques to use in child murder cases. Saulk indicated the interview room should contain items relating to the crime and folders with the suspect’s name so that the suspect would realize he was the focus of the investigation. In addition, Saulk suggested the interviewer should be an older, fatherly person. Saulk also recommended the police give a verbal Miranda warning rather than a written one. Finally, Saulk said not to mention the Texas murder, and he also suggested that the police provide the suspect with a scenario which would allow the suspect to shift the blame for the death of N.S. to others.
On July 13, Lane approached Detective Snyder’s police car and again denied involvement in N.S.’s death. He attempted to discredit information that Duane Peterson had given the police implicating Lane in the murder. Detective Snyder told Lane that Peterson had passed a lie detector test. Lane stated he would also be willing to take such a test in the future. On July 15, Lane contacted Snyder and asked him to interview Lane’s neighbors, who would tell Snyder that Lane had nothing to do with the murder.
On July 16, Lane informed a surveillance officer that he was ready to take a lie detector test. Lane, who did not possess a valid driver’s license, was driven to the police station by an officer. At the station, Lane met with Lieutenant Waltman, FBI agent Napier, and a polygraph examiner. Lane stated he wanted to talk about the N.S. case. The interview began near noon. The interview room had a window. There were two photographs on the wall depicting the scene where the remains of N.S. were found. In addition, the room contained a file cabinet with Lane’s name on it, evidence folders with Lane’s name on them, clothing representative of that worn by the victim, and a timeline of the crime on the wall. The polygraph machine was not in the room but was in the car of the agent who would perform the polygraph test.
Prior to the interview, Lane was advised of his Miranda rights. Lane acknowledged he understood each of the rights. The first part of the interview consisted of Lane discussing things that were on his mind. About 40 minutes after the start of the interview, Lane requested a soda pop. Lieutenant Waltman left the room to get one. Three or four minutes later, Waltman returned and found Agent Napier and Lane standing outside the interview room. Napier told Waltman that Lane wanted to go home. Napier indicated he had told Lane to wait until Waltman returned and that they would get him a ride. Waltman told Lane he was not under arrest and was free to go. He reminded Lane that Lane had requested to talk with police and stated that the police were willing to talk to him, but if Lane did not want to talk any more, Lane was welcome to leave and the police would provide him with transportation. Lane changed his mind and stated he wanted to continue to talk to Waltman.
During the interview, Lane told the officers he wanted to take them to his house to retrieve the girls’ underwear. He stated that his mother used to dress him in little girls’ clothes and he would not have to go to prison if the judge could see the underwear. Lane said that “this” would never have happened if he had received the help he needed. Lane repeated that he had a problem of wearing hide girls’ underwear. Later, Lane admitted some involvement in N.S.’s murder.
At approximately 5:15 p.m., Lane provided incriminating details as to the disappearance and death of N.S. Soon, he began relating specific details of the crime indicating that Donald Wacker was the main perpetrator. After Lane had provided details of the crime, Waltman Mirandized Lane again and tape-recorded Lane’s subsequent confession. Lane also confessed to the murder of B.M. in Texas and implicated his mother and stepfather in that crime. The interview ended at 7:15 p.m. After the interview, Lane took the detectives to the location where he had left the body of N.S. Lane was arrested and held in custody. Detectives searched Lane’s residence again. During the search, Lane, who had accompanied the police, picked a pair of panties out of a box and told officers they were N.S.’s panties.
During the July 16 interview, Lane was advised of his rights three times. There were several breaks taken. Lane used the restroom, drank soda pop, and smoked. The police did not threaten Lane or make any promises to him. Lane never requested an attorney during the July 16 interview.
Lane was reinterviewed on July 17, 1991. The interview was taped. In attendance were officers from the San Marcos, Texas, police department. Lane again confessed to B.M.’s murder and provided significantly more details regarding B.M.’s murder than previously given. The interview devoted to the Texas murder lasted approximately 1 hour.
The detectives had played Lane’s July 16 taped statement to Donald Wacker. Detective Snyder then informed Lane that Donald Wacker had made statements to police which contradicted Lane’s statements as to Wacker’s involvement. Lane was told that Wacker blamed Lane for N.S.’s murder. Lane was again advised of his Miranda rights, agreed to talk, and did not request an attorney. When he was told of the discrepancies between his and Wacker’s accounts of the N.S. murder, Lane admitted that he had been the main perpetrator in the death of N.S. and not Wacker. Lane agreed that Wacker’s version of the facts was correct. Lane again confessed to both murders.
In February 1993, Lane was extradited to Texas where he was tried, convicted, and sentenced to death for the murder of B.M. Lane was then returned to Kansas, where he was tried and convicted for the murder, rape, and aggravated kidnapping of N.S. Lane has been returned to the custody of Texas.
I. Confession
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), established that statements made by a suspect in custody are not admissible as evidence unless the suspect is informed that he or she has the right to remain silent and the right to counsel before the suspect may be interrogated. 384 U.S. at 479. Miranda held that when a defendant indicates “in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74. A suspect may, by conduct or specific words, waive a previously invoked right to remain silent.
Prior to trial, Lane filed a motion to suppress his confession. Lane argued to the trial court that the interview on July 16 should have ended when he expressed his right to remain silent by informing the officer that he wanted to go home. After a Jackson v. Denno hearing, the trial court denied the motion to suppress, stating:
“Now, returning to the motion to suppress statements given on July 16th and July 17th of 1991, by the defendant. To properly analyze the situation, I believe we have to start with — you both agree with me based upon your argument and the way you presented your evidence — the April 25th, 1991, meeting where at the request of the police, the defendant comes to the police location voluntarily and begins to speak and then says, I want a lawyer. The discussion then stops.
“Now, at that point, April 25th, 1991, there’s no question at all, and I’ll so find, that the investigation has focused upon this defendant.
“Following that date, the police make themselves available to the defendant, giving him every opportunity, should he desire, to make a statement to them, to make that statement. They do that without coercion. They do that without solicitation and those two facts are uncontested here and I’ll find that it was done without solicitation, without coercion.
“That brings us to July 16th for the purpose of the analysis here. On that date, the defendant approaches the police and he wants to speak to them. He wants to take a lie detector test, is the way he voices his desire.
“A number of preparations are made. The police consult all of their expertise. They call in their outside expertise and they have a conference to make decisions on how best to approach an interview with the person upon which they have focused their investigation.
“As a part of that conference, they consult the Washington, DC-based FBI agent, specialist in human behavior, and get from him general characteristics of individuals who commit such crimes and how they might best take advantage of those general characteristics to cany out their investigation.
“They arrive at a plan and carry out the plan to create a situation that is serene, is the word they used, or one where one interviewed might feel at home, not feel intimidated. They take every precaution to ensure that any coercion or any intimidation or anything that might given evidence of it is overcome or done away with. They even have an interview room with a window in it that is larger than most interview rooms, but they also place items such as the tee shirt that’s like the one the victim was wearing when she disappeared and a shoe like one of the shoes that the victim was wearing when she disappeared, certain posters, certain indicia of the investigation called a timeline by you all, files and file cabinets bearing defendant’s name for his perusal, for his evaluations, to think whatever he wants to think, all done on purpose by the police.
“At that July 16th interview, he is properly advised of those constitutional rights guaranteed under the Fifth and Sixth Amendments to the Constitution of the United States, as explained by Miranda v. Arizona. He incriminates himself on that day. That statement is the subject, of course, here.
“Now, on the 17th, he makes further statements to the police. Those statements incriminate him. The police at this time approach defendant, who’s in the jail, they bring him back to this same room and they confront him with the statements made concerning the same incidents, statements made by co-defendant, one Donald Wacker. Declarations against interest amounting to confessions of crime are made by the defendant on that day.
“So the issue then becomes, can this affirmative assertion of a right uttered on April 25th of 1991, by the defendant, be recanted, and if so, was the recantation done freely, voluntarily, knowingly by an individual capable of making such a decision and forming such an intent to freely give up a constitutional right?
“I will find that one can, by action, recant an affirmative declaration and in this particular case, under these particular circumstances, this individual has the capacity to do that. The techniques used in the investigation, the techniques used to obtain the statement were proper in law, in my opinion, and do not amount to coercion.
“So what came forth on July 16th and July 17th was, on July 16th — let me back up. What came forth on July 16th was an individual who had voluntarily come to the police and made declarations of his own free will, after having been advised of his rights under the Fifth and Sixth Amendments. Exhibit 11,1 believe, sets out the words used by the police.
“The incident, I don’t know if we arrived at a specific time, some 40 minutes perhaps into that statement, where the defendant says, I want to go home, was made prior to any incriminating statements concerning the [N.S.] case.
“The same issue arises then, again. Did he voluntarily recant that termination — and that’s what it was, a desire to terminate, decide to go home.
“In my opinion, the inquiry made by the Wichita Police Department, Lt. Walt-man, at that time was a proper inquiry to figure out exactly what T want to go home’ means and to assure the defendant that he could go home if he wished and he would be taken home, if that was his desire or he could go home on his own, and I believe we established that some six blocks away would be his home, be hauled there by automobile or he could go there on his own and when he then decided to enter into further conversation with the Witness Waltman and the— or Waltman and the Witness FBI Agent, whose name escapes me, Nigell (sic), I believe, he did so being fully advised of his rights and there was no need at that time to do anything further at that time, other than have a conversation, no affirmative action on his behalf.
“And to me the overall facts show that Mr. Lane is capable of understanding those rights guaranteed him under law when they are presented to him in the way that they were done, the way they were presented on the four separate times of July 16th and 17th.
“Well, there’s no contest that they were done on April 25th. It’s what effect is the stopping have of the interview by him, but he was properly advised on the 25th, as well.
“The law in this regard is stated by both of you in your brief and then here today. That’s the law governing the issue, in my opinion.
“Taken together and applying that law to all of the facts here presented, and specifically the findings of fact that I have made, lead me to the conclusion that the statements made on the 16th and the 17th would be admissible. The truth of those would be for the jury.”
When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and intelligently given, and admits the statement into evidence at the trial, an appellate court accepts that determination if there is substantial competent evidence to support the trial court’s determination. State v. Johnson, 253 Kan. 75, 84, 853 P.2d 34 (1993). After a trial court has determined the confession was voluntary, an appellate court will not reweigh the evidence. State v. Perkins, 248 Kan. 760, 765-66, 811 P.2d 1142 (1991).
On appeal, Lane argues that the July 16 interview should have terminated when he stated to the officer that he wanted to go home. Lane asserts that all statements made after this request were coerced and inadmissible because he had expressed his decision to remain silent. Lane also claims the trial court failed to consider that his IQ was 77 and he was borderline mentally retarded.
When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. An accused who has expressed a desire to remain silent is not subject to further interrogation by law enforcement authorities until counsel has been made available to the accused, unless the accused initiates further communication, exchanges, or conversations with the authorities. State v. Matson, 260 Kan. 366, 373, 921 P.2d 790 (1996) (citing Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 [1981]).
The same rules apply where the right to remain silent is exercised. In determining whether events subsequent to the exercise of a constitutional right constitute a waiver of the previously asserted right, the court must first determine whether the accused actually invoked the right and, if so, the court must then determine whether the accused (a) initiated further discussions with the police and (b) knowingly and intelligently waived the previously asserted right. Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984). Waiver of the right must be knowing, voluntary, and intelligent under the totality of the circumstances. See Oregon v. Bradshaw, 462 U.S. 1039, 1046, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1982); Matson, 260 Kan. at 374.
An accused may waive Miranda rights by his or her own acts and words in initiating conversation with police. See State v. Strayer, 242 Kan. 618, 625, 750 P.2d 390 (1988). In Strayer, the defendant was arrested and read his Miranda rights. Strayer stated he understood his rights and would not discuss the specifics of the case with police. Strayer then began questioning the officers regarding his apprehension, and, during a lengthy conversation, made incriminating statements. The Strayer court held that Strayer waived his Miranda rights by his “own acts, words, and surrounding circumstances.” 242 Kan. at 625. See also State v. William, 248 Kan. 389, Syl. ¶ 15, 807 P.2d 1292 (holding that when a defendant initiates contact with the police after an assertion of a Sixth Amendment right to counsel, defendant waives that right and his or her statements are admissible), cert. denied, 502 U.S. 837 (1991).
The admissibility of a criminal confession into evidence as an exception to the hearsay rule is set forth in K.S.A. 60-460, which states:
“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, is hearsay evidence and inadmissible except:
“(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
The Kansas statutory right is based on the Fifth Amendment to the Constitution of the United States which “guarantees the accused the privilege against self-incrimination from statements that are not freely and voluntarily given or are given under the threat of force or compulsion.” State v. Waugh, 238 Kan. 537, 540, 712 P.2d 1243 (1986).
Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. State v. Waugh, 238 Kan. at 541 (citing State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181 [1974]).
In determining whether an accused’s confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether it was the product of the free and independent will of the accused. State v. Morris, 255 Kan. 964, Syl. ¶ 1, 880 P.2d 1244 (1994). A statement may be considered voluntary if the accused was not deprived of the free choice to admit, deny, or refuse to answer. State v. Zimmerman, 251 Kan. 54, 62, 833 P.2d 925 (1992).
Involuntary confessions offend due process only when they flow from the improper conduct of law enforcement officials. Colorado v. Connelly, 479 U.S. 157, 163-67, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). Here, there was nothing improper in the officers’ conduct when Lane stated he wanted to go home during the July 16 interview. In fact, when Lane asked to leave, the police communicated their readiness to provide him with transportation. Agent Napier merely told Lane to wait until Waltman returned and they would see about getting him a ride, and asked Lane why he wanted to go since Lane had initiated the conversation. Waltman told Lane he was not under arrest and was free to go. He reminded Lane that Lane was the one who had requested to talk and the police were willing to talk to him, but if Lane did not want to talk any more, he was welcome to leave. Then Lane changed his mind and stated he wanted to continue to talk to Waltman. These facts do not indicate that the police coerced Lane into continuing the interview.
As to Lane’s claim that his mental condition requires suppression of his confession, we note Lane’s IQ was 77 and he was considered borderline mentally retarded. In Connelly, 479 U.S. 157, the defendant walked up to a police officer on the street and started confessing to a year-old murder. The police officer Mirandized the defendant and asked questions to determine if the defendant had been drinking. The defendant kept confessing. The defendant subsequently revealed that God told him to come to Denver and confess, and it became obvious defendant was mentally ill.
The United States Supreme Court determined that the mental condition of a defendant is a significant factor in determining whether a confession is voluntaiy, but a defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness. The Court stated further that the totality of the circumstances is to be used to determine voluntariness of a confession, mental illness is only one factor to be considered in that determination, and there must be a link between coercive activity of the State and the confession. 479 U.S. at 164-65.
Here, we agree with the trial court that there was no coercion. Lane initiated the July 16 interview when he offered to take a polygraph test. The conversation between Lane and the officers after he asked to go home was brief and not threatening. There is no evidence that police tried to trick or coerce Lane into confessing. (At trial, Lane testified that the officers told him that his mother and stepfather were in Texas telling the authorities that Lane was responsible for the murder of B.M. and that he should “beat them to the punch.” This evidence was not before the trial court at the Jackson v. Denno hearing). Further, Lane initiated communications with the police on numerous occasions, generally to mislead the police with alibis for the crime, all of which turned out to be false. Although Lane might have been of low intellect, he was sufficiently aware of what was occurring during the April 25 interview with police to request an attorney. We find his mental condition was not a significant factor rendering his confession involuntary.
Although not binding in this case, it is interesting to note that the Texas Court of Criminal Appeals stated in ruling upon the admissibility of Lane’s confession obtained in Kansas as to the murder of B.M.:
“The police engaged in no actions that could be remotely characterized as coercive. The interviews were low key and nonconfrontational, appellant was Mirandized numerous times, and officers asked appellant several times if he would agree to continue the interviews. . . . Appellant was provided with something to drink upon request and permitted to smoke. No threats or promises were made, there was no violence, and appellant did not suffer from physical illness during the interviews. There is also no evidence that appellant was isolated from his friends and family, and although appellant did not actually consult an attorney, he was reminded numerous times that he was free to do so.
“Moreover, appellant appeared to understand the questions. He individually acknowledged understanding each Miranda warning. The officers permitted appellant to initiate the topics for discussion during the early interviews, and later, the police questions were generally non-leading in nature.” Lane v. State, 933 S.W.2d 504, 512-13 (Tex. Crim. App. 1996).
Here, there is substantial competent evidence to support the trial court’s finding that Lane’s confession was voluntary.
II. K.S.A. 60-455 Evidence of Other Crimes
Lane contends the trial court erred in admitting evidence of the prior Texas conviction of the abduction, sexual assault, and murder of B.M. pursuant to K.S.A. 60-455 to prove intent, identity, or knowledge. Prior to trial, the district judge ruled that evidence of the abduction, sexual assault, and murder of B.M. in Texas was admissible pursuant to K.S.A. 60-455 to prove intent, identity, or knowledge in the subsequent Kansas murder of N.S.
The State first argues Lane cannot raise this issue on appeal since he failed to object to the admission of that evidence at trial. When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when introduced at trial in order to preserve this issue for appeal. State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994). At trial, evidence of the Texas murder was introduced through Lane’s taped confession and through testimony of Captain Lisa Dvorak, a detective from the San Marcos police department. The record reflects that defense counsel objected to direct examination testimony of Lieutenant Waltman which referred to Waltman’s conversation with Lane as to B.M.’s murder and the introduction of Lane’s taped confession to the B.M. murder. However, when Captain Dvorak testified as to Lane’s arrest and conviction for B.M.’s murder, no objection or continuing objection was made concerning the B.M. murder evidence. Defense counsel states in his reply brief that “the defense did not believe it necessary to object to every additional mention of that same prior crime.” However, even if there had been an objection to the testimony, it was admissible pursuant to K.S.A. 60-455, which provides:
“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 the basis for an inference that the person committed another crime or civil wrong on another 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, identity or absence of mistake or accident.”
There are three requirements which must be satisfied for evidence to be admitted under K.S.A. 60-455. The district court must find that (1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice. State v. Nunn, 244 Kan. 207, 211, 768 P.2d 268 (1989). If the requirements for admission of evidence of prior crimes pursuant to K.S.A. 60-455 are met, the scope of appellate review is limited to whether the trial court abused its discretion. State v. Blackmore, 249 Kan. 668, Syl. ¶ 2, 822 P.2d 49 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
The evidence of B.M.’s murder in Texas was admitted to prove identity of the person that later killed N.S. in Kansas. Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both crimes. State v. Williams, 234 Kan. 233, Syl. ¶ 1, 670 P.2d 1348 (1983). Similarity must be shown in order to establish relevancy. State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977). It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 (1974).
First, we note identity was a material fact in the Kansas death because Lane testified that he was not involved in N.S.’s death. At the pretrial hearing, the State proffered evidence that demonstrated similarity in the deaths of B.M. and N.S. Both victims were young and small females: B.M. was eight years old and weighed 45 pounds, and N.S. was nine years old and weighed 50 pounds. Both victims were abducted from a residential area and taken to secluded areas: N.S. to a rural area in the country and B.M. to a deserted shack in a park. In both cases, the victims’ panties were missing. In addition, the defendant committed both crimes with assistance from other parties: his mother and stepfather in the B.M. case, and Donald Wacker in the N.S. case. In admitting evidence of N.S.’s murder in Kansas, the Texas court at 933 S.W.2d at 517-18 also noted the similarities in the two murders:
B.M. CASE N.S. CASE
“VICTIM PROFILE VICTIM PROFILE
_ One (1) Victim _ One (1) Victim
_ Female Victim _ Female Victim
_ Child Victim _ Child Victim
_ Same Approx. Age (8 yrs old) _ Same Approx. Age (9 yrs old)
_ Victim was ‘Unknown Stranger’ _ Victim was ‘Unknown Stranger’
KIDNAPPING KIDNAPPING
_ Victim was Abducted _ Victim was Abducted
_ Victim was Abducted/Public Area _ Victim was Abducted/Public Area
_ Victim was Abducted Near Victim’s Home _ Victim was Abducted Near Victim’s Home
_ Victim was Physically Relocated (. . . City Park/Commanche St. Residence) _ Victim was Physically Relocated (. . . Belle Plain, Kansas)
DEFENDANT HAD ‘NEXUS’ TO LOCATION OF ABDUCTION DEFENDANT HAD ‘NEXUS’ TO LOCATION OF ABDUCTION
_ Victim was Resident of Nearby Brown School _ Defendant Delivered ‘Penny Power’ Circulars in this area
VICTIM WAS PHYSICALLY ASSAULTED VICTIM WAS PHYSICALLY ASSAULTED
VICTIM WAS SEXUALLY ASSAULTED VICTIM WAS SEXUALLY ASSAULTED
VICTIM WAS MURDERED VICTIM WAS MURDERED
_ Defendant ‘strangled’ victim _ Defendant ‘strangled’ victim
VICTIM’S BODY WAS ‘DUMPED’ VICTIM’S BODY WAS ‘DUMPED’
DEFENDANT COMMITTED OFFENSE WITH CO-ACTOR DEFENDANT COMMITTED OFFENSE WITH CO-ACTOR
_ Woody- and Murlene Broughton _ DonnyWacker
DEFENDANT INVOLVED WITH ‘SEARCH’ DEFENDANT INVOLVED WITH ‘SEARCH’
DEFENDANT CLAIMED ‘TROPHY’ FROM CRIME DEFENDANT CLAIMED ‘TROPHY’ FROM CRIME
_ Wore [B.M.j’s Underwear _ Took [N.S.]’s Underwear”
There are clearly similarities between the facts surrounding the murders of B.M. and N.S. Based upon these similar facts, the offenses were sufficiently similar to allow the admission of the evidence as to who killed B.M. to determine who killed N.S. See State v. Hanks, 236 Kan. 524, Syl. ¶ 6, 694 P.2d 407 (1985) (“K.S.A. 60-455 does not require the prior offense to be identical in nature to the offense for which the defendant is on trial; it is sufficient if the offenses are similar.”). See also State v. Henson, 221 Kan. at 645 (similarities were that the attacks occurred in apartments, involved young women about the same age whom the defendant either knew or had dated, involved the use of a knife, and were sexually motivated).
Evidence of the B.M. offense was also admissible on the issue of intent. Although Lane argues that intent was not an issue at trial, at the time of the pretrial hearing, the State expected Lane to rely on a defense of diminished capacity and stated so to the court. The criminal law concept of diminished capacity requires the presence of a mental disease or defect not amounting to legal insanity that a jury may consider in determining whether the defendant has the specific intent required for the crime charged. Evidence of diminished capacity is admissible for the limited purpose of negating specific intent. State v. Friberg, 252 Kan. 141, Syl. ¶¶ 1, 2, 843 P.2d 218 (1992). Lane never informed the State he had abandoned the diminished capacity claim.
Finally, Lane contends that the prejudicial effect of the prior crimes evidence far outweighs its probative value. Before prior crimes evidence is admissible under K.S.A. 60-455, the trial court must also find that the probative value of the evidence — for the limited purpose for which it is offered — outweighs its natural prejudicial bias and that its prejudice overbalances its contribution to the rational development of the case. State v. Searles, 246 Kan. 567, 579, 793 P.2d 724 (1990).
The court orally instructed the jury prior to Captain Dvorak’s testimony that it was not to consider her testimony as evidence supporting an inference that Lane committed the crime charged but only to consider the testimony as proof of identity, intent, or knowledge. The court also included a similar written instruction at the end of the trial. Absent any contrary evidence, it must be assumed that the juiy followed this instruction, thus minimizing prejudice to the defendant. State v. Falke, 237 Kan. 668, 676, 703 P.2d 1362 (1985).
The trial court did not abuse its discretion in admission of the evidence of the murder of B.M.
Affirmed.
Allegrucci and Six, JJ., concur in the result.
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The opinion of the court was delivered by
Six, J.:
This case addresses the foundational requirements for the admission of the result of a breath alcohol test and the interplay between the granting of defendant’s motion for a mistrial and double jeopardy. The State appeals the granting of a mistrial and dismissal with prejudice of the DUI charge against defendant Elmer J. Muck. The State failed to produce the arresting officer’s 1995 certification card for using the Intoxilyzer 5000 breath test instrument. Our jurisdiction is under K.S.A. 22-3602(b)(l) (appeal from an order dismissing a complaint).
The two issues are whether the trial court erred in: (1) ruling that Trooper Dave Weed’s current (1996) Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck’s breath alcohol test given in 1995, and (2) declaring a mistrial and dismissing the case with prejudice. In resolving the first question, the State requests us to disapprove State v. Rohr, 19 Kan. App. 2d 869, 878 P.2d 221 (1994).
We affirm the certification card foundation and mistrial rulings but remand for a specific finding under Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982). We approve Rohr.
FACTS
Trooper Weed of the Kansas Highway Patrol stopped Muck after observing his pickup moving well below the speed limit, straddle the center line, and swerve. Weed could smell alcohol on Muck’s breath. Muck had to lean against the pickup to maintain his balance. He needed Weed’s assistance in retrieving his driver’s license. Muck agreed to submit to a breath alcohol test. The results of the test administered by Weed showed a blood alcohol concentration of .184. Muck was charged with driving under the influence (DUI), K.S.A. 1996 Supp. 8-1567, and failure to maintain a single lane, K.S.A. 8-1522. He was found guilty of both counts by the district magistrate judge. He appealed to the district court, demanding a jury trial.
Before the trial in district court, the State charged Muck with operating a vehicle while the alcohol concentration in his blood or breath was .08 or more (K.S.A. 1996 Supp. 8-1567[a][2]) and, alternatively, operating a vehicle under the influence of alcohol to a degree that rendered him incapable of safely driving (K.S.A. 1994 Supp. 8-1567[a][3]). He was also charged with improperly driving a vehicle on a laned roadway (K.S.A. 8-1522).
The State endorsed Weed and Lieutenant Darrell Fiske (the records custodian) as witnesses. The voir dire referenced Weed and Fiske. After the jury was selected but before opening statements, the State advised the court that Fiske was unavailable and that Officer Furbeck would be testifying in his place. Muck’s coun sel objected because he had no opportunity to voir dire the jury on Furbeck and he had prepared to cross-examine Fiske. The judge considered the State’s request as an untimely motion to endorse an additional witness and denied it, observing that Fiske had been subpoenaed on Januaiy 10, 1996. (The trial commenced on March 7, 1996.) The State acknowledged that this ruling would prevent it from presenting any evidence on the breath test but indicated it would proceed on the alternate driving under the influence charge. The district court granted Muck’s motion for an order in limine prohibiting the State from mentioning the breath test. The State requested a short recess to admonish its witness to comply.
Early in the direct examination of Weed, the prosecutor asked about a report Weed had filled out at the time of Muck’s arrest, and Weed answered:
“Q. All right. Are there any other errors in your report that you’re aware of?
“A. I’m sure there’s probably some. There’s one on the chemical test information, the type of test offered.
“[Muck’s counsel]: Hold on.”
At the sidebar, counsel moved for dismissal or alternatively, a mistrial, in view of Weed’s answer. The judge expressed concern that Weed’s mention of the test had occurred so soon after the order in limine and stated he would take the motion under advisement. Counsel completed his questioning of Weed. The breath test was not mentioned again.
Following cross- and redirect examination, Weed was excused, subject to recall. The prosecutor approached the bench and advised the court that he just learned that Fiske had arrived. Over Muck’s objection, the court allowed the State to proceed. Weed testified that after the arrest, Muck agreed to a breath test, which Weed administered. Weed was asked about his certification to use the Intoxilyzer 5000 test equipment. He answered that he was certified through the State. Muck objected for lack of foundation, and another sidebar exchange followed:
“[Defense counsel]: That part of the answer was unresponsive to the questions. But, beyond that, Your Honor, the case law is clear that unless he has his card with him that his oral testimony is not admissible.
“THE COURT: I presume that you’re going—
“[Prosecutor]: That’s what I was going to do, Your Honor.
“[Defense counsel]: I think if he does that I don’t have an objection.
“THE COURT: For the record, I’m going to overrule the prior Motion for Mistrial at this point. Does appear that the Motion in Limine will be filled by the presence of Officer Fiske to testify as endorsed.”
The State marked as an exhibit a photocopy of Weed’s certification card issued by the Department of Health and Environment for die Intoxilyzer 5000, with an effective date of January 1, 1996. Muck objected, based on the effective date of the card. The district court sustained the objection. The State then asked Weed if he had ever lost his certification, and Weed testified that he had not. Weed earlier testified that he has been employed by the Highway Patrol since 1987. Muck’s counsel requested a sidebar conference and reiterated his objection, arguing that unless the certification card showed it was effective at the time of the March 1995 test, Weed’s testimony as to his certification was inadmissible under State v. Rohr, 19 Kan. App. 2d 869. Muck renewed the motion in limine and motion for mistrial, arguing that the State had misled the court and counsel by representing that Weed had his card. The judge inquired if Weed had a certification card effective on the test date. The State said that he did not, having learned of the missing card the previous evening. The prosecutor said that he was proceeding based on his prior experience when an officer had not kept his previous year’s card after being issued a new card. The prosecutor would ask the officer if he was currently certified and if he had ever lost that certification. The district court, relying on Rohr, 19 Kan. App. 2d 869, ruled that Weed’s current (1996) Intoxilyzer 5000 certification card was an insufficient foundation for the admission of the results of Muck’s breath alcohol test given in 1995.
The judge did not feel the prosecutor’s explanation of the missing 1995 card was adequate. Having determined that Muck had been prejudiced by the testimony concerning the breath test, the judge declared a mistrial at the responsibility of the State and discharged Muck. The judge found Muck not guilty on the failure to maintain a single lane change. (This misdemeanor traffic charge was tried to the court.) The journal entry provides: “The Court declares a mistrial and dismissed Count One (1) [the DUI charge] with prejudice.” The judge made no statement on the record that he was dismissing Count I. He said: “And I’m going to declare a mistrial at the responsibility of the State and discharge the defendant with prejudice.”
DISCUSSION
Appellate Jurisdiction
Initially, Muck argues that the State failed to question the validity of Rohr at the trial level and, thus, should be precluded from advancing a challenge on appeal. However, the position the State took at trial did call into question the validity of Rohr.
Muck also argues that the State never proffered the excluded evidence (the breath test results) to the district court; consequently, we cannot review whether this evidence was properly excluded. Muck acknowledges that the State did file a proffer of the breath test results before trial to the magistrate judge. The district judge and counsel knew what the State’s excluded breath test results would show here. Muck’s argument is not persuasive.
Muck also contends that the State should have appealed under K.S.A. 22-3602(b)(3) (question reserved), rather than K.S.A. 22-3602(b)(1) (dismissal of complaint), to question the validity of Rohr. We acknowledge that the State could have appealed under K.S.A. 22-3602(b)(3), but presumably chose K.S.A. 22-3602(b)(l) to pursue prosecution of Muck if the appeal is successful. The alternative selected by the State is appropriate.
In State v. Johnson, 261 Kan. 496, 932 P.2d 380 (1997), we recently reviewed under K.S.A. 22-3602(b)(l) the State’s appeal of the dismissal of DUI and reckless driving charges based on double jeopardy. Johnson is precedent for jurisdiction under K.S.A. 22-3602(b)(1) to review a complaint dismissal based on double jeopardy. In Johnson, the assigned magistrate judge (whose home district was 5 hours away) declared a mistrial because he considered the forum inconvenient after the trial could not be completed in 1 day. Johnson moved for dismissal, based on double jeopardy. The district court agreed and we affirmed.
The Rohr Case
The State calls into question the foundational requirements for admission of breath test results announced in Rohr, 19 Kan. App. 2d 869. An issue of law is subject to unlimited review. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993). We address the State’s challenge to Rohr.
Rohr appealed his DUI conviction, arguing that the district court erred in admitting his breath test results without proper certification. The Court of Appeals reversed and remanded for a new trial. At trial, the officer who administered the breath test testified that the test instrument and operator were properly certified on the date of the test. Rohr objected on lack of foundation and hearsay grounds; the written certification from the Kansas Department of Health and Environment of the operator and instrument were not introduced. The Rohr court observed that admission of the actual documents of certification appeared to be the “standard,” stating: ‘Without question, the better practice is for the State to produce the original documents of certification for admission into evidence.” 19 Kan. App. 2d at 871. However, the court noted a greater problem was whether the officer’s testimony regarding certification “violated the prohibition against hearsay [K.S.A. 60-460] and/or the best evidence rule as codified in K.S.A. . . . 60-467(a).” 19 Kan. App. 2d at 871. Rohr concluded that the testimony was inadmissible hearsay and also violated the best evidence rule. We agree.
Although dealing with the question of whether a breath testing device had to be reinspected following repairs to maintain certification, we recently cited Rohr with approval in State v. Strand, 261 Kan. 895, 898, 933 P.2d 713 (1997).
The State requests us to disapprove Rohr, arguing that Weed’s testimony about his certification is not hearsay. The certification card is a statement by the Kansas Department of Health and Environment certifying that Weed has complied with the applicable rules and regulations “for testing human breath for alcohol for law enforcement purposes with the Intoxilyzer 5000,” with an effective date of January 1, 1996, and an expiration date of December 31, 1996.
The State relies on State v. Lieurance, 14 Kan. App. 2d 87, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990), in arguing that an officer’s testimony regarding testing procedures and certification should be as sufficient for foundational purposes as the actual certification documents. Nothing in Lieurance supports the State’s argument that an officer’s testimony about his certification could be used as a substitute for the statutorily required certification document.
The State claims that if Rohr were extended to other licensed professionals, doctors and lawyers would have to bring all their diplomas into court. The State’s observation is off the mark. The argument ignores the entry of the legislature into this evidentiary arena. The specific certification requirements set forth at 8-1002(a)(3) are properly acknowledged in Rohr, 19 Kan. App. 2d at 870.
The State counters the best evidence rule by contending that the district court could have found Weed’s certification card had been lost or destroyed, under K.S.A. 60-467(a)(2)(A). However, the State never requested such a finding. Had it done so, the situation giving rise to the mistrial could have been prevented. The district judge’s ruling was based in part on his view that the State had other proper ways to establish Weed’s certification, but chose not to pursue them. The State contends that Rohr misapplied the best evidence rule. The State asserts that Weed’s testimony that he is certified is the same thing as the certification itself. Its assertion is faulty.
According to the State, requiring the 1995 certification card is “an ill-conceived technical requirement that would have had no impact on the defense’s ability to fully question the officer about the ultimate issues in this case.” If so, the argument should be addressed to the legislature.
The district court did not err in ruling that Weed’s testimony about his certification was an insufficient foundation for admission of the breath test result.
The Mistrial and Dismissal With Prejudice
An abuse of discretion standard of review applies to a district court’s decision to declare a mistrial. State v. Aikins, 261 Kan. 346, Syl. ¶ 23, 932 P.2d 408 (1997).
The State contends that the mistrial declaration was improper because the court had other alternatives, short of dismissal of the charge, citing State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976). In Wilkins, we affirmed a district court ruling conditionally striking the testimony of two prosecution witnesses if the State did not produce copies of the witnesses’ written statements, which the State claimed were lost. Wilkins adds no insight to the resolution of this case.
The State argues that it would have taken little time to have produced a replacement copy of the 1995 certification card, “had the State been aware of the need to do so.” This reasoning weighs against the State. Under Rohr, the State should have known the necessity for the 1995 card. Having known about the missing certification card the evening before trial, the State should have obtained a replacement certification, or if that was not possible, brought the problem to the court’s attention before voir dire. The district court could have granted the State a short recess to attempt to obtain the needed certification, as the State suggests. However, the State never requested a recess.
K.S.A. 22-3423 governs mistrials. The district judge appears to have based his mistrial ruling on K.S.A. 22-3423(1)(c), although he did not reference it. Under K.S.A. 22-3423(2), after a mistrial is ordered, the case is to be retained on the docket for trial or other proceedings as may be proper. However, jeopardy had already attached here because the jury had been sworn, and the mistrial occurred during the testimony of the State’s first witness. K.S.A. 21-3108(1)(c) bars further prosecution after jeopardy attaches if the former prosecution was terminated without defendant’s consent (subject to certain exceptions not applicable here). “[I]f the prosecutor’s misconduct was intentional and substantially prejudiced the defendant’s right to a fair trial, double jeopardy would prohibit a new trial.” State v. McClanahan, 259 Kan. 86, 101, 910 P.2d 193 (1996).
When a defendant’s counsel moves for a mistrial, it is generally presumed that the defendant consented to the mistrial, and double jeopardy would not preclude another trial. State v. Smith, 16 Kan. App. 2d 478, 480, 825 P.2d 541 (1992). See United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971).
However, within the narrow circumstances described in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), prosecutorial misconduct can preclude further prosecution, even though the defendant requested the mistrial.
In McClanahan, 259 Kan. 86, in affirming the district court’s denial of McClanahan’s motion for mistrial based on prosecutorial misconduct, we mentioned K.S.A. 21-3108(1)(c) and the Kennedy test, but determined that the prosecutorial misconduct was harmless error. Citing State v. Cady, 254 Kan. 393, Syl. ¶ 4, 867 P.2d 270 (1994), we articulated the Kennedy test as follows:
“[A] defendant should be allowed to freely choose whether to request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into a choice, the choice is not freely made and the prosecutor has subverted the defendant’s rights protected by the Double Jeopardy Clause of the Constitution. Here, if the defendant was forced into requesting a mistrial by the prosecutor’s intentional misconduct, retrial would be barred by K.S.A. 21-3108(1)(c) and by the Double Jeopardy Clause of the Kansas and United States Constitutions.” McClanahan, 259 Kan. at 102.
Kennedy requires intent by the prosecutor to provoke the defendant into moving for a mistrial. A prosecutor’s misconduct could be intentional (probably to obtain a conviction), but not intended to provoke a defendant’s motion for mistrial.
Although the district judge did not mention double jeopardy in his ruling or refer to K.S.A. 21-3108(1)(c), he did find that Muck had been prejudiced and the State’s conduct was intentional. We must examine the record to see if it supports a mistrial declaration based on intentional prosecutorial misconduct under the Kennedy test.
Muck first moved for a mistrial after Weed mentioned “chemical testing.” Weed’s reference appears to have been unintentional, although it occurred during direct examination only minutes after the order in limine precluding mention of the breath test was entered. The order in limine was entered when the prosecutor revealed that his endorsed witness, Fiske, the records custodian for the Intoxilyzer 5000 instrument, was unavailable, preventing the State from presenting the necessary foundation for admission of the breath test results. When the prosecutor later informed the court that Fiske was available, the order in limine was lifted. Although the prosecutor knew on the evening before the trial that Weed did not have his 1995 certification card, he did not share his knowledge with the court. He represented to the court that, with Fiske’s availability, he now had the needed foundation evidence for the breath test. Had the judge known ahead of time of the State’s foundation problems with Weed’s certification, he undoubtedly would not have lifted the order in limine. Muck renewed the motion for mistrial after the State’s foundation problems surfaced during the prosecutor’s questioning of Weed on his certification. Weed had already testified about administering the breath test to Muck. Muck arguably was forced to move for mistrial at that point.
The State contends that the district court’s dismissal of the DUI count was an abuse of discretion, pointing out that the prosecutor’s conduct may have reflected a misunderstanding of the law, but not a blatant disregard of it, or intention to mislead the court or provoke a motion for mistrial. (The judge acknowledged the prosecutor’s inexperience.)
Muck contends that the State’s misconduct was intentionally misleading, in bad faith, and intended to produce a mistrial. Muck also argues that the district court did not grant his motion for mistrial, but instead declared a mistrial at the responsibility of the State. However, Muck never withdrew his motion for mistrial.
Muck cites State v. Clovis, 248 Kan. 313, 330, 807 P.2d 127 (1991) (district court’s dismissal of two criminal counts as a K.S.A. 22-3212[g] discovery sanction against State for failure to disclose confidential informant affirmed); State v. Schilling, 238 Kan. 593, 601, 712 P.2d 1233 (1986) (K.S.A. 22-3212[g] discovery sanction order held to be in error) and State v. Winter, 238 Kan. 530, 712 P.2d 1228 (1986) (discovery sanction order of dismissal reversed) as cases involving prosecutorial misconduct resulting in dismissal. These discovery sanction cases are not controlling. This is not a discovery sanction case.
Muck also relies on two double jeopardy cases, United States v. Broderick, 425 F. Supp. 93 (S.D. Fla. 1977), and United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976), in which the court barred retrial after finding “prosecutorial overreaching” to be “gross negligence or intentional misconduct.” Kessler and Broderick are pr e-Kennedy cases. The Court in Kennedy pared down the type of prosecutorial overreaching that would preclude retrial when the defendant has moved for a mistrial based on intentional misconduct. The prosecutor “bad faith conduct” standard announced in Divans v. California, 434 U.S. 1303, 54 L. Ed. 2d 14, 98 S. Ct. 1 (1977), cited by Muck, also must be considered as modified by Kennedy.
In State v. Clover, 924 S.W.2d 853, 857 (Mo. 1996), the Missouri Supreme Court held the trial court’s granting of defendant’s mistrial motion was not an abuse of discretion, but found error in the declaration of a mistrial with prejudice, absent a finding that the prosecutor intended to provoke the mistrial request. The trial court found that the prosecutor’s actions had only the effect of provoking such request. We agree with the Clover rationale.
When Muck’s counsel accused the State of sabotaging the trial, the prosecutor responded: “Judge, I did not sabotage the trial, I was not intending to mislead anybody.”
The district judge found the State’s conduct misleading, stating:
“Well, it is misleading to Court and counsel, because you suggested to us when you recalled the witness that you had — that the only problem in foundation was the fact that Mr. Fiske was or was not going to be available. We’ve got other problems here with regard to foundation which you knew or should have known about.”
Although the district judge’s statement on the record at the time of his ruling did not include a finding that the prosecutor’s conduct was intentional, the journal entry provided:
“After hearing the evidence presented, the Court ruled that the jury was prejudiced by the admission of inadmissable testimony, which the State intentionally put into evidence, and is not correctable by instruction.”
We acknowledge that the State intentionally put on testimony about the breath test while aware of its foundation problems; however, the district court did not make a finding that the State did so to intentionally provoke a mistrial.
Kennedy teaches:
“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” 456 U.S. at 675-76.
We hold that the district court’s findings are inadequate to permit judicial review of the double jeopardy issue under the Kennedy standard.
We remand for the purpose of having the district court make a supplemental finding of fact on the issue of whether or not the actions of the prosecutor prompting the mistrial motion were done with the intention of goading Muck into requesting a mistrial. For a similar remand disposition see State v. Rademacher, 433 N.W.2d 754, 757 (Iowa 1988).
The district judge’s declaration of mistrial is supported by the record. We affirm the mistrial declaration. The case is remanded for the specific purpose stated herein. After making the directed finding, die district court shall enter the appropriate judgment.
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The opinion of the court was delivered by
Johnston, J.:
Thomas P. Leonard recovered a judgment for $600 against the Sherman Center Town Company, as damage for the breach of a contract. Leonard owned a hotel in Itasca, and Sherman Center, which was three miles away, was a candidate for county seat of Sherman county. The town company, desiring to increase the population and influence of Sherman Center and strengthen its candidacy, held out inducements to the citizens of the surrounding towns to remove their buildings and establish themselves in business in Sherman Center, and unite in an effort to make that town the county seat of the county. . Accordingly, they entered into an agreement with Leonard, by which Leonard was to join them in building up the town, and- remove his hotel from Itasca, in consideration of which the company was to convey to him certain lots in Sherman Center, and provide at its own expense men and machinery to remove the hotel and place it over a cellar of equal size and on a foundation of a similar-kind as it was then resting upon in Itasca. The plaintiff alleged that the company had failed and refused to remove the hotel in accordance with the terms of the contract; that the other buildings which were then situated in Itasca have been removed to Sherman Center, and the town of Itasca has become depopulated, and the business of hotel-keeping of no value, and that the hotel now stands alone, with no town nearer to it than Sherman Center, which is nearly three miles distant. He further alleged that it was a large and well-furnished hotel, and that the cost of its construction and the furniture contained therein was about $4,500. It is alleged that the cost of removal would be about the sum of $800, and that he suffered damages by the refusal of the company to comply with the contract in the sum of $1,200. He therefore asked judgment for $2,000. The company, by its answer, denies the execution of the contract, or that it is authorized by its charter to enter into the contract alleged to have been made.
There are several errors assigned by the company, but only one of them requires attention. It appears that the company has conveyed the lots to Leonard, as stipulated in the contract, but the hotel has not been removed, and, according to plaintiff’s testimony, the non-removal is owing to the refusal of the company to furnish the men and machinery for that purpose, although frequent demands have been made upon them. In the course of the trial the plaintiff testified that, by reason of the removal of the people and their buildings from other towns, Sherman Center became a flourishing place of several hundred people, where he could have profitably carried on the hotel business, but that the town of Itasca was practically abandoned; so that he is without business, and simply remains at the hotel to protect the goods and furniture therein. In order to prove the extent of his injury, the following question was asked, and allowed by the court over the objection of the defendant: “ State, as near as you can, what would have been your profits — or what your damages were, in other words — by reason of the non-fulfillment of this contract, not moving your hotel and establishing your business at Sherman Center.” Another question, which was allowed over objection, was: “State what the damage was by reason of them not moving your hotel to Sherman Center, as they agreed to, in money.” He answered that the loss or profits would have been $150 a month, and that the total damage sustained by reason of not having the hotel located at Sherman Center, besides the cost of moving the building, was from $1,200 to $1,500, and that it would cost about $800 to move the building.
The questions asked were objectionable, and the testimony given was inadmissible upon two grounds: First, the questions were objectionable because they did not call for specific' facts, but permitted the witness to state a mere opinion, giving in the lump the amount of damages thought to be sustained. It is the function of the court or jury trying the case to determine from evidence properly presented what the amount of damages sustained is, and while it might be very convenient for the plaintiff to permit him and his witnesses to give the damages suffered in a lump, it would be a very unsafe practice to allow them to state the amount of damages supposed to be sustained, without regard to the facts or knowledge upon which their opinions were based. It is well settled that the practice is not permissible. (Roberts v. Comm’rs of Brown Co., 21 Kas. 248; Railroad Co. v. Kuhn, 38 id. 675; Town Co. v. Morris, 39 id. 377; C. K. & N. Rly. Co. v. Neiman, 45 id. 533.)
Then, again, the prospective profits that he lost by the. breach of the contract are too remote, uncertain and speculative to be recoverable. Who can tell what the future gains of the hotel business would have been in Sherman Center, if-he had moved there? His past profits in Itasca were not shown, and there is no testimony of the gains of others established in the same business at Sherman Center. How, then, does Leonard know that the profits would have been $150 pér month? The gains to be derived from the business depended upon many contingencies other than the mere removal of his hotel to that place. The growth of the town; the location of the county seat there, or at another town near by; the immigration and travel; the competition in the hotel business; the price of provisions and the cost of help; the general reputation of the- house and the popularity of the landlord with the traveling public and the people of that community, are suggested as some of the considerations that would affect the anticipated benefits. Where the breach of a contract re7 suits in the loss of definite profits which are ascertainable, and were within the contemplation of the contracting parties, they may generally be recovered; but the prospective profits do not furnish the correct measure of damages in the present case. Aside from the remote, conjectural and speculative character of the anticipated benefits, it cannot be said that the loss of them is the direct and unavoidable consequence of the breach. The plaintiff could not sit idle an indefinite length of time and safely count on the recovery of $150 per month as damages. If there was a breach of the contract, it was his duty, upon learning of it, to at once remove the building, or employ others to do so, and charge the cost of the removal to the town company. The law requires that the injured party shall do whatever he reasonably can, and improve all reasonable opportunities to lessen the injury. From the testimony, it appears that Leonard could have procured others to move the hotel; and in such a case the ordinary measure of damages is the cost of removal and the reasonable expenses of avoiding the consequence of the defendant’s wrong. (Railway Co. v. Mihlman, 17 Kas. 224; Loker v. Damon, 17 Pick. 284; 1 Sedg. Dam. 165, and cases cited.)
Counsel for plaintiff in error say that no more than the cost of removal was allowed by the court; but the admission of the objectionable evidence against the opposition of the plaintiff in error would indicate that the court adopted an incorrect measure of damages, and did not limit the recovery to the expense of the removal. The liability of the plaintiff in error for any loss is not conceded. It is shown in the testimony that soon after the time for the removal of the building the people of Sherman Center abandoned the attempt to obtain the county seat, and all or nearly all of them moved to another place. It is claimed by plaintiff in error that Leonard objected to the removal of his building until the question of the location of the county seat was settled. He testified at the trial that he did not intend to move the building to Sherman Center, and that he would not move the building at all until the county seat was permanently located. If the non-removal of the building was due to the fault of Leonard, he is not entitled to recover anything. This is a disputed question of fact which must be settled on another trial.
For the error of the court in admitting testimony, the judgment of the court below will be reversed, and the cause remanded for new a trial.
All the Justices, concurring.
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Opinion by
Creen, C.:
On the morning of March 4, 1888, the plaintiff below purchased a ticket at Topeka of the agent of the defendant below, as he claims, to Emporia, for which he paid $1.85, the distance being a fraction over 61 miles. He entered one of the cars in defendant’s passenger train, which left Topeka some time after midnight; the car in which he took' his seat as a passenger contained fifteen or twenty persons. After the train- left Topeka, the collector passed through the car and took up plaintiff’s ticket, but did not give him a check. As the train approached the station of Reading, the collector came along the aisle and touched the plaintiff on the knee. The train stopped at Reading and one passenger got off. After the train had started, the -collector came to the plaintiff and asked him where he was going, and he answered Emporia. The collector then asked him for a ticket, or his fare to Emporia. The plaintiff replied that he had given him his ticket and paid his fare. The collector told him that his ticket read to Reading, and that he had not received a ticket to Emporia from him. The plaintiff insisted that he had. The collector then informed the plaintiff that he would have to pay his fare to Emporia, or get off. The plaintiff said that he would not do either, unless compelled to; thereupon, the collect er left him and was gone some time, when he returned with the conductor, who asked him if he was going to pay his fare. The plaintiff said: “I have paid once, and I do not propose to pay again.” The conductor then informed the plaintiff that he would have to get off. The plaintiff answered him: “ I will not get off, unless I am made to get off.” The conductor pulled the bell-cord and stopped the train. He then took hold of the plaintiff by the shoulder, and the plaintiff walked ahead of the conductor, collector and brakeman to the front door of the car and until he reached the steps to the platform, when he observed that the weather was quite cold and that it was snowing pretty hard. He then concluded to pay his fare. He stated that he would not get off and walked back to the door, when the conductor said: “Damn you,” or “God damn you, why did you not do that before I stopped the train?” This remark was made on the platform of the car. To this interrogation, the plaintiff answered that it was his business. The plaintiff then paid the conductor 60 cents, the fare from Reading to Emporia, under protest, as he claimed, and which he characterized at the time as “highway robbery,” and continued his journey to the latter place.
The plaintiff brought his action in the district court of Butler county against the defendant for expelling him from its cars in the night, and refusing him permission to ride upon its train, without paying additional and illegal charges, and placing him in the ignominous position of being put off the train of the defendant, which was filled with passengers: all to his damage in the sum of $1,000. For a second cause of action, he demanded judgment for the 60 cents extorted from him to permit him to continue his journey, and the further sum of $50 damages. A trial was had on the 18th day of October, 1888, and the jury returned a verdict in favor of the plaintiff, for the sum of $500.60. The following are the special findings returned with the general verdict:
“1. How much was the plaintiff damaged by the acts of the defendant or its employés? A. $500.60.
“2. Do you allow anything for injury to plaintiff’s feelings, and if so, how much? A. Yes, $100.
“3. Did the conductor or collector or brakeman use any violence toward the plaintiff at the time referred to? A. Yes.
“4. How much do you allow plaintiff by reason of the violence used by the conductor, collector, or brakeman? A. $50.
“5. How much do you allow plaintiff for pecuniary loss? A. 60 cents.
“6. How much do you allow plaintiff for loss of time? A. Nothing.
“ 7. How much do you allow plaintiff for exemplary damages? A. $150.
“8. How much do you allow plaintiff for expenses and attorney fees in prosecuting this case? A. $200.
“ 9. How much do you allow plaintiff for inconvenience in going from his seat to the platform of the car and back again? A. Nothing.
“10. Was it not the custom of the collector, Smith, to give a check to passengers for the large towns upon taking a ticket, and not to check passengers for the small towns like Reading? A. Yes.
“11. Did plaintiff receive a check from the collector for the town of Emporia? A. No.
“12. Did not the collector and conductor act in good faith, and with an honest belief that the plaintiff had not paid his fare from Reading to Emporia? A. No.
“13. Did the conductor and collector, or either of them, act in á wanton manner toward the plaintiff, and if yes, state how? A. Yes, the collector by not showing him the ticket, if it was for Reading and not Emporia, and convincing him of that fact; and the conductor by forcibly putting him out of the car without investigating the case.”
It is contended by the plaintiff in error that the third special finding of the jury is wholly unsupported by the evidence and is untrue. The evidence of the plaintiff himself shows very clearly that no violence was used. Regarding this matter, he testified as follows: *
“Q,ues. Who took hold of you? Ans. The conductor.
“ Q,. What did he say when he took hold of you ? A. He said ‘You will have to get off.’
“Q,. You say he spoke in an ordinary tone? A. He did not speak very loud.
“Q,. And you went along to the door? A. Yes, sir.
“Q. You did not resist? A. No, sir.
“Q,. You did not struggle any? A. No sir, I did not.
“Q,. Made no struggle? A. No, sir.
“Q,. He did not use any violence in getting you to the door? A. No, sir; no great violence.
“Q. When you were out on the platform, he did not use any violence? A. No, sir.
- \ “Q. You stepped down on the steps? A. Yes, sir.
“Q,. They did not push you off, nor attempt to push you off? A. No, sir. . . .
“Q,. Were you angry? A. I was a little angry, but I kept my temper.
“Q. You kept cool? A. Yes, sir.
“Q,. Did the collector say anything to you other than you have told the jury? A. No, sir, he didn’t. He was very mild, sir, the collector was.
“Q. Was the brakeman there? A. Yes, sir.
“Q,. What did he say, if anything? A. I don’t think he opened his mouth. . . .
“Q,. They did not strike you? A. No, sir.
“Q,. Nor push you? A. No, sir; only just pushed me a little ahead. I can tell you there was no violence used at all by the conductor — I don’t claim any violence — I did not give them a chance. I knew if I did resist there would be violence.
“Q,. You did not resist, and hence there was not any. A. No, sir; I did not resist.”
We think, too, special findings 12 and 13 are unsupported by the evidence in this case. The collector seemed to have acted in good faith and upon the honest belief that the ticket he received was to Reading. He stated that it read to Reading. The passenger, it seems, had not examined it, and did not know whether it read to Emporia, or not. Each party, we think, acted upon his honest belief and conviction: the passenger that he had purchased a ticket to Emporia, because he had called for and paid the price demanded by the agent of the railroad company for a ticket to the latter place; the col lector acted upon his judgment that the ticket he received from the passenger was to Reading, for the reason that it “read to Reading.” What then was the duty of the collector, under the circumstances? Should he have relied upon the statement of the passenger or been governed by the ticket ? The latter rule has been adopted by the greater weight of authorities, and has been-recognized by this court in the case of A. T. & S. F. Rld. Co. v. Gantz, 38 Kas. 608. In Frederick v. M. H. & O. Rld. Co., 37 Mich. 346, Marston, J., said:
“There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. As between the conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as the evidence of his right to the seat he claims.”
The collector acted upon this rule, and, from the evidence of the plaintiff himself, it does not appear that any violence was used by the train-men.
The special findings of the jury numbered 3, 12 and 13 being unsupported by any evidence, it is recommended that the judgment be reversed, and the cause remanded to the district court with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
All the matters and things complained of as errors in this case are such as occurred during the trial in the court .below. At the close of the trial in that court the jury found in favor of the defendant and against the plaintiff. The plaintiff then moved for a new trial, setting forth in his motion various grounds, including the rulings now complained of. This motion was heard by the court and overruled, and no exception was taken to the ruling. Judgment was then rendered in favor of the defendant and against the plaintiff for costs, and the plaintiff, as plaintiff in error, brings the case to this court for review; but he does not assign the ruling of the court below upon his motion for a new trial as error, and therefore it is claimed by the defendant in error that there is nothing presented by the petition in error for review in this court. Under the decisions of this court, this claim of the defendant in error is correct. (Carson v. Funk, 27 Kas. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; National Bank v. Jaffray, 41 id. 691; City of McPherson v. Manning, 43 id. 129.)
Errors occurring during the trial cannot be considered by the supreme court, unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to, and afterward assigned for error in the supreme court. In connection with the cases above cited, see, also, Buettinger v. Hurley, 34 Kas. 585.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action on a promissory note executed on the 9th day of April, 1886, by Phillip Walker to the State Insurance Company, of Des Moines, Iowa, for $51.50, and due April 1, 1887, given in payment of the premium on an insurance policy. The case came on appeal to the district court of Elk county, where it was tried, and judgment was rendered in favor of the defendant in error. The defense sought to be made by the maker of the note was, that there was a failure of consideration, and fraud and deceit practiced in the procurement of the note; that the insurance policy was to cover some stock which the defendant below had, but was not in fact included in the application or the policy; that the agents of the company had him sign the application, which they had filled out, without reading it; that the policy did not insure the property which he requested the agents to have insured.
It is claimed that the court erred in not permitting the defendant below to introduce evidence tending to. contradict the application which he had signed. There is no question raised but that the policy was in accordance with the application. The defendant stated upon the trial that he took the application in his hands to read, but he was ashamed to say that he signed it without reading it, and his only excuse was that he did not have a desirable opportunity to read it. There is no pretense but that the defendant could have read the application before he attached his signature to it, if he had desired to do so. The application itself cautioned him to read it before signing it, to see that each question was fully and truthfully answered. There was no fraud shown in the procurement of the application, and the statement of counsel is not borne out by the record, that the consideration of the note had wholly failed. It was in evidence that the defendant received his policy and retained it for some months before he made any objection to it. On the 31st day of January, 1887, he wrote to the company about having his policy canceled, but said nothing about the fraud practiced upon him by the agents; and, again, on February 7, 1887, he wrote the company that he would pay short rates on his policy and to figure it up so he could obtain a cancellation. This was a recognition of the policy, and showed some consideration for the note.
The court properly excluded the evidence by which it was attempted to vary and contradict the statements of the written application. We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
Keeler & Hudson contracted to build a house for Benjamin H. Barr, and purchased building material for that purpose of the Western Lumber Company. Failing to pay for the material, the lumber company filed a statement and claimed a lien on the property improved. Thereafter the lumber company brought an action against the contractors and the owner to recover what was due from the contractors and to foreclose their lien. Subsequently John Johnson, who had also furnished material to the contractors for the same building, which had not been paid for, and who had duly filed and claimed a lien, applied to the court to be made a party to the action brought by the lumber company, and to have his lien on and interest in the property determined. This application was heard by the court and granted on May 31, 1888, and Johnson filed an answer in the nature of a cross-bill, setting forth the sale of the material for use in the construction of the house, and that it was so used by the contractors; that there was still due thereon the'sum of $76.50; that a statement for a sub-contractor’s lien had been filed, which was set out at length; and he asked for a judgment against the contractors for the amount due, and that it be declared a prior and paramount lien to that of the lumber company upon the premises of Barr. On June 1, 1888, a demurrer filed by Barr to the petition of the lumber company was sustained by the court, upon the ground that the statement filed by the company for a sub-contractor’s lien was insufficient to authorize a lien against the property of Barr. Proceedings in error were instituted in this court by the lumber company, and the ruling of the district court was re- versed. (Cunningham v. Barr, 45 Kas. 158; same case, 25 Pac. Rep. 583.) After the demurrer of the lumber company was sustained, and on June 18, 1888, the defendants, Barr and Keeler & Hudson, filed separate motions to strike the answer or cross-petition of Johnson from the files, and to dismiss it because the pleading was unwarranted by the code, and the court had no jurisdiction to hear and determine the matters therein stated. These motions were sustained, and Johnson complains of the ruling.
The action of the court in dismissing the cross-petition of Johnson cannot be sustained. He was a proper party in the action, and his pleading set forth a cause of action and right to affirmative relief. He had an interest in the subject of the controversy, and his presence was necessary to a complete determination of the same. The statute relating to the foreclosure of mechanics’ liens expressly provides that all persons whose liens are filed as the statute provides, and all incumbrancers, shall be made parties, and therefore Johnson should have been made a party in the first instance. (Laws of 1871, ch. 97, § 5.) As this was not done, it was proper to grant his application, and permit him to come in and have his claim and lien adjudicated. Indeed, if he had begun an independent proceeding, it would have been proper for the court, under the mechanics’ lien law, to have consolidated the actions and tried them as a single case. The fact that what is termed a “cross-petition” is not expressly authorized by the code, seems to have been relied on as a ground for dismissal. The name of the pleading is unimportant. The defendant may file an answer in the nature of a cross-petition, setting forth a statement of his right to affirmative relief. (Civil Code, § 94.)
“ The answer of the defendant, setting up his claim, is what formerly was a cross-petition in name, and in effect is still the same, although called an answer. The reply his co-defendants may make to it is in legal effect an answer, although called by a different name. And all this is within the spirit of the code, and a mere difference about names ought not to operate to defeat it.” (Kimball v. Connor, 3 Kas. 414. See, also, Town Co. v. Morris, 39 id. 377; Civil Code, §§ 36, 41, 42.)
Neither did the action of the court in sustaining Barr’s demurrer to the petition of the lumber company work a discontinuance of the action, nor warrant the dismissal of Johnson’s cross-petition. In the first place, as has been seen, that was an erroneous decision; but if it had been correctly decided, and there had been a voluntary withdrawal of the claim of lien by the lumber company, it would not have prejudiced the right of Johnson to proceed with the foreclosure of his lien. After he came in and filed his pleading, the other parties were bound to take notice of his claim and of every subsequent step taken in the action. He is properly before the court, asking affirmative relief, and the compromise, settle-, ment or withdrawal of a claim by another lienholder or incumbrancer, who is a party to the action, should not and will not defeat him in proceeding with the action to a final determination of the matters involved. (Venable v. Dutch, 37 Kas. 515; Worrell v. Wade’s Heirs, 17 Iowa, 96; King v. Thorp, 21 id. 67.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
James Bryant, by his next friend, Joseph Bryant, commenced his action against Arthur Gray before a justice of the peace upon an account.of $6 for work and labor. The account was properly verified, although the affidavit annexed was evidently filed for the purpose of verifying its correctness, and also for showing that the plaintiff was unable to give security for costs on account of poverty. Upon the day set for the hearing before the justice, Gray obtained a continuance for 15 days by filing his affidavit alleging the absence of material witnesses. Upon the day the action was tried before the justice, Gray failed to appear, aud no witnesses were introduced in his behalf. The justice rendered judgment against him for $6 and costs. Gray appealed to the district court, and after five months had expired the case was called for trial in that court, but as Gray had filed no verified denial, judgment was again rendered against him for $6, with interest and costs. When the case was called for trial in the district court, Gray attempted to- deny the correctness of the account by offering to show that it had been paid, and also asked for a jury. This was refused, because the correctness of the account had not been denied by affidavit.
Within the prior decisions of this court, no error was committed in the rulings of the district court. (S. K. Rly. Co. v. Gould, 44 Kas. 68; Baughman v. Hale, 45 id. 453; same case, 25 Pac. Rep. 856.)
No attempt was made by Gray to allege or prove any set-off or counterclaim. He attenlpted to disprove the correctness of the verified account by showing that it had been extinguished or paid.
Within the authority of Baughman v. Hale, supra, the court, under the circumstances of this case, committed no error in refusing to allow the defendant to file an affidavit denying the correctness of the account. The offer was made so late that the trial court did not abuse its discretion.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The United States issued a patent to the land in controversy to James McCamman on the 1st day of June, 1860, and the findings are to the effect that the plaintiffs are the owners by conveyances from McCamman, unless the judgment of October 9, 1861, of Reuben H. Earnham against James McCamman and the sale of the land thereunder divested McCamman of his title. When this case was here before, (Carey v. Reeves, 32 Kas. 718,) Mr. Justice Valentine, speaking for the court, said:
“When this affidavit [for publication service] was filed, is not shown. It is alleged that the action was commenced on January 17, 1861, and the affidavit shows that the petition was filed ‘on the — day of January, 1861;’ but there is nothing to show when the affidavit was in fact filed. If it was filed prior to January 29, 1861, the region of country known as ‘ Pike’s Peak,’ or a portion thereof, was in Kansas; but if the affidavit was filed after January 29, 1861, then such region was not in Kansas, and no part thereof was in Kansas. We suppose that when the plaintiffs in this action say that the foreclosure action was commenced on January 17, 1861, they mean that the petition was filed on that day. But when the service was made is not shown; nor is it shown when the judgment was rendered. It may have been in 1861, or in 1862, or in some subsequent year. We cannot say that the court below erred in deciding against the plaintiffs in this particular.”
At the last trial it was shown, and the court expressly found, that the affidavit for publication was filed on the 17th day of January, 1861. This was while Kansas existed as a territory and before its admission as a state into the union. It was also shown, and expressly found at the last trial, that on January 17, 1861, and for some time previous thereto, James McCamman resided in Denver, and within the territory of Kansas, and continued to reside there after the 29th of January, 1861, when Kansas was admitted as a state.
The former decision of this court in this case, at its July term, 1884, (32 Kas. 718,) is not decisive nor controlling, because the facts now presented in the record are materially different from those which we considered at the time the former opinion was handed down. The affidavit for publication stated that the defendant, James McCamman, “has removed from the said county of Sha\jmee, and now resides in that region of country known as ‘Pike’s Peak,’ and that service of summons cannot be made on him within this territory.” At the time that Kansas was organized as a territory, its western boundary extended “ to the eastern boundary of the territory of Utah, on the summit of the Rocky Mountains.” We must take judicial notice of where “the region of country known as ‘Pike’s Peak’” existed on the 17th of January, 1861. (The State v. Teissedre, 30 Kas. 476; The State v. Baldwin, 36 id. 1; Railroad Company v. Burge, 40 id. 736.)
Lippincott’s Pronouncing Gazetteer of the World, (published in 1856,) referring to Kansas, said:
“It is a territory of the United States of America, formed by an act of congress passed May, 1854, lying between 37° and 40° north latitude, and between about 94° 30' and 107° west longitude. About 100 miles of the west portion lies between 38° and 40° north latitude. It is bounded on the north by Nebraska territory; east, by the states of Missouri and Arkansas; south, by Indian Territory and New Mexico; and west, by New Mexico and Utah. This territory is about 630 miles in length, from east to west, and 208 in its widest, and 139 in its west part, including an area of nearly 114,798 square miles. The Rocky Mountains separate it from Utah, and the Missouri river forms a small part of the northeast boundary.” .
The New American Cyclopaedia, Vol. 10, p. 103, (published in I860,) described Kansas as follows:
“It is a territory of the United States, lying between latitude 37° and 40° north, and longitude 94° 40' and 106° 50' west, bounded north by the territory of Nebraska, east by the state of Missouri, south by the Indian Territory and New Mexico, and west by New Mexico and Utah. With the exception of the northeast corner of the territory, where the boundary line follows the irregular course of the Missouri river, its shape is that of a parallelogram as far west as longitude 103°. The boundary then follows this meridian north to latitude 38°, and runs west along that parallel to longitude 106° 50'; thence north to about latitude 39° 20', east to longitude 105° 40', and finally north again until it meets the Nebraska frontier. Length east and west, 550 miles; breadth, east of longitude 103°, 208 miles; west of that line, 139 miles; area, 114,798 square miles.”
The Encyclopaedia Britannica, (Vol. 23, p.796,) in describing the Rocky Mountains, says:
“Gray’s Peak(14,341 feet) is the highest point in this range, (the front, or Colorado range,) but, although on the continental divide, it is too far west to be visible from the plains. This divide, which separates the Atlantic waters from those of the Pacific, follows the front range as far as Gray’s Peak, where it is deflected westward for 20 miles to the Sawatch range, which it follows for about 75 miles. In this deflection the divide passes between the Middle and South parks, the lowest pass in this part being that called the ‘ Tennessee,’ (10,418 feet,) which leads from the head of the Arkansas to the Grand river branch of the Colorado.
“The Sawatch range is one of the highest and best-marked chains in the Rocky Mountains. It lies west of the head of the Arkansas; and its dominating peaks, along the whole range, exceed 14,000 feet. The most northerly of these, the Mountain of the Holy Cross, (14,176 feet,) was so named on account of the existence on its eastern flank of a large snow-field, lying in two ravines which intersect each other at right angles, in the form of a cross, and which in summer is conspicuously visible from a great distance. The highest point is Mount Harvard, (14,375 feet,) and the passes range from 12,000 to 13,000 feet. The continental divide follows the Sawatch range to its southern end, in latitude 38° 20', and then runs in a south westernly direction for about 75 miles, over a high region without any distinctly-marked range. Here it turns, and, running southeasterly, follows the crest of the San Juan range, which at many points rises above 13,000 feet.”
Not only as a matter of fact is the summit of the Kooky Mountains (the western boundary of the territory of Kansas) a long distance west of Pike’s Peak, but it was so generally mentioned in the gazetteers, geographies and encyclopaedias in general use in 1861. Therefore, “the region of country known as ‘Pike’s Peak,”’ on the 17th of January, 1861, and until Kansas was admitted into the union, on January 29, 1861, was within the territory of Kansas, and generally known to be within the territory of Kansas. -The affidavit for service by publication showed upon its face that James McCamman had removed from the county of Shawnee, and resided “in the region of country known as ‘Pike’s Peak.’” That region was within, not without, the territory of Kansas at the date of the filing of this affidavit; therefore McCamman was not a non-resident of the territory of Kansas at the time the service by publication was made; therefore such publication was void — that is, it was invalid as a constructive service, because the affidavit for publication affirmatively showed that the defendant resided within the territory of Kansas, and it was not stated that he had departed from the territory or the county of his residence with the intent to delay or defraud his creditors, or to avoid the service of a summons, or to keep himself concealed.
It has already been decided by this court that it cannot be shown in a collateral attack that the affidavit for publication is untrue. (Ogden v. Walters, 12 Kas. 282; Rowe v. Palmer, 29 id. 337; Carey v. Reeves, 32 id. 718.) But that is not this case. In this case, the affidavit is insufficient upon its face. It does not state facts to authorize any publication service; therefore no personal or constructive service was ever had upon McCamman prior to the rendition of the judgment- against him on the 9th day of October, 1861. (Comp. Laws of 1862, ch. 26, tit. 4, 5, and §§ 52, 78, 79. See, also, title 11, §385, same chapter.)
Upon the findings of fact the judgment must be reversed, and the cause remanded with direction to the district court to render judgment for the plaintiffs and against the defendants. This direction will not prevent the defendants from recovering any taxes paid by them, if any have been paid, while the land has been in controversy in any of the courts of this state. (Laws of 1876, ch. 34, §149; Gen. Stat. of 1889, ¶ 7004; Wood v. Gruble, 31 Kas. 69.)
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The railroad company is liable for injuring or killing animals in the operation of its railroad at any points on its road which might be, but are not, fenced; but in the present case the railroad company had inclosed its road, at the place where the mule went upon the railway and was killed, with a good and lawful fence, fully sufficient to have prevented the mule from going upon the road. The railway ran through Carey’s land, and the fences had been provided with gates, so that he and his tenants might pass from one portion of the farm to the other. The mule which was killed went through a gate which had been left open by some one, but it does not appear that the gate was opened by the railway employés. There was no evidence to show who left the gate open before the killing of the mule, but as the crossing and gates were provided for the accommodation of the landowner, to be opened and closed at his convenience, the presumption, if any arises, would be that he or his tenants left it open. It is the statutory duty of the railroad company to make and maintain sufficient and secure fences on either side of its railroad, and if it fails to erect a sufficient fence it is liable for animals killed, without proof of negligence on the part of the company. But where it has built a good and sufficient fence, with suitable and sufficient gates at the necessary crossings, it has performed its statutory duty, and nothing more is required except to maintain the inclosure. Where the railroad separates the different parts of the farm, the landowner is entitled to driveways and farm-crossings, in order to enable him to go from one portion of the farm to another, (K. C. & E. Rld. Co. v. Kregelo, 32 Kas. 608,) and in order to utilize such crossings, it is necessary that gates should be placed in the fences erected by the railroad company. Having provided gates at these crossings for the convenience of the land-owner, whose duty is it to keep the gates closed? He may open the gates as often as his convenience or necessities may demand. When he may desire to open and use the gates, or how long it may be necessary that they should remain open, the employés of the railroad company cannot know. As he may open and close them at his convenience, and without the knowledge of the company, he must in the nature of things be held responsible for the closing of the gates. The making of crossings and the placing of gates in the fences, so that the crossings may be used, is of no advantage to the company. They only increase the hazard and expense, and doubtless the company would prefer that the fences were without gates or openings. But the land-owner is entitled to necessary crossings, and cannot be deprived of their use by the company. As he may use them at will, in the ab sence of the employés of the railroad company, the gates are within his control, and the duty of keeping them closed must rest on him. To place upon the railroad company the responsibility of keeping the gates closed, would require that an employ é of the company should be stationed at every crossing to see that the land-owner performed the implied obligation resting upon him of closing a gate provided for his special benefit. This would be an impracticable and unreasonable burden, and was manifestly not within the contemplation of the legislature. If the fence provided by the railroad company was defective, or the gate and its fastenings insufficient, then a different rule would apply; but in this case, the sufficiency of the fence constructed by the railroad company and the gate which it provided is not questioned. We think it is clearly the duty of the land-owner or his tenant to close the gates and keep them closed, and if he neglects to do so, and his stock is killed or injured, without the negligence of those operating the trains, the railroad company is not liable. If the owner of the land, who is responsible for the closing of the gate, could not recover, does Adams, whose mule broke into Carey’s inelosure, occupy any better position ? It appears that the fence between plaintiff’s land and Carey’s was defective, and that the mule jumped into Carey’s inclosure in the night-time, and went through the gate constructed for the use and accommodation of Carey, upon the railroad track, and was killed. As his mule was a trespasser upon the Carey farm, and as the injury and loss occurred through his negligence and wrong, he is entitled to no greater rights than Carey would have, and is not entitled to recover.
The case of Railroad Co. v. Adkins, 23 Ind. 340, is a case directly in point; and, although the authority of that case has been questioned in the later cases, we think it contains the better reasoning, and correctly decided the law. (See, also, Harrington v. Rld. Co., 71 Mo. 384; Binicker v. Rld. Co., 83 id. 660; Hook v. Rld. Co., 58 N. H. 251; Rld. Co. v. Etzler, 40 Am. & Eng. Rld. Cases, 205, 208; Rld. Co. v. Shimer, 17 Ind. 295; Rld. Co. v. Mosier, Ind., 17 N. E. Rep. 109; Rld. Co. v. Rollins, 5 Kas. 167; Rly. Co. v. Methven, 21 Ohio St. 586; Eames v. Rld. Co., 96 Mass. 151.)
We think the district court reached a correct conclusion, and therefore its judgment will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an appeal from the report of condemnation commissioners in a railroad right-of-way proceeding. The commissioners awarded the legal representatives of the Ohio Land & Cattle Company the sum of $272 as damages for injuries to the tract of land, damages for injuries to which the defendant, J. R. Easley, is now claiming, and also allowed said J. R. Easley the sum of $ 1 as damages to the same. Easley appealed, and the case was tried before the court and a jury February 28, 1888. The jury returned a general verdict awarding damages to the defendant in the sum of $427.33, and also made certain special findings, which they returned with the general verdict. The railroad company moved for a new trial, which motion was overruled. The defendant in error challenges the record, in this court, but we think it is sufficient as a bill of exceptions, and therefore it is unnecessary to look further into the matters alleged against it.
The company says the defendant is not entitled to any damages because he failed to show any title to or possession of the land at the time of the condemnation proceedings. There is but little evidence in the record upon this question, and perhaps none which may be said to be competent testimony, and, unfortunately for the defendant in error herein, what little there is seems to be against him. McNeal, a witness called by the defendant in error to establish his ownership and possession of the land, testified that the land belonged to Easley; that while he did not live on it, he was possessed of it. He also testified that he had control of the place for Easley, as far as his knowledge of it was concerned. The statement that the place belonged to Easley was not competent evidence to prove Easley’s ownership of the land, and the evasive statement that, “while he did not live upon the land, he was possessed of it,” does not prove possession of the land by Easley; and the statement that the witness had control of the land for Easley, “so far as his knowledge of the place was concerned,” does not prove anything. He may not have had any knowledge of the place, and, judging from the character of his evidence, he did not have much knowledge of it. But later on in his testimony he was asked how long Easley had had possession of the place, and his final answer is, “My remembrance would be, something like six months since it was deeded back to him.” This evidence, if it was competent to prove ownership, would show that the land was deeded to Easley six months after the condemnation proceedings were had.
Another witness testified that Easley sold the land about a year before the trial, which, if it proved anything, would, in connection with McNeal’s evidence, and the report of the condemnation commissioners, show that Easley sold the land to the Ohio Land & Cattle Company before the condemnation proceedings; and that it was deeded back to him six months after the condemnation proceedings were had, and that in the meantime he had no interest, or but a slight interest, at most, in the land. However, it is unnecessary to speculate as to what interest Easley had in the land. He did not show by any competent evidence that he had any ownership in or the possession of the land. Failing to show any interest in the land that was subject to injury, he could not recover any damages.
The next error assigned grows out of the action of the court, in overruling plaintiff’s objection to testimony, and in refusing to strike it out after it was in. (^. W. Pease was called as a witness by the plaintiff below to prove the amount of his damages. The witness says he could not tell anything about the value of one 80 of the farm, and as to the other 80 he said: “ I would only have to say in regard to that, I do not know what it would sell for. I would have to use my own opinion — my own judgment in regard to what I considered the value of it. I have never heard it offered for sale, or anybody make any offers on it; would'have to use my own opinion with regard to what it was worth afterward; but what was the real market value I would not know.” He gave it as his opinion that this 80 was worth $20 per acre. He was then asked, “Were you acquainted with the value of land in that neighborhood similar to that about that time?” and answered, “ I know what has been offered and asked for- land.” The following question was then put to him:
“How much less, taking into consideration the inconvenience, if any, by reason of the railroad company running its right-of-way through there, was it worth immediately after the appropriation of the railroad’s right-of-way through it, than it was immediately before the railroad had appropriated the land ? ”
(Objected to as irrelevant, incompetent, and immaterial, and for the farther reason that it has not been shown that the witness was competent to answer. Overruled.) The witness answered: “I consider the value less $800 on that place — that is, on the entire farm.”
The admission of this evidence was probably erroneous, within the case of Railroad Co. v. Kuhn, 38 Kas. 675, and the case of Railroad Co. v. Muller, 45 id. 85; same case, 25 Pac. Rep. 210. But it certainly was erroneous for the reason that the witness had shown he was not qualified to testify. He testified that he could put no value on one 80, and as to the other 80, it was his opinion it was worth $20 per acre; but that as to the market value he did not know what it was, and he would have to use his own judgment in fixing the value; and yet he was permitted to tell how much less in value the whole farm was, after the appropriation of the right-of-way over said land by the railroad company, than it was before the appropriation of such right-of-way was made. This was error. There are other assignments of error, but we do not think it necessary to notice them.
It is recommended that the judgment of the district court be reversed, and the cause remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This is a proceeding in injunction, commenced by the city of Oberlin to enjoin the plaintiff in error from interfering' with a certain alleged street in said city. In June, 1879, Hitchcock and others purchased a piece of ground of Rodehaver, for the purpose of platting it as an addition to said city of Oberlin. They organized, andjobtained a charter from the state granting them corporate powers, under which they platted said ground, dividing it into lots and blocks, with streets and alleys, and filed said plat for record. Running east and west along the north side of said land, as platted, was left a strip of ground 85 feet wide. The word “north” was written on that part of the plat representing said strip. The contention of the city of Oberlin in the court below was, that said strip left on the north side of said plat and marked with the word “north” was created a street, and named North street on said plat. The defendant below denied that such strip was a street, and claimed that, having commenced platting on the south side, and surveyed the ground into blocks and streets until they reached the north side, they had the strip in controversy left; that it was not wide enough for blocks, and was left temporarily with the view of obtaining more land adjoining it of Rodehaver, sufficient for a tier of full blocks, when they intended to block and lot it the same as the residue of the land, but,- not obtaining any more of the land, the strip simply lay unplatted. They claim that the word “north” written on that part of the plat was not written there as and' for the name of a street, but simply to designate the point of compass. The matter was heard by the court, which rendered a judgment perpetuating the injunction, and for costs. Motion for new trial was overruled.
The first assignment of error is based upon the action of the court in overruling the objection of the plaintiff in error to the reception of evidence under the petition as finally amended. Counsel allege that the petition does not show where the strip of land claimed by the city to be a street was located. It is claimed that the petition must allege that the strip was a' public highway and located within the city limits. Conceding this to be the law, an examination of the petition shows that the position of the plaintiff in error is untenable. The petition alleges that the strip in question is a street in the city of Oberlin, and within the corporate limits of said city, and under the control thereof.
The second error alleged consists in the action of the court in allowing John Wilson and others to testify to what John Rodehaver had said and done in connection with the sale of certain lots he had sold in and out of the addition heretofore mentioned. Rodehaver was a member and director of the corporation that owned the addition. He acted as salesman for said corporation in selling lots in said addition, and the court permitted Wilson and others who had purchased lots from said corporation through Rodehaver to testify to what Rodehaver said about the strip of land lying on the north side of said addition at the time, and when he was selling said lots to them. They testified that Rodehaver told them at such time that said strip of land was a street — was North street. Some of said parties purchased lots in the addition fronting on said strip of land that Rodehaver represented was North street, and say that they purchased on the strength of such representations so made by Rodehaver that such strip was a street, and that they would not have purchased but for the belief of said representations that the strip was a street. We think the evidence was entirely proper. Rodehaver was not only an officer of the corporation which had platted and which owned the addition, including the strip in controversy, but he was, at the time of making the representations, presumably, the agent of said corporation for the sale of its lots; at least, he was acting as such, and the representations reproduced were made in connection with his sale of the lots.
There was another class of testimony admitted that does not come so clearly within any rule of evidence. Rodehaver owned the land directly north of the 85-feet strip; and he was selling lots on his side of the strip and facing the same, and in connection with the sale of these lots he also represented that the 85-feet strip was a street. The court allowed these representations to be proven. In the sale of these lots he was acting for himself, and his statements that the strip was a street were, so far as the question involved in the case is concerned, but the statements of an officer of the corporation. If he had been a principal officer of the corporation, such as president, his statements would probably have been evidence; but he was only a director of the company. There was but little of this evidence, and, when received, the court said it wanted to hear all about the matter. And when the defendant offered like testimony the court received it, going so far as to let the defendant below prove his own statement to his hired man, to the effect that the strip was not a street. There was much more evidence of this kind introduced by the defendant below than by the plaintiff. The case was being tried by the court, which evidently gave evidence of this character little weight. There was other proper evidence sufficient to sustain the judgment of the court. The acting secretary of the corporation testified that, at a meeting of said corporation for the purpose of dividing among the members of the corporation what lots were left unsold, so as to close up the business of the corporatain, this 85-feet strip was, by the members of the corporation, called North street, and was by them at that time treated as a street; that there was no attempt to, or talk about dividing the strip while they were engaged in dividing the lots, but that lots facing the strip were mentioned and talked about as facing North street. It was also proved that houses had been built on both sides of said strip; that fences had been erected, and trees set out in line with the strip as a street, and that such fences and trees had been in existence for several years, during which the plaintiff in error, who was the chief officer of the corporation, had resided in the city of Oberlin, and necessarily near to the alleged North street. It was also shown that, from the date of the platting of the ground constituting the addition, the said strip had been used as a highway by the public. The city authorities treated it as a street by building small bridges or sluice-ways thereon, in order to render it passable. In view of all this evidence in support of the judgment of the court, we do not think the liberality of the court in the reception of evidence constitutes material error, especially as such liberality was exercised in behalf of the plaintiff in error to even a greater extent than it was in behalf of the defendant in error.
“Dedications by maps and plats are sometimes so made as to render it difficult to determine their nature and extent. We think it a safe general rule to resolve doubts in such cases against the donor, and, within reasonable limits, to construe the dedication so as to benefit the public rather than the donor. Naturally the presumption is that one who records a plat, and. marks upon it spaces that appear to form no part of the platted lots, dedicates the land represented by the space thus excluded to the public use.”
(Elliott, Roads & Streets, 111; City of Denver v. Clements, 3 Col. 484; Noys v. Ward, 19 Conn. 250; Hanson v. Eastman, 21 Minn. 509; Sanborn v. Chicago, 16 Wis. 19; Yates v. Judd, 18 id. 113.)
We think the judgment is supported by sufficient evidence.’
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
Hoeton, C. J., and Johnston, J., concurring. .
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought in the district court of Bourbon county by David C. Canfield against the city of Eort Scott, to recover damages for personal injuries alleged to have been sustained by him by reason of a defective sidewalk. At the May term, 1888, a trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff and against the defendant for $1,000 damages; and the defendant, as plaintiff in error, brings the case to this court for review.
Two questions only are presented by the plaintiff in error for consideration by this court, and they are as follows:
(1) During the trial,, and while G. R. Leslie, the street commissioner, was testifying as a witness on behalf of the defendant, it was shown that the plaintiff did some work for the city in putting down some cross-walks; that he did his work well, but that he was a “little slow.” As to what kind of cross-walks these were, the record is silent. The record then shows as follows:
“Defendant here offered to prove by this witness that where the material is furnished, that hit-and-miss sidewalks are put down at a customary price here in the city at a cent a foot; and that a good workman would put down over 150 feet, except in some instances, where one may be able to put down 200 feet and earn $2. Plaintiff’s objection to this offer was sustained, to which defendant duly excepted, and excepts.”
(2) The record also shows, that during the trial, and while Canfield was testifying as a witness on his own behalf, the following occurred:
“ Plaintiff hereupon offered to show that the street commissioner, in a conversation with Mr. Canfield, stated to him that he had knowledge of the dilapidated condition of the sidewalk, and had been wanting to repair it some time before that, but couldn’t get the order to do so. The offer was overruled and denied.”
This is complained of by the city, defendant below, as “misconduct of plaintiff during the trial.”
With reference to the first claim of error, it is not shown what “ hit-and-miss sidewalks ” are, or that the witness ever saw a sidewalk of that kind, or that he knew what the cost of such a sidewalk was or would be, or that he knew how much of such a sidewalk a good workman could put down; and although he was a street commissioner, still we should not assume, without proof, that he knew everything. We cannot say that any material error was committed by the court below in its refusal to grant the defendant's offer to introduce this evidence.
The second claim of error does not require any comment.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
On the authority of In re Dalton, just decided, and for the same reason, to wit, that before the criticisms were made the cause had been terminated and was not pending, the petitioners, H. F. Thompson and C. L. Calvert, are.discharged.
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by Boyer & Boyer, to recover $1,030 for furnishing material and constructing a school-house in School District No. 2, in Wabaunsee county, and to foreclose a mechanic’s lien which they had filed against the school district and building. They alleged in their petition, as a first cause of action, that on or about the 20th day of July, 1889, they entered into a written contract with the school-district board to furnish material and erect for the school district a school-house, and that soon after the making of the contract they commenced the work, which was completed on October 7, 1889. They state that they performed all the conditions of the contract on their part, but that the school district had. failed and refused to pay them the contract price, or any part thereof. It is further alleged that they duly perfected the mechanic’s lien to which they were entitled, and they asked for a foreclosure of the same. As a second cause of action, it was alleged that, before the signing of the written contract set out in the first count of the petition, they had entered into an oral contract with the school district to erect the school-house in the manner and upon the terms set out in the written contract, which oral contract was not reduced to writing until July 31, 1889, and that prior to the signing of the written contract work had been commenced, and the foundation of the building nearly completed, and that they were permitted by the school district to carry on the building to completion, and that the material furnished, and the work and labor performed for and upon the building, was worth the sum of $1,030, no part of which had been paid. The defense of the district was a non-performance of the conditions of the contract by the defendants in error. At the February term, 1890, the case was tried by the court without a jury, and, after the evidence of the Boyer brothers had been introduced, a demurrer to the evidence upon each count of the petition was filed by the school district, and the court sustained the demurrer as to the first count, and overruled it as to the second count. After hearing the evidence of all the parties, the court subsequently rendered judgment against the district for $739.95, together with interest and costs.
Two grounds of error are assigned for a reversal: First, that the court erred in permitting the Boyer brothers to amend their petition during the progress of the trial by setting up the second count, which has been referred to, and which seems to have been pleaded with a view of recovering the value of the materials furnished and the labor performed, in case the court should hold that the work had not been done in the exact manner stipulated in the contract, and that they were not entitled to recover the price agreed on in the contract. A reading of the record satisfies us that no injustice was done in this respect. Great latitude is given to the court in the matter of amending pleadings, and it does not appear by the record that the defendant below asked for a continuance or suffered any prejudice by reason of the amendment. The plaintiffs below were seeking a recovery for the building of the school-house, and an amendment containing facts which authorized the recovery as upon a quantum meruit was allowable. If the school district was taken unawares by the amendment, or was unprepared to meet the new phase of the case, a continuance might have been had upon application to the court. But no such application was made.
It is next insisted that the court erred in overruling a demurrer to the evidence offered by the Boyer brothers to sustain the second count in the petition. The testimony tended to show that there was some deviation from the requirements of the contract, but there was evidence offered in behalf of the Boyer brothers that there had been a substantial compliance with the contract; that they had endeavored in good faith to carry out its conditions; and that the defects were slight and unimportant. It is true that the foundation wall was made of grouting, instead of rubble-work, as the written contract required; but the contractors state that the wall was mostly completed before the written contract was entered into, and the school district knew the character of wall that was being built; and it is further claimed that it is as substantial and durable as though it had been rubble-work.
In our opinion there was sufficient testimony to warrant the judgment that was given. The building is erected upon the land of the school district, and there appears to have been an honest attempt to comply with the conditions of the contract.
“It is well settled that where one party has entered into a special contract to perform work for another and furnish materials, and the work is done and the materials are furnished, but not in the manner stipulated for in the contract, so that he cannot recover the price agreed on in the contract, yet, if the work and materials are of any value and benefit to the other party, he may recover for the work done and for the materials. This is upon the principle that if the other party has derived a benefit from the part performed it would be unjust to allow him to retain that without paying anything.” (Barn well v. Kempton, 22 Kas. 314; Duncan v. Baker, 21 id. 99; Usher v. Hiatt, 21 id. 548.)
The building erected is attached to the realty and becomes the property of the school district. It is of substantial value to the district and may be used for the purposes for which it was built. To allow the school district to retain the building without paying the contractors the- reasonable worth of the same would be an injustice. The court evidently found that, although the school-house was defective in some particulars, it was of real and substantial value to the district for the purposes intended, but- because of the defects limited the award to the actual benefits which- the district received.
The plaintiff in error greatly relies on Denton v. City of Atchison, 34 Kas. 438, but that case is not apt or controlling. In that case there was no substantial compliance with the provisions of the contract, and the improvements constructed did not attach to the realty of the city or become its property. Then again, in making the improvements the city authorities are acting in behalf of the abutting property-owners who are substantially benefited by the improvement, and at whose expense it is made, and are required to pursue closely the direction of the statute; and payment cannot be enforced against the property-owner unless the statutory requirements are observed. It is true that there is much conflict of testimony in the record, but on a demurrer to the evidence we must view that of the plaintiffs below in its most favorable light; and so looking at it, we readily conclude that there was sufficient testimony to overcome the demurrer of the school district.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
The plaintiffs in error, with W. K. F. Vila, originally brought this action against S. Lehman, A. B. Gilbert, and the First National Bank of Newton, in the district court of Harvey county. The plaintiffs alleged various fraudulent acts upon the part of the defendants Lehman and Gilbert, and others, whereby they were induced to associate themselves with the defendants named, and others, in the purchase of some real estate, to be platted as an addition to the city of Newton; that a corporation was organized, under the name of the “Harvey County Investment Company,” and certain land purchased and conveyed to said company; that each member of the association paid in cash the sum of $1,000, except Vila, who paid his entire share in cash, amounting to $2,800. The other members of the association executed notes for the balance of the unpaid interest in said company, and these notes, with the cash paid in, were used to pay for the land purchased. It was further alleged that these notes were delivered to Lehman and Gilbert, who occupied the position of president and secretary, respectively, of the investment company ; and that they sold them to the First National Bank, of which Lehman was president, and Gilbert was cashier, and the bank had knowledge of the alleged fraudulent transactions; that the bank had brought suit against the plaintiffs as makers of some of the notes, and was proceeding to collect the same. The plaintiffs asked for a judgment against Lehman and Gilbert for $8,800, and for a rescission of the contract of purchase of the land, and that the bank be enjoined from collecting the notes sued upon until the final determination of this action, and, if the plaintiffs should recover in this suit, that the injunction be made perpetual. To this petition the bank demurred, and the demurrer was sustained by the court upon the grounds that there was a misjoinder of different causes of action, a defect of parties plaintiff and defendant, and that the petition did not state facts sufficient to constitute a cause of action against the bank. One of the plaintiffs, Vila, then voluntarily dismissed his action as to all the defendants, and the other plaintiffs dismissed their action as to the defendants Lehman and Gilbert, leaving the First National Bank the only defendant; and the record is brought to this court by the plaintiffs in error, who ask a reversal of the decision of the district court in sustaining the demurrer of the bank to the petition.
We think the demurrer was properly sustained. A rescission of the original contract for the purchase of the land was asked, and all the parties interested should have been joined as plaintiffs or defendants. The corporation was not even made a party. Again, we are of the opinion that, if the bank had notice through its president and cashier of the alleged frauds, as plaintiffs contend, then the plaintiffs would have a good defense against the two notes sued on, which suit was attempted to be enjoined by this action.
We might assign another reason why the decision of the district court- should not be disturbed : The plaintiffs voluntarily dismissed their action against all of the defendants, ex cept the bank. They were seeking a judgment against the other defendants, and asked the court to restrain the bank from collecting its notes until the alleged claims of the plaintiffs against these defendants could be adjudicated. They then placed it beyond, the power of the court to settle the question sought to be litigated, by dismissing the principal defendants, but still insist that the bank should be restrained from prosecuting its action against them. We know of no rule which requires such an interposition upon the part of a court of equity. Legal rights should be left to the decision of a legal forum, and, in the absence of special circumstances warranting the interposition of the extraordinary aid of courts of equity, such courts will not interfere to protect a purely legal right properly triable at law. (High, Inj., §29; Wooden v. Wooden, 2 Green Ch. 429.)
We recommend an affirmance of the judgment of the court below.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace of Comanche county by Drew Ryan and George Schwrisberger, against the city of Coldwater, to recover $220 for work done upon a certain street in that city. The case was afterward takén to the district court, and in that court the plaintiffs amended their bill of particulars so as to make it read, omitting caption and signature, as follows:
“Plaintiffs, for cause of action, allege that defendant is a municipal corporation created by the laws of the state of Kansas; that as such corporation defendant did, by ordinance approved on the 16th day of August, 1886, provide a tax of 10 mills on the dollar on all the taxable real estate within the corporate limits of said city of Coldwater, the defendant in this case, for the purpose of grading, opening, widening, improving, etc., all streets, avenues, etc., in said city; that as such corporation, defendant did, by resblution approved by the mayor and council of said city, defendant, on the 27th day of July, 1887, provide for surveying and grading all streets within the limits of said city, defendant; that in pursuance of said resolution, on Main street in said city was established a grade, which said grade was by resolution of the mayor and council of said city, adopted and approved on the 20th day of December, 1887; that plaintiffs herein, with the knowledge, consent and direction of defendant herein, did, between the — day of- 1887, and the 8th day of November, 1887, do certain filling and work on west Main street between Central and Brooklyn avenues in said city, in compliance with the grade as established aforesaid, an account of said filling and work being herewith attached, marked ‘ exhibit A’ and made a part hereof; that plaintiffs did, on the 3d day of December, 1887, present to the city council of the city of Coldwater, the defendant, a full account of the items of their claim, the same being duly verified by the oath of George Schwrisberger, one of the plaintiffs herein; that said account was reasonable, correct, and just, which said claim so presented defendant refused to allow; that said filling and work is worth the sum of $220; that said amount of $220 is due, and wholly unpaid.
“Wherefore plaintiffs ask judgment in the sum of $220, with interest at the rate of 7 per cent, per annum from the 8th day of November, 1887, and costs of this suit.”
Exhibit “A” reads as follows:
“November 8, 1887. City of Coldwater, Dr. To Drew. Ryan and George Sehwrisberger, Or. To 2,200 yards of filling on west Main street between Central and Brooklyn avenues, in said city, at 10 cents per yard, $220. Due $220.”
The defendant demurred to this amended bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action, and the court sustained the demurrer ; and to reverse this ruling of the district court, the plaintiffs, as plaintiffs in error, bring the case to this court.
We think the court below erred. In Kansas all improvements of the public streets of a city, and all changes to be made therein, are wholly and entirely within the control of the city itself. No individual person has any right to disturb the surface of any street of a city in the slightest manner whatever except with the consent of the city, or except as he might do so in some proper mode of travel or transportation. In the present case the plaintiffs made a certain filling on west Main street of the city of Coldwater,. to the extent of 2,200 yards. While it might be presumed, in the absence of anything to the contrary, that they did this with the knowledge and consent and by the direction of the city, yet they have not relied upon presumptions merely, but have so alleged the same in direct terms in their petition; and as the work has already been done, completed, finished, we think the city is presumptively liable therefor; (City of Ellsworth v. Rossiter, just decided;) and if the city has any defense, it devolves upon the city to so state it.
We think the plaintiffs’ petition states a cause of action, and therefore the order and judgment of the district court, sustaining the demurrer thereto will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
On May 12, 1888, G. W. Eogers brought an action against E. W. Hodgson, M. S. Hodgson, Cynthia A. Shafer, and H. Shafer, to recover upon a note and to foreclose a mortgage which was given to secure the same. The note was for $2,500, and was executed on May 1, 1886, by Hodgson and wife to Smedley Darlington, due in five years, with 7 per cent, interest, payable semi-annually, according to the terms of 10 semi-annual coupons of $87.50 each, attached to the note, due on the first days of May and November of; each year. He alleged that Smedley Darlington sold and assigned the note and mortgage to the plaintiff, who is now the owner and holder of the same. It is further averred that the mortgage given to secure the payment of the note provided that, if any coupon remained due and unpaid more than 30 days after it became due, the whole debt should then become due, and bear 12 per cent, interest from date. The plaintiff further says, that the interest coupons maturing November 1, 1886, and May 1, 1887, were paid; but that the coupon maturing November 1, 1887, was not paid at the time the same became due, nor for more than 30 days thereafter, and was still due and unpaid; and that the interest coupon maturing May 1, 1888, was past due, and unpaid. There is a further allegation that the conditions of the mortgage were broken by the failure to pay the taxes on the premises and to keep the property insured. On account of these defaults, the plaintiff alleges that he has elected to exercise his option to declare the whole sum due and payable, according to the terms of the note and mortgage. He asks for a personal judgment against the defendants Hodgson and wife for the sum of $2,500, with interest thereon at the rate of 12 per cent, per annum from May 1, 1886, less the two interest coupons which have been paid, as above stated; and also for a decree foreclosing the mortgage.
The defendants filed a joint answer, admitting the execution of the note and mortgage; denying the assignment of the same by Darlington to the plaintiff; alleging that the coupon due November 1, 1887, was paid to Darlington before the pretended assignment, and alleging an offer to pay the coupon of May 1, 1888, within thirty days after the same became due, at the place where it was made payable, and that within the same time they offered to pay the last-named coupon to plaintiff, but that it was refused; alleging that the agent of Darling-ton who negotiated the loan agreed that no insurance need be taken out on the premises, and waived that condition of the mortgage; and that W. E. Brown, who purchased the premises from Hodgson on April 23, 1887, assumed the payment of the mortgage note and coupons mentioned, but that afterward he combined with the defendant J. T. Axtell and one A. B. Gilbert to injure and defraud the defendant, and in pursuance thereof they obtained possession of the note and mortgage from Darlington upon the pretense of the payment of the same by said Brown, and that they did not in any sense obtain an assignment from Darlington to Rogers; that subsequently W. E. Brown entered into an agreement to re-convey the premises to Hodgson free and clear of all incumbrances, except that Hodgson was to pay the note and the balance of the unmatured coupons as they became due, but with the distinct agreement that no forfeiture of any of the terms and conditions of the note and mortgage had occurred. It is further alleged that no part of the note is due, nor are any of the coupons due except the one maturing May 1, 1888, and that payment of that had been tendered.
On December 21,1888, the plaintiff asked leave to file a supplemental petition, alleging in substance that since the commencement of this action the defendant had allowed the interest coupon due May 1, 1888, to remain unpaid for more than 30 days after its maturity, and had failed to pay the taxes which were due December 20, 1888, and had allowed the interest coupon due November 1, 1888, to remain unpaid for more than 30 days after its maturity, and had still allowed the buildings on the premises to remain uninsured; and that for these reasons, in addition to those set up in the original petition, the whole amount of the debt had become due. The court denied the application to file the supplemental petition, and upon the trial which was afterward had a demurrer was sustained by the court to the plaintiff’s evidence. The plaintiff excepted to the rulings of the court in denying the application to file the supplemental petition and in sustaining the demurrer to the plaintiff’s evidence.
By the supplemental petition offered, the plaintiff undertook to allege such defaults as would entitle him to recover 12 per cent, interest from the date of the mortgage, instead of the 7 per-cent, rate stipulated therein. By the conditions of the mortgage, a default in the payment of any interest for more than 30 days after the same became due gave the holder the option to declare the whole amount due, and to collect interest thereon at 12 per cent, from the date of the note. In the petition filed he alleged a default in the payment of the interest due November 1, 1887, and that the same was still due and unpaid when the action was brought, on May 12, 1888. He also alleged that the coupon due on May 1, 1888, was past due and still unpaid. More than six months after the commencement of the suit, and just before the trial, he asked to file a supplemental petition, alleging the non-payment of the coupons due on May and November, 1888, for more than 30 days after the maturity of the same, and the continued failure to procure insurance, as well as the non-payment of the taxes for the year 1888. These amendatory provisions related only to the right of the plaintiff to declare the whole amount due, and to collect the additional rate of interest on the note and mortgage.
If there had been no default before the commencement of the action, the plaintiff would hardly be entitled to enlarge his action by a supplemental petition setting forth subsequent defaults or grounds of forfeiture which did not exist at the commencement of the suit; but if a part of the amount claimed in the petition was due and unpaid at the commencement of the action, it would seem that the plaintiff would be entitled to set up any facts occurring since the commencement of the action showing that a greater or that the entire amount was due and unpaid. The code provides that “either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.” (§144.) The action was brought on May 12, 1888, and the coupon which was due 12 days prior to that time had remained unpaid for more than 30 days after its maturity, which, by the terms of the mortgage, gave the plaintiff the option to elect to declare the whole amount due. The supplemental petition offered also alleged that the taxes which were due December 20, 1888, were unpaid; and that also constituted a ground of forfeiture, and a cause for declaring the whole amount due. As the plaintiff was claiming a personal judgment for the entire principal and all the interest due thereon, as well as the additional rate where there was a default of more .than 30 days, the court would have been warranted in allowing the supplemental petition to be filed alleging, additional defaults which would entitle the plaintiff to recover a greater amount. However> the filing of amendatory and supplemental pleadings rests very largely in the discretion of the court, and unless there is a clear abuse of discretion, its ruling will not be reversed. (Tefft v. Firey, 22 Kas. 753.) We cannot hold that the refusal of the court is such an abuse of discretion as constitutes a ground of reversal.
The next assignment is the ruling of the court in sustaining the defendants’ demurrer to the plaintiff’s evidence. It is contended by the defendants in error, that the coupon which became due on November 1, 1887, had been paid, and that there was no default on account of the non-payment of the taxes or the failure to insure the buildings on the premises. The proof strongly tends to show, and we think would be amply sufficient to sustain a verdict or finding, that at the commencement of the action no defaults had occurred which gave the plaintiff the right to elect to declare the whole amount due. It leads us to think that there was a payment of the coupon due November 1, 1887, and that the taxes due December 20, 1888, were paid by the party holding the legal title to the premises at the time the taxes were due. The tax receipt and the coupon of November, 1887, were both surrendered to the owner of the mortgaged premises prior to the commencement of the action. The testimony in regard to the payment and surrender of this coupon, as well as the payment of the taxes, is inconsistent with forfeiture. Neither does it appear that there was any forfeiture by reason of the non-insurance of the property. No provision is contained in the mortgage note with reference to insurance, and the one contained in the mortgage provides that the buildings will be insured by the mortgagors at their own expense, with the loss payable to the mortgagee; and instead of reciting that the failure to do so shall be a ground of forfeiture, it provides that in the event of the failure of the mortgagors, the mortgagee may procure such insurance and collect the cost thereof from the mortgagors, and that the mortgage shall stand as security for the insurance. Besides, the testimony offered tends strongly .to show that the mortgagee and his agent did not desire or demand insurance, and, if they had a right to demand the same, that there had been a waiver of such right. If the decision of the district court had been a finding at the final submission of the case that no defaults had occurred prior to May, 1888, we would readily yield our concurrence, and declare that the testimony offered fully warranted the finding; but it is not so clear that a demurrer to the evidence should have been sustained. “A demurrer to the evidence admits every fact and conclusion which the evidence most favorable to the other party tends to prove.” (Christie v. Barnes, 33 Kas. 317.) In such a case, the court cannot weigh conflicting evidence, but must view that which is given in the light most favorable to the plaintiff, and unless all that is offered fails to establish his case or some material fact in issue in the case, the court should overrule the demurrer. (Railroad Co. v. Foster, 39 Kas. 329, and cases there cited.) We are inclined to the opinion that under these rules the demurrer should have been overruled. It certainly should as to the coupon note due May 1, 1888, that was past due when the action was commenced, and defendants admitted that it was still unpaid. In any event, plaintiff was entitled to a judgment for the amount of that coupon and the costs of the action. It is true, as contended, that the plaintiff claimed more than that, and that he claimed the amount of principal and interest at the advanced rate, but it appears that he set out the principal mortgage note in his petition and all the coupon notes that were unpaid, and he asked a personal judgment for the amount of the principal, together with all interest due thereon. The coupon note maturing May 1, 1888, was recited at length, and the plaintiff alleged that it was past due and was still unpaid. Even if the principal note was not due when the suit was begun, and no defaults had occurred which authorized the plaintiff to declare the whole amount due, still he was entitled to recover that which was due, and this was fairly included within the allegations of his petition.
There was some testimony relating to a tender of the amount of this coupon, but there was no offer to confess judgment, and the tender, if any was made, did not include the costs of the proceeding. Guided by the rules referred to in relation to a demurrer to the evidence, we cannot say that a sufficient ten der was made, or that the demurrer should have been sustained. The facts of the case as indicated by the record are such that we would have been pleased to have affirmed the judgment if ^ could have been done under the rules of law, Jjqj we feej compelled to hold that the demurrer should have been overruled.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
Simpson, C.:
On the 17th day of January, 1887, Hixon filed an affidavit before a justice of the peace in Bourbon county, charging Ross with having mixed certain poison with a quantity of flour, with the intent and for the purpose of causing the death of certain persons. Upon said complaint a warrant was issued, and Ross was arrested. A preliminary trial was had on the 4th of February before the justice who issued the warrant. At the preliminary examination 12 witnesses were examined for the state, and seven for the defendant. After the hearing of all the evidence, the justice bound Ross to appear at the district court and answer the charge. He failed to give bond and was committed to jail. The finding of the justice was as follows:
“After hearing the evidence, I find that said offense has been committed, and that there is probable cause to believe the defendant guilty thereof.”
Ross was in jail from the 17th day of January, 1887, until May 2, 1887. On the latter date, the district court of Bourbon county being in session, the county attorney filed a statement showing cause for non-prosecution, and Ross was discharged. On the 8th day of August, 1887, he commenced this-nction for malicious prosecution against James Hixon, the prosecuting witness. A trial was had at the May term, 1888. The plaintiff in error offered evidence showing the proceedings before the justice of the peace on the criminal charge, and tending to prove every material allegation in such an action. When the plaintiff rested, the defendant, Hixon, introduced a large number of witnesses, when he was interrupted by the court,, the trial was stopped, and a verdict was ordered for the defendant. The jury returned a verdict for the defendant, and a motion for a new trial was overruled. The record itself discloses no reason for the ruling of the court, but counsel agree that the reason assigned by the trial court was, that the examining magistrate had made a finding of probable cause, and that such finding was conclusive upon that question. It is further claimed by counsel for the defendant in error that the trial court made the further statement:
“That, as the petition does not charge fraud or undue means in obtaining the finding of probable cause by the magistrate, the same cannot be attacked.”
The sole question discussed in the oral argument of counsel for defendant in error, and the briefs on both sides, is as to the weight to be given to the finding of the examining magistrate; as to whether it is prima facie or conclusive on the question of probable cause; and whether or not, in either case, the finding must be attacked for fraud or undue means by proper allegations in the petition. In the case of Sweeney v. Perney, 40 Kas. 102, this court incidentally noticed the conflict in authorities as to whether or not proof of arrest, committal and indictment is prima facie proof of probable cause; and the case of Ricord v. C. P. Rld. Co., 15 Nev. 167, was cited on one side, and that of Womack, v. Circle, 29 Gratt. 192, on the other. The question in this ease is closely allied to this controversy, but authorities can be found on both sides of this question. In the case of Bauer v. Clay, 8 Kas. 389, Mr. Justice Valentine says:
“The proof showing that the justice ordered that Clay should be bound over for his appearance at court, or, in default of bail, that he should be committed to the county jail, is only prima facie, and not conclusive, evidence of probable cause.”
The cases of Ash v. Marlow, 20 Ohio, 119, and Ewing v. Sanford, 19 Ala. 605, are cited in support. The force of this decision is sought to be destroyed by counsel for defendant in error by an assertion that it is a dictum. It is sometimes difficult to draw the line between what is authoritative and what is not in a judicial opinion. The report of the case does not give either the pleadings, the assignment of errors, or the briefs, but it is evident that the question was necessarily involved in the rulings of the trial court, and this court thought it necessary to give this as one of the reasons for affirmance of the judgment below, because, if counsel for defendant in error are now right in their contention, Clay had no cause of action, and the case was decided wrongfully in both the trial and the appellate courts. However the rule may be in cases in which the magistrates have jurisdiction to hear and pass judgment, we are satisfied that the ease of Bauer v. Clay states the true rule in cases in which the magistrates have only power to bind over. This rule is upheld by the cases of Ash v. Marlow, 20 Ohio, 119; Ewing v. Sanford, 19 Ala. 605; Raleigh v. Cook, 60 Tex. 438; Ricord v. C. R. Rld. Co., 15 Nev. 167; Hale v. Boylen, 22 W. Va. 234; Bacon v. Towne, 4 Cush. (Mass.) 217; Spalding v. Lowe, 56 Mich. 366; Ganea v. S. R. Rld. Co., 51 Cal. 140; Diemer v. Herber, 75 Cal. 287. These are all express adjudications on that particular question. In one of these cases, decided in 1885, being that of Spalding v. Lowe, 56 Mich. 366, the defendant requested the trial court to instruct the jury as follows:
“It appears from the proofs in this case that an examination was had upon the charge made against Spalding, and that the justice, upon such examination, determined that this offense charged against Spalding had been committed, and that there was probable cause to believe said Spalding guilty thereof. This was a judicial determination the justice was authorized to make, and unless such action and determination of the justice was corrupt or collusive, or was wrongfully procured by the defendant herein, it is final as to the question of probable cause, and your verdict should be for the defendant.”
The trial court refused to so instruct the jury, and this refusal was assigned as error in the supreme court; but that court say (page 372): “No authority has been produced in support of it, and we think none exists.” We have been unable to find a reported case in which the rule is held as claimed by counsel for defendant in error. There are cases that so hold when the magistrate has power to render a judgment of conviction.
How much weight as proof of probable cause shall be attributed to the judgment of a court in an original action when subsequently reversed for error, is elaborately discussed by the supreme court of the United States in the case of Live-Stock Co. v. Butchers’ Union, 120 U. S. 141, a case much relied on by counsel for defendant in error. To our mind, however, the distinction between that case and the one at bar is plain and distinct. If the magistrate in Bourbon county had possessed the statutory power to hear the evidence and determine the guilt or innocence of the defendant, and to punish by fine and imprisonment if guilt was found, then his finding and judgment would come within the rule established by that case to be the law of the land. The question in this case is, how much weight, as proof of probable cause, shall be attributed to the finding of an examining magistrate that “an offense has been committed, and that there is probable cause to believe the defendant guilty thereof,” when the defendant is subsequently discharged, the prosecution against him confessedly ended, and he has instituted a suit for malicious prosecution against the complaining witness ? In the one case there is a solemn judgment, rendered by a court having full and complete jurisdiction both of the parties and subject-matter, binding on all until reversed on appeal or error. In the other case there is a finding in effect that sufficient facts have been developed that justifies a magistrate in sending the parties before a court competent to ultimately deal with the question of guilt or innocence.
Again, while a conviction is generally conclusive of probable cause, yet it may be. overcome by a showing that it was procured by fraud, undue means, or the false testimony of the prosecution. (Womack v. Circle, 29 Gratt. 192; Olson v. Neal, 63 Iowa, 214; Cloon v. Gerry, 13 Gray, 201; Whitney v. Peckham, 15 Mass. 143; Peck v. Choteau, 91 Mo. 138; Bowman v. Brown, 52 Iowa, 437; Palmer v. Avery, 41 Barb. 290; Richey v. McBean, 17 Ill. 63; Payson v. Caswell, 22 Me. 212; Herman v. Brookerhoff, 8 Watts, 240; Jones v. Kirksey, 10 Ala. 839.) In such a case the petition in the action for malicious prosecution must directly attack the judgment of conviction, or it will be suicidal. It is therefore unimportant whether the words used by the court in Bauer v. Clay, supra, are dicta or authoritative in that case, as they express the law as universally held by all courts of last resort that have^ spoken on this subject. /It follows that the other suggestion of counsel, that the finding of the magistrate must be directly attacked in the petition for fraud or undue means, is without force; because, as that finding is only prima facie, all that is necessary for the plaintiff to do to win is to overthrow it by a preponderance of evidence. It can be fairly said that there was evidence submitted at the trial by the plaintiff in error, other than the transcript of the proceedings before the examining magistrate, bearing upon the question of probable cause, which the court below permitted to go to the jury, from which they might have found that the prima facie case made by the magistrate’s finding was overcome.
It is recommended that the judgment of the district court be reversed, and the cause remanded, with instructions to grant a new trial.
By the Court: It is so ordered.
'All the Justices concurring.
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Opinion by
Simpson, C.:
In the month of August, in the year 1889, a large number of real-property owners in the city of Topeka presented to and filed with the clerk of said city a petition requesting the mayor and council to create a certain sewer district, and to build and construct sewers therein. This petition was presented to the council; referred to its committee on ways and means; was considered by the committee; and the city engineer was requested to suggest the proper territory that should constitute the sewer district. The committee and the city engineer reported after some months, and finally, on the 27th day of January, 1890, the mayor and council passed an ordinance creating and establishing sewer district No. 14, defining the territory thereof, providing for a complete sewer system therein, and providing for the manner of construction and the payment thereof. Said ordinance was duly approved and published.
On the 27th of February, 1890, three disinterested householders of the city were appointed to value and appraise the real property situate in said sewer district, preparatory to a levy of the assessments thereon to pay for the work. On March 27, 1890, detailed estimates were duly prepared and filed by the city engineer, and the city clerk was authorized to advertise for sealed proposals for the building of the sewers. Sealed proposals were received, and the city authorities were about to enter into a contract for the construction of the sewers, when an injunction was granted by the district court of the county. The petition for injunction set forth, among other things, that the person applying therefor, Joel Huntoon, was the owner of real property, all of which was included within said sewer district, and would be subject to taxation for the payment of the costs of constructing said sewers; that various other tracts or lots needed sewers, and ought to have been included in said sewer district in order to relieve the property of the plaintiff and make his burden lighter; that one Hale Bitchie was a member of the city council, and owned a number of tracts and pieces of land which were not taken into said sewer district; that one E. B. Whaley was a member of the city council, and that his wife owned six or eight lots which were not included in said sewer district; that said Whaley appeared before the ways and means committee and before said city council, and illegally and fraudulently used his personal and official influence with intent and for the purpose of inducing the city council to pass the ordinance, leaving out of the boundary of said sewer district certain real estate belonging to Hale Bitchie, and to the wife of the said Whaley, and that said property was left out and needed sewers. In due time an answer was filed and the cause tried, the court making special findings and separate conclusions of law, as follows:
“ CONCLUSIONS OF FACT.
“1. Several months prior to January 27, 1890, the mayor and councilmen of the city of Topeka, defendant, by resolution directed the city engineer to make surveys with the view of creating a sewer district in territory situated in the third and fifth wards of the city of Topeka, with a main sewer commencing and connecting with a large main sewer before that time constructed from at or near the intersection of Tenth avenue and Adams street in the city of Topeka, extending the said main sewer from said connection at Tenth avenue and Adams street in the city of Topeka; thence westerly through the fifth and third wards of the city of Topeka toward or west of Lane street in the city of Topeka. In obedience to the said direction of the mayor and councilmen of the city of Topeka, the city engineer of the city of Topeka made the necessary topographical surveys for the purpose of locating said main sewer and the necessary lateral sewers for said new sewer district, and a description of the boundaries of said new sewer district, for the use of the mayor and councilmen of the city of Topeka, for the purpose of enabling the mayor and eoun oilmen of the city of Topeka to enact the necessary ordinance for the establishment and creation of said new sewer district; and the said city engineer reported and recommended to the mayor and councilmen of the city of Topeka that the said new sewer district should be defined and bounded by ordinance substantially as bounded, defined and described by the map or profile attached to plaintiff’s petition and marked ‘ Exhibit B,’ and made a part of said petition, including the green, yellow and blue coloring on said map or profile.
“2. Long before the passage, approval and publication of ordinance No. 1093, to wit, January 27, 1890, hereinafter mentioned, and the passage of the resolution directing the city engineer to make a topographical survey for the proposed sewer district, all that portion or part of the city of Topeka which lies between Adams street and Van Burén street, and north of Tenth avenue in said city, sewers for public use had been built, constructed, and were maintained by said city in various sewer districts, under and in accordance with several and different ordinances of said city, and the lots and blocks in said sewer districts had been before that time assessed and taxed by the mayor and councilmen of the city of Topeka to pay for the building and construction of said several main and lateral sewers in said several districts, and one of such main sewers, in district No. 12, so built and constructed and maintained by said city, commenced at or near the point or place described as the commencing point for the main sewer mentioned and described in ordinance No. 1093, creating sewer district No. 14, and thence running northerly to and discharged or emptied into the Kansas river, in the city of Topeka.
“3. For a long time prior to and at the passage, approval and publication of ordinance No. 1093, and from thence until the present time, Martha Whaley, the wife of one E. B. Whaley, was and is the owner of the following-described real estate, to wit: Commencing at the southwest corner of lot No. 350, on Monroe street, in the city of Topeka; running thence easterly 150 feet; thence northerly at right angles with the last-mentioned line to the north line of the northeast quarter of section 6, township 12, range 16; thence west, along said section line, to the east side of Monroe street; thence southerly along the east side of Monroe street to the place of beginning, and the same being a part of said quarter-section. Also, the following-described real estate: Commencing ata point 225 feet north of the northwest corner of Madison and Eleventh streets in the city of Topeka, on the west side of Madison street, and running thence westerly on a line parallel with Eleventh street 150 feet; thence northerly to the north line of the northeast quarter of section 6, township 12, range 16; thence east to the north line of said quarter-section to the west line of Madison street; thence southerly along the west line of Madison street to the place of beginning, the same being a part of said quarter-section. Both of said described pieces or parcels of land were where the city engineer made his topographical survey for the mayor and councilmen of the city of Topeka, and within the boundaries of the premises described in conclusion of fact No. 1, and is a part of the premises included within the blue coloring on the map marked Exhibit B,’ and made a part of plaintiff’s petition; and at all times heretofore and hereafter mentioned in these conclusions of fact, the said Martha Whaley and her husband, E. B. Whaley, occupied these-premises as their homestead".
“4. For a long time prior to the passage of said ordinance No. 1093 by the mayor and councilmen of the city of Topeka, and from thence to this time, one Hale Ritchie was and is the owner of the following-described real estate in the city of Topeka, to wit: Lots Nos. 445, 447, 449, 457, 459, 461, 436, 438, 440, 448, on Quincy street, and lots Nos. 434, 436, 446, 448, 450, 460, 462, 464, on Kansas Avenue, and lots Nos. 380, 382, 384, 392, 394, 396, 434, 436, 438, 446, 448, 450, 452, 454, 456, on Monroe street, lots Nos. 377, 379, 381, 383, on Madison street, and all of that block of ground lying east of Madison street, south of Eleventh street, west of Jefferson street and the right-of-way of the Kansas, Nebraska & Dakota Railway Company, and north of Twelfth street, excepting the alleys in said block; and the said Hale Ritchie, prior to the passage of said ordinance, resided on said premises with his family, and has ever since continued to reside on said premises, and all of said premises last above described are within the boundaries of the proposed sewer district surveyed by the said city engineer, or said district described in conclusion of fact No. 1, and within the boundaries of the map attached to plaintiff’s petition, and within the territory on said map indicated and marked in blue color.
5. For a long time prior to and at the passage of said ordinance No. 1093 by the mayor and councilmen of the city of Topeka, one John Ritchie, the brother of said Hale Ritchie, was the owner of about 31 lots situated on Kansas avenue, Quincy street, Monroe street, Madison street, in the city of Topeka, and these lots are within the boundaries of the map attached to plaintiff’s petition, and within those parts or portions of said map colored in blue, and between Thirteenth street and Fourteenth street, and Jackson street and the K. N. & D. Railway. There were, at the time of the passage of said ordinance No. 1093, and are on said lots mentioned, to wit, lots 433 and 435, on Kansas avenue, and which are the first lots south of Thirteenth street, and very close to the proposed main sewer of said district No. 14, two large brick business buildings with cellars or basements underneath the same, which were owned by said John Ritchie, and of the value of $12,000, and which two last-mentioned lots and buildings would be greatly benefited by the said main sewer, if built as proposed.
“6. For a long time prior to and at the passage of said ordinance No. 1093, and thence hitherto, one John Elliott was and still is one of the councilmen of the city of Topeka; and the said John Elliott was present at the meeting of the city council of said city at the passage of said ordinance No. 1093 by the mayor and councilmen of said city, he, the said Elliott, being one of the members of the city council who voted for said ordinance, and during all the time aforesaid the said Elliott was and still is the owner of two lots on Monroe street, in the city of Topeka, fronting east, and between Tenth avenue and Eleventh street, and in the territory colored blue on the map of said proposed district No. 14, as surveyed and proposed by the city engineer, and as defined in conclusion of fact No. 1.
“7. For more than one year before and at the time of the passage of said ordinance No. 1093, to wit, January 27,1890, by the mayor and councilmen of the city of Topeka, the said E. B. Whaley, the husband of the said Martha Whaley, Hale Ritchie, brother of the said John Ritchie, and John Elliott, were members of the city council of the city of Topeka, duly qualified and acting as such. Before the passage of said ordinance No. 1093, defining the boundaries of sewer district No. 14, a controversy arose in the city council among the councilmen of the city of Topeka concerning the boundaries of said new sewer district. Some of the said councilmen contended that all of the territory surveyed and defined by the city engineer, in obedience to the instructions and resolutions adopted by the mayor and councilmen of the city of Topeka preliminary and preparatory to the creation by ordinance of the said sewer district No. 14, should and ought to be included within said district, and some of the councilmen contended that unless the map or plan prepared and made by the city ■engineer for the use of the mayor and councilmen preliminary to the passage of an ordinance creating and defining the territory of said sewer district was changed or modified, so as to exclude all of the said territory marked in blue color, as indicated on the map attached to the plaintiff ’s petition, from the boundaries of the said proposed district, they would use their influence to defeat its passage by the mayor and councilmen, and would defeat any ordinance or any other provision for sewers within this district. Said land or territory marked' in blue color on said map is largely owned by said Hale Ritchie and John Ritchie, his brother, and the property heretofore described, belonging to Martha Whaley, wife of E. B. Whaley, and the said John Elliott, is a part of the property marked in blue color on said map. One Benj. M. Curtis was at the time of the passage of said ordinance, and for more than a year before that time had been, a member of the city council of the city of Topeka, from the third ward of said city, and was very desirous of adopting the topographical survey and recommendations of the city engineer of said city, and this included all the territory included in said map marked yellow, blue, and green, as shown on said map, and was desirous that the mayor and councilmen should pass the appropriate and necessary ordinance creating said sewer district, including within its territory all the land and lots surveyed by the city engineer in obedience to the direction of the mayor and councilmen; but the said Curtis and other councilmen, fearing that the owners of the land and lots indicated in blue color on said map would defeat said ordinance unless the territory marked in blue color was omitted from said ordinance, consented and agreed with the members of the city council who owned property in the territory marked in blue color on said map, that such territory marked in blue color on said map, including the property of the Ritchies, Whaley, and Elíiott, should be excluded from said sewer district No. 14, for the purpose and with the design that all of the real estate included and marked on said map in blue color, including the property heretofore described in these conclusions of fact belonging to Martha Whaley, Hale Ritchie, John Ritchie, and John Elliott, should not be required to pay its proportion of the necessary assessments and burdens to be imposed upon the lots, blocks or parcels of real estate interested in or benefited by said main sewer in said district No. 14, and for the purpose of compelling the real property indicated on said map in yellow color to pay all the assessments and burdens necessary tor the purpose of constructing the main sewer from the junction of Tenth avenue and Adams street, in the city of Topeka, thence west to Lane street, as shown on said map. Thereupon, in pursuance of such agreement and understanding, to wit, January 27, 1890, at a meeting of the mayor and councilmen regularly had and held, ordinance No. 1093, entitled, ‘An ordinance creating sewer district No. 14, defining the territory and establishing the boundary thereof, and providing for an entire and complete system of sewerage in said district, providing the manner and means for a special assessment to pay for the construction of the sewer in said district/ the following members of the council voted for the passage of said ordinance: First ward, Gunn, Myers; second ward, Earnest; third ward, Curtis, Elliott; fourth ward, Lockard; fifth ward, Whaley, Ritchie; total, 8. The following councilmen voted against the passage of said ordinance; Second ward, Heery. Councilmen absent: Tillotson, of the fourth ward. Eight councilmen voted for the passage of said ordinance, and among them were B. M. Curtis and John Elliott, from the third ward, and E. B. Whaley and Hale Ritchie, from the fifth ward. January 27, 1890, the mayor of the city of Topeka approved said ordinance, and January 30,1890, the said ordinance was duly published in the official city paper. Of the members of the city council who voted for said ordinance No. 1093, Whaley, Ritchie and Elliott were, at the time they voted for said ordinance, pecuniarily interested in the passage of said ordinance, inasmuch as it omitted large property interests belonging to said councilmen from the burden of building said main sewer; and, without the vote of these three councilmen, a majority of all the members of the city council did not vote for the passage of said ordinance.
“8. The parcel of land or lots shown on the map or profile marked ‘Exhibit B/ and designated or marked in yellow color, is the territory now included in sewer district No. 14, as defined by ordinance No. 1093, and all the territory of land or lots on said map or profile marked in blue color on said map was included in the topographical survey made by the city engineer in obedience to the direction of the mayor and councilmen of the city of Topeka preliminary to the creation of said proposed sewer district No. 14, and were excluded from said district by said ordinance for the purpose of relieving all of the property on said map or profile marked in blue color, including the property belonging to the Whaleys, Ritchies, and Elliott, from paying its just proportion of the assessment necessary for the construction of the said main sewer for district No. 14, and for the purpose of compelling the lots and lands indicated and marked in yellow on said map or profile to pay all the assessments necessary to pay for construcing the main sewer in district No. 14.
“ 9. All of the land and lots shown oh said map or profile marked in blue color were excluded from said sewer district No. 14 by the said ordinance for the purpose aforesaid.
“10. After the passage of said ordinance No. 1093, the mayor and councilmen of the city of Topeka caused the city engineer to make another topographical survey of the territory defined and bounded by said ordinance, and prepare a map or profile, with the plans and specifications for the main and lateral sewers of said district 14, and to make and file an estimate for said work, which map, plans and specifications, so prepared by the city engineer, the mayor and councilmen, at a meeting regularly had and held, adopted, and approved said plans and estimates of the costs of said work, and caused the city clerk to publish proposals for bids for the construction of said main and lateral sewers. The city engineer, by his estimates, reported to the mayor and councilmen that said work would cost $104,173.15. The red line on said map, commencing at the alley between Lincoln and Buchanan streets, running thence east, thence south, thence east, thence north, thence east, thence north to Thirteenth street to and across the railroad track of the K. N. & D. Rly. Co. and the A. T. & 8. F. Rid. Co. track, and thence northerly to connect with the main sewer of sewer district No. 12 at the intersection of Tenth avenue and Adams street, described in conclusion of fact No. 2, shows and represents the line of the main sewer proposed to be constructed and built for sewer district No. 14.
“11. All the territory between Thirteenth and Fourteenth streets and Jackson street and the Kansas, Nebraska & Dakota Railway, marked in blue color on the map above referred to, is adjoining said main sewer, and should be drained into this main sewer by means of lateral sewers constructed at a comparatively small expense, and is and was before the passage of said ordinance chiefly owned by the said Hale Ritchie and his brother, John Ritchie. .
“ 12. It is practicable for the mayor and councilmen of the city of Topeka to create a sewer district for the lots and lands marked in blue color on the’ map between Tenth avenue and Twelfth street, Jackson street and the Kansas, Nebraska & Dakota Railway track, and the sewage could be deposited from lateral sewer pipes into the main sewer of district No. 14, as shown on the map. This seems to be the only means of carrying off’ the sewage. If the territory marked on the map in yellow color is compelled to construct the main sewer for district No. 14, and the territory marked in blue color on said map between Tenth avenue and Twelfth street and Quincy street and the railroad track, and the territory marked in blue color on the map. between Thirteenth and Fourteenth streets and Jackson street and the railroad track, should be drained into the main sewer by means of small lateral sewers extending from the main sewer of district No. 14, at a comparatively small expense, then it would save and relieve to the owner of the lots and lands in these two territories marked in blue color the expense of constructing a main sewer to carry away to the river the sewage from this property.
“13. There are and were when this ordinance was passed about 109 houses on the said lots and lands marked on said map in blue color, and nearly all of these houses were used and occupied as residences, and located on the streets and avenues stated in plaintiff’s petition.
“14. The mayor and councilmen of the city of Topeka, pursuant to law, appointed appraisers to appraise the real estate, without improvement, situated in said district 14 as defined by ordinance No. 1093, for the purpose of determining how much each lot or piece or parcel of land should pay for making said improvement; and said appraisers returned their appraisement, under oath, into the office of the city clerk, which appraisement is of the aggregate sum of $940,414.
“15. The plaintiff is the owner of 87 lots in said sewer district No. 14, as defined by ordinance No. 1093, situated on Tyler street, Topeka avenue, Harrison street, Fourteenth street, Van Burén street, Huntoon street, and Jackson street, in the city of Topeka; and the said appraisers so appointed, as afore said, for the purpose of appraising all of the real estate within said district, as defined by said ordinance, appraised the 87 lots belonging to plaintiff, without improvements, at the sum of 150,700.
“16. There are only two houses situated on the said 87 lots belonging to plaintiff.
“17. The lots, pieces and parcels of land situated in the territory marked in blue color on said map, between Tenth avenue and Twelfth street and Quincy street and the railroad track, and between Thirteenth and Fourteenth streets and Jackson street and the railroad track, marked on said map in blue color, are of about the same value, without improvements, lot for lot, as the average of all the lots in the territory marked in yellow on said map and included within district No. 14 as defined in said ordinance No. 1093, without the improvements.
“18. In obedience to the directions of the mayor and councilmen of the city of Topeka, the city engineer has prepared plans and specifications for said sewer district No. 14, as defined by said ordinance, for the building of said main and lateral sewers for said district, and presented said plans and specifications to the mayor and councilmen, which have been approved by said mayor and councilmen. The mayor and councilmen of the city of Topeka have caused the city clerk to advertise for sealed proposals for building said main and lateral sewers in said district, and intend to proceed and let the contract for the building of and construction of said main and lateral sewers, as alleged in plaintiff’s petition.
“19. January 27,1890, and for more than one year before that time, the city of Topeka had and was divided into five wards, and at all the times hereinbefore stated there were two councilmen elected, acting, and qualified, in each ward, making in all 10 acting, elected and qualified members of the city council of the city of Topeka, and that said city is and was a city of the first class, organized under the laws of this state.
“20. Hale Ritchie and John Ritchie were, January 27,1890, large owners of real property in said sewer district No. 14, as bounded and defined by said ordinance No. 1093.”
“conclusions of law.
“1. Whether or not it is competent for the mayor and councilmen of a city of the first class, by ordinance, to establish a sewer district, with one or more main sewers and lateral sewers, under the law governing such cities, until the city engineer has made and completed a topographical survey of the district to be drained by such system of sewers, and, when such a topographical survey is made, is it incumbent on and the duty of the mayor and councilmen to adopt the survey, with the boundaries indicated by such survey, or reject the survey as a whole: Query.
“2. When a city of the first class is divided into five wards, an ordinance cannot be lawfully passed by the mayor and councilmen unless at least six members of the city council vote for such ordinance, and the vote on the final passage of such ordinance must be taken by yeas and nays, and must be entered on the journal by the city clerk; and when it is shown that in a city of the first class the city is divided into five wards, and that on the passage of an ordinance by the mayor and councilmen for the purpose of creating a sewer district, defining the territory and establishing the boundary thereof, and providing for an entire and complete system of sewerage in said district, and providing the manner and means, and for a special assessment to pay for the construction of the sewer in said district, and it is shown that only eight members of the city council voted for said ordinance, and it is further shown that three of the members of the city council who voted for said city ordinance secured to themselves, directly or indirectly, a pecuniary advantage over the owners of real estate included within the boundaries of the proposed sewer district, such members of the city council are disqualified to vote on the passage of such ordinance, and such ordinance does not pass in the manner required by §109 of the act entitled An act to incorporate and regulate cities of the first class, and to repeal all prior acts relating thereto/ approved March 6, 1881, and the acts of the legislature amendatory thereof.
“3. Ordinance No. 1093 entitled An ordinance creating sewer district number (14) fourteen, defining the territory and establishing the boundary thereof, and providing for an entire and complete system of sewerage in said district, providing the manner and means and for a special assessment to pay for the construction of the sewer in said district/ approved January 27,1890, considered and tested by the foregoing conclusions of fact, is unreasonable, (1 Dill. Mun. Corp., 3d ed., §319,) is oppressive, (id., §320,) is partial, (id., §322,) is in contravention of common right, (id., §259,) and is therefore void in law.
“The plaintiff is entitled to a perpetual injunction as prayed. It is further ordered, adjudged and decreed by the court that the defendant, its officers, agents and servants, be, and they are all of them, enjoined by the injunction of this court from entering into any contract for the construction of the main or lateral sewers under the ordinance of the mayor apd councilmen of the city of Topeka, No. 1093, and from making and collecting assessments for the purpose of paying for said sewer under said ordinance; and the court further finds and decrees the said ordinance to be null and void and of no effect.
“It is further ordered and adjudged that the plaintiff have and recover his costs, paid, laid out and expended in this action, taxed at' $-. ’
The trial court decided that the ordinance establishing the sewer district was an unreasonable one, and that the ordinance was not legally passed, by reason of the affirmative votes of three councilmen in its favor who had a pecuniary interest therein.
I. We will first consider the question of the character of the ordinance. The powers of a municipal corporation are divisible into those general in their nature, power to pass ordinances of specified and defined character, and incidental or implied powers. This division is generic, is universally recognized by text-writers and courts of last resort, and has been frequently applied to control the decision of important controversies. Judge Dillon, in his work on Municipal Corporations, (4th ed., §89,) says:
“It is a general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation not simply convenient, but indispensable.”
Among the decisions cited approving this classification of powers are the following: Cook Co. v. McCrea, 93 Ill. 236; City of Ottawa v. Carey, 108 U. S. 110; City of Eufaula v. McNab, 67 Ala. 588; Henke v. McCord, 55 Iowa, 378; Revenna v. Pennsylvania Co., 45 Ohio St. 118; Bell v. City of Platteville, 71 Wis. 139; Gilmore v. City of Milwaukee, 61 id. 588; Charleston v. Reed, 27 W. Va. 681; City of Kansas v. Swope, 79 Mo. 446; City of Portland v. Schmidt, 13 Ore. 17; Richmond v. McGirr, 78 Ind. 192. The ordinance in this particular case was passed by the city council in pursuance of § 19, chapter 37, of the Laws of 1881, that reads:
“The mayor and council shall have power to provide for a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate.”
The general grant of power is broad enough for all purposes, as expressed in the words “shall have power to provide for a system of sewerage and drainage for the city, or any part thereof,” and then comes the discretionary power as expressed in the words that follow, “and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate.” It is said in § 328 of Dillon on Municipal Corporations that—
“Where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specified or defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done, cannot be set aside by the courts because they may deem it to be unreasonable or against sound policy.”
This section of the text is supported by the cases of Peoria v. Calhoun, 29 Ill. 317; St. Paul v. Colter, 12 Minn. 41; Brooklyn v. Breslin, 57 N. Y. 591; Coal Float v. Jeffersonville, 112 Ind. 15; The State v. Belvidere, 44 N. J. Law, 350. In the case of The State v. Clarke, 54 Mo. 17, Judge Napton says:
“ It is naked assumption to say that any matter allowed by the legislature is against public policy. The best indications of public policy are to be found in the legislative enactments. Whether the ordinance in question is calculated to promote the object, is a question with which the courts have no concern when the legislative will has been plainly expressed.”
Power to do an act is often conferred upon municipal cor porations in general terms without being accompanied by any prescribed mode of exercising it. In such cases, the common council necessarily has, to a greater or less extent, a discretion as to the manner in which the power shall be used. This discretion, where it is conferred or exists, cannot be judicially interfered with or questioned, except where the power is exceeded, or fraud is imputed and shown, or there is a manifest invasion of private rights. (Railroad Co. v. Evansville, 15 Ind. 395; Kelley v. Milwaukee, 18 Wis. 83; Slack v. Railroad Co., 13 B. Mon. 1; Bridgeport v. Railroad Co., 15 Conn. 475; Page v. St. Louis, 20 Mo. 136; Mayor of Baltimore v. Gill, 31 Md. 375; U. P. Rly. Co. v. Cheyenne, 113 U. S. 516.) Thus, for example, if a city has power to grade streets, the courts will not inquire into the necessity for the exercise of it, or the refusal to exercise it; nor whether a particular grade adopted, or a particular mode of exercising the grade, is judicious. (Teegarden v. Racine, 56 Wis. 545; Sheridan v. Colvin, 78 Ill. 237; Hovey v. Mayo, 43 Me. 322; Richmond v. McGirr, 78 Ind. 192.) So, whether we view the delegation of the power contained in this act to the city authorities of Topeka to provide for the ^construction of sewers by district or otherwise as authority to pass an ordinance of a specified or defined character, or whether we determine that it is a general grant of power, with discretion as to the mode of its exercise — and it must be the one or the other — it is not subject to judicial control upon the ground that it is unreasonable. As a matter of fact, fairly determined by the express words of the statute, it could not be unreasonable because the city council had adopted a system of sewers; and the section expressly provides “that when any property has paid its full proportion for general sewers and drains in one district, it shall not be transferred to any other, and made liable for sewers and drains therein.” When, in the course of time, the sewerage system of the city shall be complete by districts, the only possible difference it can make to any or all property-holders would be the time at which they are taxed for the particular improvement. If they could be excluded from a sewer district in which there was a large population, and left to await the growth and development of a more sparsely settled portion of the city, then sewer taxes would be postponed. We think the trial court erred in its conclusion of law that the ordinance establishing the sewer district was unreasonable.
II. The query of the trial court, whether or not it is competent for the mayor and councilmen of a city of the first class, by ordinance, to establish a sewer district with one or more main sewers and lateral sewers, under the law governing such cities, until the city engineer has made and completed a topographical survey of the districts to be drained by such system of sewers, and when such a topographical survey is made, is it incumbent on and a duty of the mayor and councilmen to adopt the survey with the boundaries indicated by such survey, or reject the survey as a whole? — may be answered in the negative for a variety of very good reasons: First, the action in question does not make a topographical survey by the city engineer a condition precedent to the action of the mayor and council. It does not even provide that such a survey shall be made. Second, the duties of the city engineer are expressly declared by § 89 of the act to be to superintend the construction of all public works ordered by the mayor and council, make out plans, specifications and estimates thereof, and to do the surveying and city engineering ordered by the city council. Third, it has been repeatedly decided that public powers and trusts are incapable of delegation, and the powers conferred by this act must be exercised by the officers to whom it is delegated by the legislature. (1 Dill. Mun. Corp., §96.) Where the charter gives the city council power to construct sewers of such dimensions as may be prescribed by ordinance, the council cannot, by ordinance, require sewers to be constructed of such dimensions as may be deemed requisite by the city engineer. (St. Louis v. Clemens, 52 Mo. 133; Gas Light Co. v. Minneapolis, 36 Minn. 159; Matthews v. Alexandria, 68 Mo. 115; Whyte v. Mayor, 2 Swan, 364.)
III. The city council of the city of Topeka consists of 10 members. It takes six affirmative votes to pass an ordi nance. This ordinance received eight votes, but it is alleged that three members of the council who voted for its passage owned property within and without said sewer district, and were not legally entitled to vote, and hence, receiving only five disinterested affirmative votes, the ordinance was not legally passed. The material facts respecting the ownership of real property by members of the city council who voted for the passage of the ordinance are these: Hale Ritchie, one of the councilmen from the fifth ward, who voted for the passage of the ordinance, was the owner of a large number of city lots on Quincy, Monroe and Madison streets, and on Kansas avenue, and a block lying east of Madison street, south of Eleventh street, west of Jefferson street, and north of Twelfth street. His brother, John Ritchie, owned 31 lots situated on Kansas avenue, Quincy, Monroe and Madison streets. While there is no special finding of fact by the trial court as to what proportion of the real property of Hale Ritchie and John Ritchie is included within this sewer district, we judge from an examination of the maps attached to the record as exhibits, that about one-half of the property of each is included in the sewer district. In this state of facts it is difficult to determine whether, if a disqualification exists as to the affirmative vote of Hale Ritchie as a councilman, on the passage of the ordinance, that disqualification is produced by the property taken into the sewer district, or by that left out. To say in general terms that a member of a city council cannot vote on the passage of an ordinance providing for the construction of some important public improvement, because he owns real property on the street to be graded, in the sewer district to be established, or in the city, when the improvement is a general one, is at once to disqualify every property-owner in the city from belonging to the city council, and committing all the material interests of the city to a class of persons who have no property rights to protect. This would be going too far. Our statutes have provided, in ¶ 653, page 230, General Statutes of 1889:
“It shall be unlawful for the mayor or any member of the council, or any elected or appointed officer-or servant of the city, to be a party to or interested pecuniarily in any contract, job or piece of work which may be let by the city; and any contract in which any such officer shall be pecuniarily interested shall be null and void; and in case any money shall have been paid on any such contract, it shall be the duty of the city attorney to sue for and recover the amount so paid, in the name of the city, from the parties to such contract, and from the councilman or other officer pecuniarily interested in the same; and if any such officer, while in office, shall become pecuniarily interested, directly or indirectly, in any contract or agreement in which the city shall be interested, or in any questions submitted, or proceedings upon which such officer shall be called upon to vote or act officially, with intent to gain, directly or indirectly, pecuniarily, any benefit, profit or pecuniary advantage, he shall be removed from office, and on conviction shall be deemed guilty of a misdemeanor,” etc.
This section prohibits a member of the city council from voting on any question submitted, or in any proceeding, with intent to gain, directly or indirectly, pecuniarily any benefit, profit, or advantage. Assuming that this section applies in letter and spirit to Hale Ritchie in his vote on the ordinance in question, yet we are not able to determine from the facts recited that his affirmative vote cast in favor of the passage of this ordinance was cast with intent to gain any profit or advantage. If Ritchie was prosecuted under the section above quoted for misdemeanor, or if proceedings had been commenced to remove him from office as a councilman on the facts presented in this record, could it be pretended for a moment that a guilty intent was shown ? The theory of the defendant in error, if applied to the extent claimed, would practically disfranchise every member of the council who owned real property. Section 444, Dillon on Municipal Corporations, (3d ed.,) and the case of City of Toronto v. Bowes, 4 Grant, (U. C.) 504, are cited to sustain the views of the defendant in error. The citation from the admirable work of Judge Dillon is to the effect that “Members of,a municipal board are disqualified to vote therein on propositions in which they have a direct pecuniary interest adverse to the municipality they represent.” This is the extent to which the text applies. In support of it, the foot-note cites the cases of Oconto Co. v. Hall, 47 Wis. 208; Pickett v. School District, 25 id. 551; Coles v. Williamsburgh, 10 Wend. 659; Walworth Bank v. F. L. & T. Co., 16 Wis. 629; United Brethren Church v. Vandusen, 37 id. 54; Steckert v. East Saginaw, 22 Mich. 104. The latter case is similar to the one under consideration. It was an injunction to restrain the collection of a special assessment for paving a street. One of the grounds alleged was, that two of the aldermen who formed a part of the quorum when important action was taken, and without whose presence and votes there would have been no quorum, were petitioners for the improvement and owners of property liable to assessment therefor. The votes of these aldermen, it is claimed, were void, and consequently the action of the council to which their votes were essential was void also. Judge Cooley, who delivered the opinion of the court, said:
“We think this objection without force. The action in question was legislative in character, and the interest these aldermen had in it was of precisely the same nature with that which every legislator has in a bill he votes for, which is to subject his property, in common with that of his fellow-citizens, to taxation. They were laying down rules which, in their operation, would affect alike and impartially their own interest and that of all others whose property would be taxed. Such an interest is calculated to make a man careful and solicitous for the public interest with which his own is inseparably connected, instead of inclining him to vote recklessly or corruptly, when the burdens are to follow which he must share. None of the cases cited on the argument in this connection have any bearing. Those only decide that a man is not permitted to occupy inconsistent positions when his own interest is directly involved, but in no question here voted upon could these aldermen have discriminated between their personal interest and that of the other tax-payers, except in fixing the taxing district, and as on that question, if they voted at all, it was against their apparent interest and in favor of making a district that included their own property, it is obvious that they did not, by their vote, place themselves in a position antagonistic to other tax-payers. If the common council acted as commissioners of apportionment in' making the assessment upon the property that was to bear the burden, other considerations might be involved, but this charter designates a different tribunal for that purpose, and prescribes great caution to insure impartiality.”
This comes very close to the action of Ritchie as a councilman. He had a large number of lots included in this sewer district. The other cases cited are to this effect: The case in 47 Wis. 208, applies to two members of a board of county supervisors who voted in favor of a compromise settlement with a defaulting county treasurer, in a case in which they were personally responsible for some of the missing money. In the case in 16 Wis. 629, the general rule of the common law, that members of a legislative or a municipal body are disqualified to vote on propositions in which they have a pecuniary interest adverse to the state or municipality they represent, was applied to an officer of a railroad company. In United Brethren Church v. Vandusen, supra, it was applied to the trustees of a church society. In Pickett v. School District, supra, it was applied to a school-district officer. In the case of Coles v. Williamsburgh, 10 Wend. 659, the same principle was applied to a village trustee. We would apply it in this case against Councilman Ritchie, if ¡it was shown that he had a pecuniary interest in the establishing of this sewer district adverse to the city of Topeka. Viewing it from every stand-point, we cannot say that Ritchie was disqualified by reason of the fact that some of his property was included in and some excluded from the sewer district. His vote made the necessary majority, and the ordinance was legally passed. It is not necessary to comment on the votes of the other councilraen. The property included in the sewer district is specially benefited, and it is true that other property might have been taken in and received special benefits. This may be said in every case of the establishment of a sewer district, but because the city council, in the exercise of the power and discretion conferred upon it by law, has included some and excluded some, we cannot sayas a matter of law, based upon the exclusion, that the ordinance is void, for without a clear showing that there has been corrupt and fraudulent action by councilmen, we cannot review their proceedings in such a matter. Our conclusion is, that upon the facts recited in the record, there has not been a sufficient showing upon which to predicate a judgment either that the ordinance is void, or that Ritchie was disqualified from voting. It is true in this case, as in every other sewer district that may be established, that there is adjoining its boundaries some outlying property that might be benefited by the sewer, and we have no doubt but that the property lying inside the boundaries of this particular sewer will receive benefits from its construction, but because these results are plain, it does not follow that all property that may be benefited by the construction of sewers should all be embraced within one sewer district. The legislature has left this matter to the control of the mayor and councilmen of the city of Topeka, and in no case would we interfere, except upon clear proof of actual fraud. All questions of public policy with reference to sewers have been considered and determined by the legislature of the state, and as long as the proceedings of the city council are in accordance with the express grant of power of the legislature, and the personal conduct of the mem^ers thereof, with respect to their official action iQ such matters, are not fraudulent, we find no warrant of authority to interfere, or subject the establishment of sewer districts to judicial interference.
Recent opinions of this court, filed at the January sitting, in the cases of City of Atchison v. Price, City of Atchison v. Lamphear, and City of Atchison v. Burnes Estate, 45 Kas. 296, will be found to have some bearing on the propositions herein discussed.
It is recommended that the judgment of the district court be reversed, and the cause remanded, with instructions to refuse the order of injunction.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This cause was begun before H. I. JDeal, a justice of the peace of Cherokee county, on a claim of $12.50, for the alleged use of a wagon. The bill of particulars was challenged in the justice’s court, and was there held to be good. The case was then taken to the district court on a petition in error, where the proceedings had in the justice’s court were reviewed and affirmed. In the light of the many decisions of this court holding that almost any statement of plaintiff’s cause of action in a justice’s court will be held good, for reasons in such decisions given, it would seem as though it was about time to let up on a case involving but $12.50, and with no important principle or question therein, calling for a decision, after two courts had said the bill of particulars is good. But as the plaintiff in error does not seem to be satisfied with the decision of two courts against him, we cheerfully add our opinion to that of the courts below,, and say that we have examined the bill of particulars in this ease and find it sufficient.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The Sherman Center Town Company entered into a contract with C. P. Russell, in which it was agreed that if Russell would remove his bank, barn and restaurant from Voltaire, and establish them at Sherman Center, the company would convey to him certain lots in the town of Sherman Center, and pay the sum of $1,000. There were other details included in the contract that it is unnecessary to mention. Russell brought an action against the company, alleging that he had fully performed the contract on his part, but that the company had failed to pay him the consideration named, and he asked for judgment for $1,000. The company alleges and contends that the contract was not authorized by the board of directors, and that it had no authority under its charter to make the same. The main contentions of the company before this court are, that the contract was ultra vires, and entered into without the authority of the directors of the company. The contract is executed in the name of the company, signed by its president and secrétary, with the seal of the company attached. It appears that no formal resolution or order was made by the board of directors authorizing the president and secretary to execute the contract, but a majority of them lived at Sherman Center, and executed and carried out a great number of contracts of a like character. Means were furnished by the company to carry out the contracts thus made, and it received and enjoyed the benefits to be derived from the acts and agreements of the officers. The officers appeared to be vested with authority to execute contracts and manage the business affairs of the corporation, and they acted openly and publicly as the agents of the company, with the knowledge and acquiescence of the directors. Under the authority of Town Co. v. Swigart, 43 Kas. 292, (23 Pac. Rep. 569,) the company cannot escape liability on the contract on account of a want of authority from the company to the officers to make the same. See, also, University of Builders v. Martin, 39 Kas. 750.
There is another claim, that the provision of the charter that “the indetedness of the company shall not exceed $500 at any time,” limits the powers of the corporation and renders void the obligation to pay $1,000. This provision has been the subject of consideration by this court, and it was determined that it is to be regarded as a by law of the company, directory only, and not such a provision as will annul the contract, where the corporation has enjoyed the benefits of the same. (Town Co. v. Morris, 43 Kas. 282; 23 Pac. Rep. 569.)
The plaintiff in error also insists that the contract is not within the objects of the corporation, and is ultra vires. The town company was incorporated for “the purchasing of lands, the surveying and platting of town-sites, and selling town lots and other lands.” The corporation may exercise not only the powers expressly enumerated in its charter, if they are author ized by law, but “may enter into any obligation or contract essential to the transaction of its ordinary affairs,” and incidental to the exercise of the powers expressly enumerated. (Gen. Stat. of 1889, ¶ 1167.) The company is not restricted to the mere purchase and sale of lots, but may doubtless enter into contracts which would directly tend to promote the prosperity of the town, and enhance the value of the lots remaining unsold. To this end, it may expend money for the advertising of the property, the mailing of improvements on a part of the same, may contract for the erection of school buildings and other improvements, the direct and proximate tendency of which will be to attract people to the town and make the property of the company more desirable and salable. The location of Russell with his bank, his barn and restaurant at the town of Sherman Center no doubt tended directly and proximately to build up the town and gi'Te it prestige in that community, thus enhancing the value of the remaining lots and promoting the legitimate objects of the corporation. In Whetstone v. Ottawa University, 13 Kas. 320, the question arose whether the Ottawa Town Company could donate the property of the corporation to the Ottawa University for the purpose of erecting a school building outside of the limits of the town of Ottawa, and more than one-fourth of a mile outside of the limits of the property and the land owned by the town company. Mr. Justice Brewer, who pronounced the judgment of the court, remarked that—
“Town-site companies are neither novel nor rare in Kansas. Every county has been the home of several, and the manner of their working, and the means employed to accomplish their purposes, are familiar to us all. Nor is Kansas peculiar in this respect. Every western state is full of them. They are private corporations, organized for the purposes of gain. They take real estate, lay it off in lots and blocks, streets and alleys, induce people to settle and purchase, and by the sale of lots make their profits. ... If by the donation of one lot they can double the value of the remainder, is not the one lot used directly to accomplish the legitimate object of the corporation? If by donating 100 lots to the county they can secure the county seat and the erection of county buildings, are they not furthering the very, purpose of building up a town? . . . The purpose of securing improvements on the town-site is not simply that the improvements be there, but that thereby the property the corporation has to sell may be enhanced in value. And if the-lots were donated to secure the erection of a hospital or school at a remote place, as suggested by counsel, there would be no resultant benefit to the corporation of enhanced value of its unsold lots. It seems do us that this must be the test: If the direct and proximate tendency of the improvements sought to be obtained by the donation is the building up of the town and the enhanced value of the remaining property of the corporation, the donation is not ultra vires.”
The discussion in that case furnishes a strong argument that the contract in question was within the powers of the corporation, and that the money expended to bring new buildings and establish new business enterprises in the town directly tended to accomplish the purposes of the corporation. We are of opinion that the contract was not ultra vires. But, even if it were not fully authorized, the company is hardly in a position to invoke the application of that doctrine. Russell had performed the contract on his part. His buildings and business have been removed to Sherman Center, and he has united with the town company in building up the town and in augmenting the value of the company’s property. These considerations and advantages have been received by the company, and it continues to enjoy the benefits of the contract performed on its behalf by Russell. The company has joined with Russell in the execution of the contract, and officers of the company furnished men and machinery and assisted in moving the buildings. They executed a conveyance to Russell for the lots which they agreed to convey to him, and he, acting in good faith, has done all that was required of him. After the transaction has been carried out, and the company has had the benefits of performance by Russell, it cannot in justice be allowed to repudiate the transaction, although it may have been in excess of authority. (Town Co. v. Morris, supra; Mor., Priv. Corp., §§ 632, 634.)
Some other objections are made, which are not deemed to be material, and, on an examination of the entire record, we find no prejudicial error.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Smith, J.:
The appellants in their petition for rehearing and in their brief in support thereof insist that the points presented by them in their former brief were not given proper attention when the per curiam opinion was rendered (Cheesman v. Felt, 91 Kan. 431, 137 Pac. 800), and earnestly reassert that the testimony did not prove sufficient knowledge on the part of the defendants to render them liable for punitive damages, and that the trial court erred in giving and refusing instructions upon this question. A careful reexamination of the former brief and abstracts discloses that upon the original hearing in this court the appellants contended that a demurrer to the evidence. should have been sustained; that the court erred in refusing to instruct that in order to render the defendants liable it must affirmatively appear that the hogs had cholera at the time of the sale and delivery; that the answers to certain questions were contrary to the evidence; that there were errors in the instructions touching exemplary damages, the agency of Hough and the matter of knowedge on the part of the defendants, and that the verdict was the result of passion and prejudice.
The petition charged the defendants with selling to the plaintiff hogs infected with cholera which fact they knew but concealed. It appears that about thirty-five head were delivered to the plaintiff on July 19, 1911, negotiations therefor having been made with his agent a short time before. The jury found that the defendants, or one of them, first learned on July 12, 1911, that some of the hogs on the farm had cholera; that two hogs were found dead on that day and the defendants were told that evening.
“Q. 8. On what date did Allen Felt or John Felt know the hogs had cholera? Ans. July 12, 1911.
“Q. 16. How many of Felts’ hogs died shortly be-for the sale and delivery in question? Ans. Four hogs and some pigs.”
The jury found the cause of their death was cholera.
“Q. 20. Did either John or Allen Felt know the cause of the death of the hogs? Ans. Both of them.
“Q. 21. Did either John or Allen Felt receive any notice at the time of the sale or delivery of said hogs, of what the hogs died of, and if so which one had such knowledge? Ans. Allen Felt.
“Q. 22. Did the hogs which were sold and delivered have a contagious disease known as cholera? Ans. Yes.
“Q. 24. Did the defendants or either of them receive notice at the time of the delivery or before that the hogs had said disease? Ans. Yes.
“Q. 26. Was there any cholera in the vicinity of the defendants’ place at or about the time of the sale and delivery of said hogs? Ans. Yes.”
The finding to the effect that John A. Felt was a part owner of the hogs in question is with some justification criticised as contrary to the evidence, and yet the testimony of the agent who bought the hogs for the plaintiff and the circumstances shown by the entire evidence make it quite clear that this defendant was connected with the sale and acted much as he would have acted had he in fact been part owner; and while the finding is contrary to the direct testimony of the two defendants it is not contrary to the cir-. cumstances shown and the evidence of the agent who testified that he bought the hogs of the Felts.-
Finding No. 8, that the defendants knew on July 12' that some of the hogs on the farm had cholera, is asserted to be without support in the evidence. While we do not find any testimony directly showing such knowledge, there are circumstances and conversations shown indicating that they had reason to believe on that date that certain hogs had died of cholera, and the distinction is not sufficient to warrant setting aside the finding complained of.
The record shows facts and circumstances which lend support to the finding that the defendants knew the cause of the death of the four hogs and the pigs referred to in questions 16 and 20, so that such finding can not be deemed contrary to the evidence.
We find no error in the record touching the instructions or findings relative to the agency of Mr. Hough.
The court refused to instruct that unless the jury should find from the evidence that the defendants’ failure to make such inquiry or investigation as ordinarily prudent men would have made under the circumstances was the result of a willful disregard on their part of the rights of the purchaser, and that such failure was for the_ purpose of not informing themselves of the true character of the disease, and of selling the hogs without such knowledge, they would not be liable. An instruction was given that if at the time of delivery the hogs were infected with cholera, and the defendants so knew, and the plaintiff was injured thereby he could recover; that he was not necessarily bound to prove ác tual knowledge, “but if, from the evidence in this case, you find that the defendants had notice of such facts as would put a prudent person upon inquiry as to whether the hogs were infected with cholera, and that a reasonable investigation prosecuted by the defendants would have apprised them of the fact that said hogs were infected with cholera before the hogs were delivered to the plaintiff, then you will be justified in imputing to the defendants knowledge of the fact that the hogs were infected with cholera.” In Pope v. Nichols, 61 Kan. 230, syl. 3, 59 Pac. 257, actual notice was held to often mean the knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts. Section 15 of chapter 312 of Laws of 1911 (see Gen. Stat. 1909, § 9148) provides that any person who shall have in his possession any domestic animal affected with any contagious or infectious disease, “knowing such animal to be so affected; or having received notice that such animal is so affected, ... or ... shall keep such animal where,other domestic animals not affected with or previously exposed to such disease may be exposed to such contagious or infectious disease, or shall sell . . . such diseased and infected animal or animals which have been exposed to such infection or contagion” shall be deemed guilty of a misdemeanor. It appears, therefore, that the instruction given was as favorable to the defendants as the provision of the statute in question.
Counsel suggest that the statute does not furnish a basis for recovery of damages unless proved beyond a reasonable doubt, but if such proof is not necessary it should at all events be such as to show a course of conduct amounting to a reprehensible and culpable disregard of the rights of the purchaser. We are inclined to agree in a measure with this suggestion and to hold that the sale of hogs affected with cholera by one who knows or has notice of such facts as would put a prudent person upon inquiry'and lead to his ascertaining their diseased condition, is thereby guilty of sufficiently culpable and reprehensible disregard of the rights of the purchaser to .entitle the latter to recover damages from the former.
It is insisted that the court erred in charging that the jury might award smart money as a punishment for selling infected hogs, “knowing them to be so infected or having notice as hereinbefore stated.” This is said to permit the award of punitive damages for mere negligence without requiring any showing of malice, wantonness, fraud, oppression, willfulness or any other aggravation to justify such damages. While the jury found that the hogs were diseased, and that the defendants had notice or knowledge of certain facts, they were not asked whether the defendants or either of them knew that the hogs sold to the plaintiff had cholera. The findings do show that they had notice of facts and means of information which if prudently followed up would have brought the knowledge shortly. It is settled that in an action for slander express malice is essential in order to justify such damages. (Wood v. Custer, 86 Kan. 387, 121 Pac. 355; Garvin v. Garvin, 87 Kan. 97, 123 Pac. 717.) Ordinarily fraud, oppression or wanton disregard of the plaintiff’s rights is essential. The matter was fully considered in Cady v. Case, 45 Kan. 733, 26 Pac. 448, and the former decisions were cited. (See, also, Railroad Co. v. Little, 66 Kan. 378, 71 Pac. 820; Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492; Walterscheid v. Crupper, 79 Kan. 627, 100 Pac. 623; Winkler v. Bank, 89 Kan. 279, 131 Pac. 597; Stalker v. Drake, 91 Kan. 142, 136 Pac. 912.)
Por one to sell diseased or infected stock, simply being too listless to follow up and investigate circumstances, rumors and reports and ascertain whether such animals are affected, is negligence for which the statute intended him to be liable, but it is not such conduct as to bear the impress of fraud, malice or wantonness, and the instruction which permitted punitive damages under such circumstances was erroneous. There was no instruction or finding with reference to concealment of knowledge or notice by the defendants. It is suggested that no negligence was charged, and that under the allegations and proof wanton disregard of the plaintiff’s rights was apparent although not so named in the instructions. It is further insisted that the jury found that the defendants knew the hogs were diseased. This is not quite accurate. The findings are not to the effect that they or one of them had notice that the hogs sold to the plaintiff were diseased, but only that they knew that certain other hogs had died of cholera on the place shortly before. This means knowledge that the hogs in question had probably been exposed to the disease by reason of other animals on the place having recently died thereof, but it can hardly be said to mean that they knew they had become infected or were then diseased. It appears that the sale was made with provision for delivery several days ahead, that Mr. Hough, when he looked at the hogs, found them looking healthful, and that thirty-eight of the number purchased were shipped to Wichita, where they passed inspection; and under these circumstances there is possible justification for the defendants’ claim that they did not know they were diseased or infected when delivered. The awarding of smart money is an anomaly in the law at best, and should be permitttd only when it can be done in accordance with settled rules the chief of which is that the defendants be shown to have acted with wanton disregard of the plaintiff’s rights. Under the charge given such award could have been made upon a finding of mere negligence and was made without a finding of knowledge that the hogs were diseased. The sum awarded was more than twice the amount of actual damages found, and we think the defendants were and are entitled to have this matter considered upon the sole ground that fraud, malice or wanton disregard of the plaintiff’s rights must be shown before punitive damages can be awarded.
■ Finding no material error in any other respect the judgment is reversed as to the punitive damages and affirmed in other respects, and the cause is remanded for a new trial as to the one question, unless the plaintiff shall remit the sum involved therein.
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The opinion of the court was delivered by
Horton, C. J.:
Starling Jarrett was arrested upon the complaint of Dawson Brown, charging him with stealing, taking and carrying away from the house of W. M. Brown $36 in United States currency and coin. The warrant followed the complaint, and alleged that Jarrett did, on the 20th of December, 1890, in Barber county, Kansas, unlawfully, feloniously, and at the house W. M. Brown, steal, take and carry ■away one twenty-dollar United States currency bill, current as money, of the value of $20; one ten-dollar United States currency bill, current as money, of the value of $10; one five-dollar United States currency bill, current as money, of the value of $5; and one one-dollar gold piece, of the denomination of $1, current as money, of the value of $1— all of the aggregate value of $36, and the ‘property of Dawson Brown, of which property a more particular description is unknown. Jarrett waived a preliminary examination, and was held to answer at the next term of the district court, and in default of bond was committed to jail. The county attorney in due time filed his information against him, charging —
. “That one Starling Jarrett, whose true name is to me unknown, did then and there unlawfully and feloniously steal, take and carry away one twenty-dollar paper currency bill, current as money of the United States, of the value of $20; one ten-dollar paper currency bill, current as money of the United States, of the value of $10; one five-dollar paper currency bill, current as money of the United States, of the value of $5; one one-dollar gold coin currency piece, current as money of the United States, of the value of $1; one leather pocket-book, of the value of 50 cents; one promissory note, dated-day of-, 1890, made payable to Dawson Brown or bearer, for $25, and signed by-Rodgers, of the value of $25. A more minute or particular description of said personal property cannot be given for want of knowledge of such minute or particular description — all of the aggregate value of $61.50, and the property of Dawson Brown.”
Jarrett filed a plea in abatement, upon the ground, among others, that he had never had, or waived, a preliminary examination for the crime of stealing, taking and carrying away the pocket-book and note mentioned in the information. The district court overruled the plea in abatement, although it found the allegations therein were true. After the jury had taken the case and retired to consider their verdict, they sent a request to the district judge to be allowed to take the note mentioned in the information and the plea in abatement to their room, which request the judge granted, over the objection of the defendant’s counsel, the defendant at this time being absent from the court-room in the county jail. The note was accordingly taken into the jury-room, and remained there during all their deliberations in the case. Verdict of guilty, and sentence to one year in the penitentiary.
Section 69 of the criminal code provides that no information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other exam ining magistrate or officer, unless such person shall waive his right to such examination. Fugitives from justice and persons charged with misdemeanors not cognizable before a justice of the peace are exempted from the provisions of this section. A preliminary examination is required for the purpose of giving to the defendant a reasonable notice of the nature and character of the offense charged against him.
“All that is necessary is that the defendant should be given a fair opportunity to know, by a proffered preliminary examination, the general character and outlines of the offense against him; and it is not necessary that all the details and technical averments required in an information should be set forth in the papers used on the preliminary examination.” (The State v. Bailey, 32 Kas. 83.)
See, also, Redmond v. The State, 12 Kas. 172; Jennings v. The State, 13 id. 90; The State v. Smith, 13 id. 274; The State v. Spaulding, 24 id. 4; The State v. Tennison, 39 id. 726.
' If it shall appear from the preliminary examination that the defendant is guilty of the offense charged in the warrant of árrest, then he is committed to jail, or required to enter into a recognizance, etc. (Crim. Code, §§53, 54.) But “if upon the trial [preliminary examination] it shall appear that the defendant is guilty of a public offense, other than that charged in the warrant, he shall be held in custody of the officer and tried for such offense, a reasonable opportunity having been given to obtain his witnesses and prepare his defense.” (Crim. Code, § 5'5.) It will therefore be seen that the original complaint and the warrant of arrest may charge one offense, and the defendant may be bound over for another. In such a case, in justice to the defendant, a new complaint ought to be filed, but the statute does not in terms require it. (Redmond v. The State, supra.) In The State v. Spaulding, supra, Mr. Justice Brewer, speaking for the court, said :
“It will be remembered that these preliminary proceedings are generally had before justices of the peace, officers not learned in the law, and if the same fullness and precision, the same precautions against all the contingencies of the testimony, were required there as in the information or indictment, jus tice would be often delayed and defeated. All that can be required is, that there shall be a single statement, containing the substantial facts of the offense charged, and then the prosecutor, in preparing the information, may use many counts, varying in them the formal and non-essential matters of the crime. He may not add a new offense. To larceny he may not add robbery, nor to murder, arson. Neither may he add to the larceny of one piece of property the larceny of another. He may not substitute one offense for another, but he may, by several counts, guard against the contingencies of the testimony.” (The State v. Smith, supra.)
In this case, the information added the larceny of a pocketbook and a promissory note. Such articles were not mentioned, referred to, or by implication contained either in the complaint or warrant when the defendant waived a preliminary examination. The allegations of the plea in abatement were true, and the plea should have been sustained — not overruled. This ruling need not release or discharge tbe defendant from the larceny of the pocket-book or promissory note. A new complaint may be filed before any justice of the peace of Barber county for the larceny of these articles, and proper proceedings had thereon, as required by the statute. It is urged, however, against the plea in abatement, that a full transcript of the case has not been filed, and therefore that the plea in abatement is not properly before this court for consideration. The certificate of the clerk to the transcript is too prolix. He ought to have certified merely “that the above and foregoing was a full and complete transcript of the proceedings in the above-entitled cause.” The clerk recites, however, in the certificate, that the transcript contains copies of certain papers, and “that the same constitute a full and complete transcript of the proceedings of the district court in the above-entitled cause.”
An examination of the transcript shows that on the 11th day of February, 1891, “the defendant filed his plea in abatement to the action of the plaintiff against him, in words and figures following.” Here the plea is given, but instead of the affidavit thereto being set forth in full, tbe bill of exceptions recites that the plea in abatement “was properly verified by the defendant.” The bill of exceptions also states that the trial court “found that the allegations and averments contained in the plea in abatement were true.” Taking the record and certificate, we think that a full and complete transcript of the case has been filed, and that the case is properly here for review.
Further, it appears 'from the record that the defendant was absent and confined in the county jail when the court, at the instance of the jury and against the objections of his counsel, sent a portion of the written testimony in the case to the jury-room. It is doubtful whether this is correct practice under § 207 of the criminal code. That section prohibits the trial of any person accused of felony unless he is personally present throughout the trial, and it is doubtful whether any written testimony should be sent to the jury against the consent of his counsel, while the defendant is absent from the court-room ánd confined in the county jail.
The State v. Myrick, 38 Kas. 238; The State v. Moran, ante, p. 318; same case, 26 Pac. Rep. 754.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
Green, C.:
The appellant was charged, in an information containing 60 counts, with violating the prohibitory law, in. Wyandotte county. A plea in abatement was filed, and sustained, except as to the first 14 counts in the information. The defendant was afterward arraigned, and entered the plea of not guilty, and was tried and convicted on 14 counts.
I. The appellant claims that the court erred in overruling in part his plea in abatement, and assigns as a reason that the information did not state his name correctly; that it purported to inform against Rheinhardt Valk, while his name is Rheinhardt Falk. We fail to see wherein the defendant was prejudiced by the ruling of the court. After the plea in abatement had been heard, he was proceeded against by the name of Rheinhardt Falk, and by that name was tried and convicted; and no substantial error was committed. Other objections are urged against the information — that it nowhere showed who had knowledge of any of the offenses charged; that, it was not supported by the oath or affirmation of any one, and no statement of any witness was filed with the information. All of these objections were waived by the defendant in pleading not guilty. No motion was made to quash the warrant or information. (The State v. Allison, 44 Kas. 423; same case, 24 Pac. Rep. 964; The State v. Ashe, 44 id. 84; The State v. Jessup, 42 id. 422.) Besides, we cannot say from the record before us that the testimony of the witnesses was not filed. The recitals in the record would indicate that the evidence was filed with the information. The certificate of the clerk of the district court simply states that the record contains the evidence, proceedings, and verdict. We cannot say from this certificate that the record before us is complete.
II. It is next contended that the verdict of the jury should not be upheld, because the state elected to stand upon several of the counts of the information to which the plea in abatement had been sustained. It appears from the record that there were two elections — the first at the close of the evidence upon the part of the state, when the state asked for a conviction on the 6th, 7th, 12th, 13th and 14th counts of the information, to which the plea in abatement had been overruled, and also nine other counts in the information, to which the plea in abatement had been sustained. Elsewhere in the record it appears that the state elected to stand upon the first 14 counts of the information. This election seems to have been made after the state apd defendant had introduced their evidence. We think the state is bound by the first election, and the verdict can only stand as to the 6th, 7th, 12th, 13th and 14th counts, and as to all of the others it should be set aside.
III. Complaint is made that the instructions of the court are vague, indefinite, and that the court did not inform the jury what sales the state elected to ask a conviction upon. We think it would have been the better practice for the court to have stated to the jury each of the counts upon which the state relied for conviction in the instructions; but no request was made by the defendant for any such instructions. The rule is well established, that where the court properly instructs the jury but omits some instructions which might have been given, and no request was made for such instructions, no reversible error is committed. (The State v. Pfefferle, 36 Kas. 96; The State v. Peterson, 38 id. 204; The State v. Estep, 44 id. 572.)
IV. The last assignment which we shall notice is, that the witnesses for the state were placed under the rule and admonished not to state what their evidence would be, and to remain out of hearing of the witnesses on the stand, and that the rule was violated. The fact that a witness remained in court, in disobedience to an order to remain outside the court-room, is not a ground for rejecting his evidence. He may be punished for violating the order of the court. (Davenport v. Ogg, 15 Kas. 364; 2 Phil. Ev., [5th Am. ed.,] 744.)
It is recommended that the judgment of the trial court be modified by setting aside the verdict and judgment of conviction of guilty, except as to the 6th, 7th, 12th, 13th and 14th counts in the information, and that the judgment be affirmed as to the counts named.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Benson, J.:
This appeal is from a judgment awarding damages for personal injuries.
The plaintiff was a laborer at the defendant’s packing house at Wichita. On the afternoon upon which he was injured he was required, with others, to carry stoker grates into a boiler room, located six feet above the surface of the ground. In doing this work the laborers walked up an incline from the ground to the boiler room. The incline was twenty-four feet in length and six feet in width. The north part to the width of four feet was covered with iron; the other two feet in width on the south was uncovered. The incline terminated at the entrance to the boiler room through a brick wall. The entrance was high enough in the center but not at the sides to permit the men to pass through without stooping. A plank ten or twelve feet long had been laid diagonally over the iron covering of the incline from the uncovered part to the middle of the entrance to the boiler room. In carrying the grates the men walked up the uncovered part of the way to this plank and upon the plank into the room. The weight of the loads so carried was between fifty and sixty pounds. The plaintiff had never been upon the incline until the day on which he was injured. Three other men were also engaged in the same work, following each other in carrying the grates. In carrying his third or fourth load the plank slipped just as he was stepping from it into the boiler room, causing him to fall. The grates he was carrying fell upon his hand, crushing two of the fingers and otherwise injuring it.
The negligence complained of, briefly stated, is that the incline upon which the plaintiff was required to walk was unsafe because of the loose plank which by slipping caused the injury.
The defendant denies any negligence on its part and pleads assumption of risk and contributory negligence.
It is not deemed necessary to discuss the question of the defendant’s negligence further than to say that placing the plank in the position stated for laborers to walk upon while bearing heavy burdens, without providing any fastening or other safeguards, presented a question of fact upon which a finding of negligence must be sustained.
The plaintiff, in the absence of knowledge to the contrary, had the right to presume that the company had performed its duty in making the incline reasonably safe for the use which he was required to make of it. In order to find that he assumed the risk of so using it it must appear that he had knowledge or was chargeable with notice of its unsafe condition, and apprehended the danger of using it. Although he had worked for the company for some time his duties had not required an examination or caused him to observe the condition of the incline in this respect. It is not-shown that he had ever seen the plank until called to this service on the day on which he was hurt. His knowledge-concerning the plank was limited to what he saw in going over it three or four times and seeing his fellow laborers do the same. It does not appear that the plank was so frail or obviously insecure as to indicate to the plaintiff danger of probable misplacement, and he was not required to investigate whether it was secured otherwise.than by its own weight. (Every v. Rains, 84 Kan. 560, 568, 115 Pac. 114.) The jury were instructed, in substance, that unless the danger was so obvious that a man of ordinary prudence would not have attempted to use the plank then he had a right to obey instructions and use it. This with other instructions fairly submitted the questions of assumed risk, and contributory negligence.
While error is assigned upon the instructions they are not criticised in the brief. The only matters urged as grounds of reversal have been considered and found insufficient.
'The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This action is to recover damages for personal injuries resulting from a collision at a street crossing in Kansas City.
The plaintiff, with her husband and sister, approached the intersection of Kansas avenue, which extends east and west, and St. Paul street, extending north and south. Reaching the south side of the avenue on the west side of St. Paul street, they observed a car approaching from the west upon the south streetcar track on the avenue. Thereupon they walked across to the east side of St. Paul street, and stood there, three or four feet south of the south track, until this east-bound car had proceeded 125 feet beyond the crossing. The plaintiff, and perhaps all three, then started north, but she hurried on. She testified that she did not run but her husband says she did. Whether running or not she left her companions and hurried across the south track and the space between the two tracks to the north track, where she. was picked up by the fender of another of the defendant’s cars bound west. She was carried about forty feet beyond the west side of the street, where the car was stopped, and the plaintiff was rescued.
Kansas avenue is eighty feet and St. Paul street is sixty feet in width between property lines, both are level at and near this crossing, and the car tracks are straight. The collision occurred at 8:30 o’clock p. m., in October. The weather was clear and warm, and there was no wind. The crossing was lighted, and the car was lighted and the headlight burning. The plaintiff had good eyesight. She was familiar with the crossing, lived close by, and knew that cars were constantly passing along the tracks.
The car that struck the plaintiff had been delayed and was not running on schedule time. The plaintiff ’s witnesses said that it was running' fast; one said nearly twice as fast as usual, but no precise estimate of the rate of speed was given. From the place where the plaintiff stood waiting for the east-bound car to pass she and her companions could see along the tracks to the east for 1200 feet, except while the view was obstructed by the east-bound car. When thát car had gone on for 125 feet, at the moment the plaintiff started north she could see east along the north track for 155 feet, and she testified that she then looked in both directions and saw no car. We quote now from her testimony:
“Q. You hurried and went as fast as you could? A. Yes.
“Q. .When you got out to about the rail of the south track . . . you looked down the street to see if there was a car ? A. I looked when I started.
“Q. Didn’t look afterward? A. No, didn’t look afterwards; I looked when I started.
“Q. You looked down the street to see whether a car was coming from the east, did you? A. Yes.
“Q. When you started? A. Yes.
“Q. When you got up onto the track, did you look then? A. No.
“Q. When you got between the two tracks, did you look? A. No, sir.
“Q. When you stepped over onto this other track, did you look? A. Into the south track?
“Q. Yes, just at the south rail of the track. A. No, sir; I did n’t look. . . .
“Q. Well, now then, supposing that a car had been anywhere along in here, within 125 feet of you, could n’t you have seen it if it was on this north track going west, had you looked when you were between the two tracks there? A. I suppose so, but I did not look.”
The plaintiff’s husband testified:
“From St. Paul street I could see a car coming along there, along the track anywhere for 1200 to 1250 feet from St. Paul street.
“At that time of night with the lights in the car burning and headlight burning a car running along the street would be a plain object to be seen if no obstructions. . . . We came up to southwest corner of St. Paul and Kansas and went out into the street and saw car coming, and walked out in the street east to east crossing of St. Paul. When the cár going east passed us we were at east crossing of St. Paul., The car had passed us 125 feet before we started from the point where we were standing. . . . When I last saw it the car had gone east 125 feet and we were three or four feet south of track. Looking down the track east from where we stood, on account of eastbound car, you could see a car coming on north track 155 feet.
“I looked and did not see a car. My wife looked; can’t say whether she saw any. I did not move north. My daughter-in-law did not move north. We stood right there. My wife went by herself, went-off hurriedly across the track. . . . I did not see the car at all until the accident happened. I was looking west. As I turned I saw where she was, the car swept by and picked her up. The first I saw of this car was just as it hit her. .... While I was there I noticed another car coming down from Packard. I suppose if I had been looking east I might have seen this car (the one that struck her) a few minutes sooner, probably a minute sooner. I was looking west and saw that car coming round off Packard and turned round just in time to see the car strike her and knock her. down. . . . The wife went from where we were standing across the south track, across the space between the tracks and about the middle of the north track, about ten feet, on a run, and when she got there the car was right there and hit her. . . . From the situation there, I should think when she got between the tracks she could see down the tracks. When she got north of the first track in the middle between the two tracks she could see and have a plain view down the track for 1,200 feet I suppose.”
The sister’s testimony did not differ materially from that of the husband, only she said that all three started on together, and that Mrs. Francis hurried away from them at or near the south track.
It can not be disputed that if the plaintiff had looked east when upon the south track, or at any time before being hurt, she would have seen the approaching car. It is argued that having looked when she started, and having only 16 feet to go, she was not. bound to look again. But is it true that a person having an unobstructed view of a straight track, with nothing to distract attention, knowing that cars are constantly passing, may thus hurry forward without looking and not be chargeable with negligence?
In Marple v. Railway Co., 85 Kan. 699, 118 Pac. 690, it appeared that the person whose life was lost approached the crossing just as a car was passing on the first track in the direction opposite to that of the one by which he was killed. It was said in the opinion:
“The all-important question relates to his conduct after he had passed in the rear of the southbound car and reached the space between the tracks. There that car could not interfere with his view, which was then unobstructed, as the jury found. If he then saw the on-coming north-bound car, or in the exercise of ordinary care ought to have seen it, so near and apparently running with such speed as to make the attempt to cross in front of it dangerous in the judgment of a person of ordinary prudence in that situation, then he was negligent, and there should be no recovery for resulting injuries.” (p. 702.)
In this case we are not left in doubt whether the plaintiff looked for she is emphatic in her statement that she did not. She would have seen the car had she looked. She did not look after she started to cross. She ran or hurried away from her companions. There is no claim that the motorman discovered her peril in time to avoid the collision. In this situation the rule announced in Railway Co. v. Ryan, 69 Kan. 538, 77 Pac. 267, applies. It was there held :
“Where, upon the trial of an action for personal injuries, plaintiff testified that she alighted from an east-bound street car and passed back of it and to the northward upon a parallel track four feet distant on which cars traveled in an opposite direction, without looking for an approaching car, and sustained injury, and that by looking eastward along the space between the parallel tracks, after passing by the end of the. standing car, she could have seen an approaching car for a distance of two blocks, it is held, that it is error to overrule a demurrer to plaintiff’s evidence.” (Syl.)
The plaintiff relies upon Wiley v. Interurban Railway Co., 89 Kan. 84, 130 Pac. 659. In the opinion in that case the following quotation from Nappli v. Seattle, Renton & S. R. Co., 61 Wash. 171, 112 Pac. 89, was made with aproval:
“Assuming that the respondent should have seen the car before he drove upon the track because the car was evidently in plain view at that time, it was one hundred feet or possibly a block away. Under these circumstances, we think it can not be said, as a matter of law, that the respondent should not have attempted to cross over the tracks. He had a right to assume that the car. was under control and, when the car was that far away, that he would be in no danger and might pass in safety without risk of danger. At any rate the question whether he was negligent in attempting to cross the track when the car was that far away was a question for the jury. Street crossings are to be used, and the mere fact that an approaching car is in sight does not determine the right of a traveler to cross. His right depends upon what a reasonably careful man would do under the circumstances. If the approaching car is so close and coming so fast that it can not be stopped in time to avoid a collision, and such facts are or should be observed, then a person attempting to cross may be said to be negligent as a matter of law. But where an approaching car is far enough away to be stopped after a person has passed upon the tracks, or when a reasonably careful man would undertake to cross ahead of it, then it can not be said, as a matter of law, that a person attempting to cross is negligent.” (p. 173.)
In this case, the distance at which the approaching car could have been seen was 1200 feet or more. A mere glance in that direction would have been sufficient. Indeed it seems strange that the headlight was not apparent to the plaintiff as she proceeded north.
In Smith v. Street Railway Co., 91 Kan. 31, 136 Pac. 930, the driver of an automobile, whose view of the track was obstructed by a hedge, drove his car so close to the track that it was caught by the over-hang of the electric car. The situation of the driver of such a vehicle, his place in the car, the fact that he stopped at the first place after passing the obstruction when he first came within the zone of vision, with other circumstances, were commented on in the opinion, holding that a question of fact for a jury was presented. Here the plaintiff was on foot, not encumbered in any way, with no vehicle to manage, and nothing to divert attention or to hinder observation. The naked question is presented whether it shall be held as matter of law that in such a situation, with ample opportunity to look, and no reason for not looking, a failure to do-so is negligence. Wé are constrained to hold that it is, and that upon the plaintiff’s own testimony she should not recover.
The judgment is reversed with directions to sustain the demurrer to the evidence and render judgment for the defendants.
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The opinion of the court was delivered by
BENSON, J.:
This is an appeal from an order dismissing an action to recover damages for personal injuries on the ground that the plaintiff’s right to recover was governed solely by the workmen’s compensation act. (Laws 1911, ch. 218, as amended by Laws 1918, ch. 216.)
The petition contained averments sufficient for a cause of action under the factory act (Gen. Stat. 1909, §§ 4676-4683) under which it was obviously drawn, but it also contained charges of negligence sufficient to state a cause of action independent of the act.
The motion to dismiss was urged on the ground that both the employer and the employee at the time of fhe injury were within the provisions of the workmen’s compensation act, because neither had filed a written declaration of an election not to come within its provisions or not to accept thereunder.
The original act of 1911 declared in section 1 that “save as herein provided, no such employer shall be liable for any injury for which compensation is recoverable under this act.” In section 2 it was provided that the employee might elect to rely upon a right of action for negligence or the right of compensation under the act. The provisions of section 1 of the first act are not changed, but.section 2 of that act is repealed by chapter 216 of the Laws of 1913.. This leaves no provision in the later statute to which the clause above quoted can apply, and when both parties are under the compensation act the remedy prescribed by it is exclusive.
The first act applied to employers in the industries, within its purview who elected to come under its provisions and to accept thereunder, but by the later stat ute, which took effect March 12,1913, it is declared that the employer shall be deemed entitled to come within its provisions unless he shall file with the secretary of state a notice of his election not to accept thereunder, and the employee is put in the same situation.
The plaintiff was injured March 13, 1913. The defendant filed a statement of its election not to come under the act on March 17. The plaintiff never filed a like declaration. It will therefore be seen that on March 13, the date of the injury, both parties were under the provisions of The act, neither having elected to the contrary, although the defendant did so a few days afterward. While it is true that such compensation acts do not exclude other remedies in the absence of provisions to that effect, yet. by the terms of the statute itself such remedies are excluded when both employer and employee are under its provisions. The option contained in the section repealed was taken away as to parties so situated when the amendatory statute took effect. It follows that the plaintiff could not recover otherwise than under the workmen’s compensation act, but it is not perceived how this deprived the court of jurisdiction of the person and subject matter or afforded grounds for a dismissal of the action. It is stated, however, in the plaintiff’s brief that he elected his remedy under the factory act. Such an election is not contained or referred to in the abstract, and we are inclined to construe the brief as relating to an insistence of a right to the benefit of the factory act, but not as a repudiation of any right to any other remedy. This conclusion is the more readily adopted because an interpretation of recent statutes never passed upon by this court was necessary, and because the district court in the entry based the dismissal upon want of jurisdiction and made no reference to an election of remedies.
The district court clearly had jurisdiction. The action should be reinstated for the pursuit of any ap propriate remedy that the present petition or any reasonable amendment may warrant.
The judgment is reversed and the cause remanded for further proceedings.
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Opinion by
Strang, C.:
The plaintiffs filed a claim in the probate court of Davis — now Geary — county against the defendants for $377.62. The defendants demurred to the statement of the claim as filed, which demurrer was sustained. The plaintiffs excepted to the action of the court in sustaining said demurrer, and took the matter to the district court on error. At the September term, 1888, the district court affirmed the action of the probate court, and the plaintiffs come to this court with a transcript, asking that the whole matter be reviewed and corrected here.
There are two questions involved in this matter: The first is, whether the statement of the claim filed by the plaintiffs in error in the probate court was sufficient to require the said court to consider it. While the claim as presented to the probate court is not well stated, and in fact is defectively stated, we do not think it is so defectively stated as not to amount to a statement of a claim at all; and if it amounted to a claim at all in favor of the plaintiffs and against the defendants, it was good against a demurrer. We therefore think the district court erred in affirming the action of the probate court in sustaining the demurrer to said claim.
The second question involved in the case is one of practice. The plaintiffs in error contend, that under our statutes requiring matters of this kind to be heard summarily and without pleading, there is no such practice as interposing a demurrer to a claim filed in the probate court. Paragraph 2878 of the General Statutes of 1889 reads as follows:
“The probate court shall hear and determine all demands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence.”
The statute contemplates that the court shall hear the evidence in support of the claim, without any pleadings. With this provision of law in our statute book, we do not think it a proper practice to file a demurrer to a claim presented in the probate court. The statute seems to contemplate the presentation of claims in this court by the owners thereof without the aid of an attorney at law, and that the court shall investigate the claims in a summary way, without any pleadings that require the skill of au attorney at law in their preparation. Once recognize the practice of filing pleadings in this court, and the contemplated simplicity of hearings therein will be lost in the maze of technicalities. We think it is better to proceed in the manner pointed out in the statute.
It is recommended that the judgment of the district court be reversed.
By the Court: It is so ordered.
Horton, C. J., and) Valentine, J., concurring.
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The opinion of the court was delivered by
Burch, J.:
The action was commenced originally by Hess to foreclose a real-estate mortgage given by Conway. Judgment was rendered for the plaintiff and the property was sold. After the period of redemption expired Harder, as the holder of the certificate of purchase, presented it to the sheriff and demanded a deed. On the refusal of the sheriff to comply with the demand Harder filed a motion to require him to do so. The motion was resisted by Conway, who claimed that he had redeemed. Judgment was rendered in his favor, and Harder appeals.
There are some serious disputes in the briefs concerning the true facts in the case. It would serve no beneficial purpose to print the evidence and to discuss it at length, as would be necessary if it were discussed at all. There are some unfortunate conflicts of testimony to be resolved, and some inferences are to be derived from pregnant facts and circumstances and from failure to frankly clear up some matters left in doubt. Consequently, the facts upon which the questions of law arise will be stated as the court evidently found them to be by its general finding in favor of Conway, in which finding this court is constrained to concur.
The judgment of foreclosure was rendered on November 16, 1910, and included a personal judgment against Conway for $2612. On December 14, 1910, an order for the sale of the property was issued. On December 30, 1910, a building forming a part of the mortgaged premises was destroyed by fire. On January 19, 1911, the sheriff’s sale occurred, which was confirmed on February 6, 1911. The sale was made to the plaintiff, Hess, and the certificate of purchase was issued to him, but it was immediately assigned to Harder in consideration of the payment of the sale price, from which the costs were deducted. The assignment of the certificate to Harder was prepared by S. C. Holmes, the attorney for the plaintiff, who thereafter had professional charge of Harder’s interests as occasion required. Harder’s son, F. H. Harder, was present when the certificate of sale was assigned.
The building which burned was insured, and on January 9, 1911, Hess filed a motion asking that Conway be required to bring into court the policies of insurance and any moneys received thereon. It was doubtful whether or not the insurance was legally collectible, and W. E. Hogueland, attorney for Conway, agreed with Holmes, as attorney for Hess, to effect a settlement with the insurance company and to apply the proceeds to the redemption of the property. Thereupon the motion which had been filed was abandoned. This arrangement was made three days before the sale was to take place. On February 24, 1911, Hogueland paid to the clerk of the district courtrinsurance money which he had collected in the sum of- $500 and applied it to the redemption of the property, taking the clerk’s receipt accordingly. On the next day Holmes drew this money from the clerk. On March 31, 1911, Hogueland received a draft for insurance money payable to the order of Conway, Hess, and Holmes. After Conway had indorsed the draft Hogueland turned it over to Holme's, who received the money upon it. On July 15, 1912, Conway paid to the clerk of the district court the remainder of the sum necessary to effect redemption.
The testimony of Hess was taken by interrogations propounded to him and answered under oath on November 22, 1912. In answer to one of the questions Hess stated that since-February 24, 1911, Holmes had not sent him any money on the Conway judgment. Following this interrogatory was another asking him to state when and how much money he had received from Holmes on the Conway judgment, if any had been received, but the second interrogatory was unanswered. Some months later Hess made affidavit that he received from Holmes personal checks for the proceeds of the insurance -money, which he cashed, but he did not modify his earlier testimony. The insurance money was more than sufficient to satisfy the excess judgment against Conway, if so applied, but the judgment has never been released.
The certificate of purchase included a hotel building at Durand, which needed insurance, and on June 1, 1911, Holmes presented to the court an application for the appointment of a receiver in order that insurance might be effected. The application was made in the name of C. F. Harder’s son, F. H. Harder, and was supported by an affidavit of F. H. Harder that he owned the certificate of purchase. On October 23, 1911, Holmes again presented a motion in the case supported by his own affidavit that F. H. Harder was the owner of the certificate of purchase. This affidavit stated that F. H. Harder had advanced the sum of $25.80 to insure the property and the purpose of the motion was to secure the appointment of a receiver to collect rents to pay this sum and to make some repairs. C. F. Harder was in fact the owner of the certificate of purchase at all times subsequent to its assignment to him, and F. H. Harder and Holmes were acting for him in the various matters referred to.
While F. H. Harder was acting for his father, Conway had a conversation with him in which he was told that Conway had paid $1075 to his father’s attorney, Holmes, for the purpose of redeeming the property. Before the final payment by way of redemption was made Conway had a conversation with Holmes in which Conway inquired the amount necessary to redeem after deducting the sums already paid. Holmes replied that he did not have all the dates of payment but that the clerk of the court had them and that the clerk would furnish the figures. Holmes had possession of the insurance policy which had been procured on the Durand hotel. After the last payment by why of redemption had been made Holmes, without objection, delivered the policy to Conway upon Conway’s paying for it. The period of redemption expired on July 19, 1912. On August 12, Holmes as Harder’s attorney filed the motion which is the basis of the present controversy.
There were two full hearings on the motion to require the sheriff to make a deed, one in August, 1912, and the other in February, 1913. C. F. Harder filed an affidavit in the cause but he gave no testimony in denial of Conway’s contention that Holmes had been his attorney from the inception of his interest, or that he was ignorant of the payment of the insurance money to Holmes under the agreement that it would be applied to the redemption of the property. The clerk of the court made the following certificate, which was read in evidence:
“I hereby certify that beginning with the November term, 1902, of this court the name of C. F. Harder appears on the trial dockets of this, court as a litigant forty-two (42) times, and at each of said times S. C. Holmes has appeared as his attorney. I also certify that at each of said terms of court during the 10 years from November, 1902, to and including November, 1912, except November, 1910, March, June and Novem ber, 1911, and March, 1912, the name of C. F. Harder appears as litigant on the docket of this court and S. C. Holmes appears as his attorney.”
The property involved is estimated to be worth $3500. If redemption did not occur, Harder would be the beneficiary of a good bargain and the excess judgment in favor of Hess above the sale price would be satisfied.
Section 488 of the civil code reads as follows:
“The mode of redemption as herein, provided is by paying the money into the office of the clerk of the district court for the use of the persons thereunto entitled. The person so redeeming, if not the defendant owner in execution or order of sale, must also file his affidavit or that of his agent or attorney, stating as nearly as practicable the amount still unpaid due on his claim. The clerk shall give him a receipt for the money, stating the purpose for which it is paid. He must also enter the same upon a book kept for that purpose, with a minute of such redemption, the amount paid, and the amount of the lien of the last redemption or as sworn to by him.”
Harder argues that nothing less than actual payment to the clerk of the district court will effect redemption, and cites the case of Stewart v. Park College, 68 Kan. 465, 75 Pac. 491, in which it was said:
“The right to redeem and the mode of redemption of real estate, after sale by the sheriff upon execution, special or general, or order of sale, are fixed by statute.” (p. 467.)
The judgment in the case cited was entered in Wyandotte county. The fact's upon which equitable redemption was claimed were the following:
“In his petition plaintiff further averred that frequently before the expiration of the eighteen months from the date of sale he went to the place of business of the board of trustees, in Missouri, with a certified check for the full amount of the judgment and interest thereon, with a view and for the purpose of redeeming the premises from the foreclosure sale; that before each effort made by him to redeem he notified the board of trustees of the fact that he would call and make such redemption, and that upon each occasion they failed to be present.” (p. 466. )“
The court said that Stewart not only did not comply with the statute but made no effort to do so.
The statute very properly provides for redemption by payment to the clerk of the court, who acts as an officer of the law and not as the agent of any party in interest. But interested parties may bind themselves by. contracts departing from the statute as to time, terms, and mode of redemption, and they may otherwise place themselves in such situations that a strict application of the letter of the statute would accomplish a fraud in favor of the person Remanding it. If in the case of Stewart v. Park College Stewart had found the members of the board of trustees at their office and they had accepted his certified check for the full amount of the judgment and interest, they would have been estopped to dispute the fact that redemption had been made. In all cases of the character indicated the court will deal with the question of redemption as the law and as equity and good conscience may require.
On the eve of the sheriff’s sale Holmes and Hogueland, as attorneys for their respective clients, agreed that the insurance money should be applied to the redemption of the land. Hess purchased at the sheriff’s sale subject to this condition, and when he assigned the certificate of purchase he and Holmes knew that the insurance money would go to redeem the land and not to satisfy the excess judgment: This is the turning point in the case. Mr. Holmes claims he understood the agreement with Mr. Hogueland differently. After carefully considering all the strong arguments for his view this court, as already stated, feels that the trial court was best able to determine the matter. The result is that Holmes could draw the first payment of insurance money from the clerk of the court, who had received and receipted for it for redemption purposes, for the benefit of no one but the holder of the certificate of purchase, who at that time was Harder; and Holmes received the proceeds of the draft for the second installment of insurance money for the benefit of Harder. Soon afterwards Holmes is found in court engaged in the protection of Harder’s interests as a holder of the certificate of purchase. Holmes had complete knowledge of all the facts relating to the insurance money. Harder’s son and agent, F. H. Harder, was informed that Holmes had received $1075 to apply in redemption of the premises, and Harder himself is noncommittal on the subject of his knowledge.
The general finding doubtless includes a finding that Harder himself had knowledge of the facts relating to the insurance money. If not, the actual knowledge of his attorney will be imputed to him. It was the duty of the attorney to communicate his knowledge to his principal, the presumption is that he did so, and the principal is not allowed to dispute the presumption. (2 R. C. L. 962.)
Let it be conceded that in making the transfer of the certificate from Hess to Harder, Holmes acted as attorney for Hess. When he was employed by Harder to protect Harder’s interest in the land as a holder of the certificate of purchase, in the very matter of insurance, it could not have escaped his memory that he had received $1075 of insurance money to apply on the redemption of that certificate.
“Notice to an agent or attorney is notice to his principal or client in regard to the matter in which he is engaged; and where a purchaser employs the same attorney as the vendor, he will be affected with notice of whatever such attorney acquired notice of, in his capacity of attorney for either vendor or purchaser, in the transaction in which he was so employed. Notice to the attorney which will bind the client must be notice in the particular transaction in which the client has employed him. So, where one of two matters transacted by the same attorney, though the former was for another client, follows so soon after the othér that it clearly appears that the earlier transaction can not have been out of the mind of the attorney when engaged in the latter, there is no ground for restricting the notice to the client to the second transaction, but he will be affected with notice of both.” (Melms and others v. Pabst Brewing Co. and others, 98 Wis. 153, 166, 66 N. W. 518.)
If Harder himself did not know the facts relating to the insurance money, the actual knowledge of his son, F. ,H. Harder, acquired while in active charge of his interest in the land as a holder of the certificate of purchase, will be imputed to him under well-settled principles of law.
With knowledge of the facts, Harder acquiesced in the application which had been made of the insurance money and suffered Conway to redeem on that basis. If Harder desired to repudiate the application of the insurance money which had been agreed on, and which Conway understood had been made, he should have done so when reminded that his attorney held for him $1075 which Conway had paid by way of redemption. After that he could not remain silent and thereby induce Conway to complete redemption by paying only the balance above the insurance money, and then after the period for redemption had expired deny that redemption had been accomplished.
The court of its own motion ordered Holmes to deposit in the office of the clerk of the district court, within thirty days, the sum of $1075, with interest on $500 from February 25, 1911, and interest on $575 from March 31, 1911, at'ten per cent per annum. The sum so ordered to be deposited, together with the sum of $783.03 already on deposit as redemption money, was directed to be used in the redemption and cancellation of the certificate of purchase. The cause was reserved for such orders and decrees as may be necessary to carry into effect the other orders made. Holmes appeals.
Holmes insists that he was not a party to the action, that he had not been served with process, that no pleadings were on file charging him with liability which he could answer, and that the evidence was insufficient to sustain the order.
The question as to what became of the money is interesting but not material. In his affidavit, which afforded him full liberty to express himself, Hess did not say that he was mistaken in his former testimony, or that he did not understand the questions or the nature of the information sought, and did not in any way excuse, explain or detract from the effect of his deposition. Reading the affidavit and the deposition together, he says he received the personal checks of Holmes for the insurance money, less attorney’s fees, but not on the judgment against Conway. Leaving this subject at one side, on February 24, 1911, Conway through his attorney paid to the clerk of the district court the sum of $500 as redemption money and took the clerk’s receipt accordingly. Holmes could rightfully withdraw this money for no purpose unless to pay it to Harder. The draft for $575 which he cashed was redemption money also, and if not paid to Harder ought to be in the hands of the clerk. It is conceded that Harder received none of the money. The order therefore is a summary one made by the court in a pending proceeding to secure restoration to the treasury of the court of moneys arising from the litigation, which the attorney has diverted.
The ultimate destination of the money is not now important. While the deposit when made is to inure to the benefit of Harder, the order was not made for his express benefit, but to protect the integrity of the court itself in the course of the administration of justice.
It does not require the citation of authorities to demonstrate the jurisdiction of the court to exercise summary disciplinary power to enforce honorable conduct on the part of its own officers. Usually the power is invoked to compel attorneys to do justice toward their clients in matters connected with litigation, but it may be exercised to compel the performance of duties to others than clients, and it extends to any matter in which the attorney has been employed because of his professional character. (Lynde v. Lynde, 64 N. J. Eq. 736, 52 Atl. 694, 58 L. R. A. 471; Anderson v. Bosworth, 15 R. I. 443, 8 Atl. 339, 2 Am. St. Rep. 910; In re A Solicitor, 2 K. B. 539 [1907]; 2 R. C. L. 1026.)
Beyond this, however, the court has power to make disciplinary orders to remedy breaches of professional duty, independent of the rights of clients and others.
“The principle ... is that the Court has a punitive and disciplinary jurisdiction over solicitors, as being officers of the Court, which is exercised, not for the purpose of enforcing legal rights, but for the purpose of enforcing honourable conduct on the part of the Court’s own officers. That power of the Court is quite distinct from any legal rights or remedies of the parties, and can not, therefore, be affected by anything which affects the strict legal rights of the parties. . . . So, if a solicitor obtains money by process of law for his client, quite irrespective of any legal liability which may be enforced against him by the client, he is bound, in performance of his duty as a solicitor, to hand it over to the client, unless he has a valid claim against it. If he spends it, or if, still having it, he refuses to hand it over, he commits an offence as an officer of the Court, which offence has nothing to do with any legal right or remedy of the client.” (In re Grey, 2 Q. B. 440, 443 [1892].)
In the present case the court was acting in its own behalf to secure the return of money belonging in it's own custody.
By motion directed against the sheriff filed for his client, Harder, the attorney himself instituted the investigation of his professional conduct. That was the only substantial issue in the case, and he was fully heard, both as a witness and as an attorney, in justification of his course. The evidence which justifies the denial of an order against the sheriff justifies the order against him.
The j udgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The plaintiff recovered damages for personal injuries received while operating a circular ripsaw for the defendant in its manufacturing establishment. The defendant appeals.
The petition cpntained two causes of action, one based on disregard of the factory act in failing to provide the machinery with a loose pulley and belt-shifter, and another charging common-law negligence in failing to instruct the plaintiff with reference to safe methods of operating the saw.
The evidence was that the saw protruded through a slot in a table with hinges at the back, in front of which the operator worked. In using the saw wedge-shaped slivers are produced, the small ends of which drop into the slot and prevent the operation of the saw until removed. Ordinarily such slivers may be cut out with the saw itself by raising the front of the table and then lowering it slowly. The saw was one of a series of twelve crosscut saws and twelve ripsaws arranged in a line, first a crosscut saw and then a ripsaw, with a board between, which could be removed. After passing the crosscut saw, material is pushed over to the ripsaw. It was suggested that when a sliver obstructed the work the operator could prop up his table, leave his place at the saw, lift the board between the tables, walk around to the back of his saw, remove the sliver from the top of the table, return to his place and resume his work. One operator said he did this and another operator said he had done so at times. The plaintiff’s work was with a crosscut saw, but he was in the habit of using the ripsaw for brief intervals under circumstances bringing such conduct within, the scope, of his employment. While the plaintiff was using the ripsaw during the absence of the regular operator a sliver caught in the slot. He had never been instructed on the subject of removing slivers and had never seen one removed except by sawing it out. He tried to saw out the one impeding his work, but could not do so. He raised the table and propped it. No means for stopping the saw was provided. It looked easy to reach in and- jerk the sliver from the slot. He tried to do so, the resistance was less than he anticipated, and his hand fell on the revolving saw. The saw was not provided with a loose pulley and belt-shifter for stopping and starting it. Like all the others, it was operated by a belt extending from a line shaft in the basement of the building. An oiler and belt man in the basement removed belts from pulleys on the line shaft when necessary to disconnect individual saws.
It is argued that the foregoing facts do not disclose a breach of the statute, which reads as follows:
“Every person owning or operating any manufacturing establishment in which machinery is used shall furnish and supply for use therein belt-shifters, or other safe mechanical contrivance, for the purpose of throwing on or off belts or pulleys; and wherever it is practicable machinery shall be operated with loose pul-' leys.” (Gen. Stat. 1909, § 4679.)
It is said that the statute is intended for the protection of no one except a, workman engaged in shifting a belt; that the statute does not require a belt-shifter at the machine; that the defendant could have complied with the statute by installing a loose pulley and belt-shifter on the line shaft in the basement — a matter of no concern to the plaintiff; that a belt-shifter to put a belt on a moving pulley can be used only when a loose pulley is provided, and consequently the statutory provision for loose pulleys where practicable amounts to nothing.
The court does not agree with this interpretation of the statute. The purpose of the statute was to safeguard the use of machinery in manufacturing establishments, and the operators of machines are among those who are entitled to protection. Instead of being superfluous, the requirement that machinery shall be operated with loose pulleys when practicable has especial significance. The removal of slivers constituted a part of the operation of the saw, and whether specifically in the mind of the legislature or not, falls within a class of necessary acts which could be performed without danger by stopping the saw. The sauntering operator might like to take a trip to the back of the saw, but the diligent and efficient workman might want to get the sliver out of the way of his work. The safe way to meet such situations was to throw the belt on a loose pulley attached to the machine, take out the sliver, or do whatever was required, throw the belt on the fixed pulley, and proceed with the ripping of lumber. Therefore, the legislature said, in effect, that whenever practicable loose pulleys (with attending belt-shifters) shall be provided for the operation of machines.
If it be practicable to equip machinery for operation in the manner described, a man in the basement, or loose pulleys with belt-shifters on the line shafts located where they are inaccessible except to some one who on occasions shifts belts, can not be substituted. Of course, where machinery is operated in such a way as to dispense with the necessity for loose pulleys and belt-shifters, as by individual electric motors, the statute does not apply. The defendant’s establishment is now equipped in that way, and there was evidence that the saw is stopped when a sliver is to be removed.
The evidence recited was sufficient to authorize the jury to find that the absence of a loose pulley and belt-shifter contributed to the plaintiff’s injury, and the statute having been violated it is not material that a safe and convenient method of extricating slivers, like going behind the saw, was available. Contributory negligence is not a defense in such cases.
The petition contains the following charge of common-law negligence:
“That said defendant wholly neglected to warn or instruct the plaintiff as to the danger of attempting to remove a sliver or piece of board from said saw when it was in motion, and neglected to warn or instruct the plaintiff how said saw could be stopped in case of a sliver or piece of board becoming fast in the manner aforesaid, and there was no way to plaintiff’s knowledge to stop said saw to remove said sliver or piece of board.”
The defendant interprets these allegations strictly, and as descriptive of two separate and independent faults, and having done this, deduces several legal consequences. The trial court regarded the petition as fairly presenting the broad subject of instruction and warning concerning the operation of the saw, including the removal of slivers, and the case appears to have been tried by both sides on that theory. The plaintiff testified that the foreman of the establishment had never given him any instruction about how to operate the ripsaw or warned him about the dangers of operating it. The foreman testified'for the defendant that he had never instructed the plaintiff not to pull slivers out from the bottom of the table, and had never had occasion to issue orders on the subject one'way or another. Both parties having thus indicated that they interpreted the petition liberally, it was proper for the court to instruct the jury accordingly. Besides this,- this court is of the opinion that the broader estimate of the petition was correct, and it is not necessary to consider arguments of the defendant proceeding from a contrary view.
There was sufficient evidence, which neéd not be outlined, to go to the jury that the plaintiff did not appreciate the risk involved in operating the saw, and that his nonappreciation was excusable, and the jury were, given an appropriate instruction on the subject. The same instruction sufficiently covered the only ground of contributory negligence which can be relied on to defeat the common-law cause of action. If the jury based its verdict on the common-law clause of action it did so because the plaintiff was entitled to proper instruction and warning, and without these he did not assume the risk.
Other criticisms of the proceedings are not regarded as well taken, and the jury having been adequately instructed, it is not necessary to discuss separately the instructions which the defendant asked and which were refused.
The j udgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The purpose of this action is the partition of a tract of land in Clay county which had been owned by Olaf Olson, who died intestate, unmar ried and without children on January 8, 1911. His parents, who died prior to the time of his death, were citizens of Sweden and never had been citizens of the United States. They had seven children besides Olaf, and their names were Lizzie Person, Anna Anderson, Brita Olson and Carrie Johnson, sisters of Olaf, and Erick Olson, Zackarias Olson and Lars Olson, his brothers. Only three of these were citizens of the United States, Carrie Johnson, Erick Olson and Zackarias Olson, but Erick died without wife or children prior to the death of Olaf. The brother Lars Olson, deceased, was a citizen of Sweden and his only children and heirs were citizens of Sweden and never were citizens of the United States. The sister Lizzie Person was a citizen and resident of Sweden at the death of Olaf and had never been a citizen of the United States. Before the death of Olaf his sister Brita Olson died a citizen of Sweden, and she never had been a citizen of the United States, but she left four children, two of whom were and always had been citizens of Sweden and two of them, Betty Jerner and Olaf Olson, were residents and citizens of the United States when their uncle, Olaf, died. Another sister, Anna Anderson, was living at the time Olaf died and had always been a citizen of Sweden. She died in 1912, some time after this action was commenced, leaving four children, two of whom were citizens of Sweden and never citizens of the United States, and two of them, Anna K. Jacobson and Mary Burge, were citizens of the United States at the time that Olaf died. The trial court held that those who were aliens when Olaf died were not entitled to inherit any share in the land; that his sister Carrie Johnson, and his brother Zackarias Olson, citizens of the United States, were each entitled to an undivided one-third of the land; that Betty Jerner and Olaf Olson, citizens of the United States and children of an alien mother who was not living when Olaf died, were each entitled to one-sixth of the land; but that Anna K. Jacobson and Mary Burge, although citizens of the United States, did not inherit any share as their alien mother was living when Olaf died. Anna K. Jacobson and Mary Burge are the only relatives of the deceased who claimed a part of his estate other than those to whom it was awarded, and they are appealing from the decision holding that they were not entitled to inherit.
Whether they can inherit from their deceased uncle depends upon the interpretation of the treaty between the governments of Sweden and the United States and of our statutes of descent and distribution. If the appellants can inherit it must be through their mother, who was a citizen of Sweden when Olaf Olson died and who had never been a citizen of the United States.
Originally aliens and citizens were upon an equality in Kansas so far as the inheritance of property was concerned. The constitution provided that:
“No distinction shall ever be made between citizens and aliens in reference to the purchase,- enjoyment or descent of property.” (Bill of Rights, § 17, Compiled Laws 1885, § 99.)
At the general election in 1888 this provision was stricken from the constitution and in its place a provision was inserted providing, among other things, that:
“The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.” (Bill of Rights, § 17, Gen. Stat. 1909, § 99.)
Since that time there has been no legislation on the subject except chapter 3 of the Laws of 1891 which provided for the early disposition of real estate then owned by nonresident aliens, and therefore we have' no constitutional or statutory provisions regulating the inheritance of property by aliens. Ih the absence of any regulation or provision on the subject the rule of the common law will control. In 8 Cyc. 377, it is said:
“When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature.”
The common law was in force when the original provision of the constitution permitting aliens to inherit was adopted, and when it was abrogated without the substitution of a regulation or statute on the subject of inheritance the common law was revived. It is a settled principle of the common law that there can be no inheritance by, through or from an alien, and this principle has been applied in Kansas, where it was declared that:
“It is also the well-recognized rule of the common law that an alien can not inherit the lands of a deceased citizen.” (The State v. Ellis, 72 Kan. 285, 288, 83 Pac. 1045.)
The supreme court of Iowa held that the common law controlled in the absence of legislation in regard to the rights of an alien to inherit, upon the theory that statutes as well as constitutional provisions are to be construed in reference to the principles of the common law, and that where they are silent upon the subject the principles of the common law will govern. It was said that:
“The statute regulating the descent of property in Iowa, at the adoption of the constitution, was that of February 13, 1843, and provides that the lands of any person dying intestate, shall descend in equal shares to his children. This evidently means such children as have inheritable blood; for it being an inflexible rule at common law, that aliens, resident or non-resident, are not heirs, can not take by descent, nothing less than a plain and express provision in relation to them will change the rule.” (Stemple v. Herminghouser, 3 G. Greene (Iowa), 408, 410; State v. Rollins, 8 N. H. 550; Nickels v. Kane’s Adm’r, 82 Va. 309; Ins. Co. Valley of Virginia v. Barley’s Adm’r, 16 Grattan (Virginia), 363; 6 A. & E. Encycl. of L. 931.)
This would be the controlling rule in the absence of a treaty regulation, but it is contended that under the terms of a treaty between the United States and Sweden the appellants take a share in the real estate owned by their uncle at the time of his death. . A treaty between these governments was made on April 3, 1783, and in article 6 there was a stipulation regulating the property rights of the citizens of the contracting parties. The article was revived and inserted without change in the treaty of 1827. (8 U. S. Stat. at Large, pp. 60, 346, 354.) In the article it was agreed that:
“The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise, in favour of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession even ab intestato, either in person or by their attorney, without having occasion to take out letters of naturalization. These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called ‘droit de detraction,’ on the part of the government of the two states respectively.” (8 U. S. Stat. at Large, p. 64.)
The original treaty is published in the English and French languages as if both were originals, and the dispute is as to the meaning of the clause, “goods and effects,” which is given in the French copy as “fonds et biens.” Do these words refer to personal property only, or do they embrace real estate? It is contended that the French word “biens” means real as well as personal property, ¿nd a note to section 13 of Story on Conflict of Laws, 8th ed., is quoted, as follows:
“The term biens, in the sense of the civilians and continental jurists, comprehends not merely goods and chattels, as in the common law, but real estate.”
Bouvier, however, defines the word to mean “Property of every description, except estates of freehold and inheritance.” The same definition is given by Black in his Dictionary of Law. It is sometimes said that Lord Coke has defined the word as meaning real property, but it appears that he referred to real chattels rather than to real estate itself. He said:
“Goods, biens, bona, includes all chattels, as well reall as personall.” (1 Coke on Littleton, 1st Am. ed., § 177, subdiv. 118&.)
Burrill’s Law Dictionary gives the same definition. In 5 Cyc. 686, the word “biens” is defined as “Property of every description, except estates of freehold and inheritance ; goods.” The court of appeals of New York gave the following definition:
“The corresponding Norman French term ‘biens’ is said to include property of every description, except estates of freehold.” (McCaffrey v. Woodin, 65 N. Y. 459, 468, 22 Am. Rep. 644.)
Most of the authorities appear to hold that the word does not mean real estate, but assuming that there is a real difference of opinion in the authorities as to the meaning of the term, we should then examine the treaty as drawn in the English language. The intention of the makers of a treaty is to be construed in the same way and under the same general rules as are used in interpreting contracts between individuals. (38 Cyc. 969.) The treaty must not only be construed as a whole, but where it is executed in two languages both are originals and must be construed together. (United States v. Percheman, 32 U. S. 51, 8 L. Ed. 604.) The terms used were intended to be identical, and if the word “biens” is used in more than one sense and there is doubt as to the meaning in which it was used in the French copy, we can look at the corresponding words used in the English version, and we find these to be words about the meaning of which there can be little, if any, doubt. The corresponding expression of “fonds et biens” is “goods and effects,” and that expression in its natural and ordinary sense means movable personal property and not real estate. Even if the treaty had been only in the French language and the makers of it had translated it into English, using the words “goods and effects,” it must have been inferred, in view of the different meanings given to the French expression, that the makers of the treaty intended to use it in the sense imported by the phrase “goods and effects.” That phrase is in frequent use and includes only personal property, unless the context in which it is employed shows clearly that it was intended to have a peculiar and more extended meaning. “Goods” is defined as “wares, commodities and chattels,” and “effects” has a more extended meaning, but when it is used in connection with “goods,” as here, it clearly means personal property and not real estate. So it has been held under a statute providing for the attachment of “goods and effects” that the expression did not include an estate in lands. The supreme court of Pennsylvania in deciding the question said:
“Their meaning is free from all ambiguity or doubt, whether used in a popular, a lexicographical, or a legal sense. The word ‘goods’ is always used to designate wares, commodities and personal chattels. The word ‘effects’ is the equivalent of the word ‘movables.’ ” (Vandergrift & Forman’s Appeal, 83 Pa. St. 126, 129.)
In Vermont the words “goods, effects and credits” were used in a trustee statute, and the supreme court of that state-held that real estate wa's not embraced within the term “effects,” the court saying:
“That Word, as ordinarily used, is understood to mean goods, moveables, personal estate; and I am not aware, that the word effects has ever been defined by any legal writer, as including real estate.” (Hunter v. Case et al. & Tr., 20 Vt. 195, 197.)
An Alabama statute provided for a landlord’s lien on “goods, furniture and effects,” and in a controversy it was held that “effects,” as there used in connection with “goods,” meant property of the same kind as “goods” and “furniture,” and did not mean real estate. (McKleroy v. Cantey & Randolph, 95 Ala. 295, 11 South. 258; First Nat. Bank of Birmingham v. The Consol. Electric Light Co., 97 Ala. 465, 12 South. 71.)
A power of attorney was executed authorizing a party to sell “claims and effects,” and it was held that the word “effects,” coupled, as it was, with “claims,” did not embrace real estate. (De Cordova v. Knowles, 37 Tex. 19.)
In Keyes v. The Milwaukee and St. Paul Railway Company, 25 Wis. 691, it was held, under a garnishment statute providing for the attachment of “property and effects” in the hands of another, that the word “effects” meant personal property capable of being seized and sold under execution. In Planters’ Bank v. Sharp et al., 47 U. S. 301, 12 L. Ed. 447, the court, in defining the word “effects,” remarked:
“So, in respect to effects, it has been held, when the word is used alone, or simpliciter, it means all kinds of personal estate. . . . But if there be some word used with it, restraining its meaning, then it is governed by that, or means .something ejusdem generis.” (p. 321.)
In Doe d. Haw v. Earles, 15 M. & W. (Eng.) 450, the court held that:
“The meaning of the word ‘effects’ is, in common parlance, confined to personal things; and it has been judicially decided to bear that meaning, unless the context shows that the testator used it in a more comprehensive sense. This was held by all the Court of King’s Bench; in the cases of Camfield v. Gilbert, 3 East, 510, and of Doe v. Langlands, 14 East, 430.” (p. 456.)
It is true that in interpreting wills the courts, to prevent intestacy, have sometimes expanded the meaning of the term “effects” so as to include real property, but as the word is ordinarily used in contracts and statutes the courts uniformly hold that the term is not sufficiently comprehensive to include real estate and when coupled with “goods” or other like terms, descriptive of personal property, it includes nothing except movable personal property. This is illustrated in a case note in 12 L. R. A., n. s., 661.
In Meier v. Lee et al., 106 Iowa, 308, 76 N. W. 712, the supreme court in interpreting the treaty under consideration gave a definition of the words “goods and effects” used in the treaty and held that it did not include real estate. In defining the words the court said:
“ ‘Goods: A valuable possession or piece of property; especially, and almost universally, in the plural, goods, wares, commodities, chattels.’ ‘Effects: Goods, movables, personal estate.’ . . . ‘Goods and effects’ have never been held to include real estate.” (p. 308.)
The supreme court of Illinois interpreted the same provision of the treaty between -the United States and Sweden and made a contrary decision. (Adams v. Akerlund, 168 Ill. 632, 48 N. E. 454.) The court proceeded on the theory that the words “fonds et Mens” had the same meaning as the expression “goods and effects,” and while it was conceded that the word “effects” when used in connection with the word “goods,” as a general thing, means personal and not real property, it nevertheless held that the context of the article in which the expression occurs indicated an intention to include real estate. It was said that the words “heirs,” “succession,” and “inheritances,” as there used, “are very significant words in determining the meaning to be given to the word ‘effects.’ ” (p. 638.) After defining these terms and showing that they apply to real property the court came to the conclusion that:
“The terms of the treaty were intended to include real estate as well as personalty, and that the word, ‘effects,’ was intended to have a broader meaning which includes both land and personalty.” (p. 640.)
In holding that the words “heirs,” “succession” and “inheritances” gave the term “effects” an unusual meaning that court apparently overlooked the fact that those words are stereotyped ones which are commonly employed in articles or provisions of treaties which deal expressly and unquestionably with personal property alone. For instance, in the treaty of 1845 with Bavaria there is a provision stipulating as to the disposition of personal property by donation or otherwise which provides that citizens, “their heirs, legatees and donees,” shall “succeed to their said personal property,” using terms which it is said , are appropriate only to real property. Likewise, in the treaty of 1829 with Austria-Hungary an article stipulating as to “personal goods’-’ only the terms “succeed” and “representatives” are used, it being agreed that citizens of either nation “shall succeed to their personal goods, whether by testament or ab intestato.” In the treaty with Russia of 1832 a provision of the treaty referring to personal property only used the expression of succeeding to personal property by testament or ab intestato. In a treaty of 1826 with Denmark it was provided that no unequal duties, charges or taxes of any kind should be levied on “personal property, money, or effects” of the respective citizens or subjects or upon the removal of the same from either “upon the inheritance of such property, money, or effects, or otherwise than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such State.” There they used the word “inheritance” of personal property ■ — a term which, it is said, gives character and a peculiar meaning to the word “effects” in the treaty in question. In the treaty of 1902 with Spain, in stipulating as to the power to dispose of personal property, the terms “heirs, legatees, and donees” are used, and it is provided that the citizens of either shall “succeed” to personal property. In a treaty with Great Britain made in 1899 a provision dealing with personal property applies all these terms which have been mentioned to personal property. The same is true in treaties with Bolivia, Brazil, Italy, Prussia, Switzerland, Württemberg, Brunswick and Lüneberg, Colombia, Hesse, Mecklenberg-Schwerin and Saxony. In fact, it appears that in most, if not all, the treaties negotiated between this government and other nations these so-called real estate terms are used in provisions which expressly relate to personal property and personal property only, and this without regard to whether the treaty is with a civil-law nation or a common-law nation. The treaties we have examined are found in Compilation of Treaties in Force (37 Senate Documents, 58th Congress, second session), which has been prepared from time to time under the authority of congress. The fact that these terms, which it is argued are only applicable to "real estate, have been generally applied to personal property hardly justifies the court in the inference that in the use of the terms “goods and effects” the contracting parties intended to include real estate. The common use of the terms “heirs,” “succession” and “inheritance” in treaty provisions which expressly 'and without doubt refer to personal property neutralizes the argument that the use of the same in connection with the words “goods and effects” changes an expression which means personal property into one which means real estate. The supreme court of Illinois was led to the view that an expression which by itself means personal property was intended to embrace real estate because of the use of terms which it appears are generally applied in provisions for the disposition of personal property only. The supreme court of Nebraska, in Erickson v. Carlson et al, ( — Neb. 1914) 145 N. W. 352, with little discussion adopts the view taken by the Illinois court, and the supreme court of Washington, in an inheritance case, appears to take the same view. (In re Stixrud’s Estate, 58 Wash. 339, 109 Pac. 343).
We are inclined to agree with the supreme court of Iowa and hold that the words “goods and effects” as used in the article in question do not mean or embrace real estate. It appears to us that the context in which the words “heirs,” “succession” and “inheritance” were used strongly tends to support that view and to show that the makers of the treaty did not intend to expand the meaning of “goods and effects” but were referring to movable property only. In the sentence following the one containing the words “heirs” and “succession,” and which it is said expanded the meaning of “goods and effects” so as to make the words cover real property, it is provided:
“These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called ‘droit de detraction,’ on the part of the government of the two- states respectively.” (8 U. S. Stat. at Large, p. 64.)
The expression “these inheritances” refers to “goods and effects,” the property which the parties are to receive by inheritance or succession, and is such property as can be removed from the place of their abode when they change their dwelling. It thus appears that the “goods and effects” which they are to inherit and to receive by succession is movable property and not real estate.
As the treaty does not apply to real estate and as an alien is not allowed to inherit real property under the law as it .exists in Kansas, it follows that Anna Anderson, who was still alive and an alien when her brother died, was not entitled to inherit a share of the land owned by her brother. Can her children, the appellants, inherit? The rule of descent is fixed by the statute. As Olaf Olson left no wife or issue his estate would descend to his father and mother if they were alive and capable of taking by descent. (Gen. Stat. 1909, § 2953.) The rule of the statute, in effect, is that if one of the parents be dead the estate goes to the surviving parent, and if both be dead it descends as if they had outlived the intestate and died in the ownership and possession of the property. (Gen. Stat. 1909, § 2954.) Neither of the parents of Olaf Olson was living at the time of his death and so the .property descended the same as it would have done if his parents had outlived him and had been resident owners of the property at the time of their death. Upon the death of the intestate the descent is cast at once'and the title to the property would have passed to their sons and daughters, the brothers and sisters of the intestate, who were capable of inheriting, but, as we have seen, only those of them that have the inheritable blood or quality can inherit a share of the estate. At the moment óf Olaf’s death the title to the land owned by him- passed at once to those capable of taking. Anna Anderson, who was living, would have taken a share but for alienage, and the appellants, her children, can only claim through her, and she being incapable of inheriting the inheritance was obstructed and the estate diverted to those who could take. This was, in fact, determined in Smith v. Lynch, 61 Kan. 609, 60 Pac. 329. (See, also, Cramer v. McCann, 83 Kan. 719, 112 Pac. 832.) In Walker v. Potomac Ferry Company, 10 D. C. 440, it was said that:
“It is impossible for the children of a parent still alive to derive an inheritance, when the mother was herself incapable of acquiring that inheritance on account of alienage.” (p. 442.)
See, also, Meier v. Lee et al., 106 Iowa, 303, 76 N. W. 712; The People v. Irvin, 21 Wendell (N. Y. Supr. Ct.), 128; Renner, v. Muller, 44 N. Y. Superior Ct. Rep. 535; Note, 31 L. R. A. 177.
The court therefore ruled correctly in holding that the appellants were not entitled to a share in the land of the intestate, and they are the only ones who complain of the ruling of the court.
The judgment will be affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Dominic Broseghini was injured while working in a coal mine of the Sheridan Coal Company, and he brought this action to recover the damages sustained. It appears that he was employed and directed to work in a room of the defendant’s mine in which no work had been done for about eight or nine days before the plaintiff was employed. During that time water had collected in the room, and he first undertook -to drain the water out, and then finding a ledge of coal about six inches thick in the bottom and near the face of the room, he began to pick it, and had continued in this work about five minutes when his pick struck dynamite or some other explosive, and an explosion followed which burned and seriously injured him. A demurrer to the testimony offered in his behalf was overruled, and no testimony being offered in behalf of the company, the jury awarded him damages in the sum of $2974. With the general verdict the jury returned some special findings to the effect that plaintiff was a miner of ordinary intelligence and observa tion, that he could not by ordinary care have discovered the explosive in the ledge of coal on which he was working, that there was no evidence to show that he knew before he was injured that there was any unexploded dynamite or other explosive substance in the place where he was at work, and that he was an experienced miner who had been working in coal mines for about twenty-two years.
Although contested, the evidence, which is not contradicted, sufficiently shows that plaintiff was working for the defendant.
It is contended that the demurrer should have been sustained on the ground that the evidence did not show by whom the explosive was placed in the mine nor the kind of explosive that was discharged and caused the injury, and further, that it did not show that the defendant, by the exercise of ordinary care, could have discovered its presence. The explosion demonstrated that there was unexploded dynamite or other explosive substance in the unmined coal. It is well known that explosives are used in the mining of coal, and it is immaterial what was the name or the particular kind of explosive that was placed or left there. There was some unexploded substance left there.which should have been found by the defendant through an ordinary inspection. It was the duty of the defendant to furnish the plaintiff a safe place in which to work, and especially to make a careful inspection to discover whether there were unexploded charges left in the coal. The plaintiff had a right to assume that a proper inspection had been made and that any unexploded charges of dynamite or powder previously placed in the mine had been removed or safeguarded in some way.- The evidence tends to exclude the theory that the plaintiff was negligent in this respect, and the jury have found that he was free from negligence. If the defendant had performed its duty in this respect the explosive would have been discovered, and the fact that the plaintiff struck an explosive which was followed by an explosion, together with the attendant circumstances, is prima facie proof that the defendant failed to perform its absolute and nonassignable duty of furnishing the plaintiff a safe place to work. The burden was, of course, upon the plaintiff to prove the fact in issue, but authorities are not needed to establish the proposition that the negligence of the master may be proven by circumstantial evidence. The circumstances need not, as in criminal cases, preclude any other conclusion than the one found by the jury beyond a reasonable doubt. (Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Railway Co. v. Colliati, 75 Kan. 56, 88 Pac. 534; Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468.)
Here the plaintiff is not relying on the bare fact of the accident. There are circumstances which, taken together and of their own force, make out a prima facie case of negligence of the defendant. The evidence to the effect that defendant put plaintiff to work in a room of a mine in which unexploded charges had been left, that plaintiff had himself used due care in the premises, that there is a well-known practice of using explosives in mining coal, that an explosion did occur when plaintiff struck into the coal with his pick, and the other circumstances attending the explosion, are sufficient evidence of the absolute duty of the defendant to furnish the plaintiff a safe place to work and of its neglect to perform that duty. No explanation was made by the defendant nor was there any evidence offered to overthrow this prima facie case made by the plaintiff.
The instructions given by the court seem to fairly cover the case, and no error was committed in the refusal of those requested by the defendant.
The judgment of the district court will be affirmed.
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Per Curiam:
This is an original action in the nature of quo warranto brought by the plaintiff, Justus B. Linderholm, tb oust the defendant from the office of guardian of the plaintiff, “alleged insane.” Four reasons are assigned as a basis for the actionFirst, that the probate court had no jurisdiction to appoint the guardian; second, that the plaintiff had no notice of the hearing in the probate court and no opportunity to be present in person or by attorney; third, that the district court had no jurisdiction to proceed with the trial for the reason that there had been no proper finding of insanity in the probate court; fourth, that the defendant was administrator of the estate of the mother of plaintiff and there were matters to adjust between this estate and the plaintiff, and defendant was disqualified by reáson thereof to be appointed as such guardian. Probably all of these questions are appealable to the district court after a hearing in the probate court under the provisions of subdivision 9 of section 3624 of the General Statutes of 1909.
The defendant filed a demurrer to the petition and also a motion to dismiss the action. The motion and demurrer are substantially on the same grounds, and as the motion, in the view we take of it, makes a final disposition of the case in this court, we will consider the motion only.
Four grounds are assigned as cause for dismissal: First, that the case is improperly on the docket because no security for costs has been given, as required by Rule 4 of this court; second, that as an original civil action it is improperly upon the docket for the reason that no affidavit has been filed giving reasons why this action is not brought in an inferior court, as required by Rule 5; third, that this court has no jurisdiction for the reason that the petition on its face shows that the plaintiff has an adequate remedy at law; fourth, that this court has no jurisdiction in this case to grant the relief prayed for.
The first, second and third grounds of the motion are involved in other cases pending in this court and need not be determined herein.
Whether this court has jurisdiction or not depends upon subdivision 1 of section 680 of the civil code, which reads:
“When any person shall usurp, intrude into or unlawfully hold or exercise any public office, or shall claim any franchise within this state, or any office in any corporation created by authority of this state.”
This is the grant of j urisdiction to the supreme court, and unless -the provision grants it this court has no j urisdiction.
Assuming, for the purpose of the argument, that the defendant was irregularly appointed guardian of the plaintiff’s estate, the question is whether such guardianship is a public office. The only authority presented under which it is claimed that the position constitutes a public office is Trotter v. Mitchell, 115 N. Car. 190, 20 S. E. 386, in which it was held that in North Carolina a public administrator is a public officer; that the office is a property right, and the incumbent can not be deprived of it except by the law of the land. In that state the term of the public administrator is eight years. He is not appointed to administer one estate, but all estates that come within his jurisdiction. The case has no application to the case at bar.
By the provisions of section 2473 of the General Statutes of 1909, the probate court has power to appoint •and remove guardians of minors and feeble-minded persons. The appointment when made is' not for a definite term, but the appointee is subject to removal by the .same court at any time for cause. Such guardian is not a public officer, and this court “has no jurisdiction to entertain the case.
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The opinion of the court was delivered by
Porter, J.:
The facts in these cases are practically identical with those in the preceding cases. The same fire destroyed property of the Bee-Hive Mercantile Company, and similar defenses were made to six separate actions against different insurance companies brought by the plaintiff herein. The defense of an award by appraisers was pleaded, but abandoned at the trial. The only question raised by these appellants which is not decided and controlled by the decision in the former cases relates to the failure to have separate findings of the loss on the different classes of property insured. A gross verdict was returned by the jury, anti th-i cnurt apportioned the amounts among the different defendants according to the amounts of their policies. It seems, however, that one of the policies does not insure millinery, another covers show cases but not fixtures generally. The policy which does not insure millinery is the only one which covers music boxes, phonographs and records. Apparently no serious hardship results, foi it appears that the company which was required to bear part of the loss on millinery is relieved of a part of its burden of the entire loss on music boxes. The four companies against whom losses on the fixtures were assessed in the judgments may have been injured to some extent by the fact that the one company which had insurance on show cases alone escaped some of its liability. - If a request had been made, the court would doubtless have required the jury to determine the loss on each class of property separately; but no such request or demand was made by the defendants or by either of them.
The cases were not consolidated under any statutory provision, nor simply by order of the court, , but. because the parties themselves stipulated that the six cases should be consolidated and tried as one case. At all events it is too, late for the defendants now to raise the objection-after. having submitted the cases upon the stipulation that they should, be consolidated and-tried as one case, and after failure to request the court, to require the jury to ascertain separately ■ the value of the different. classes . of property. Doubtless the defendants will have-little difficulty in. adjusting .the slight .differences between themselves- -In view of all the-circumstances, we think ;the matter is not of suf7 ficient consequence to justify a reversal,andn.new trial.
The judgments are affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover damages for an injury received while unloading a car of potatoes for the defendant. A demurrer to the petition was sustained and before the amended petition was filed the statute of limitation had run. To the amended petition and also to the second amended petition de murrers were sustained on the ground that the cause of action was barred. The question presented by the appeal is whether the original petition stated a cause of action.
Of course if facts sufficient to constitute a cause of action were stated, although in a manner to leave the pleading subject to motion to make certain and definite, it would still be susceptible to amendment. It was alleged that the defendant owned and operated a grain elevator and wholesale produce house, and that at and a long time before the injury it was his custom to unload cars of potatoes from such elevator over a runway consisting of an iron slab three and one-half feet in width, four feet in length and one-fourth of an inch thick, one end of which was placed on the platform and the other on the floor of the car, and sacks of potatoes placed on four-wheeled trucks were wheeled over such iron slab, and while engaged in the service of loading and unloading and while crossing upon this iron slab the plaintiff fell down between the car and platform, “caused by the said iron-slab runway slipping from the said car and platform, which said fall caused the lower left limb of plaintiff to be crushed, lacerated, and broken. . . . Plaintiff further states that it was the duty of defendant to provide plaintiff a safe place to work, free from danger and free from defects, and safe appliances and means suitable for the performance of the service required; and at the time of construction and arranging the said runway, to have provided and constructed the same in a safe manner and free from danger and defects. Plaintiff further states that the defendant well knew, or with the exercise of reasonable and ordinary care and diligence might have known, that the said runway was and had always been dangerous, unsafe and defective, and that said runway had never been caused to be made safe and free from dangers and defects; and also well knew, or with the exercise of reasonable and ordinary care and diligence might have known, that the appliances and means furnished to plaintiff for the performance of his said services viere and had always been dangerous, unsafe and defective.
“Plaintiff further states that he did not know that the said run-way was dangerous, defective and fraught with dangers, nor that it had been so from the time of its construction, nor that the said appliances and means provided for the performance of his services were dangerous, defective and unsafe, and had been so from the time of their construction and adoption by the defendantbut defendant, with knowledge as aforesaid, and under the aforesaid facts and circumstances, was grossly negligent in requiring, causing and placing plaintiff to work at the aforesaid run-way, which caused the plaintiff the aforesaid injuries to plaintiff’s damage in the sum . of Ten Thousand Dollars ($10,000.00).”
The defendant contends that this pleading contains no charge that he was negligent in any respect, and that the statement of duty to furnish a safe place to work is a mere conclusion of law; also that assumed risk is shown upon the face of this pleading, as it appears therefrom that the defects were as obvious to the plaintiff as to the defendant. The first question is whether the allegation of negligence was sufficient, if taken as true, to show a liability. The information the pleading upon its face imparts is that the runway was dangerous and defective, so that it slipped and fell and injured the plaintiff, and the inference naturally, if not necessarily, to be drawn is that it was thus dangerous and defective because not fastened as it should have been to the car and platform. At any rate, it charges the defendant with negligently causing the plaintiff to wheel truck loads of potatoes over a runway which he (defendant) knew, or should have known, was defective and dangerous, and which slipped and fell, causing plaintiff’s injury. While such an inferential style of pleading facts is not commendable, still the rule has been repeatedly announced that as against a demurrer it may suffice. The same point in principle as the one here involved was so decided in Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677, citing previous decisions to like effect. See, also, Upham v. Head, 74 Kan. 17, 85 Pac. 1017, and Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557.
Instead of stating in a clear and concise manner that the defect existed, a poor equivalent was resorted to of averring that the defendant knew or should have known thereof — which, of course, would be impossible unless it existed — but this must be given its logical .effect and not be deemed a mere roundabout inference that there was such a defect.
It is contended that from the allegations it appears that the plaintiff was as able to see or know the dangers incident to the use of the iron slab as was the defendant. But the express averment is made that the plaintiff did not know of the defect or danger, and there is nothing to show who placed the slab in position, how long the plaintiff had worked upon it, or what means he had of knowing whether or not it was fastened or provided with means to prevent its slipping. Iron Works Co. v. Green, 79 Kan. 588, 100 Pac. 482, relied on by the defendant, was a case in which the plaintiff’s own evidence showed knowledge or means of knowledge not indicated by the allegations found here, and the same is true of several other decisions cited. Within the rule in the Upham and Bowersox cases, already referred to, the pleader did not in this respect state himself out of court.
A motion to make definite and certain would have been proper, which is the same as saying that the pleading was amendable, and the amendments made in the subsequent pleadings were not such as to bar the action.
The judgment is therefore reversed and the cause remanded for further proceedings.
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Per Curiam:
Upon a suggestion, in a petition for a rehearing, that the court had misapprehended the facts relating to the H. E. Brooks’ items in the Royston suspense account, referred to in the opinion, a rehearing was allowed upon the rulings of the district court in refusing to allow the contract and correspondence between H. E. Brooks and the mill company relating to those items to be read in evidence.
Upon full argument and briefs, reviewing the testimony concerning these items, it appears that the books and accounts of the mill company and other evidence respecting these items were before the jury. The rejection of the contract and correspondence, even if admissible, does not appear to be prejudicial.
It is stated that the claims of Brooks for damages were not paid to him, as the entry in the suspense account would seem to indicate, but were losses incurred in filling contracts made by him for the sale of flour, in addition to the damages he claimed in the intervening petition in the bankruptcy proceedings. Whether such losses are covered by the contract providing for abatement on the notes need not be decided. Evidence was allowed of such alleged losses, and the whole matter was before the district court. It is not perceived how the letters and telegrams of Mr. Brooks insisting that his orders shall be filled and making claims for personal damages for failure to fill them tend to prove losses incurred by the mill company in filling the orders.
The views stated in the former opinion (Richolson v. Ferguson, ante, p. 105, 139 Pac. 1175) are adherred to.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment awarded to A. Christl against The Missouri Pacific Railway Company for the loss of household goods which were burned while they were in possession of the railway company and in course of transportation. The goods were billed from LeMars, Iowa, to Hutchinson, Kan., over the Chicago, St. Paul, Minneapolis & Omaha railway to Omaha, and thence to destination over the Missouri Pacific railway, under a contract of shipment signed by both parties at a rate based upon a classification and tariff schedules filed by the two carriers with the Interstate Commerce Commission. The rate on household goods, where the value was limited to $10 per hundredweight, was $1.19%, and where the value was not so limited or not stated by the shipper the rate was 50 per cent higher, or $1.79% per hundredweight. In the contract of shipment it was stipulated that the value of the goods was $10 for each hundred pounds, and that by reason thereof the shipper was given the lower rate. The appellant offered to pay the loss in accordance with the terms of the contract, but the appellee insisted on the payment of the full value of the property destroyed, claiming that the contract was not binding on him because no explanation was made to him as to the two rates and that no alternative rate was given to him. He testified that a few days before the goods were shipped he made inquiry about the rate on that class of property, and was told that it was $1.19% per hundredweight, no mention being made of another rate. The railroad agent testified that the difference in the rates and the basis of them was explained to appellee, and that he chose the lower rate. Appellee admits that when the goods were delivered and the contract of shipment signed there was stamped on the contract the statement of the rate that was based on the limited valuation, and he says that he objected at that time to the limitation, but that he did not offer to pay the higher rate applicable where no valuation was fixed.
This being an interstate shipment, and the tariffs applicable to the class of goods shipped having been filed and published in accordance with the interstate commerce law, the shipper, as well as the carriers, is bound by the tariff under which the shipment was made. The making and posting of a rate based on a reasonable agreement as to the valuation of the property, and which is proportioned to the extent of the risk assumed by the carrier, is consonant with public policy and binding on the parties. (Nursery Co. v. Nursery Co., 89 Kan. 522, 132 Pac. 149; Metz v. Railway Co., 90 Kan. 460, 135 Pac. 667; Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600; Texas & Pacific Railway v. Mugg, 202 U. S. 242, 26 Sup. Ct. Rep. 628, 50 L. Ed. 1011; Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. Rep. 350, 51 L. Ed. 553, 9 A. & E. Ann. Cas. 1075; Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. Rep. 648, 56 L. Ed. 1033; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. Rep. 148, 57 L. Ed. 314; Kansas Southern Ry. v. Carl, 227 U. S. 639, 33 Sup. Ct. Rep. 391, 57 L. Ed. 683; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657, 33 Sup. Ct. Rep. 397, 57 L. Ed. 690.)
Appellee insists, however, that the contract into which he was led to enter was not fair and open; that he was not informed that there were two rates, and was not given a choice of the higher rate based upon an undeclared valuation. Although there is a conflict in regard to whether he was informed concerning the rates, the verdict must be deemed to have settled that conflict in his favor, but, as has been seen, he does admit that the limited valuation was brought to his attention when the contract was signed, and-although then informed .in respect to it, he did not offer to pay the higher rate nor undertake to recall the shipment of his goods. 'But, assuming that he had no actual knowledge of the existence of the two rates, he was bound to know the contents of the published tariffs, and can not escape the binding force of the tariff under which the shipment was made. When the tariffs provided for in the federal law are filed and published, notice is given to all shippers and interested parties, and any deviation from the rates, whether done wittingly or unwittingly, would be unlawful and would constitute a discrimination and a preference such as is prohibited by the federal law.
In Chicago & Alton R. R. Co. v. Kirby, supra, the shipper contended that he had been guaranteed a quick transportation and delivery of live stock, and because it was not carried out damages were asked. It appeared that what had been promised to him was a special advantage not provided for in the regular published tariffs nor open to all shippers. The shipper relied on the fact that he did not see and did not know that the published rates and schedules made no provision for the service he contracted for, and the court answered by saying that:
“For the purposes of the present question he is presumed to have known. The rates were published and accessible, and, however difficult to understand, he must be taken to have contracted for an advantage not open to others.” (p. 166.)
In Kansas Southern Ry. v. Carl, supra, the shipper had signed a contract fixing a rate on the limited valuation of the property to be shipped, but he testified that he had not read the contract nor been given any information as to its contents, and, further, that he had no knowledge of the existence of two rates. He also testified that if he had known of the difference between the two rates and the effect of accepting the lower he would have paid the higher rate. The court held that the published tariff under which the shipment was made was binding on the parties; that evidence aliunde the contract was not admissible to enable the shipper to recover a greater amount of damages than was fixed by the tariff, and that to do so would encourage undervaluation and bring about the preferences which the law was designed to prevent. In respect to the matter of notice the court said:
“The valuation the shipper declares determines the legal rate where there are two rates based upon valuation. He must take notice of the rate applicable, and actual want of knowledge is no excuse. The rate, when made out and filed, is notice, and its effect is not lost, although it is not actually posted in the station: . . . When there are two published rates, based upon difference in value, the legal rate automatically attaches itself to the declared or agreed value. Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper’s knowledge of the lawful rate is conclusively presumed, and the carrier may not be required to surrender the goods carried upon the payment of the rate paid, if that was less than the lawful rate, until the full legal rate has been paid. . . . Nor is the carrier liable for damages resulting from a mistake in quoting a rate less than the full published rate.” (pp. 652, 653.)
Touching upon the shipper’s knowledge of the rate the court further remarked:
“The defendant in error must be presumed to have known that he was obtaining a rate based upon a valuation of five dollars per hundredweight, as provided by the published tariff. This valuation was conclusive, and no evidence tending to show an undervaluation was admissible.” (p. 656.)
In Mo., Kans. & Tex. Ry. v. Harriman, supra, the court again referred to the effect - of the filing of a tariff and the notice which the act carries to shippers, saying:
“When the carrier graduates its rates by value and has filed its tariffs showing two rates applicable to a particular commodity or class of articles, based upon a difference in valuation, the shipper must take notice, for the valuation automatically determines which of the rates is the lawful rate. If he knowingly declares an undervaluation for the purpose of obtaining the lower of two published rates, he thereby obtains an advantage and causes a discrimination forbidden and made unlawful by the first section of the Elkins Act of February 19, 1903 (32 Stat. 847, c. 708) ” (p. 671.)
Appellee must therefore be deemed to have had notice of the published rates for household goods between the points named and also of the one applicable for the shipment which he made. The limitation in the valuation as well as of the liability became a part of the rate and appellee can recover no more for his loss than was fixed in that rate. On his own testimony he was not entitled to recover more than the amount tendered by appellant, and, therefore, the demurrer to his evidence should have been sustained.
The judgment of the district court will, therefore, be reversed and the cause remanded with directions to enter judgment in favor of appellee for the tendered sum of $145.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment rescinding a contract to purchase a thrashing machine ■outfit, and for a return of the compensation. The . plaintiff received the machinery about July-1, 1910, and all together thrashed, as the jury found, about 34,000 bushels of grain and plowed about 290 acres. Early in July, 1911, claiming that the engine and separator were both defective and unfit for the work desired to be done by them, the plaintiff testified that he informed the defendant’s general manager that he desired the property taken back and the money and notes refunded. The price of the machinery was $3157, of which the engine was taken at $2100. The plaintiff traded in a thrashing outfit for which the jury found he was to receive $1100, and paid one note of $361.75 and about $230 freight. The jury found that he received $2630 for thrashing and that the use of the engine for plowing was worth $360. The plaintiff alleged that the machinery was defective, and the jury so found after considering the testimony of numerous witnesses which presented the usual conflict. It appears that repeated efforts had been made by the company to make the separator do proper work, but the plaintiff claimed and the jury found that it was defective in cleaning and separating the grain from the straw. The trouble with the engine was a crack or break in the ring of the fire-box door which caused the engine to leak. Attempts were made to repair this ring, but the plaintiff claimed and the jury found that the engine failed to comply with the warranty in that it contained a leak. The court left it to the jury to say in what respect, if any, the contract was divisible, with the result that the part covering the engine was found separable from the remainder.
The defendant challenges the plaintiff’s right to be heard as to any matters covered by the motion for a new trial and the motion for judgment on the findings for the reason that such motions are not set out in the abstract. It is recited, however, that the motion for a new trial was filed on all the statutory grounds, and also that the special findings did not support the general verdict. This may be informal, but it is not fatal. The substance of the judgment is set out, which is proper, hence the complaint that the journal entry was not inserted is without merit.
The defendant complains that the plaintiff was permitted to amend so as to declare upon rescission, and contends that the original petition amounted to an election which precludes him from departing from an attempt to recover damages. The original petition might by a liberal construction be deemed one to recover on both causes, and as the defendant treated it as such by moving that the plaintiff be required to elect, which motion was granted and complied with, we hardly think it can be heard to urge that no such right to elect existed, especially so when it is considered that, to the amended petition electing to proceed as upon rescission an answer and cross petition were filed and no estoppel thus to elect was pleaded or suggested until raised by an objection to testimony.
Error is assigned upon submitting the divisibility of the contract to the jury, and it is argued that this was a matter of law for the court. The contract provided that if any part of the machinery could not be made to fill the warranty, that part which failed should be returned and the company should have the option to furnish another machine or part in its place, or return the money and notes given for the same, and thereby rescind the contract in part or in whole, as the case might be, and be relieved from any further liability thereon. It is urged that at least the court should have instructed that the contract was divisible as to the engine. However, while the contract was so worded as to items and prices that differences of opinion might well arise as to what parts were intended to be separable, the engine was clearly so, and was so found by the jury, and there was no serious complaint about any other machine except the separator, so that it is immaterial whether or not correct instructions were given as tp the other constituent items making up the outfit. And as the finding as to the engine was correct no harm came to the defendant because the jury instead of the court reached the right conclusion. (Behen v. Street Railway Co., 85 Kan. 491, 118 Pac. 213; Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866; Davis v. Wilson, 11 Kan. 74, syl. ¶7; Germania Ins. Co. v. Curran, 8 Kan. 9, syl. ¶ 5.)
That the plaintiff is not entitled to rescission as to the engine is asserted, and attention is called to a clause in the contract that “The failure of any separate machine or part thereof shall not effect the'contract or liability of the purchaser for any other separate machine or any parts of such affected machine as are not defective,” and another that if any metallic piece should break during the first season by reason of a flaw therein, a new piece would be furnished in its place upon prompt return of the old to the company and it appearing to its satisfaction that the break was caused by a flaw. The court instructed that “even if you should find from the evidence that the ring in the fire-box door was defective in that there was a flaw therein, this would not entitle the plaintiff to rescind his contract as to such engine, but would only give the plaintiff the right to return to the defendant such ring as provided in said contract, provided, as elsewhere instructed, that you find the contract a divisible contract, and that it was practicable to detach and replace the ring in question.” The evidence was to the effect that it would take a boilermaker and a helper about a week to replace the ring with the engine in the field, and the jury found that it was not practicable to return the ring separate from the engine. We can not agree with the defendant that it was the duty of the court to instruct that this ring constituted a “metallic piece” under this clause of the contract instead of leaving it to the jury to find whether it was practical to detach and return such ring. The repeated efforts made by the company to remedy the defect indicate anything but a desire or expectation that the purchaser should employ the necessary skilled labor and devote the required time to removing the ring for its return to the company, and the nature of the ring and its manner of attachment to the engine are such as to render it very doubtful if the parties intended by the contract to treat it as a “metallic piece” within the clause referred to, and we think there was no error in the instruction or in the finding touching such ring.
Whether or not a jury could have been demanded as a matter of right, it was not prejudicial error to submit the issues to a jury and receive a verdict and answers to special questions., (Wood v. Turbush, 63 Kan. 779, 66 Pac. 991; Hixson v. George, 18 Kan. 253, and cases cited.)
A demurrer to the plaintiff’s evidence was overruled, and this is criticised on the ground that there was a failure to show that the warranty was not waived. One provision in the contract was that a failure to pay the notes when due should constitute a full release and waiver of the warranty. It is contended that the notes due September 15, 1910, and August 1, 1911, were unpaid, and that this defeated the right to rescind. But there was testimony to the effect that when the first of these was paid the general manager had promised to make the machines work perfectly or take them back, and the second was not yet due when the interview was had with him in July, 1911. Another provision was that a failure of the machinery to come up to the warranty inside of six days from its first use should be communicated to the company, and later in the contract was a clause that “keeping the machinery after the six days allowed as above provided” should be a waiver of the warranty, and it is suggested that the plaintiff continued to keep and use the engine for one of its desired purposes — plowing—long after he knew of its defect and that he could not have kept and used it thus long for the purpose of testing it under the warranty, and therefore should be held' to have accepted it. Authorities are cited upon the point that notice of claimed defects is under some contracts a condition precedent, but here the company had ample notice of all the defects complained of and. continued from time to time with such notice and knowledge to attempt a remedy. These attempts were made, not by agents who were without authority to waive any contract provision, but by the general manager, who possessed such power, and whose repeated visits to the plaintiff and efforts to cause the engine and separator to do the desired work leave the matter in such a situation that the company can not well claim that strict compliance with the terms of the contract as to notice, payment and retention of machinery was not waived. The circumstances so far as waiver is concerned are to 'some extent similar to those in Campbell v. Masonic Lodge, 76 Kan. 400, 404, 92 Pac. 58, wherein it was said waiver may be express or implied and that the conduct of the plaintiffs there showed such waiver.
The defendant moved for judgment on the special findings and complains that such motion was denied. We have examined these findings and do not deem the defendant entitled to judgment thereon.
Some unimportant questions were answered “We don’t know,” but the essential features of the controversy were fairly covered by direct answers.
An instruction was requested that if at the beginning of the action the plaintiff was in default in payment of any of the notes given as part of the purchase price he could not recover. This was properly refused for reasons already indicated.
The following was given:
“You are further instructed that in determining whether plaintiff offered to return the thrashing rig within a reasonable time you are to take into consideration no time except that which elapsed after plaintiff knew or should have known that defendant would not fulfill its promise, if any was made, that it would put the thrashing rig in such shape that it would do its work well. In determining what was a reasonable time you are to take into account all the facts and circumstances of the case.”
This is criticised for its failure to recognize the divisibility of the contract as to the engine and to give the jury clearly to understand that a promise to repair the separator would not extend the time to which he could rescind as to the engine. But we are not able to say that it had the effect of confusing or misleading the jury when considered in connection with other portions of the charge.
Finally, it is pressed upon us that the price of the •engine, $2100, should be deducted from the amount of the recovery for the reason that the evidence does not justify rescission as to that portion of the machinery, whatever it may show regarding the separator. The plaintiff testified that in October, 1910, he told the general manager the boiler was leaking around the fire-door ring and was promised that it would be fixed; that in February or March, 1911, the company sent a man who drilled out the cracks in the ring and put in plugs; that a week before that Mr. Mclntire had said that they would fix the defective ring and stand the cost of it. After this man was there “the fire-door ring leaked, and the hotter it got the worse the leak, and it finally got so bad we could not do anything with it. We could not keep the fire and water in the engine at the same time.” Mr. Mclntire then promised to send off and get copper plugs. At one time he sent his brother down to remedy the leak. In the spring of 1911 the plaintiff testified that he had to throw up a job of plowing 30 acres because the engine failed to work; that during the time he plowed the engine leaked so badly that at times it was impossible to keep the steam up. Another witness who ran the engine testified that it leaked all the twenty-two days it was used, some days badly enough to put the fire out. Another who was an engineer testified to a similar effect, and that the last ten days he was with it the engine would leak practically a whole tank of water during a night. Another, that it was a serious defect because the steam could not be kept up. Another who was sent by Mr. Mclntire to remedy the defect, testified: “I knew when I finished the job that it might leak again. I knew the proper way to fix the engine was to put in a new ring.” The general manager’s brother testified: “As a rule such leaks get worse. ... I was instructed to go down hy my brother, Oliver Mclntire. I did not consider the repair work I did on the engine a permanent job. If the plugging would not hold it would be necessary to put in a new ring. I had no instructions except to cork it.” The general manager himself, among other things, testified: “The only thing to do when the plugging does not hold is to put in a new fire-door ring. It requires the same tools to put in a new ring in the field as it does in a boiler shop.” ' There is no indication that the plaintiff had any notice or knowledge that the company would do nothing further towards remedying the defects until the interview in July, 1911, at which time, according to his testimony, he told the general manager, who “suggested to send down a lot of stuff to Kiowa, and for me to take it and put it on the machine and have me try it”; that he “could not do anything with it at all, and unless he would do that, why I would try to see what I could make him do,” and “he said he would not take the machine back under any circumstances, unless he took it back by foreclosure.” The last finding of the jury was as follows:
“Q. Did the acts and conduct of the defendant justify plaintiff in concluding that if he returned the machinery or any part of it to the place where he received it the defendant would not have accepted it?
A. Yes.”
The facts of the case as far as the engine is concerned, therefore, do not bring it within the rule laid” down in Weybrich & Co. v. Harris, 31 Kan. 92, 1 Pac. 271; Furneaux v. Esterly & Son, 36 Kan. 539, 13 Pac. 824; Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95; Aultman v. Mickey, 41 Kan. 348, 21 Pac. 254; Manufacturing Co. v. Moore, 46 Kan. 324, 26 Pac. 8, and Hay Press Co. v. Ward, 89 Kan. 218, 131 Pac. 595, but. are such as to make applicable the decision in Implement Co. v. Haley, 77 Kan. 72, 93 Pac. 579, wherein it was said:-
• “It is fairly inferable that the delay in returning-the machine was induced in great part by the assurance of Dixon that the machine could be made to work satisfactorily and his continued efforts to adjust it.”' (p. 75.)
The cause has been thoroughly and ably presented, and we have carefully considered the questions involved, but find no material error in the record.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Smith, J.:
This action was brought by the appellants to have it decided, first, that the city of McPherson was without authority to annex certain territory to the city as a part thereof; second, to have it decided that the action of the mayor and council in- the premises was null and void; third, that the mayor and council be enjoined from certain contemplated improvements.
It appears without dispute that appellant Price owns, and owned during all the times referred to, a tract of ten or eleven acres of land surrounded on three sides by regularly laid out lots, blocks, streets and alleys and on the fourth side by a public street of the city known as Kansas avenue. The statement of facts as made by the appellants is as follows:
“On the 6th day of May, 1912, the City Council of the City of McPherson, a city of the second class, passed a resolution under Chapter 110 of the Laws of 1911, to pave Euclid Avenue in said city from the West line of the first alley East of Main Street to the East Line of Eshelman Street. Nothing further was done by the Council until the 6th day of January, 1913, when a list of the property owners liable to taxation, for said improvement was reported by one C. W. Bachelor, a bonded abstractor, in said city, reporting that there were Eighty resident property owners liable to taxation for said improvement. Afterwards on the 10th day of February, 1913, the ordinance attached to the petition of Appellant in the court below, was passed (See page 6 Abstract of Record). Within Twenty days after the passage of the said resolution to pave said street a remonstrance was presented to the Council protesting against making said improvement signed by a large number of property owners; According to the testimony of Mr. W. A. Mathis (Page 34 of Abstract) , the bonded abstractor, there were eighty property owners liable to taxation and there was thirty-one names counted on the remonstrance (Abstract Page 34). It is admitted that Mrs. Aull, Olof Hedlund, Mrs. C. A. Swanson, were taxpayers liable for taxes for said improvement, also that Mrs. Aull, Mrs. Swanson and Olof Hedlund, were on the remonstrance and were not counted; that Julia B. Zink and E. T. Zink are husband and wife; that property was deeded to them jointly; that they are resident property owners on said street to be paved, that they both signed the remonstrance but only one of them was counted.”
That a sufficient number of property owners liable to taxation for the improvement filed affidavits remonstrating against the improvement after the expiration of the twenty days is immaterial. Section 1 of chapter 110 of the Laws of 1911 provides:
“And if a majority of the resident owners of property liable to taxation therefor shall not, within twenty days from such last publication file with the clerk of said city their protest against such improvements. The sufficiency of the protest shall be determined by the record in the office of the register of deeds at the time of the adoption of the resolution. Then such council shall have power to cause such work to be done or such improvements to be made, and to contract therefor, and to levy the taxes as herein provided.”
It is claimed by appellants, in substance, that because the city did nothing further towards the making of this improvement or the passage of an ordinance therefor until February, 1913, about nine months after the passage of the resolution, the city lost jurisdiction to proceed, a majority of the resident taxpayers having in the meantime remonstrated, and that changes in conditions had occurred.
The cases of The State, ex rel., v. Eggleston, 34 Kan. 714, 10 Pac. 3, and Cowles v. School District, 88 Kan. 603, 129 Pac. 176, are cited as showing by analogy that the city council should have regarded the protest even if filed more than twenty days after the last publication of the resolution. The statute in this case prescribed a certain number of days for the filing of remonstrances. This does not appear to be true of either of the cases cited. Where a provision is made that a certain act shall be authorized by a majority of the taxpayers or of petitioners without any limitation of the time, the purpose of the law will be interpreted, as in the cases cited, that changes may be made before the petition or remonstrance is acted upon by the proper authority. We do not feel justified, however, in changing the express provision of the statute by interpretation. Neither do we think that the delaying of the improvement for nine months after the first resolution was passed is, as a matter of law, an unreasonable delay by which the city loses jurisdiction to proceed.
Another objection is that when the city of McPherson annexed the plat owned by appellant Price, being the tract known as the “Cottingham Reserve,” to the city, it had no authority so to do for the reason that Price had not assented thereto and that the land was not circumscribed by platted territory. When attached to and made a part of cities, additions are platted into lots, blocks, streets and alleys. This plat of land was unquestionably so circumscribed by platted land on three sides; on the fourth side was a street of the city, and we think this meets the requirements of the law.
Whether this be true or not appellant Price has no right to attack the proceedings incorporating the tract. It was said in Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624, as follows:
“The validity of proceedings taken by city officers under statutory authority extending the corporate boundaries of a city so as to annex a tract of land can only be questioned in a direct proceeding prosecuted at the instance of the state by proper public officers. The case of Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, followed.” (Syl.)
We think the appellants were not- entitled to any of the remedies asked and the judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This action was prosecuted by stockholders of the Land Credit Trust Company to charge-the directors of that company for losses caused by their alleged negligence in managing its affairs.
The material facts, briefly stated, are that the WinneMortgage Company, a New Jersey corporation, was do ing business at Wichita. Its three principal officers, with two others, organized the Land Credit Trust Company, a Kansas corporation, who constituted its board of directors for the first year. Scott E. Winne was president of the mortgage company, and the vice president, and active in the control of the trust company. On October 8, 1906, the trust company entered into a contract with the mortgage company to receive, hold and certify mortgages upon real estate as security for the bonds of that company. The trust company endorsed upon each bond its certificate that it was one of the bonds described in the deed of trust. The deed or trust agreement provided that certificates should not be endorsed upon any bond for which securities of a face value equal at least to the amount of the bond were not held. It also provided for the surrender of mortgages as bonds were paid and canceled; for the withdrawal of mortgages and the substitution of others; for the sale of securities upon request of a majority of the bondholders when default should be made upon the bonds; and for the application of the proceeds pro rata among the bondholders. Another provision of the agreement was that:
“The trustee shall not in any event be held to guarantee the value of any note or security pledged under this agreement or the value or title of any lands mortgaged to secure said notes or securities or the value of title of any land conveyed to said trustee under the provisions of this deed.”
Bonds were issued by the mortgage company and certified by the trust company from October 1, 1906, to and including November 1,1907, amounting to $230,000.
The mortgage company became insolvent early in the year 1908. The bondholders called on the trust company' to apply the securities in its custody, but that company resigned its trust and placed the securities in a bank, resolved to go into liquidation, and turned its own assets over to one of its directors, appointed as manager. Afterwards an individual trustee was appointed to hold the securities so placed in the bank. On April 3, 1908, an action, hereinafter called the Brandt suit, was commenced in the district court at Wichita, by Peter Brandt and other bondholders, against the mortgage company, the trust company, and the individual directors of the trust company, who are defendants in this action. Afterwards other bondholders came in by an intervening petition. In these petitions negligence in the management of the trust was charged upon the trust company and its directors in receiving securities from the mortgage company to which it had no title, or upon which no money had been advanced, or which were otherwise worthless; and in allowing the withdrawal of valid mortgages and the substitution of others that were worthless. It was charged that the trust company and its directors negligently allowed Mr. Winne, president of the mortgage company, free access to the securities, and in fact permitted the mortgage company freely to act in all these matters for the trust company, to its loss. An injunction was asked to prevent the disposition of assets, and that the trust company and its individual directors account for and restore to the trust an amount equal to the securities that had been certified, for the restoration of any remaining valid securities, and for a personal judgment against the mortgage. company, the trust company, and the defendant directors, for the amount of the outstanding bonds, to be a first lien upon the assets of the trust company.
Issues were made up and tried in the Brandt suit and a judgment rendered on the second day of August, 1909, in which it was found that the total amount of outstanding bonds of the mortgage company certified by the trust company was $225,200, to secure which mortgages had been deposited with the trust company under the trust agreement, and that the trust company
had permitted securities so deposited to be withdrawn and other apparent securities deposited which were not the securities contemplated or provided in the trust agreement, and that the securities remaining in the hands of the successor in trust were of little value. The court also found as follows:
“That the defendant Trust Company primarily and the defendant C. Oldfather . . . [and other individual directors named] as directors of the said Trust Company secondarily, are jointly and severally liable to account to the said trust for the benefit of the plaintiffs and defendants bondholders hereinafter described in the proportion of the amount of the several bonds by each of them held in the amount of one hundred thousand ($100,000.00) dollars.
“That upon the making of such an accounting and settlement thereof the said defendants so liable are entitled to have returned to the said Trust Company the said securities so in the possession of the defendant F. D. Ferguson, trustee for bondholders, successor in trust to the defendant, The Land Credit Trust Company."
Judgment was rendered for the bondholders against the mortgage company for $225,200, and:
“That the defendants, The Land Credit Trust Company primarily, and the defendants, C. Oldfather, [and other directors named] secondarily as directors of the defendants Trust Company, account and pay to the clerk of this court the sum of one hundred thousand ($100,000.00) dollars for .the benefit of the holders of the bonds issued by The Winne Mortgage Company under the trust agreement described in the pleadings* in the said amounts hereinafter named; that the said sum of one hundred thousand ($100,000.00) dollars be so paid to the clerk of this said court on or before the 2d day of August, 1909, and bear interest from that, date until paid at the rate of six per cent per annum. . . .
“That on such payment of said one hundred thousand ($100,000.00) dollars and costs by said Trust Company or by C. Oldfather . . . [and other directors named] or any or either of them, the person or persons so paying shall be subrogated to all rights of the said bondholders against The Winne Mortgage Company to and under, and for the enforcement and collection of, the judgment herein rendered in'favor of said bondholders against said Winne Mortgage Company, and have, as far as said bondholders are concerned, a first lien upon all of the assets 'of said company in said amount, and that on such payment being made, said Trust Company and C. Oldfather . . . [and other directors named] are to be released and discharged from all liability and damages in law, equity, or in tort, or otherwise, to all said bondholders of The Winne Mortgage Company whether they have appeared heretofore in this cause or not, and to parties to this suit other than the said Trust Company. ....
“That the defendant, F. D. Ferguson, trustee, successor in trust to The Land Credit Trust Company be, and he is hereby required upon payment being made of the said one hundred thousand ($100,000.00) dollars and the costs above provided, to surrender and deliver to the defendants making such payment all mortgages, notes and bonds or other evidences of debt or other securities held by him as trustee, successor in trust to the Land Credit Trust Compány.”
The judgment recites that the trust company and the directors had paid in the sum of $100,000 and costs, and that the individual directors had paid in $50,000 of the $100,000 on account of the liability of the.trust company, whereupon it was further adjudged that these individual directors should recover that amount from the trust company, and they were authorized to collect and convert to their use ratably from the effects of that company the amount so paid in by them.
Distribution of the $100,000 was ordered among the bondholders pro rata, on surrender of their bonds.
. The stockholders of the trust company, who are plaintiffs in this action, were not made parties to that suit, but the evidence tends to show that several of them consented to a compromise, and some of them consented to the appropriation of the assets complained of in this action, and released the trust company and the directors from any claim they might, have therefor.
The judgment for $100,000 and costs was paid by money derived as follows: From the mortgage company, $29,604.21; from the trust company, $22,385.49; and from a loan made upon the note of the trust company, endorsed by the directors, $49,350. In paying this note, $43,350 of the assets of the trust company were used, which with the $22,385.49 from the same source makes a total of $65,735.49. It is difficult to harmonize the amounts stated in the briefs with those shown by the testimony, but the differences are not material. About $66,000, it seems, of the assets of the trust company were so appropriated, and this is the amount the plaintiffs seek to have restored for distribution to stockholders.
The plaintiffs’ contention is that the defendants are estopped by the judgment in the Brandt suit from denying their liability in this action to restore the amount taken from the assets of the trust company. This contention is based upon the proposition that their own negligence caused the loss for which they and their company were adjudged to account. It is argued that this negligence is conclusively proved by the judgment; that the general finding against them is equivalent to an express finding of negligence as alleged in the petition, ánd that they could not have been held individually liable, either primarily or secondarily, upon any other hypothesis. It is further contended that the judgment so far as it authorized reimbursement from the assets of the company, whose affairs they had mismanaged, is void, not being responsive to any issue, and that in any event it is not binding upon the stockholders, who were not parties to the suit nor represented otherwise than by the same directors for whose benefit this appropriation of the assets was made.
The defendants’ contention is that the judgment in the Brandt case contains no adjudication of negligence against them. Their interpretation of that judgment is that it provided for a sequestration of the assets of the trust company as the primary debtor to discharge the amount to be paid to the bondholders; the ascertainment of the right of the directors to recover from the trust company whatever they as individuals might pay, finding that they paid $50,000, and declaring their right to the assets of that company for reimbursement. The plaintiffs contend that the sole ground of liability of the directors in the former suit was their negligence, while the defendants say. that their liability rested upon the control of assets of the trust company, for which they were held to account.
Passing by the question whether the stockholders should be deemed privies to the trust company or the directors, to the extent that the judgment in the Brandt suit may be pleaded in estoppel, the principal question to be determined is whether that judgment is a conclusive determination that the directors were negligent in managing the trust. The petition in that case alleged such negligence, and it is allowable to reason back from a judgment to the basis on which it stands wherein the conclusion is undisputable and could only have been drawn from certain processes. (Bleakley v. Barclay, 75 Kan. 462, 471, 89 Pac. 906; Burlen v. Shannon, 99 Mass. 200.) This rule, however, does not preclude the court in which a former adjudication is pleaded from ascertaining what had really been decided by parol evidence if it does not contradict the record. (1 Herman, Estoppel and Res Judicata, § 111; 1 Freeman on Judgments, 4th ed., § 273.) It is the contest actually made and passed upon which gives the successful party the right to use the judgment as a bar to the same contest in a new action on a different subject matter. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; Van Fleet’s Collateral Attack, § 17.)
“Numerous cases, particularly among the earlier decisions, have held that a judgment is conclusive as to all questions within the issues raised in the case, whether or not they were formally contested or argued or specifically included in the decision. But the later decisions generally hold that no question or contention is finally settled by a judgment, although it may have been fairly'within the issues, as raised by the pleadings, if it was not actually litigated, that is supported or attacked by evidence, made the subject of the trial, submitted to the jury, or pressed upon the consideration of .the court.” (23 Cyc. 1311.)
“In the absence of proof that a particular issue actually was tried and determined in arriving at a former judgment, it is conclusive by way of estoppel only as to those facts without the existence and proof or admission of which it could not have been rendered.” (23 Cyc. 1308.)
In case of uncertainty whether the particular question in controversy was decided in the former action it is still at large and open to further contention.
The petition in the Brandt suit not only charged negligence in receiving spurious and worthless securities in place of valid ones, but also alleged that the trust company had taken securities so held in trust and placed them to its own credit. While a judgment was asked against the trust company and the directors, an accounting was first sought to determine what disposition had been made of the trust mortgages, in order to determine the extent of the liability. The action was to discover and apply assets, and to account for their disposition. In the trial of this action the district court found that judgment was rendered against the directors in the Brandt case “by reason of the fact that after the Land Credit Trust Company ceased to do business on the 28th day of March, 1908, the directors of the Land Credit Trust Company held the assets of said trust company in trust for whoever was entitled to them.” The judgment contains a recital that the bondholders consent to all its provisions, and their bonds were by its provisions scaled down more than one-half. These facts indicate that it was rendered upon a compromise, and parol evidence tending to prove that it was in fact so rendered was received. This evidence is not in conflict, but is in harmony with the record. From this evidence it appears that the bondholders proposed to Accept $100,000 in dischargé of their claims; the trust company and its directors accepted the proposition, and paid the amount as directed. The judgment does not necessarily involve an admission, as in the casé of default, that the petition was true, or that the defendants had been negligent, as charged, and the parol evidence shows that it rested upon a different basis. While conclusive of the liability and the amount of the liability, the judgment does not preclude inquiry concerning the ground upon which it was determined. (Routh v. Finney Co., 84 Kan. 25, 113 Pac. 397.) It is therefore held that the record of the judgment in the Brandt case is not conclusive of the defendants’ negligence.
While the plaintiffs’ principal reliance is upon the Brandt judgment, they also contend that they should recover on proof of negligence independent of that judgment, and that a finding for the defendants on that issue is not supported by the evidence. That finding is:
“No evidence was introduced or offered in this action which proved any actionable negligence, or mismanagement by said defendants herein, or which proved such facts of any kind, as would render the said defendants, or any of them, liable to the said plaintiffs, or to the Land Credit Trust Company, upon any of the causes of action, or issues in this case.”
The plaintiffs sought to prove negligence of the directors by introducing the by-laws of the trust company which provided for quarterly meetings and for audits. The minutes of the directors’ meetings were presented in evidence, showing regular meetings on October 8, 1906 (organization), January 8, April 8, November 9, and December 15, 1907; and January 7, and March 24, 1908. Special meetings were also held, but no minutes were found of any meeting between April and October, 1907. Meetings were held after the company ceased to do business, relating mainly to the liquidation of its affairs and the settlement of the Brandt suit. The minutes of the meeting of" April 8, 1907, show an examination of the books, records, funds and securities and that everything was found in condition, as represented by the books. The m'inutes of the meeting in October of the same year contain the following:
“An examination was then made of the books and securities of the company, the cash counted and found to be correct.”
The minutes of a meeting held December 15, 1908, recite:
“Committee appointed to count the cash and verify the accounts reported that it was correct.
“Moved and seconded that we accept the report of the committee. Motion carried.
“Motion made and seconded that a committe of three be appointed to count the cash and verify the accounts for the coming year. Motion carried.
“The president thereupon appointed the following persons on said committee:
“W. S. Roll, C. S. Harrington, and Thornton W. Sargent.”
The following entry appears in the minutes of a meeting held March 24, 1908:
“The minutes of the meeting of January 7th, 1908 were read and approved.
“Thereupon the directors investigated the amount of bonds issued by the Winnie Mortgage Company, for which the Land Credit Trust Company held securities as trustee, and found that there were outstanding two hundred and thirty-five thousand dollars of such bonds, and that the securities pledged therefor in the form of mortgages held by the Land Credit Trust Company as trustee, amount to two hundred and thirty-five thousand six hundred and five dollars.”
The minutes are silent concerning the appointment of an expert accountant, as authorized by the by-law referred to.
It is argued that the absence of any record of a meeting in April, 1908, and of any mention of the appointment or services of an expert accountant, prove negligence in the management of the collateral mortgages, deposited by the mortgage company. Granted that the absence of any record of a meeting is proof that it was not held, the question still remains whether the failure to hold that meeting proves the negligence charged, or rather whether the judgment should be reversed when such absence failed to convince the district court of any negligence. It must also be remembered that failure to hold the meeting must have caused injury in order to be material. The plaintiffs in their brief admit that the securities deposited before August, 1907, were valid, and that the deposit of worthless securities began in that month. It follows that an examination in June would not have detected any loss in this respect. Besides, a regular quarterly meeting was held in October, when books and securities were examined and cash counted and found to be correct; and at a meeting in November there was an examination and the securities were found .to exceed the bonds. It is asserted in the same brief that worthless securities were deposited in August, September, October and November, and tables attached to the petition in the Brandt suit are referred to as evidence of the fact. Upon a challenge of the abstract, however, it is admitted that these tables are not in the transcript. If they had been it would seem from their contents that some explanatory evidence is necessary to give them probative force. On the whole we can not find that the evidence relied upon to prove negligence of the directors is sufficient to warrant this court in ignoring or setting aside the negative findings of the district court.
Complaint is made of the failure of the district court to specially find incidental facts relating to the directors’ meetings. Findings, however, were made covering the controlling issues as completely as the district court deemed necessary, and if findings upon the matters now suggested were deemed essential by the plaintiffs, the attention of the district court should have been called to the particular facts omitted.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This is an appeal from a j udgment for the specific performance of an agreement for the exchange of real estate.
The contract was dated November 20, 1911, and provided for a conveyance by the defendants to the plaintiff of their 300-acre farm in Comanche county, two-thirds of a crop of wheat growing on another tract, and two header barges and a McCormick header; and for a conveyance' by the plaintiff to the defendants of an 800-acre farm in Gray county. It was further agreed that the plaintiff should give to the defendants a mortgage of $1000 on the Comanche county land, to be due in two years. Mortgages were outstanding on the land of each party which the other party agreed to assume. Each party agreed to furnish to the other an abstract of title. The contract contained the following clause: '“This deal is to be closed in sixty days from the date of this contract.” The district court found that the defendants desired to go into possession of the Gray county land in time to start farming operations in the spring of 1912, and in December began arrangements for moving to that place, but that nothing was said to the plaintiff about such desire. The court also found that the plaintiff procured his abstract on December 9, and showed it to Mr. Troika, together with a letter from an attorney concerning the title, and either gave the abstract to him or placed it in the hands of an attorney for him. Mr. Troika then seemed satisfied with-the title. Deeds, however, were not exchanged, and on December 21 the plaintiff placed the abstract in a bank for safe-keeping.
On December 22 the plaintiff went On a visit to King-man county, where he remained until January 25, 1912. On the 26th day of January the parties exchanged abstracts. Defendants put the abstract of the Gray county land in the hands of an attorney for examination. This attorney on January 30 made certain requirements, and the plaintiff immediately took steps to meet them. On February 1 the plaintiff prepared a deed and mortgage as required by the contract, which were submitted to Mr. Troika, who expressed his satisfaction with them, and thereupon, on the same day, they were signed and acknowledged by the plaintiff and his wife and left with his attorney. Sometime before February 12 Mr. Troika executed his deed to the Comanche county land, and on that day Mrs. Troika exe cuted it. This deed was then placed with the plaintiff’s attorney, subject, however, to Mr. Troika’s order. On February 27 Mr. Troika demanded and received back the deed, and on the same day notified the plaintiff that the deal was off, giving as a reason that it was getting late, and he was short of money. Until that time the defendants had been willing to complete the exchange. On March 26, the requirements of the defendants concerning the abstract having been complied with, the plaintiff tendered to Mr. Troika his deed, mortgage and abstract, which were refused.
The defendants’ first contention is that time was made of the essence of the contract by the sixty-day clause. We do not so interpret the writing, but if it should be so held the defendants’ conduct in making requirements upon the abstract after that period had expired, and in executing and depositing their deed some time afterwards, clearly evinced a purpose to waive the time. (.6 Pomeroy’s Equity Jurisprudence, § 813.)
“Objections grounded on the lapse of time are waived by a course of conduct inconsistent with the intention of insisting on such an objection.” (Fry on Specific Performance, 4th ed., § 1120.)
The defendants induced the plaintiff to incur expense in perfecting the abstract after the period prescribed in the contract, thus warranting the inference that it would be accepted if their requirements were complied with in a reasonable time. It is obvious that the defendants then intended to complete the deal notwithstanding the expiration of the sixty-day period. The first indication of a purpose to abandon the trade was on February 27, when the defendants, instead of fixing a reasonable time beyond which they would not be bound, summarily declared the trade off. This is not according to the approved practice in such cases. When time is not of the essence, or where the time fixed has been waived without prescribing another definite period, a notice of an intention to rescind, giving a reasonable time for fulfillment by the other party, is necessary. (Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409; Reid v. Mix, 63 Kan. 745, 66 Pac. 1021; Nason v. Patten, 88 Kan. 472, 129 Pac. 138; Waterman of the Specific Performance of Contracts, § 465; Pomeroy’s Equity Jurisprudence, § 815.)
The defendants insist that the finding of the district court that nothing was said to the plaintiff about the defendants’ purpose to take possession of the Gray county land in time to commence farming operations in the ensuing spring is contrary to the evidence. It was doubtless the defendants’ intention to take such possession, and knowledge-of that fact may properly be inferred from the language and conduct of the parties ; but conceding this to be true, and that the instrument should be so construed as to give effect to such purpose, still the conduct of the defendants before and after the sixty days had passed, as already stated, plainly shows a waiver of that limitation. Having thus consented to delay, without prescribing any definite time, the defendants should have given a reasonable notice of a purpose to rescind. It is argued, however, that an extension of a fixed time for performance is a waiver only to the extent of substituting the extended time for that fixed by contract. That is true, however, only when the limit of the extension is also fixed. Otherwise an extension for a reasonable time is implied.
It is also argued that specific performance should be denied because of laches. Certainly delay to which the defendants consented, either expressly or by necessary implication, will not defeat the action. A consent to the delay necessary to comply with the defendants’ requirements upon the abstract, which were made on January 30, must be implied. Many requirements were made, which covered nearly four pages of the printed abstract. They were placed in the hands of an attorney the day they were presented to have them complied with. It does not appear that an unreasonable time was taken for this purpose.
At the commencement of the trial a jury was demanded by the defendants. As the action was equitable, the refusal of the request was not erroneous. The court, however, indicated a purpose to submit any question of damages concerning the personal property to a jury. At the conclusion of the trial of the principal issue the court directed that questions relating to the delivery of the wheat and personal property included in the trade should be reserved for further consideration, after a modification of the pleadings to present proper issues. Thereupon what is called a second petition was filed, setting up the plaintiff’s claim to the personal property or its value. To this a demurrer was overruled. An answer was then filed. That issue was tried, and a judgment was rendered for the value of that property. It is objected to this practice, that this was a new action, to which the first one was a bar; that the petition did not state a cause of action; that the court had no jurisdiction; and that if not barred the second petition was supplemental and should have been so designated.
The so-called second petition was in effect an amendment, to present more clearly the issues relating to the personal property, and there was no error in trying that matter after the principal issues had been determined. It was within the equitable power of the court in administering full relief to award damages if for-any reason such delivery of the personal property could not be enforced. (Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Huey v. Starr, 79 Kan. 781, 101 Pac. 1075; Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164; Fry on Specific Performance, 4th ed., §§ 1309, 1314; 6 Pomeroy’s Equity Jurisprudence, § 831.)
Some minor objections to the proceedings are argued, but in the light of the conclusions already stated they do not affect substantial rights.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing it is said the court misconstrued the facts and misinterpreted the evidence in that the opinion said the wall was over-topped by undergrowth. What the court said was this:
“From a photograph admitted to be correct it appears that the wall was overtopped by undergrowth.” (Sims v. Williamsburg Township, ante, p. 636, 637, 141 Pac. —.)
Here is a portion of the record contained in the counter-abstract which contributed to the statement:
Testimony of Mrs. Sims: “This photograph presents a true aspect of the roadway at the place where I went over. It shows the roadway looking east. The place where I went over is right there (indicating on photograph) at what appears to be a box by the side of the roadway.
“Photograph identified by witness offered in evidence, marked ‘Exhibit A’:
“The Court: I understand that presents a view of the road looking east.
“Mr. Gamble [Attorney for plaintiff] : Yes, from the foot of the hill, looking up the road, east in the direction the plaintiff was traveling.
“Mr. Waddle, counsel for defendant: And the box at the side of the road shows the place where she went over.”
The true aspect of the roadway presented by “Exhibit- A” is that the wall is overtopped. with undergrowth.
The witness was handed another photograph taken in April of the next year, stated in the abstract to be a correct representation of the road at that time, and stated in the counter-abstract to be a correct representation of the road at the time and place of the injury. Some clearing had been done at the place after the accident; how much was not very manifest. That photograph shows some undergrowth, but without foliage.
Still another photograph was presented, which is referred to in the testimony set out in the abstract as “Exhibit C,” but no “Exhibit C” was attached to the abstract. The abstract contained but one exhibit, “Exhibit B.” The court was confused until the counter-abstract was examined, where it was said that the defendant had mislabeled its exhibits. However, the exhibit which ought to have been called C shows undergrowth on both sides of the wall, but without foliage. Under a desk reading glass the undergrowth is very distinct.
Notwithstanding the uncertainty for which the defendant was responsible, it seemed safe to make the cautious statement contained in the opinion, since the matter was incidental' only as a part of the whole story, and not determinative of the question of negligence. The horse backed over the wall because there was no proper barrier there to warn and restrain him, undergrowth or no undergrowth.
It is said that the opinion is .incorrect in the statement that the roadway was level with the top of the wall. Here is the testimony on which the statement was based:
“G. L. Hettick:
“I was trustee of Williamsburg Township at the time of this injury to Mrs. Sims. . . . During the fall before Mrs. Sims was hurt, we, the board, under my management, had graded up the road by cutting away the bank on the north side and putting earth over on the south side. The retaining wall seemed to settle down a bit along there and we put more dirt in to make a level road.”
“W. M. Devore [a witness for the defendant] :
“I live near Williamsburg; have known the road in question about 30 years and there were general repairs of this road at the place of the accident in September* 1911. . . . The road is nearly level with the retaining wall; probably not exactly but practically so.”
True, there were some stones lying along the course of the wall, but they constituted no barrier in the estimation of the township trustee himself. Here is what he said:
“I knew there was no barrier on the south side; nothing was done to prevent horses from shying or backing over the rocks, it being entirely unguarded.”
The remainder of the petition for a rehearing relates: to matters of law sufficiently discussed in the opinion..
The petition is denied.
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The opinion of the court was delivered by
Johnston, C. J.:
T. C. Roberts was charged with the unlawful sale of intoxicating liquors and the maintenance of a common nuisance in violation of an ordinance of the city of Topeka, and was convicted on the first count of an unlawful sale. .
There was testimony of a sale of four bottles of beer, and also of the finding of considerable quantities of beer on the premises of the defendant. He complains that the court failed to give a separate instruction to the effect that to convict the jury must be convinced beyond a reasonable doubt that the beer which was sold by defendant was intoxicating. In the general instructions the jury were advised that the offense charged was the sale of intoxicating liquors, that the defendant was presumed to be innocent of that offense, and if they entertained a reasonable doubt “upon any single fact or element necessary to constitute the crime charged it is your duty to give the defendant the benefit of such doubt and acquit him.” In three other instructions the court told the jury that the defendant’s guilt must be shown beyond a reasonable doubt before there could be a conviction. Having charged the jury so fully on the subject it was hardly necessary for th& court to give a separate and specific application of the rule of reasonable doubt to the intoxicating quality of the beer sold. While this was an essential element of the offense, that feature of the case appears to have been fairly well covered by the general instructions given. Under the statute and the city ordinance beer is deemed to be an intoxicating liquor, and it can not be said that this presumption was overcome by any of the evidence that was produced. A witness, who testified in behalf of the city, said that he was one of a party of four of the persons that purchased the beer, that each of them drank a bottle of it, and he added that it did not intoxicate him. It is said that the drinking-of a bottle of beer by a slender young man without feeling any intoxicating effects tended to rebut the presumption that the liquor was intoxicating, but nothing was shown as to his susceptibility to the influence-of intoxicants or how much it takes to produce intoxicating effects. We find no testimony which rebutted the presumption that .the beer sold was intoxicating-in character, and neither do we find anything in the case which indicates that prejudice could have resulted from the failure to repeat the rule of reasonable doubt and give it a special application to the liquor that was. sold.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
BENSON, J.:
In an action to recover upon a beneficiary certificate issued by a fraternal order the defense was based upon an alleged forfeiture of the cer tificate for failure to pay monthly dues as provided in the by-laws of the National Council.
It was admitted that payments of the dues of $1.25 per month, as required by the certificate, had been regularly made by or on behalf of Elizabeth Mayes, the certificate holder, except those payable in June, July and August, 1909, respectively, and that these were paid at one time, alleged by the plaintiff to have been August 31, and by the defendant September 4. The by-laws provide that the dues payable on the first day may be paid on or before the last day of each month. If not so paid the member is suspended without notice, but may be reinstated, if in good health, by making the payments within sixty days from the date of suspension. After that period he may be reinstated upon a medical examination and certificate of good health approved by the medical director and the payment of arrearages. The dues for June, July and August were paid for Mrs. Mayes by her daughter on August 31. The dues for September were also paid at the same time, but a separate receipt was taken for that payment. The June, July and August payments were credited on the books of the financier of the subordinate council who received them as though paid on the last day of each month. These entries were made in accordance with a custom of the local council to so record payments when accepted after the regular time, and there was evidence tending to prove that it was also the custom to receive such overdue payments without a medical certificate and examination required by the by-laws, if the member was in good health.
At the time of making the payments Mrs. Mayes’ daughter told the financier that her mother was sick, which was the fact. She was taken to a hospital soon afterwards, where she died on September 8.
The money so paid was in a day or two afterwards delivered to the district deputy, an officer of the defendant, and was held by him until shortly after the death of Mrs. Mayes, when he tendered it to her daughter who had made the payment, but who refused to accept it. The evidence relating to the date of the payments, and the conversation at the time concerning the sickness of Mrs. Mayes, is conflicting, but the conflict is resolved by the general finding in favor of the plaintiff.
• A by-law of the defendant provides that the National Council shall not be bound by the acceptance of arrears from suspended members not entitled to reinstatement, and that the failure of any financier to report the suspension of a member shall not waive the forfeiture. Also, that the financier shall not knowingly receive assessments or dues from a suspended member who is not in good health. They also declare that a. subordinate council and its officers are the agents of its members in the collection and transmission of assessments, for whose negligence the National Council shall not be liable.
A statement of the plaintiff’s claim was forwarded by her attorneys with proofs of death to the secretary of the National Council with a request for payment, and an offer to supply additional information if desired. Three days afterward the president of the defendant association answered the letter, saying:
“Your letter of the 27th inst., to the national secretary, has been referred to me, as the national secretary is absent from the city attending a session of the National Fraternal Congress. I will, therefore, proceed to inform you briefly as to the facts in the Elizabeth Mayes case, as I dealt with the problem immediately following her death, which you report occurred on the 8th of September, 1909. . . . The assessment and dues of Mrs. Mayes, which were due on the first day of August, and which she had until midnight of the last day of August to pay, were not paid to the financier of Free Silver Council No. 198 until September 4. Consequently, the deceased was suspended for nonpayment of the August assessment and dues from midnight of August 31 until September 4,1909. . . . “We are in possession of evidence that can not be ques tioned showing that the deceased was seriously ill on September 4, 1909. In fact, that statement furnished by you of Dr. H. L. Stelle shows that he first visited the deceased on September 1, 1909, and last on September 8, 1909. Consequently, no reinstatement could possibly have been had on the date that payment was made by the sister of the deceased, which was September 4, 1909, owing to the physical condition of the deceased when the attempt was made to reinstate her. Therefore, that payment was tendered back to her by our representative, Mr. George McCullough, at my direction. . . . Again, let me say that the Society denies at all times any liability whatever under certificate No. 182,795, issued to Elizabeth Mayes on January 29, 1909, for reasons above set forth. . .. I have endeavored to briefly set forth the facts in this case, which is not our usual method of procedure, for the reason that I felt confident you had been misinformed as to the situation.”
The plaintiff insists that a waiver of forfeiture is shown by the acceptance without a medical examination and credit of the June and July dues by its financier, whose duty it was to receive and receipt for dues, and also that a waiver is shown by the letter of the president of the National Council, basing the claim of forfeiture upon the default in the August payment alone. It is argued that the requirement of good health was also waived by receiving the payment after the information had been given that Mrs. Mayes was ill at the time.
It was said in Mosiman v. Benefit Association, 82 Kan. 670, 109 Pac. 413:
“Whether the act of a local officer who accepts a past-due assessment without exacting a compliance with the by-laws in other respects is binding upon the association is a question upon which the decisions are in conflict.” (p. 673.)
The question left undecided in that case need not be decided here.
The effect of receiving the June and July payments and placing the credits under dates indicating that they were made in time, and the retention of the payments by an officer — the district deputy of the National Council — until after the member’s death, need not be considered, for with the knowledge of the facts, as we must presume, and as implied in his letter, the president of the association placed its refusal to pay the certificate distinctly upon the alleged failure to make the August payment, without making any objection or claim because the other payments were made without producing a health certificate, thereby apparently adopting the act of the financier in receiving the June and July payments. It was said in the Mosiman case:
“But when the general secretary in his letter of September 23 acknowledged the payment of one of the two delinquent assessments, and objected to the reinstatement solely upon the untenable ground that there still remained a delinquency of one assessment, he adopted the act of the local secretary in receiving the money, and thereby waived any right the association may have had up to that time to complain of the want of a health certificate.” (p. 673.)
Acts of a subordinate officer, although unauthorized in the first instance, if ratified with knowledge of the facts by the superior officers having authority, may be relied on as a waiver. (Clair v. Royal Arcanum, 172 Mo. App. 709, 155 S. W. 892.)
As the financier of a local council is the only person to whom members can pay dues — no other method being provided — the rule that officers of such a council are agents of its members is invalid as far as concerns the financier in receiving dues. (Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239.) But whether the acceptance of the June and July payments should be considered as adopted or ratified, or not, the rule prevailing in cases where an insurance company bases its refusal to pay upon the failure to comply with a particular condition sustains the judgment of the district court. This principle was stated in Insurance Co. v. Ferguson, 78 Kan. 791, 98 Pac. 231, where it was said:
“Having then, with full knowledge of all the facts which it is now alleged show a violation of the other conditions, deliberately placed its rejection of the claim on the sole ground of vacancy, the company waived the other grounds of forfeiture afterward pleaded.” (p. 795.)
When the demand for the allowance of the claim was made upon the association it could insist upon, or waive, any forfeiture or forfeitures claimed. It elected to rely only upon the forfeiture claimed by reason of the delay in the August payment, thereby waiving any others it might have claimed. (Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488, 78 N. W. 936, 76 Am. St. Rep. 111.) The consideration of this subj ect of waiver in the Ferguson case makes further discussion of it here unnecessary. The general rules of law applicable to insurance companies in this respect has been held applicable to beneficiary associations. (Modern Woodmen of America v. Colman, 68 Neb. 660, 94 N. W. 814; Titus v. Glens Falls Insurance Company, 81 N. Y. 410.)
It should be stated that the president’s letter, in addition to the claim of forfeiture for failure to pay the August dues at the prescribed time, asserted that the action was barred by the by-law which provided that an action in such a case shall not be commenced after one year from the date of death. This by-law is also pleaded in the answer, but no reference is made to it in the briefs. We suppose this omission is because of the code provision declaring void all agreements for a different time for commencing an action from the times prescribed by the statute. (Civ. Code, § 17, subdiv. 7.)
The judgment is affirmed.
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The opinion of the court was delivered by
BENSON, J.:
This is an action to recover for losses caused by giving credit to the bearer of the following letter:
“The First National Bank,
CHANUTE, KANSAS.
1-19-09.
“Mr. c. G. Ricker, 7. P.,
Yates Center National Bank,
Yates Center, Kan.
“Dear Sir — This letter will introduce to you Mr. Cecil C. Kennedy, who has just moved to your City, to engage in the Confectionery business. Mr. Kennedy is a son of Mr. D. M. Kennedy, our Vice-President, and a boy whom I have known from infancy, he is honest and upright in every particular, as well as energetic and attentive to business. If you can be of any assistance to him at any time in any way, his father as well as myself will very much appreciate the same.
Yours truly,
(Signed) A. N. Allen, Cashier.”
The petition alleges that the defendant, D. M. Kennedy, the father of Cecil C. Kennedy, is the vice president and manager of the First National Bank of Chanute, of which the defendant A. N. Allen is cashier; that Cecil C. Kennedy had located in Yates Center, where he was engaged in the confectionery business, and that at the time the son so located the father induced the cashier to write the letter quoted above.
It was alleged that after receiving the letter Mr! Ricker, acting, for the plaintiff bank, loaned to Cecil C. Kennedy various sums of money, aggregating $1538.22; that said Cecil C. Kennedy was not honest, nor upright, nor energetic, nor attentive to business, but was dishonest and wholly unreliable; that he falsely represented that he had a stock of goods to the value of $2500, when in truth he was insolvent and a bankrupt and the stock was not worth over $600 or $700, and his wholesale bills were not fully paid, and only a few were paid; that he wanted the money borrowed to pay his bills, and had applied it to that purpose, but had not done so.
In Russell v. Clark’s Executors, 11 U. S. (7 Cranch) 69, the question of liability upon the following letter was considered:
“Our friends, Messrs. Robert Murray & Co. merchants in New York, having determined to enter largely into the purchase of rice, and other articles of your produce in Charleston, but being entire strangers there, they have applied to us for letters of introduction to our friend. In consequence of which, we do ourselves the pleasure of introducing them to your correspondence as a house on whose integrity and punctuality the utmost dependence may be placed; they will write you the nature of their intentions, and you may be assured of their complying fully with any contracts or engagements they may enter into with you. The friendship we have for these gentlemen induces us to wish you will render them every service in your power; at the same time, we flatter ourselves the correspondence will prove a mutual benefit.
“We are, with sentiments of esteem, etc.” (p. 69.)
It appears that this letter was followed by another, saying: “We have now to request that you will render them every assistance in your power.” (p. 70.) Credit was given to Murray & Co. by the addressees of this: letter, and the action was to charge liability upon the writers. In the course of the opinion in that case Chief Justice Marshall said:
“The law will subject a man, having no interest in the 'transaction, to pay the debt of another, only when his undertaking manifests a clear intention to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construction. It is the duty of the individual, who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume. In their letter of the 20th, Clark and Nightingale indicate no intention to take any responsibility on themselves, but say that Mr. Russell may be assured Robert Murray & Co. will comply fully with their engagements. ... It is certain that merchants are in the habit of recommending correspondents to each other without meaning to become sureties for the person recommended; and that, generally speaking, such acts are deemed advantageous to the person to whom the party is introduced, as well as to him who obtains the recommendation. ... In such a case it is certainly incautious and indiscreet tó use terms which imply absolute and positive knowledge. It may, perhaps, be admitted that, in such a case, fraud may be presumed on slighter evidence than would be required in a case where a letter was written with more' circumspection. Yet, even in such a case, where the communication is honestly made, and the party making it has no interest in the transaction, he has never been declared to be responsible for its actual verity.” (pp. 90,91, 93.)
Further quotations are not deemed necessary. Fraud was charged in that case, but it was not proven, and the decision was grounded upon the language of the letter.
In Hardy v. Pool, 41 N. C. 28, a letter was considered which recited: “I am satisfied you will be safe in selling him any amount he may see proper to purchase. From my long acquaintance with him I do not hesitate to say, that he is as punctual a man as any I know.” (p. 28.) Goods were sold on the faith of the letter, and in an action against the writers the court, by Ruffin, C. J., said:
“It is plainly not a letter of credit, in which Freshwater undertakes anything for Wright, but a representation merely of his opinion of the other’s solvency and punctuality. It is not an engagement at all; and, indeed, as there is no intimation of mala fides on his part, he must be taken to believe what he said, and, therefore, no recovery could have been made from Freshwater on it in any form.” (p. 30.)
A specific recommendation of credit was held in sufficient in Lord v. Colley et al., 6 N. H. 99. This is the letter:
“This may certify, that Josiah Hobbs, Junior, is competent to pay the sum of $100 within any reasonable term of time, and we hereby recommend him as possessing credit to that extent.” (p. 99.)
It was said in the opinion:
“It is well settled that an action of this kind can not be sustained, unless the recommendation be both false and fraudulent. Recommendations are generally understood to be nothing more than the opinion of those who give them, resting upon common reputation, and the apparent circumstances of the individual recommended, and not upon any minute examination of his affairs. And it is well known that men, who are. apparently in good credit, and in easy circumstances, turn out to be, in reality, insolvent. It is, therefore, very obvious that a recommendation ought not to be persumed to be fraudulent merely because it happens not to be true.” (p. 102.)
- It is urged in the argument that the statement that the writer of the letter had known the boy from infancy, and that he was honest and attentive to business, was the positive assertion of facts rather than the expression of an opinion. Although not stated as a belief merely, still such declarations concerning the character of another contained in letters of introduction are necessarily matters of belief and are understood to be based upon observation of conduct unless the declarant has some knowledge or notice to the contrary, in which case his statement would be fraudulent. But the guilty knowledge is not to be presumed in the absence of an averment of its existence. The customs of the business world and a just sense of the situation preclude the idea that such letters imply a guarantee beyond that of the good faith of the writer.
If the acquaintances of a young man who is about to enter into business can declare their faith in his integrity only upon peril of pecuniary loss, many worthy persons will be deprived of a very common means of favorable introduction to the confidence of others which often becomes the foundation of future success. This confidence is often the only capital of a man. Those who frankly and honestly vouch for his integrity should not suffer if he fail to meet their expectations. Where, however, the recommendation is made with knowledge of its falsity, or for a sinister purpose, the result may pe otherwise. The letter does not indicate a purpose to be bound for the engagements of the person introduced, and no fraudulent purpose being alleged, the petition did not state a cause of action.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In 1905 the Delaware river drainage district was duly organized in Jefferson county under the provisions of chapter 215'Of the Laws of 1905 (Gen. Stat. 1909, § 3000 et seg). Thereafter the corporation proceeded to establish a system for the drainage of lands included in the district, and it became necessary to cut ditches across certain public highways. At three of these places the county board some years later was obliged to erect bridges, and afterward brought this action to recover from the drainage district the cost and expense thereof, aggregating over $12,000. The court sustained a demurrer to the petition and rendered judgment in defendant’s favor for costs. The plaintiff appeals.'
The only question for determination is whether the county can recover from the drainage district. The plaintiff relies largely upon the principle which controlled the decision in The State v. Irrigation Co., 63 Kan. 394, 65 Pac. 681. That was a case where a private corporation constructed an irrigation canal for its own purposes. At a place where the canal crossed a public highway it became necessary to construct a bridge. The statute under which the irrigation company constructed the ditch expressly made it the duty of the proprietors of any such irrigation canal to build all necessary bridges and viaducts for the use of the public in crossing. (Laws 1891, ch. 133, art. 4, § 31, Gen. Stat. 1901, § 3677.) It was therefore held to be the duty of the corporation to erect the bridge. And it was held, also, that this duty rested upon the irrigation company independent of the statute, upon the same principle which compels a railway company, where its railroad intersects a public highway, to restore the highway to its former condition of usefulness, and, if necessary to accomplish that end, to erect and maintain bridges. It is well established that this liability is imposed upon a private corporation by common law. (The State v. Irrigation Co., supra, and cases cited in the opinion.) But that principle has no application to a case where the construction of ditches or embankments by a public corporation makes it necessary to improve a highway. The drainage district, like the county, is a quasi public corporation, an arm of the state, created by the legislature to perform a function of government. It derives its authority to exist from the same source as does the county. Both were created by and exist at the pleasure of the legislature. (In re Dalton, 61 Kan. 257, 59 Pac. 336; The State v. Lawrence, 79 Kan. 234, 100 Pac. 485.)
“That body [the legislature] defines the limits of their powers, and prescribes what they must and what they must not do.” (The State, ex rel., v. Commissioners of Shawnee Co., 28 Kan. 431, 434.)
In draining the swamps and lowlands of the district, the drainage board performs a public service and promotes the public health and welfare. Section 35 of chapter 215 of the Laws of 1905 (Gen. Stat. 1909, § 3034) declares the purpose of the act to be “to encourage the improvement of natural watercourses, to protect lands from damage and injury by overflow, and to promote the public health, convenience, and welfare.”
The drainage district was incorporated as “a body politic and corporate,” to which was granted the “exclusive control of the beds, channels, banks and of all lands the title to which is vested in the state of Kansas lying between the banks at high-water mark of all natural watercourses within guch district.” (§ 7, Gen. Stat. 1909, § 3006.)
The fact that the construction of the drains and ditches was intended to and does improve and render more valuable the lands of private individuals, who alone are charged with the cost of the improvement, makes the corporation none the less a quasi public one. Nor does that fact in any sense relieve the county from its duty to maintain and keep the public highways in fit condition for travel. In the act authorizing the creation of the drainage district the legislature made no provision for the payment by the district of the expense of erecting these bridges. No authority is given the district to levy a tax or assessment upon the lands benefited by the drainage system to pay for bridges, at least for those erected after the cost and expense of the system of drainage had been once ascertained and assessed.
The judgment sustaining the demurrer will be affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
On December 8, 1913, Clay Miller was arrested on view by W. W. Gordon, chief of police of Kansas City, Kan., while the former was driving a beer wagon containing several cases of beer along one of the streets of that city, and taken to the city hall, where, in the absence of the police judge, Gordon fixed Miller’s bond at $500, and then allowed him to go to communicate with his counsel. About three hours later he was released from Gordon’s custody upon a writ of habeas corpus issued by the probate court. Gordon ar rested Miller on the ground that he was violating an ordinance of Kansas City, Kan., providing that it was unlawful for a person to drive a wagon along any of its streets, loaded with intoxicating liquor, or which bore the name of any person, firm, or corporation engaged in the liquor business, and declaring the wagon and its cargo and the horses drawing it public nuisances. The ordinance does not apply to persons who personally bring into the city liquors purchased outside the state, or receive liquors so purchased brought to them by a common carrier. The next day Gordon swore to a complaint charging Miller with violation of the ordinance, and a warrant was issued thereon, but he had been already deleased upon the writ of habeas corpus.
The contention of Miller was and is that the ordinance for the violation of which he was arrested is invalid, that the police court, before which he was taken, had no authority to render any judgment against him, and that he was not held under any complaint or process when this proceeding was begun. The respondent made a return stating that Miller was engaged in assisting to make and in making sales of intoxicating liquors in the city in violation of certain ordinances of the city and that a written complaint had been filed by him specifically charging the offenses, and that the case had been set down for trial in the police court of the city. In the petitioner’s reply to the return he alleged that he was engaged in transporting beer from Missouri into Kansas, but that the beer was in original packages, and that he was delivering them to consumers who had previously given written orders for beer, and had purchased it for their personal use. He further alleged that he was not transporting or selling beer to persons who had not ordered it, nor in any other manner except as above stated, and further, that the city had no authority to prohibit or punish his acts in carrying and delivering beer as aforesaid, and that he was not selling or delivering it in a way that would subject him to prosecution 'and punishment under any law. A motion to quash his reply was overruled by the probate court and the petitioner discharged. An appeal was taken to the district court where a decision in favor of the petitioner was given, and from that judgment respondent áppeals.
It is contended by the respondent that the case was standing for trial in a court of competent jurisdiction where any and all questions as to whether he was transporting and selling intoxicating liquors contrary, to law, and also as to the validity and scope of the city ordinances, may be determined. Courts of record have jurisdiction in cases of habeas corpus to inquire into alleged unlawful restraints, but the purposes for which the writ may be issued and the methods of obtaining the remedy are to quite an extent' regulated by statute. Our statute provides:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: . . . Fourth, upon a warrant or commitment issued from the district court or any other court of competent jurisdiction upon an indictment or information.” (Civ. Code, § 699.)
The courts will look into an application far enough to ascertain whether the remedy is available under the prescribed limitation or whether the relief sought may be speedily obtained in the court from which the process has issued. This statutory regulation of the exercise of the power to issue the writ of habeas corpus has been frequently applied. It has been held that the writ would not issue for the release of one arrested for the violation of a city ordinance where the validity of the ordinance and the legality of the arrest could be promptly determined, in the court from which the warrant issued. The decision was that the police court, which had full authority and was ready to proceed to a determination of the question, was a' court of competent jurisdiction within the meaning of the statute, and that as the ordinary remedy was available and all the questions raised by the petitioner might be determined in that court it was unnecessary to shift the inquiry .into another court of competent jurisdiction for the determination of the same questions. (In re Gray, 64 Kan. 850, 68 Pac. 658.) It can not be assumed that the court which issued the warrant will not decide all questions of power and jurisdiction correctly, nor is there any reason why these questions may not be as speedily determined in the ordinary way without resorting to habeas corpus. In all such cases the restriction of the statute governs. Exceptional cases may arise where the ordinary remedies are wholly ■ inadequate and in such cases the writ may be issued. An instance of this kind is found in the case of In re Jarvis, 66 Kan. 329, 71 Pac. 576. There the petitioner had been convicted under a statute which he insisted was invalid. The time for an appeal from the judgment had passed and none of the ordinary remedies was open to him, and it was therefore held that the writ of habeas corpus might issue. The writ has been issued and relief has been given in cases where a judgment of conviction is final and absolutely void. (In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957; In re Norton, 64 Kan. 842, 68 Pac. 639; In re Spaulding, 75 Kan. 163, 88 Pac. 547.) Other instances of an exceptional character may arise which will warrant a release of a prisoner upon habeas corpus, but the present case falls fairly within a number of cases where the court has declined to inquire into the legality of a commitment issued from a court of competent jurisdiction before trial has been had upon a complaint or information. (In re Terry, 71 Kan. 362, 80 Pac. 586; In re Sills, 84 Kan. 660, 114 Pac. 856; In re McKenna, ante, p. 153, 154 Pac. 226; 21 Cyc. 287.) A case very similar to this one was determined by the court a few days ago. There the petitioner had been arrested by the chief of police for the violation of a city ordinance which it was alleged the city had no power to enact. Before trial was had he applied to this court for a writ of habeas corpus, insisting' that the lower court had no authority to render a judgment against him and that therefore the restraint was illegal. It was held that as the ordinary remedy and the regularly established procedure were available to him, where all the objections to the validity of the complaint and arrest might be presented and determined, the writ of habeas corpus would not be issued. In that decision the rule was well stated, the cases carefully reviewed and the restriction of the statute upheld. (In re Will, ante, p. 600, 155 Pac. 934.)
It is further contended that the statutory restriction does not apply since the petitioner was arrested upon view and when no complaint had yet been filed against him. A complaint was filed shortly after the arrest was made but not until the writ herein had been issued. An arrest upon view and upon the oral charge of the officer was authorized by law. (Gen. Stat. 1909, § 982.) Complaint was promptly filed as the statute requires, and it was set forth in the return made by the officer. To that return the petitioner replied, and upon the issues so formed the case was tried. The oral charge that the petitioner was engaged in the commission of an offense when the arrest was made served the purpose of a complaint for the time being, and the complaint was subsequently reduced to writing and filed as the statute provides. So made, it met the requirements of the law and fairly comes within the statutory provision that the writ is not available where one has been committed for and is awaiting trial upon an information.
The judgment will be reversed and the case remanded with the direction that the application for the writ be denied.
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The opinion of the court was delivered by
Johnston, C. J.:
A. J. Freeman brought suit against the defendants asking for a mandatory injunction directing the defendants to remove a dike built by them in April, 1911, after chapter 175 of the Laws of 1911 took effect, which dike Freeman alleged was so placed as to interfere with the natural course of drainage down the valley from his land. The lands involved in the suit all lie between two streams — one on the West called Crute Branch, and 'one on the east called Chapman creek — and on both sides of a road running east and west on the line between sections 1 and 12. Freeman’s land consists of the southeast quarter of section 1 north of the road, and the east one-half of the northeast quarter of section 12 (containing 80 acres) south of the road; and Chapman creek meanders in a southerly direction down through his land and across the road where there is a bridge. Defendant Scherer’s land is the west one-half of the northeast quarter of section 12 and lies just west of plaintiff’s south 80 acres; while the land of Sarah E. Marts is the quarter section lying just west of the Scherer land. All of the land of the defendants lies south of the road. The land of the plaintiff which lies north of the road and on the west of Chapman creek slopes in a general southerly direction, and the natural course of surface whter is down across the road and over the lands of the defendants. The road mentioned was established in 1893, and to carry off the water that accumulated on the road as well as on the adjoining land the public authorities and an adjoining owner of land made a ditch along the road which was designed to improve the road and to carry the water to Chapman creek." The dirt taken from this ditch was thrown mostly on the south side of the ditch and formed a sort of embankment. At a later time the ditch was enlarged and the dike raised to some extent. The dike is about orie-half mile long and extends along the south edge of the road on the north line of the land of the defendants.
The answers of defendants Scherer and Theodore Marts alleged among other things that there had been a ditch along the roadside which had properly taken care of the drainage for many years, and until it was filled up in 1910 by Freeman, and that any damage he may'have suffered to his land was due to this' act. In response to this claim Freeman alleged that the ditch was unauthorized and that he had a right to close it. Marts alleged and insisted that the rights of Freeman with regard to this dike had been litigated and determined in a former suit, tried in 1912, and that the only injury sustained by him resulted from his fault. The case to which reference was made was between plaintiff and one of the defendants herein, and many of the facts and contentions in the present case were under consideration in that one. (Marts v. Freeman, 91 Kan. 106, 136 Pac. 943.)
The trial herein was before the court without a jury, and there was evidence which tended to show that the road mentioned was established in 1893; that in wet periods the surface water flowed from the north upon the road as well as upon the lands of the defendants on the south side of the road. To prevent injury to the road, and also to the land south of it, the public authorities and landowners jointly dug a ditch on the south side of the road from a slough, which was near the center of the valley, eastward about a half a mile to Chapman creek. It also appeared that plaintiff had recognized that the ditch was for the purpose of drainage and to carry water not only from the road, but also from the lands north of the road, by digging lateral ditches from his land to the ditch, and he had further applied to the township officers to put in a tile or drain across the road to carry the water from his farm to the ditch. In 1910 the plaintiff filled up the ditch and thereby caused injury to the land of Marts for which the latter asked a recovery of damages. In that action plaintiff denied liability, and insisted that the ditch was not dug for the benefit of the public ; that the embankment or dike south of the ditch unlawfully obstructed the natural flow of the water and that it had operated to injure him. He asked to enjoin Marts from maintaining the ditch and embankment. That action resulted in a judgment in favor of Marts for damages and the injunction for which Freeman had asked was denied. Upon an appeal the judgment of the district court was affirmed. (Marts v. Freeman, supra.) It was there held that the fact “that the improvements were urged by and resulted in benefits to a landowner did not impair the right of the constituted authorities, acting in good faith, to make it for the use and benefit of the public.” (Syl; ¶ 3.) And it was further held that “The fact that a watercourse so created is an artificial one affords no justification for obstructing it where it exists by lawful authority, although the obstruction causes the water to flow where it did before the ditch was opened.” (Syl. ¶ 4.)
It appears that in the spring of 1911 the ditch was deepened and the dike raised, and that this was done after the enactment of chapter 175 of the Laws of 1911,. which authorizes the owners of land in certain cases to construct drains. It does not appear from the evidence, however, that the plaintiff has since that time suffered any injury from the maintenance of the dike and the ditch.
When the plaintiff made his opening statement the defendants moved for judgment in their favor on the pleadings and the opening statement, but the court reserved its rulings on these motions; and after the plaintiff .had introduced his testimony, the court on the demurrer of defendants, as well as on the motion for judgment on the opening statement, rendered judgment in favor of the defendants. The plaintiff insists that there was some evidence which tended to support the material allegations of his petition, and that under the rules applicable where the evidence is challenged by a demurrer the ruling of the court was erroneous. This was an equity case triable without a jüry, in which the issues of fact as well as of law were for the determination of the court. It differs little from a case which is finally submitted to the court upon the testimony of the plaintiff alone. However, taking the plaintiff’s testimony, uncontradicted as it was, and drawing all the inferences in favor of plaintiff where the testimony was open to more than one inference, the court, we think, was justified in holding that the plaintiff could not recover. A public highway existed upon which the ditch was made. That ditch had been constructed under public supervision and had served as an artificial channel to carry the water to the creek. It had been recognized and. used by the plaintiff as a means of draining his adjoining lands, and the embankment or dike appears to have been an incident of the making of the ditch and really a part of it.
It is urged by plaintiff that as the ditch and dike were rebuilt after the act of 1911 relating to drainage was in force, the rebuilding of the same constituted a violation of the provisions of that act as much as if the ditch and dike had been orignally constructed at that time. The act, among other things, prohibits the lower proprietor of land from constructing a dam or levee that will obstruct the flow of surface water onto his land to the damage of an. upper proprietor. The ditch in question, as we have seen, had been in use for a great many years and had become an established artificial channel that carried off the surface water. The work done upon it in 1911 did not change its course nor divert it from the purposes for which it was originally dug. It is true, the dike was enlarged and that more earth was used in making part of it than was taken from the ditch. It was done, however, with the manifest purpose of confining the water in the ditch and carrying it to Chapman creek. But it is contended that the ditch was not in fact open when the law of 1911 was enacted and therefore it should be treated as an original improvement. It appears that plaintiff filled up the ditch and purposely obstructed the flow of watei; some time in 1910, not long before the enactment of the law of 1911. Although it was determined in Marts v. Freeman, 91 Kan. 106, 136 Pac. 943, that the plaintiff was not justified in closing the ditch, he admits that he did so, and hence he voluntarily took the risk of the injury that might result to him from holding back the water that might have flowed through the ditch to the creek. If the reconstructed ditch, however, is to be treated as a new construction within the meaning of the act of 1911, the court was nevertheless warranted in denying the injunction. While plaintiff’s land was overflowed during the exceptional floods of 1903 and 1908, when all the lowlands in that region were under water, it appears that no injury or loss has been suffered by him since the reconstruction of the dike or the enactment of the law of 1911. The fact that the land was overflowed during the exceptional floods does not warrant the inference that such floods will become common nor require the issuance of an injunction. Experience has demonstrated that injury from floods is not likely to recur and that the provisions already made for drainage are ordinarily sufficient. Injunction is not used to prevent a prospective injury unless it appears that there is a reasonable probability of injury and that the law will not afford an adequate remedy. “Mere apprehension or a possibility of wrong and injury by a defendant is ordinarily not enough to warrant the granting of an injunction.” (Hurd v. Railway Co., 73 Kan. 83, syl. ¶ 3, 84 Pac. 553; 22 Cyc. 769.) In Whitehair v. Brown, 80 Kan. 297, 102 Pac. 783, an action was brought to obtain an injunction to prevent the building of a dam which it was alleged would obstruct the flow of waters, and the court said:
“To establish their right to an injunction it was necessary for the plaintiffs to satisfy the court that there were reasonable grounds to fear the recurrence of the new injury with -such frequency as seriously to affect the value of their lands, or that other considerations rendered their remedy at law inadequate.” (p. 300.)
(See, also, Haage v. Kansas City S. Ry. Co., 104 Fed. 391; 2 Farnham, Water & Water Rights, § 582a, and cases there cited.)
If damage should result to plaintiff from the maintenance of the dike it would appear that an action for damages would afford him an adequate remedy in which each of the parties would have an opportunity to have his rights determined by a jury. The ditch and dike appears to have served the purpose reasonably well until it was obstructed by the plaintiff himself. The only injury that can come to him from the maintenance of the dike is that it might hold the surface water upon his land. He practically invited this result when he filled up the ditch and prevented the flow of Water into the creek. One who asks for an injunction is governed by the usual equitable rules, and one of them is that “He who seeks equity must do equity.” If he has acted wrongfully and illegally in the matter he is hardly entitled to ask for equitable relief by injunction. He did act illegally and wrongfully when he closed the ditch and obstructed the passage of water through it. In a sense he invited and permitted the injury which he anticipates may result to him from the ditch and dike. “A party can not invite and encourage a wrong, and then ask a court of equity to protect him by an injunction from the consequences of that wrong.” (Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708, syl. ¶ 2, 26 Pac. 683; Downs v. Comm’rs of Wyandotte Co., 48 Kan. 640, 29 Pac. 1077; 22 Cyc. 776.)
Some objections are made to the rulings of the court excluding testimony, but in view of the facts related in behalf of the plaintiff in the opening statement of the case and the testimony of the plaintiff himself, none of the objections appears to be material.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment of conviction for contempt for violating a temporary injunction against keeping and maintaining an intoxicating liquor nuisance.
The liquor was sold over a board in the back room of a restaurant, on the premises covered by the injunction. Behind the board was a bench on which liquors and glasses were kept. There were tables and chairs' in the room. It was apparently a secret place, maintained for the sale of drinks.
1. The first contention is that the evidence dóes not show that the liquor sold was an intoxicating liquor as defined by the law of this state. A purchaser testified that the liquor looked like beer, tasted like beer, and that he believed it was beer. Another witness testified that there was malt in the liquor sold. This was sufficient to justify the court in finding it was an intoxicating liquor under the law of this state. Malt liquors are presumed to be intoxicating. (Gen. Stat. 1909, §§ 4361, 4364.)
2. Another complaint is that the court refused to permit a witness to taste the contents of a bottle then in the court room, labeled like one purchased from the accused by the witness, to see if the contents were the same as the contents of the bottle the witness had purchased. ,We do not think it was error to exclude this evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Nellie May Barnes and Elizabeth Amelia Kyle to recover for each a one-eighth interest in a quarter section of land in Douglas county; also for a partition of the tract and for certain rents and profits. The questions involved were determined on a de murrer to the petition, and also upon the files and records in a proceeding in a Texas court probating the will of Mary H. Pritchett, which the parties agreed should be considered by the trial court in making its decision.
It appears that Mrs. Pritchett died April 12, 1899, as the result of burns received when the family home in Jasper county, Texas, was burned the preceding day. She left surviving her, her husband, Reuben Pritchett, and four children, Raymond, Albert E., Nellie May, and Elizabeth Amelia — the last two of the children having married and are the plaintiffs in this action. The family formerly lived in Kansas, and the will in controversy was executed by her in Kansas on November 10, 1889. In the will, according to the testimony in the probate proceedings, she gave all her property, real and personal, to her husband, and provided that any property remaining at his death should pass in equal proportions to their children. It was also provided that the husband should act as the sole executor without bond, and that no proceedings in court should be had except to probate the will and make an inventory of the property. The will was duly signed by her and by subscribing witnesses whose names were not remembered when it was probated. Subsequently the family removed to Jasper county, Texas, and the will was deposited with the judge of the county court of the county for safe-keeping. On the day the home was burned, her son Albert was sent by her to obtain the will, and he told the judge that his mother desired to examine it. It was delivered to him, and on that day it was examined by the testatrix and the members of the family and its terms and provisions were considered and discussed by them. Two or three hours later the residence caught fire and Mrs. Pritchett was severely burned while trying to save valuable papers which included certain deeds, her husband’s will giving his property to her, and the will in question. She died from the effects of the burning, on the following day. Proceedings were subsequently taken in the county court of J asper county, Texas, to probate the will, and the judgment there entered recites that the application for probate was in due form, that the citation had been served in the manner and for the length of time required by law, that due proof had been made of the death of Mrs. Pritchett, that the .will had been duly executed by her when she was of sound mind, and that it had never been revoked. The court, upon proof offered, found and adjudged what the contents and provisions of the will were, reciting that it could not be produced in court for the reason that it had been burned in the fire which caused the death of the testatrix. The judgment admitting the will to probate provided also for the appointment of Reuben Pritchett as executor without bond in accordance with the request made in the will and directed him to file an inventory of the property of the estate. On November 30, 1900, the will so probated was admitted to record in the probate court of Douglas county, Kansas, and on April 2, 1902, the executor conveyed the land to Martin B. Brownlee, one of the defendants herein. It is alleged by the plaintiffs that Brownlee had actual and constructive notice of the condition of the title to the land at the time of its purchase. On consideration of the averments of the petition and the files and records of the Texas court submitted at the same time, the court sustained the demurrer to plaintiffs’ petition holding that the transfer of the land to the defendant was effective and valid.
The first contention is that the judgment of the Texas court is void, it being alleged in the petition that the citation or notice of the probate proceedings was not served upon the plaintiffs. The statutes of Texas provided that such a citation shall be served in a particular way and for a certain length of time. The judgment rendered by that court recites that it appeared “that said application is in due form, and that service of citation has been served and returned in the manner and for the length of time required by law.” The action brought by the plaintiffs is a collateral attack on the Texas judgment. The facts essential to the jurisdiction of the court to render the judgment were found to exist and that adjudication is not open to collateral attack. As the jurisdiction of the court depended on due service of a citation, the fact that jurisdiction was exercised implies a finding that legal notice was given. (In re Wallace, 75 Kan. 432, 89 Pac. 687.) In this case there is an express finding in general terms that notice was given and that it was legally sufficient as to manner and time, and this judicial determination must stand as conclusive evidence of these facts until it is set aside in a direct proceeding. The rule in such cases was concisely stated in Miller v. Miller, 89 Kan. 151, 130 Pac. 681, where it was said:
“It is a law of this state that whenever the jurisdiction of a court depends upon a fact properly litigated and determined in the action itself, the judgment rendered finding the fact is conclusive evidence of its existence and of the jurisdiction of the court until the judgment is vacated, reversed or annulled in a direct proceeding instituted for that purpose.” (Syl. ¶2. In re Wallace, supra; Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Carter v. Carter, 89 Kan. 367, 131 Pac. 561.)
The claim that jurisdiction was acquired by fraud and that the judgment probating the will was induced by false testimony, were matters inherent in the action that were investigated and determined by that court, and it is well settled that such a determination is not open to collateral attack. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; McCormick v. McCormick, supra; Miller v. Miller, supra. See, also, Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906.)
It is contended that the will was not effective because it was not in existence when the testatrix died and that an authenticated copy of the will was not admitted to the record in Kansas in the manner required by law. It appears that the testatrix executed a will, and in doing so complied with every requirement to make it valid and effective. It satisfactorily appears that it had never been altered or revoked in any of the ways by which the revocation of wills may be accomplished. The destruction of a will to which she did not consent, whether done accidentally or fraudulently, does not operate as a revocation of a will in the absence of a statute providing that to be the effect. (Schouler on Wills, 3d ed., § 385.) A will may be established and proved that a testator during his last illness was fraudulently induced to destroy, through fear or for any other cause unduly exercised so as to take away his free and voluntary mind and capacity to act. (Batton et al. v. Watson, 13 Ga. 63, 58 Am. Dec. 504.) Where a will is destroyed or missing at the time of the testator’s death, there is a presumption that it has been revoked by him, but this presumption may be overcome by proof. (Schouler on Wills, 3d ed., §283; 1 Underhill on the Law of Wills, §272.) Here it is shown that the will was in existence until it was destroyed by fire, and that instead of anything having been done towards revocation, the testatrix lost her life in the effort to preserve it from destruction. The facts in the case indicate that the burning which she suffered disabled her from doing anything towards revocation, and the circumstances under which she died, within a few hours after the burning, are wholly inconsistent with intentional revocation. No act or word of hers indicated a purpose to revoke the will, but, on the contrary, everything said and done by her prior to the fire and her death gave ample proof of approval and adherence to its provisions. The destruction and absence of the will were satisfactorily accounted for, and the presumption arising from the fact that it was not produced after her death has been fully met and overcome. (Steele, &c., v. Price and Wife, 44 Ky. 58; Scoggins v. Turner, 98 N. Car. 135, 3 S. E. 719; In re Hedgepeth, 150 N. Car. 245, 63 S. E. 1025.)
Before admitting a destroyed or lost will to probate, its contents must be shown by evidence which is clear and satisfactory (Davis & others v. Sigourney, 49 Mass. 487), but upon the facts brought before the trial court in the case, all of the material provisions of the will were fully proven. More than that, the judgment of the Texas court recites that the provisions of the burned will were proven, and that it had been executed with the formalities and solemnities necessary to make it a valid will. The statutes of Texas provide how missing wills, or wills which can not be produced, must be established and probated. It requires that proof shall be made of the reasons why the will could not be produced, the contents of the will, the names and residences of the heirs if known, and if not known, that fact must be stated. (2 Vernon’s Sayle’s Texas Civ. Stat. 1914, §§ 3253, 3272.) In Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619, it was held that an unrevokéd will, lost or destroyed before the testator’s death, may be established and probated by parol testimony, but that it is incumbent on the party seeking to establish it, to prove not only that it was duly executed, but to rebut the presumption of revocation which arises from the fact that it could not be found at the time of the testator’s death. It is held that the testimony in such a case should prove the facts with as much certainty as in cases where the will itself is before the court. The will of the testatrix was established and probated in conformity with the Texas statute and the rules laid down by the supreme court of that state. The contents of the will having been established and proven as the law requires and its provisions copied into the judgment entered by that court, its judgment is to be regarded as the declaration of the mind and will of the testatrix as to the disposition of her property after her death. Having been legally established, the record so'made is as good evidence of her will as if the original will had been before the court when it was probated. Our statute provides that authenticated copies of wills executed and proven according to the laws of another state shall be admitted to record in the probate court of any county in this state wherein any property of the estate may be situated, and that it shall have the same validity as if made in conformity to the law of this state. (Gen. Stat. 1909, §9800.) It is argued that under this section only true and exact copies of wills can be recorded, and that a transcript of a proceeding establishing and proving a will in another state can not be regarded as an authenticated copy. The record legally made in Texas is the adjudicated evidence of the contents of the will. The unrevoked will having been destroyed, the record establishing its contents is the reproduction of the original, and is conclusive evidence of the will of the testatrix and the disposition which she made of her property. As ordinarily understood, a copy is a transcript of the original document, but the court having found and adjudicated what were the contents and provisions of the destroyed will, which had never been altered or revoked by the testatrix, its judgment is to be treated as the will, and a copy of the same is in effect an authenticated copy of the will. The presentation of a will so probated is a substantial compliance with the provision of section 9800 of our statute, which warranted its admission to record in the probate court of Douglas county, and when so recorded, is as effectual as if the original will had been proved and admitted in Kansas.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a creditor to determine the true ownership of land which it was claimed belonged to the debtor, in order that the land might be sold to advantage to satisfy the creditor’s claim. The defendant, the debtor’s wife, who asserted title, prevailed, and the plaintiff appeals.
The district court made findings of fact, the correctness of which is not disputed. The findings state that Barbara Haid, the owner of the land, died testate. The will was duly probated, and F. H. Haid and Edward Haid, sons of the testatrix named as executors in the will, duly qualified as such. The will provided that the real and personal property belonging to the testatrix at the time of her death should be sold and converted into money. Certain obligations were to be satisfied and certain sums were to be invested and the income paid to grandchildren until they became of age. Subject to these provisions, the proceeds derived from the sale of the property were to be divided among the five children of the testatrix in certain proportions. One child, however, was to receive the income only of her share, for her life, when her share was to become the property of her children. The executors were made trustees to invest funds to the best advantage and otherwise carry out the trusts created. The children of the testatrix, being adults, agreed upon a division of the property, some taking land and some taking money. The agreement was not in writing but was fully performed. By the agreement the land in controversy was apportioned to F. H. Haid. In order to carry out the agreement an executors’ deed was made. It was supposed that an executors’ deed naming one of the executors as grantee would not be valid. F. H. Haid’s wife, Elizabeth Haid, was made the grantee in the deed, which was approved by the probate court. F. H. Haid delivered the deed to his wife, and did so with the firm belief that it placed title to the land in her. The land was occupied at the time by F. H. and Elizabeth Haid as their homestead, and neither one of them was then indebted to anybody. The deed was dated June 26, 1905, was recorded on June 29, 1905, and title to the land has ever since remained where it then was. In the year 1910 F. H. Haid became indebted to the plaintiff, and if the land belongs to him it is subject to sale under an attachment levied in October, 1912.
The plaintiff contends that the will gave the executors no title to any part of the estate of the testatrix, that they were given naked power to sell and distribute the proceeds to the heirs, who were also devisees, that F. H. Haid took title by descent from his mother and became owner in severalty by the partition agreement, that the executors’ deed had no office to perform so far as a transfer of title was' concerned, that it conveyed nothing to Elizabeth Haid, and consequently that the land is the property of F. H. Haid.
There is abundant authority that an equitable conversion of the real estate took place to enable the executors to carry out the trusts created by the will. Express words giving title to executors are not essential to equitable conversion when such is the necessary effect and intention of the will. It was impossible to carry out this will unless the entire estate passed as personalty. The persons who were to receive shares of the estate under the will were not those who would inherit if there were no will. There were five heirs, but one of them was deprived of her share of the estate by the will and was given merely an income for life. The will spoke from the date of the death of the testatrix, the conversion took place at that time, rights were fixed at that time, and the real estate did not descend as such to Barbara Haid’s heirs. It was permissible for the beneficiaries of the will to agree upon a division of the estate satisfactory to themselves and to agree to accept property in kind to avoid a sale. The parol partition, however, had no effect on the devolution of title at the time of the death of the testatrix. After the partition F. H. Haid held the title to no more land by descent from his mother than before the partition. The entire estate was in contemplation of the law personalty, the legal title to which was vested in the executors to accomplish the purposes of the will.
The plaintiff says it has been decided by this court that where executors are merely authorized to sell and divide the proceeds among heirs there is no conversion, citing, Bank v. Murray, 86 Kan. 766, 121 Pac. 1117; Ward v. Benner, 89 Kan. 369, 131 Pac. 609; Smith v. Hensen, 89 Kan. 792, 132 Pac. 997, and McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535. The effect of these decisions is correctly stated. They do not govern the present controversy, however, because the will of Barbara Haid did not invest her executors with naked authority to sell and to divide proceeds among her heirs.
Conversion of the land into personalty is not insisted upon as forbidding its seizure by attachment in 1912 if it then belonged to F. H. Haid. Conversion is important, however, in considering the title of Elizabeth Haid. When the parol partition was made F. H. Haid did not hold by descent from his mother and did not have a legal title of any kind, but the legal title was vested in the executors as if the land were personalty. In order to carry out the partition agreement an executors’ deed was deemed essential. It was believed that a deed from two executors would not be valid if one of them were the grantee. The deed was made to Elizabeth Haid, was delivered to her by F. H. Haid and was delivered with the firm belief that it placed title in her. The plaintiff says the court did not find that F. H. Haid “intended” to place title in his wife. The court did find the facts concerning the conduct and the belief of adult, rational persons, and these are reliable indexes of intention. It would be quite remarkable if F. H. Haid did not intend to do what he firmly believed he was doing. Whether the deed be considered as a conveyance of land or as an assignment by the executors of F. H. Haid’s share of the estate considered as personalty, he executed and delivered the deed to Elizabeth Haid in order to invest her with title to the share of the estate alloted to him by the partition agreement. Whether the instrument were valid or invalid as a conveyance or as an assignment, whether it carried any title to Elizabeth Haid or not, F. H. Haid is estopped to deny that the deed had the effect which it was designed to produce, and is estopped to claim under a title which he possessed at the time the deed was delivered. This would be true even if equitable conversion had not taken place. Of course the plaintiff can appropriate the land only in virtue of F. H. Haid’s right to it. Cases relating to estoppel of one who executes a deed as executor or administrator to set up an existing title in himself are collated in a case note in 21 L. R. A., n. s., at page 60. A later case reported in the same series (32 L. R. A., n. s., 854) is that of Bliss v. Tidrick, 25 S. Dak. 533, 127 N. W. 852.
The plaintiff says there was no consideration for the deed. The absence of a consideration to the executors merely goes to the validity of the instrument considered as an executors’ deed, which is not material. As between F. H. Haid and his wife no consideration was necessary. Not being indebted to anybody and there being no fraud in the transaction, F. H. Haid could place the title to his share of his mother’s estate wherever he desired. The presumption is the land was a gift from husband to wife. (Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Clester v. Clester, 90 Kan. 638, 136 Pac. 236; Page v. Pierce, 92 Kan. 149, 153, 139 Pac. 1173.)
In making application for a loan F. H. Haid stated the land belonged to him and that he had inherited it. The representation was not binding upon Elizabeth Haid. Elizabeth Haid permitted her husband to manage the farm, collect rents, pay taxes, etc. The finding is that she did this with the knowledge and with the consent which a wife and mother usually has and gives concerning business matters of her husband when he is managing her property. Conduct of this character is not sufficient to defeat a title once acquired, and whatever the conduct of Haid and his wife may have been subsequent to the delivery of the deed, the findings conclusively show that title then vested in her.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Lucinda Elizabeth Rowell, who is the divorced wife of Asa B. Rowell, brought this action against him to recover for the maintenance of their two minor children, Lloyd G. Rowell and Merritt L. Rowell, from September 1,1907, the date of separation, until March 1, 1914, during which time she had the sole care of the children. She also asked for the future maintenance of the minors in the sum of $2040.41. They were married in 1875 and lived together until 1907, and of the six children born unto them three were minors at the time of the separation, but the oldest of the three was near majority and for his maintenance no recovery was asked. In a proceeding to obtain alimony brought by Mrs. Rowell in 1907 a division of the property was made, based upon a stipulation of the parties under which she obtained property worth about $8500 which was given in lieu of all claims for alimony to her, while he was awarded real estate which was appraised at $20,800. No provision was made for the maintenance of the children, but it was decreed that each of the minors might decide for himself the parent with whom he would live. In 1908 Rowell obtained a divorce from his wife on the ground of cruelty and neglect of duty, but in that decree no mention was made of the children nor any provision made for their education or maintenance. On March 20, 1914, Mrs. Rowell brought , an action against her former husband to recover for the money already expended by her for the education and maintenance of the two minor children and also for their future maintenance. Being in doubt as to the procedure to obtain this relief, she also moved the court to reopen the divorce action and to have the court make provision for the children in that action. The court refused to open the judgment of divorce and also denied her any award for the money already expended by her for the. support and education of the children in the new action, but an award was made for the future maintenance of the children to the extent of $27 a month until July 30, 1910, when Lloyd would reach majority, and $18 a month thereafter until July 11, 1919, when Merritt will become of age. Mrs. Rowell appeals from the order refusing a recovery for the maintenance and education of the minor children prior to the judgment. She contends that, the decree of divorce being silent as to the maintenance and education of the minor children, the father of the children is liable for the money necessarily expended by her in their care and support the same as he would have been had the children been maintained by a stranger. On his part he contends that as the divorce was granted to him because of her fault, and as the children chose to reside with her, he is not liable to her to any extent. It appears from the decree that the custody and maintenance of the minor children were not adjudicated in the divorce proceedings. The award of alimony previously made to her was not intended or treated as a provision for the education and support of the children.
The duty and responsibility of the parents were not altered by the award of alimony or the decree of divorce, and the parental relation and duty of the father to make a reasonable provision for the maintenance of the minor children continued after the granting of the divorce the same as before. This has been held to be the rule even where the custody of the children has been specifically given to the mother and no provision made in the decree for their maintenance. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628.) Some reliance is placed by defendant upon Harris v. Harris, 5 Kan. 46, but the opinion in the Riggs case clearly demonstrates that the decision actually made in the Harris case is in keeping with the holding in the Riggs case and .not inconsistent with the ruling herein. Some other cases were referred to as expressing a contrary view, but the opinion in the Riggs case makes it plain that none of the decisions was out of line with the Riggs' decision, although some of the comments made in these cases were disapproved. The trend of the authorities on the question, which are not without conflict, may be found in a number of annotations. (2 L. R. A., n. s., 851;- 8 L. R. A., n. s., 1270; 38 L. R. A., n. s., 508; 7 Ann. Cas. 903; 12 Ann. Cas. 138; 14 Ann. Cas. 255.) The fact that the divorce was not contested and that she permitted a decree to be entered in his favor on the ground of her fault does not exonerate him from the duty and responsibility of providing .for his children. Unless changed by a decree of court , the parents are under equal obligation to support and care for their children. The obligation of the appellee, as we have seen, has not been altered or affected by any stipulation or judicial decree. The plaintiff might by agreement or some adjustment as to maintenance have deprived herself of the right to recover from defendant for the moneys expénded for that purpose, as was done in Miller v. Morrison, 43 Kan. 446, 23 Pac. 612; but it appears that no agreement or adjustment in respect to maintenance was made between the parties herein and the custody of the children was not awarded to either parent. Although the decree separated the father and mother and made them in a sense strangers to each other, it did not change the parental relation of the father to the children nor absolve him from his obligation to care for them. In a number of cases it is said that he could not rid himself of the obligation to care for his children by his own misconduct, but neither can he be relieved from his natural and legal obligation to them or to society because .of some misconduct of their mother. While the divorce was granted to him on the grounds of her cruelty towards him it appears that he recognized her to be a suitable person to have the care and education of the children and was willing that they should reside with her. No effort was ever made by him to obtain their custody, nor has he ever contributed anything toward their support. Emmett, the oldest of the three children who have been living with her since the separation, contributed the principal part of his wages to his mother, but the father has not aided in their care and support to any extent. His disagreement with their mother and separation from her did not change his relation or his duty to his offspring. They were not parties to the divorce proceedings and are not to be deprived of their right to the support and protection of their father because the decree of divorce in which the children are not even mentioned was granted to him instead of to their mother.
The trial court adjudged that defendant was liable to plaintiff for the future support of the minor children but denied her any recovery for what she had already expended for their maintenance and education. No reason is seen why plaintiff should not recover a reasonable amount for the expenditures made by her for the care and support of the children before the trial herein was had. It was argued by defendant that the proof of expenditures made for that purpose was not sufficient to warrant any recovery. Her son Emmett, who is twenty-five years old and who has charge of her business, testified that she had paid all expenses of maintaining and educating the two minor children since the separation in 1907. He also stated that the rent of the properties owned by the mother was not sufficient to meet these expenses and hence she had been compelled to sell a part of her property so that what remains now is not worth to exceed $3500.- He also testified that he has made a computation from bills paid and other data on hand of the amount paid by his mother for the care and support of the children and found that she had expended about $1852.50 for the education and maintenance of Merritt and about $2060 for the education and maintenance of Lloyd. In his testimony he stated that he had earned his own living since he became of age, and besides, had advanced some money to his mother to enable her to provide for the minors. Her testimony corroborates him as to all matters as to which she had knowledge, and while some of the testimony is not as definite as to the amounts expended for the children as it might be, it certainly is sufficient to warrant a substantial recovery.
The appropriate method for obtaining the relief asked by the plaintiff is through the opening of the judgment of divorce. (Harris v. Harris, 5 Kan. 46.) In that case it was said that when a decree is so opened “the court can take into consideration all the facts and circumstances surrounding the parties, and do such full justice as the case requires, having reference to advances already made.” (p. 53.) In such a proceeding the court can award relief not only for the expenditures already made but may make suitable provision for their maintenance in the future. No reason is seen why the plaintiff might not maintain an independent action against the defendant for the recovery of the money already expended, but obviously the remedy is not as appropriate or complete as that which can be obtained by opening the decree of divorce. The court which renders the decree has a continuing jurisdiction in respect to the children and may at any time, upon application and sufficient notice, modify the decree by making provision for the children that was overlooked in the first instance or such as may be required by the altered conditions or circumstances. (In re Petitt, 84 Kan. 637, 114 Pac. 1071.)
The judgment in the two cases brought up for review will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
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The opinion of the court was delivered by
West, J.:
The parties had a controversy over an article of household furniture, a table, which the defendant was attempting to take away from plaintiff’s sister, and the defendant struck the plaintiff twice with a claw hammer, once in .the face and once on the head. This action for damages followed, resulting in a judgment for one thousand dollars.
The defendant appeals and contends that the verdict and judgment are contrary to the law and against the evidence for various reasons, amounting substantially to the complaint that the court erred in its instructions and in its rulings on evidence, and finally and chiefly that the verdict was excessive.
The instructions were long, and, taken as a whole, very fair to the defendant, and he is not justified in picking out an inaccurate expression here and there for criticism.
The complaints covering the admission of evidence we find to be without substantial basis.
In presenting his views of the excessive character of the verdict, defendant’s counsel in their brief say that they believe this court should render judgment for seventy-six dollars compensatory damages, and that the plaintiff be required to remit the remainder less costs. This would seem to eliminate all other questions.
There was evidence tending to show much spirit and force on the part of -the defendant in his use of the hammer, with a result much more severe and lasting than that which the defendant finds from considering other testimony in the case. From conflicting evidence the jury determined the amount of damages and this was approved by the trial court, and we find in the record no sufficient basis for disturbing it.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In December, 1903, defendant J. G. Farguson executed a' promissory note to the plaintiff. This action was brought against defendant J. G. Farguson to recover on the note, and against defendant E. M. Farguson to subject to the payment of the note certain real property situated in Finney county.
The evidence proved that defendant J. G. Farguson, together with S. J. Farguson, E. C. Farguson, and M. F. Green, were tenants in common of this and other real property; that in March, 1912, they divided this real property by executing deeds to each other; and that the part set off to J. G. Farguson was at his request deeded to his wife, defendant E. M. Farguson. The petition alleges that this deed was fraudulent as to creditors. On the trial, M. F. Green, a witness for the plaintiff, testified that J. G. Farguson stated at the time the division was made that he would make the deed for his share to’ his wife and that he owed her more than that. J. G. Farguson did not appear in the action and no service was made on him other than by publication notice. The real property was not attached. Defendant E. M. Farguson introduced no evidence. A demurrer to the evidence was filed. This was overruled. Judgment was rendered, finding that $242.74 was due the plaintiff from defendant J. G. Farguson on the note, decreeing the deed to E. M. Farguson void as against the plaintiff, and that E. M. Farguson held the title to the land in trust for the plaintiff as creditor of J. G. Farguson; and ordering the property sold and the proceeds applied in payment of the costs of the action and the indebtedness to the plaintiff. Defendant E. M. Farguson appeals.
I. She contends that the demurrer to the plaintiff’s evidence should have been sustained. The plaintiff bases his right to recover on sections 9699 and 9700 of the General Statutes of 1909. These sections read:
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.
“Every such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration therefor; and where a fraudulent intent is not disproved, a trust shall in all cases result in favor of prior creditors to the extent of their just demands, and also in favor of subsequent creditors if there be sufficient evidence of fraudulent intent.”
The deeds from and to the parties to the division of the property owned by them in common were not such conveyances as are mentioned in section 9699. No land was purchased. Each party owned as much before as he did after the conveyances were made. Their act divided the land between them and had the same effect as a partition in an action in the district court. These parties could have signed and acknowledged a single written instrument dividing the property, specifying what each should hold in severalty, and then they could have had the writing recorded and the division would have been made. Their deeds had the same effect. There was a consideration for the deeds, but that consideration was not paid. The consideration for each deed was the right of each grantor in that deed to hold his property separate and apart from the others. The deed to E. M. Farguson had the same effect as if it had been made directly by J. G. Farguson to her; it carried the same right and was burdened with the same disabilities. If it was fraudulent as to the creditors of J. G. Farguson, it was so under section 3834 of the General Statutes of 1909, and not under the sections above quoted. If the plaintiff desired to attack that deed as fraudulent as to him, it was incumbent on him to prove that the conveyance was made with fraudulent intent. (Dodd, Brown & Co. v. Hills & Kramer, 21 Kan. 707; Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890; Hartman v. Hosmer, 65 Kan. 595, 70 Pac. 598.) The plaintiff did not introduce any evidence to show that the conveyance was fraudulent. For this reason the demurrer to the plaintiff’s evidence should have been sustained. However, the cross-examination of one of the plaintiff’s witnesses tended to show that the deed was made to E. M. Farguson because J. G. Farguson owed her more than the value of his interest in the land.
2. Other reasons not advanced in brief or argument exist why the plaintiff can not recover in this action. The plaintiff’s claim was in the form of a promissory note. It had not been put into judgment. Although J. G. Farguson was a party to the action, the court did not have jurisdiction of him. No judgment could be rendered against him. (Repine v. McPherson, 2 Kan. 340, 346; Zimmerman v. Barnes, 56 Kan. 419, 421, 43 Pac. 764.) This action is in the nature of a creditor’s bill, and such an action can not be maintained until judgment has been rendered on the indebtedness. (Tennent v. Battey, 18 Kan. 324; Underwood v. Fosha, 96 Kan. 549, 553, 150 Pac. 571.)
It appears from the record, which we have before us, that defendant J. G. Farguson was a nonresident of this state. If the conveyance to E. M. Farguson was fraudulent, a writ of attachment could have been levied on that property, and it could have been held in the custody of the law to await any judgment that might be rendered in the action, and then sold to satisfy that judgment. The attachment would have been subject to the right of defendant E. M. Farguson to protect her interest in the property in any proper proceeding.
The judgment is reversed. The trial court is directed to sustain the demurrer to the plaintiff’s evidence and to render judgment for defendant E. M. Farguson.
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The opinion of the court was delivered by
Marshall, J.:
In this action the sufficiency of the petition and the jurisdiction of the court are attacked. During the times mentioned in the pleadings, defendants J. R. Richey and Thomas Kent were residents of Wyandotte county and defendants Matilda Hansen and Neis Hansen were residents of Johnson county.
December 21, 1912, the plaintiff filed her petition in the Wyandotte county district court and caused summons to be served on the Hansens in Johnson county on December 23, 1912. January 17, 1913, defendants Hansen appeared specially and moved the court to set aside the service of summons on them on the ground that they were served in Johnson county; that defendants J. R. Richey and Thomas Kent had no interest in the subject matter of the action; that judgment could not be rendered against them, and that they had been made parties to give to the court color of jurisdiction so that summons might appear to be properly made on defendants Hansen. This motion was denied February 15, 1913. February 19, 1913, defendants Hansen filed a plea in abatement, setting out the same grounds as in the motion. May 10, 1913, this plea, on the motion of the plaintiff, was stricken from the files. March 15, 1913, the plaintiff filed ah amended petition. May 14, 1913, defendants Hansen filed their answer to the plaintiff’s petition, attacking the jurisdiction of the court and alleging the same matters set out in their motion. May 16, 1913, the plaintiff filed her demurrer to the answer of defendants Hansen. This demurrer was overruled April 4, 1914. The plaintiff filed no further pleading to this answer. March 15, 1914, defendants Richey and Kent filed separate demurrers to the amended petition. These demurrers were sustained July 25, 1914. December 18, 1914, judgment on the demurrers was rendered in favor of defendants Richey and Kent, and the action was dismissed as to defendants Hansen. The plaintiff appeals from the judgment in favor of defendants Richey and Kent and from the judgment dismissing the action as to defendants Hansen.
The amended petition in substance alleges that defendants Hansen were the owners of certain real property in Wyandotte county-; that defendant Richey was their agent for the real property and had authority to make repairs, including repairs of walks, and received as compensation for his services a percentage of the rents collected by him; that the plaintiff’s husband leased the property from defendants Richey and Hansen for a residence for himself and family and so occupied it; that defendant Richey, at the time of leasing the property, and as a part of the contract, agreed to repair a walk thereon; that after entering on the property the plaintiff and her husband requested defendants Richey and Hansen to inspect and repair the'walk; that defendants Richey and Hansen undertook to repair the walk and employed defendant Kent to do the work; that Kent was not a competent person to repair the walk; that he was careless and negligent in repairing and inspecting the walk; that defendants Richey and Hansen knew that Kent was a careless, negligent and incompetent workman; that defendant Kent undertook to make the repairs, but left the walk in a dangerous and unsafe condition; that the defendants said to and informed the plaintiff that the walk had been inspected and repaired and was all right and safe for the plaintiff’s use; that the defendants knew, or by the exercise of care could and should have known, that the walk had not been placed in a safe condition; that afterward the plaintiff, by reason of the defective condition of the walk, fell and broke her arm; and that she was damaged in the sum of $3000.
Three questions are presented for consideration: first, did the amended petition state a cause of action against defendant Richey ? second, did it state a cause of action against defendant Kent? and third, did the court have jurisdiction of defendants Hansen ?
1. The petition charges specific misconduct on the part of defendant Richey, in employing a workman whom he knew to be careless, negligent and incompetent to make the repairs; and in informing the plaintiff, after the work was done, that the walk had been inspected and repaired and was all right and safe for her use, although, after being repaired, the walk was in a dangerous and unsafe condition. Does the fact that Richey was the agent of defendants Hansen excuse him from liability for injuries sustained by reason of the defective repairs? In Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136, this court said:
“The contention is that no cause of action was stated against Johnson. . . . It is argued that Johnson, being the agent and servant of the railway company, is not liable for mere acts of nonfeasance, and this appears to be based on the theory that agents are responsible only to their principals, and while they may be held for misfeasance, they are not liable to third parties for mere omission of duty. This contention overlooks the theory that a servant owes duties to third persons as well as to his master. A servant or employee of a corporation can not well escape liability for the nonperformance of a duty which he owes to an injured third party. The distinctions between liabilities of agents and servants for acts of nonfeasance and misfeasance, as well as their liability for the omission of their duties to persons other than their principals and masters, are fully discussed and the authorities cited in case notes appended to Mayer v. Thompson-Hutchison Building Co., 28 L. R. A. 433, Ward v. Pullman Co., 25 L. R. A., n. s., 343, and Hagerty v. Montana Ore Pur. Co. et al., 25 L. R. A., n. s., 356.” (p. 565.)
The authorities hold that an agent is liable for his mis feasance. (2 C. J. 826.) In Schlosser v. Great Northern R. Co., 20 N. Dak. 406, 127 N. W. 502, the court said:
“Where an agent is guilty of misfeasance, that is, where he has actually entered upon the performance of his duties to his principal, and in doing so fails to respect the rights of others, by doing some wrong, as where he fails or neglects to use reasonable care and diligence in the performance of his duties, he will be personally responsible to a third person who is injured by reason of his misfeasance. An agent’s liability in such cases is not based upon the ground of his agency, but on the ground that he is a wrongdoer, and as such, is responsible for any injury he may cause.” (p. 411.)
What is meant by “misfeasance” ?
“ 1 “Misfeasance” is the improper doing of an act which a person might lawfully do.’ It is a failure to use, in the performance of a duty owing to an individual, that degree of care, skill, and diligence which the circumstances of the case reasonably demanded. State, to Use of Cardin, v. McClellan, 113 Tenn. 616, 85 S. W. 267, 268, 3 Ann. Cas. 992.” (3 Words & Phrases, 2d Series, p. 409.)
“A ‘misfeasance’ is the failure to do something imposed upon the person by law as a reasonable member of society, or the failure to use reasonable care and diligence in the performance of a duty imposed by contract which results in an injury to a third person. Irvin v. Callaway, 55 S. E. 1039, 1040, 127 Ga. 246 (citing Southern Ry. Co. v. Grizzle, 124 Ga. 737, 53 S. E. 244, 110 Am. St. Rep. 191).” (3 Words & Phrases, 2d Series, p. 409.)
“Misfeasance is the performance of an act in an improper manner, whereby some one receives an injury. Williams v. Dean, 111 N. W. 931, 933, 134 Iowa, 216, 11 L. R. A., n. s., 410.” (3 Words & Phrases, 2d Series, 409.)
“ ‘Misfeasance’ is the improper doing of an act, as distinguished from ‘nonfeasance,’ which is the total omission to do an act. ... It has been held that misfeasance may involve to some extent the idea of not doing, as where an agent, while engaged in the performance of his undertaking, does not do something which it is his duty to do under the circumstances, as, for instance, when he does not exercise that care which a due regard for the right of the other party requires. Such negligence as would he actionable in any relation of life is ‘misfeasance’ by not doing. Southern Ry. Co. v. Rowe, 59 S. E. 462, 466, 2 Ga. App. 557.” (3 Words & Phrases, 2d Series, pp. 409, 410.)
“An agent is liable to third persons when he is negligent in the performance of his duties, whether such act is termed misfeasance or nonfeasance.” (Lough v. John Davis & Co., 30 Wash. 204, 70 Pac. 491, 94 Am. St. Rep. 848, headnote, ¶3.)
“An agent having charge of a building, with authority to make repairs and employ servants, is personally liable for injuries to a passenger, due to the negligent operation or repair of the elevator.” (Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062; 8 L. R. A., n. s., 929, headnote, ¶ 6.)
“A servant or agent is liable for a negligent omission or nonfeasance causing injury to a third person where he would be liable if acting as principal.” (Mayer v. Thompson-Hutchison Building Co., 104 Ala. 611, 16 South. 620, 28 L. R. A. 433, headnote, ¶ 2.)
“A car inspector who, after inspection and approval, sends out a car which he knows, or by the exercise of ordinary care could have known, was defective, is liable in damages to a brakeman who, because of the defect, is injured in attempting to use it in the ordinary manner, in the absence of contributory negligence on his part.” (Ward v. Pullman Car Corporation, &c., 131 Ky. 142, 114 S. W. 754, 25 L. R. A., n. s., 343, headnote, ¶ 1.)
“A servant is personally liable to third persons when his wrongful act in the course of his employment is the direct and proximate cause of their injury, whether such wrongful act be one of nonfeasance or misfeasance.” (Ellis v. Railway, 72 S. Car. 465, 52 S. E. 228, 2 L. R. A., n. s., 378, headnote, ¶ 1.)
“An agent who has complete control and management of real property of a nonresident is personally liable for injuries sustained by a third person in consequence of the dangerous condition of the premises at the time when they were leased by him to a tenant.” (Baird et al. v. Shipman, 132 Ill. 16, 23 N. E. 384, 7 L. R. A. 128, headnote.)
“Where an agent undertook to build a trap-door, but did the work so negligently as to cause the injury complained of, action would lie by the injured party not only against the principal but the agent also.” (Harriman et al. v. Stowe, 57 Mo. 93, syl. ¶ 4.)
“Where an agent has complete control of a tenement house, and constructs a new walk in the court, leaving a large hole in the walk, and plaintiff, a new tenant, without previous knowledge of the existence of the hole, stepped into it after dark and was severely injured, it is misfeasance of the agent rendering him liable, and not a mere nonfeasance.” (Carson v. Quinn, 127 Mo. App. 525, 105 S. W. 1088, headnote, ¶ 2.)
(See, also, Bannigan v. Woodbury, 158 Mich. 206, 122 N. W. 531, 133 Am. St. Rep. 371.)
“An agent having complete control and management of his principal’s business, with the power to do what is reasonably necessary to protect third persons against injuries from omissions or commissions in the conduct of the same, is under obligation to so use that which he controls as not to injure another, arid will be liable in damages to any third person for a failure to discharge such duty.” (Stiewel v. Borman, 63 Ark. 30, syl. ¶4, 37 S. W. 404.)
“Agent is guilty of misfeasance in negligently directing water to be admitted to water-pipes in a room in a house owned by his principal, but which is under his general management, without first examining the condition of such pipes, by reason of which injury results, and he is liable to the tenant of the shop below for damage therefrom; and the fact that the room in which the pipes are is let to a tenant at that time does not release him from liability.” (Bell v. Josselyn, 69 Mass. 309, 63 Am. Dec. 741, headnote.)
“For a misfeasance done by an agent, in the line of his agency, both the principal and agent are liable.” (Martin v. Benoist, 20 Mo. App. 262, syl. ¶ 3.)
Under the allegations of the amended petition defendant Richey’s active misconduct renders him liable to the plaintiff. The amended petition states a cause of action against him.
2. The allegations of the amended petition against defendant Kent are that he was employed to repair the walk; that he made- some repairs; that he informed the plaintiff that the walk had been inspected and repaired and was all right and. safe for her use; and that after being repaired the walk at the place where the plaintiff was injured was in a dangerous and” unsafe condition. This constituted misconduct on the part of defendant Kent,' for which, if proven, he is liable in damages to the plaintiff. The petition states a cause of action against defendant Kent.
3. Did the court have jurisdiction of defendants Hansen? The conclusion reached concerning the sufficiency of the petition as to defendants Richey and Kent makes this question easy to answer. But one cause of action is stated in the petition. If the allegations of the petition are true, each of the defendants is liable to the plaintiff. All were properly joined as defendants. (Civ. Code, § 35; Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136.) Summons was properly served on defendants Hansen in Johnson county. (Civ. Code, §61.) But if, as stated by defendants Hansen in their motion, their plea in abatement and their answer, no cause of action exists as to defendants Richey and Kent, and they were made parties simply to give color of jurisdiction to the district court of Wyandotte county in this action, another question presents itself. That question was not argued, is not presented in the briefs, is not now before this court and will not be further discussed.
Defendants Hansen never attacked the amended petition. Their motion, plea in abatement, and answer, were directed against the original petition. This does not change their situation. The plaintiff, by permission of court, had the right to amend her petition so as to make it state a cause of action against any one or more of the defendants if it did not state a cause of action as first filed. Until defendants Hansen were discharged they were bound to take notice of all the pleadings filed in the action.
The judgment is reversed with directions to overrule the demurrers of defendants Richey and Kent and set aside the order of dismissal as to defendants Hansen, and proceed with the cause as herein indicated.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal by the state from a judgment of the district court of Bourbon county which sustained a motion to quash an information in which the defendant was charged with being a persistent violator of the prohibitory law under chapter 165 of the Laws of 1911. It was alleged that the defendant had been convicted in the- police court of the city of Fort Scott of unlawfully selling intoxicating, liquors “within said county and state, and since the date of said conviction, to wit: on or about April 29th, 1915, the said W.,M. Marks then and there being, did then and there unlawfully sell and barter malt, vinous, fermented, spirituous and other intoxicating liquors within said county and state, and did then and there persistently and unlawfully violate the prohibitory liquor law of said state. Contrary to the form of the statute,” etc.
The state seeks an interpretation of chapter 165 of the Laws of 1911. The statute reads: .
“Section 1. Any person or persons who. having once been duly convicted of the violations of the prohibitory liquor law and’ who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law and shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the state penitentiary at hard labor for not more than one year.”
The police court of the city of Fort Scott only has jurisdiction of breaches of the city ordinances. It does not have jurisdiction of offenses against the state law. The courts which have jurisdiction over breaches of the penal laws of the state are those of the justices of the peace, the city courts where such courts have been created in the larger cities of the state, and the district courts. Cities are given authority to make ordinances for the suppression of the liquor traffic, and wherever such ordinances are enacted they must be in harmony with the state law. But offenders in police court are punished, not for breach of the state law, but for violation of the city ordinance.
Penal statutes must be construed strictly, not out of consideration for offenders but for the protection of well-meaning and law-abiding citizens. This rule of interpretation in never questioned. It will be noted that the statute makes a class of all persons who have once been duly convicted of violations of the prohibitory law. This means the state law and not the city ordinance.- The violation of a city ordinance,. no matter if the ordinance is designed to correct and suppress the same evil, is not strictly a violation of the state law. A prosecution charging the same facts might be followed by a conviction under the state law, nor is this anywise uncommon. (The State, ex rel., v. City of Topeka, 36 Kan. 76, 87, 88, 12 Pac. 310.) Indeed, section 4368 of the General Statutes of 1909 makes it the duty of the judges of police courts to notify the co,unty attorney of all facts pertaining to violations of the prohibitory law of which they may have notice or knowledge, and to furnish the names of all witnesses by whom these facts can be proven. The- obvious purpose of this is that prosecutions for violations of city ordinances may be followed by prosecutions under the state law, and the state’s policy of suppressing the liquor traffic be thus rendered more effective. In The State v. Keener, 78 Kan. 649, 97 Pac. 860, this court approved the prosecution of a police judge who had neglected this duty.
Some light as to the legislative intent may be gleaned from the statutes relating to paroles. (Gen. Stat. 1909, §§ 2460, 2464.) Section 2464 in part reads :
“Any person confined in jail under judgment of conviction before a justice of the peace, city court, but not police court, or other inferior courts, may be paroled,” etc.
It will also be noted that section 2 of the act, which provides how the former conviction may be proven, omits all mention of proceedings in a police court. The section reads:
“Sec. 2. A true copy of the journal entry of judgment, or of the docket or other proper court record, showing the former conviction of the defendant from any district court, justice court, or city court, within the state of Kansas, supported by a certificate or affidavit of its authenticity, shall be prima faeie evidence of a former conviction of the defendant.”
(See, also, The State v. Volmer, 6 Kan. 379.)
It is clear that in this section the legislature took cognizance of the courts in this state in which violators of the pro,hibitory law can be prosecuted; and the motion to quash was properly sustained.
It does not appear that the want of the adverb “feloniously” in the accusatory part of the information to indicate'the grade of the offense was raised or considered in the district court. There have been many statutory modifications of common-law pleading, even as affecting criminal law, and it is not necessary to determine that question now. (But see In re Stevens, Petitioner, 52 Kan. 56, 34 Pac. 459; 22 Cyc. 330, 331, and Marshall’s Kansas Intoxicating Liquor Law, § 282.)
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injuries which the plaintiff sustained by being struck by the defendant’s automobile. The plaintiff recovered and the defendant, appeals.
The plaintiff was driving a single horse hitched to a buggy in which the plaintiff and her two children were riding. The defendant approached them from the rear. As he did so the plaintiff turned to the right. The traveled part of the highway was forty feet wide, and the plaintiff testified she turned clear out of the wheel tracks so as to give the defendant plenty of room to turn out. There was evidence that the automobile struck the buggy, threw the plaintiff out, and as she attempted to get up from the ground the automobile struck her in the back. The defense was that after turning to the right the plaintiff’s horse suddenly turned back into the road, that the automobile probably did not strike the buggy and did not strike the plaintiff, and that the plaintiff’s injuries resulted from her jumping out of the buggy. The jury returned the following special findings of fact:
“Q. No. 1 — Do you find that defendant was guilty of negligence or carelessness in the operation of his car? A. No. 1 — -Yes.
“Q. No. 2 — If you answer the foregoing question in the affirmative, state in what particular he was negligent. A. No. 2 — He failed to stop his car.
“Q. No. 3 — What, if anything, did defendant omit in the handling of his car that ordinary carefulness and prudence would require? A. No. 3 — Did not use his brake.
“Q. No. 4 — What, if anything, did defendant do in the operation of his car that was not ordinarily careful and prudent? A. No. 4 — He failed to turn to the left.
“Q. No. 5 — After defendant saw the huggy ahead of him did he slow down to a reasonable and proper speed under the circumstances? A. No. 5 — No.
“Q. No. 6 — Did defendant after sounding his horn keep his car under reasonable and proper control?. A. No. 6 — No.
“Q. No. 7 — Did defendant follow plaintiff out of the main track and strike her buggy while there? A. No. 7- — No.
“Q. No. 8 — Did plaintiff’s horse and huggy after turning out to the right, turn again to the left across the main road? A. No. 8 — No.
“Q. No. Id — Do you allow plaintiff anything for permanent injury? A. No. 10 — No.
“Q. No. 13- — Did defendant’s car strike plaintiff? A. No. 13 — Yes.”
The principal contentions of the defendant are that findings 7 and 8 are in his favor and that findings 7, 8 and 13 can not all be true. The argument is that the- plaintiff testified she turned to the right, clear out of the main track. If the defendant did not follow her out of the main track from which she had wholly departed, and the horse and buggy did not turn back across the main track, there could be no collision. The jury evidently considered the entire event. Believing the autmobile struck the buggy, the jury doubtless concluded the plaintiff’s observation and .memory of the distance she turned to the right were not exact and that she did not succeed in getting the rear of the buggy entirely clear of the right-hand wheel track of the traveled part of the road, although she believed and testified that she had done so. The jury were not bound to accept the testimony for the plaintiff as being verbally accurate and absolutely true, or else reject it entirely and accept the testimony for the defendant as absolutely true, and if the plaintiff in her testimony overestimated the distance she turned to the right she did not defeat her cause of action.
The court instructed the jury on the law of the road governing the management of vehicles when the driver of one behind another intends to pass the one in front. It is said there was no evidence warranting this instruction, and among other things it is said there was no evidence that the defendant desired to pass- the plaintiff. The facts and circumstances disclosed by the evidence were abundantly sufficient to establish such an intention, and it was proper for the court to instruct the jury concerning the respective duties of the parties should the jury conclude the case was one involving the passing of a vehicle in front of another by the one in the rear.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This action was brought by the administrator of Jennet Neil’s estate to recover from the estate of Daniel Neil certain assets of the estate of Jennet, and for an accounting.
Jennet Neil died testate in 1905, bequeathing a life estate in all her real and personal property to her husband, Daniel Neil, subject to five specific bequests of.$500 each — one to her husband, and four others. Three nominal bequests were also made, and the remainder, after her husband’s death, was to be sold and divided among her brothers’ and sisters’ children, and three other persons.
The husband, Daniel Neil, qualified as administrator and entered upon his official duties. He paid the four principal legacies of $500 each and filed receipts therefor with the probate court. He made no annual reports, and died in 1912 without a final settlement of Jennet’s estate. The plaintiff was appointed to succeed Daniel Neil as admihistrator, and he brought this action against the administrator of the estate of Daniel.
The defendant’s demurrer to plaintiff’s petition was sustained, and this brings the case here.
The chief grounds of the demurrer urged by appellee are that the plaintiff has no legal capacity to sue, and that the petition does not state a cause of action.
Can the plaintiff maintain this action ? Whatever may have been the rule at common law, it seems clear enough that he can do so under our liberal statutes. (Gen. Stat. 1909, §§ 3445, 3459, 3461, 3544.)
Section 3445 of the General Statutes of 1909 reads:
“The executor of an executor shall have no authority, as such, to administer the estate of the first testator; but on the death of the sole or surviving executor of any last will, administration of the estate of the first testator, not already administered, may be granted,' with the will annexed, to such person as the court shall think proper to appoint.”
Section 3459 reads:
“When the sole executor or administrator shall die without having fully administered the estate, the court shall grant letters of administration with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the goods and estate of the dedeceased not already administered, if there is personal estate of the deceased not administered to the amount of twenty dollars, or debts to the like amount remaining due from the estate.”
Section 3461 reads:
“An administrator appointed in the place of - an executor or administrator who has resigned, been removed, or whose letters have been re voked, shall be entitled to the possession of all the personal effects and assets of the estate unadministered, and may maintain an action against the former executor or administrator and his sureties on the administration bond, and for all damages arising from the maladministration or omissions of the former executor or administrator.”
Section 3544 reads:
“When any executor or administrator shall die, resign, or be removed, or his letters revoked, without having fully administered the goods and estate of the deceased, a new administrator of the same estate shall be appointed.”
Many other provisions of the statute relating to the powers and duties of the executors and administrators (Gen. Stat. 1909, §§ 3436-3645), all in pari materia, are to this intendment and effect; and no legal distinctions or limitations can be made as to the rights of a substituted administrator on account of the cause of.the substitution, whether it was by the death, resignation, or removal of his predecessor.
In Toffler v. Kesinger, 80 Kan. 549, 102 Pac. 1097, the administrator who was appointed to succeed an administrator who had died without having completed the settlement of his testator’s estate recovered a judgment against the estate of the first administrator. Then he sued the surety of the first administrator, and that action was the gist of the appeal, for the judgment in the case against the first administrator’s estate was not appealed; but the discussion is instructive and harmonizes completely with the statutes quoted above and with appellant’s theory in the action at bar.
But it is urged that if this action can be maintained at all, it must be on the administrator’s bond. Not necessarily. That may come later. Presumably any judgment recovered by plaintiff will be paid out of the estate of Daniel Neil.
In Davis v. Clark, 58 Kan. 454, 49 Pac. 665, it was said:
“The liability of the administrator exists independently of the bond. . . . Our statute, however, gives the substituted administrator the right to maintain an action against his predecessor, as well as the sureties upon his bond.” (pp. 458, 459.)
In Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737, it was said:
“No good reason can be seen why the sureties on the executor’s bond should be required to answer in court and harassed with litigation until it has been determined whether default has been made by the executor, or whether there is any liability on the bond, by the tribunal specially provided to make such determination. If an accounting is had in the probate court, and the executor makes a complete and satisfactory settlement, and turns over to his successor all the property and assets of the estate in his hands and for which he is accountable, there will be no necessity for litigation with the sureties on the bond.” (p. 147.)
It seems clear, also, that the petition stated a cause of action. It is settléd law that where an administrator has been supplanted by another, the succeeding administrator is entitled forthwith to the unadministered assets. (Toffler v. Kesinger, 80 Kan. 549, 102 Pac. 1097.) And undistributed moneys are “unadministered assets” within our own precedents. (Musick v. Beebe, Adm’r, 17 Kan. 47, syl. ¶ 5; Surety Co. v. Piatt, 67 Kan. 294, 72 Pac. 775.) If this were otherwise, neither the administrator nor the probate court could ever discharge their duties and close up the estate of Jennet Neil.
It is next urged that by the will of Jennet, Daniel took the personal estate without limitation. -A fair reading of the will does not warrant such interpretation. Only the personal estate is involved in this lawsuit, but the will reads:
“I give, devise and bequeath my estate and property both real and personal as follows:
“That is to say, to my dear husband, Daniel Neil, during his natural life time and at his death the property to be sold and divided as follows:
“Among my brothers’ and sisters’ children, etc.
“I further bequeath the money on my notes and mortgages as follows:
“$500.00 to Daniel Neil, my husband.”
[Four similar bequests to other legatees follow.]
The specific bequest of money to Daniel negatives the contention that he was to have an absolute estate in all the personalty, .if, indeed, the text needs the aid of that argument. (See Chase v. Howie, 64 Kan. 320, 67 Pac. 822.) But a point is made that the will requires the property going to the remaindermen to be “sold” and divided. And it is urged that money could not-be “sold.” This reasoning is too subtle. The purpose of selling the property is to reduce it to money, for convenience and exactness in division, but the bequests must not fail nor be diverted because part of the personalty, or all of it, is already in cash ready for division.
Still another point raised is the statute of limitations. We fail to see its application. It is not apparent on the face of the petition. Daniel Neil was in custody of the assets as administrator and also as life tenant. His legal rights to. the assets in this dual capacity were so broad and comprehensive that it would have taken considerable ingenuity on his part to so breach his trust, with notice sufficient to bind the other-parties interested, as to start the running of any statute of limitations in his own behalf.
The judgment of the district court is reversed with instructions to overrule the demurrer and for further proceedings consistent herewith.
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The opinion of the court was delivered by
Porter, J.:
These actions, though tried in different divisions of the district court, have been consolidated here because they involve the same questions of law and substantially the same facts. The Wyandotte Coal & Lime Company brought both actions against the Wyandotte Paving & Construction Company to recover for materials furnished in paving certain streets in Kansas City, Kan. The construction company made no defense. The Southern Surety Company furnished the bond required by statute guaranteeing the payment for materials and was joined as defendant. Each case was tried without a jury, and judgment was rendered against the surety company which appeals.
Separate suits were brought because the materials were furnished under different contracts. In the first suit plaintiff claimed a balance due of $630.23. The surety company claimed to be entitled to a credit of $900, represented by a canceled check which it offered in evidence. In the second case plaintiff sued to recover a balance of $2198.14, and the only question involved in that case is whether the surety company is entitled to a credit of $600, which it claims was paid on the account.
The Wyandotte Paving & Construction Company and the Raekliffe-Gibson Construction Company each entered into contracts with the city of Kansas City for the improvement of streets. Mr. Rackliffe was president of both companies, and Gracia Knowles was secretary-treasurer of the RaekliffeGibson company and also secretary of the Wyandotte Paving & Construction Company. Mr. Fenton was the superintendent of both companies and had charge of the work of improving the streets under the various contracts between the city and each company. It also appears that the principal office of both construction companies was in the same suite of rooms in St. Joseph, Mo.
The question of law in the first case turns upon the proper application of a check for $900 which the surety company claims was paid by the Wyandotte Paving & Construction Company, and. wrongfully credited by plaintiff to the account of the Raekliffe-Gibson Construction Company. Mr. Mer stetter, the general manager of the plaintiff company, after testifying to the value of the material furnished in that case, the credits given and the amounts remaining due, further testified that the Rackliffe-Gibson Construction Company was indebted to the plaintiff for material furnished in carrying out certain contracts not involved in these actions; that on January 23, 1914, he received from that company a check for $1000 with directions to apply it to the account of the Rackliffe-Gibson company; that he applied the payment as directed and deposited the check in the bank; that some days later the check was dishonored for want of funds, and he communicated by telephone with the offices of the. Rackliffe-Gibson company at St. Joseph and was assured that they would attend to the matter promptly. Also, that he talked about it to Mr. Fenton, and a few days later, February 2, Fenton met him in the street and said: “Here are two checks to take up the check for $1000”; that one of the checks was for $100 and the other for $900, both payable to the Wyandotte Coal & Lime Company; that they went immediately to the bank, where he indorsed the two checks, and the dishonored check was surrendered to Fenton; that he made no change on the books, but allowed the original credit of $1000 to the Rackliffe-Gibson company to stand as it was given the day the $1000 check was received.
It appears that the Southern Surety Company, which was surety on the bond of the Wyandotte Paving and Construction Company in the Georgia avenue and Yecker avenue contracts, had arranged with the Commercial National Bank that no checks drawn by the Wyandotte Paving & Construction Company would be cashed without the countersignature of the surety company. Both the $900 and $100 checks, which were produced at the trial, were countersigned by the surety company and bore the words “Georgia Avenue Account” and “Yecker Avenue Account,” respectively. It is the contention of the surety company that these memoranda and the countersignature of the surety company were notice to the plaintiff that the checks were to be applied as payments upon the particular contracts therein referred.to. Mr. Merstetter testified, however, that he did not see any countersignature on either check; that he was not aware at that time the Southern Surety Company was surety for the Wyandotte Paving & Construe tion Company on either the Georgia or Yecker avenue contracts ; that he did not see the memoranda and that his attention was not directed to them. His testimony was that he had no knowledge of any arrangement between the bank and the Southern Surety Company with respect to the manner in which the checks should be signed.
The circumstances under which these two checks were received are corroborative of the testimony of Mr. Merstetter to the effect that his attention was not challenged to the manner in which they were indorsed nor the memoranda upon them. They were handed to him on the street, and with the statement of the manager of the Rackliffe company that they were given to take up the check that had been dishonored. He and Fenton went at once to the bank for that purpose; all that was necessary for him to do was to place the indorsement of his company on the checks and to see that the dishonored check was taken care of. It was the natural thing for him to regard the incident as closed and to allow the account on the books to remain as though the first check had been paid when it first reached the bank. Moreover, it appears that when the check for $900 was given the amount due on the Yecker avenue contract was only about. $600. All these circumstances were doubtless given weight by the trial court in finding generally in favor of the plaintiff.
Both paving companies were indebted to the plaintiff for material. Both were represented by the same superintendent and manager. That the two checks.were signed by the Wyandotte Paving & Construction Company, even if he had noticed the fact, was not, we think, sufficient as a matter of law to put Merstetter upon inquiry, in view of all the circumstances, and particularly in view of the fact that both companies were managed and conducted by the same officers. The manager of the company which had given the dishonored check informed him that the two checks were for the specific purpose of taking up the one that had been dishonored. We think that the general judgment in plaintiff’s favor must be sustained.
In the other case the surety company claims that the account sued upon should have been credited with the amount of two checks, one for $100 and one for $500. The check for $100 is one of the two checks which plaintiff claims was given for the purpose of taking up the $1000 dishonored check. That has been disposed of in the other case and need not be again considered. The check for $500 was one which plaintiff credited to the account of the Rackliffe-Gibson company, and in addition to being drawn in the same way in which the other two cheeks were drawn, it bore in one corner the word “cement.” Mr. Merstetter testified that he credited that check according to specific directions received in a letter, which was introduced in evidence and which reads:
“As per-your wire of today we have sent a check payable to your order for $500. Kindly apply this on your old account and we will send you another check very shortly. Rackliffe-Gibson Construction Co.,
By Gracia Knowles, Secy, and Treas.”
As contended by plaintiff, there was no street or contract for paving to which the word “cement” could apply, nor was there a separate account kept by plaintiff for cement furnished. ' It further appears from the testimony of Mr. Merstetter that he never noticed the memorandum “cement” on the check, and merely followed the directions contained in the letter and credited it to the account of the Rackliffe-Gibson company.
There is another point suggested which we think applies with equal force to both claims of the surety company, which is, that there is no privity of contract between the plaintiff and the surety company. The latter was not the owner of the fund out of which the payments were made. The right of appropriation of payments belongs exclusively to the debtor and creditor, and a third party can not be heard to complain of a different appropriation from that agreed upon by the debtor and creditor. The surety company had an arrangement with the bank that it should have the privilege of countersigning checks given by the Wyandotte Paving & Construction Company. But we are at a loss to understand how the plaintiff, who was a stranger to that transaction, could be bound by it. It was aware that the two paving companies were managed by the same officers, and when it was offered a check by the manager of both companies and told to apply the check to the satisfaction of a debt owing to it from one of them, it. was not obliged, although the check was signed by the other company, to, inquire by what authority the company making the payment used the check of the other.
Since, under all the circumstances shown by the evidence in these cases, the Wyandotte Paving & Construction Company made no direction to apply the checks in controversy to its own indebtedness, and on the contrary permitted its own officers to apply them to the payment of the debts of the other company, the surety has no right to complain. In the language of Judge Story :
“This right of appropriation is one strictly existing between the original parties; and no third person has any authority to insist upon an appropriation of such money in his own favor, where neither the debtor nor the creditor has made or required any such appropriation.” (Gordon v. Hobart, 2 Story, 243, 264, 10 Fed. Cas. 787, 794.)
“Third persons, such as guarantors, sureties, indorsers, and the like, secondarily liable on one of the debts, can not control the application of a payment by either the debtor or the creditor, and neither the debtor or the creditor need apply the payment in the manner most beneficial to such persons.” (30 Cyc. 1251, and cases cited in the notes.)
This is the rule applied in case of an ordinary accomodation surety; and certainly an insurance company engaged in the business of writing surety bonds for a compensation has no right to insist upon a more favorable one.
The judgments are affirmed.
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Per Curiam:
On November 6, 1915, the judgment of the district court in this case was reversed with direction to render judgment in defendant’s favor. (Kuter v. Bank, 96 Kan. 485, 152 Pac. 662.) An application for a modification of that order has been considered and the court is of the opinion that it should be allowed.
The judgment will be reversed and a new trial ordered with direction to permit amended pleadings to be filed and sucb additional parties brought in as may be necessary to the end that the court may finally determine in this action the right of the plaintiff to the fund in the possession of the bank.
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff asks for a writ of mandamus to A compel the auditor of state to draw a warrant in his favor against the “state grain inspection fee fund” in the custody of the state treasurer, pursuant to an appropriation item in “an act making appropriation to pay sundry claims against the state,” which took effect on March 19, 1913. (Laws 1913, ch. 61.) The item reads:
“Item 106. To L. M. Hicks, for money expended for traveling expenses while in employ of State Grain Inspection Department from February, 1909 to June 11, 1912, $384.60, to be paid out of the state grain inspection fee fund.”
The petition and answer alike show that the plaintiff was employed as a helper in the state grain inspection department at Kansas City from February, 1909, until June, 1912. His salary in 1909 and 1910 and until the enactment of chapter 199 of the Laws of 1911 was fixed by the statute at $60 per month. (Gen. Stat. 1909, § 3337.) There was no statute authorizing any allowance for expenses. Chapter 199 of the Laws of 1911, amending section 3337 of the General Statutes of 1909, pro vided that the chief inspector, subject to the approval of the grain-grading commission, might fix the salaries of his subordinates in any sum not in excess of the salaries prescribed by the older act. The lawful salary of the petitioner therefore continued to be $60 per month until he left the state’s service in 1912. The later act did not contemplate or provide for traveling expenses for such employees as the petitioner.
The auditor of state contends that the state owed the petitioner nothing for expenses, either legally or morally, at the time the legislature made the appropriation under which the plaintiff now claims. The auditor also calls attention to chapter 14 of the Laws of 1915, which purports to repeal the item under which the petitioner claims.
The auditor asserts that the “traveling expenses” for which the legislature provided in the appropriation item were only incurred by the petitioner between his home and his place of employment, both in Kansas City.
1. It is elementary law that the government of Kansas is conferred upon three coordinate departments — the legislative, the executive and the judicial. Each is supreme within its own sphere, subject only to our constitutional limitations. Neither can trench upon the field of the other. The legislature makes the laws. The executive, of whom the auditor of state is one of the most important officers, must execute and administer the laws. The function of the judiciary is to interpret, explain and to apply the laws to controversies concerning rights, wrongs, duties and obligations arising under the laws.
How far may an executive officer like the auditor of state look beneath the surface of a legislative enactment? His counsel cite some decisions to the effect that where there is no legal, equitable or moral claim upon the state’s bounty, an appropriation making a mere gift of money is void. The chief limitations upon the power of our legislature to dispose of public funds or other state property are these: (a) Free governments are founded by the people for their equal protection and benefit, and special privileges granted by the legislature may likewise be revoked by it. (Bill of Rights, § 2.) (5) Hereditary emoluments must not be granted. (Bill of Rights, § 19.) (c) Restrictions on change of salaries of con stitutional officers, members of the legislature and the judiciary. (Const., art. 1, § 15; art. 2, § 8; art. 3, § 13.) (d) The preservation and use of the school funds. (Const., art. 6, §§ 3-8.) (e) Limiting and regulating the state’s indebtedness. (Const., art. 11, §§ 5-7.) (/) “No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.” (Const., art. 2, § 24; art. 11, § 3.) (g) State funds can not be devoted to internal improvements. (Const., art. 11, § 8.)
Within these limitations, the control and disbursement of the revenues of the state are subject to the will of the legislature, unfettered by interference by the executive or the judiciary. And in scrutinizing this statute, we must proceed on the assumption that it is valid unless it contravenes some express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument. (Prouty v. Stover, Lieut. Governor, 11 Kan. 235; The State v. Weiss, 84 Kan. 165, 168, 113 Pac. 388; Winters v. Myers, 92 Kan. 414, 420, 421, 428, 140 Pac. 1033.)
2. Conceding that the legislature can not make a grant of funds to a private citizen where there is no legal, equitable or moral claim thereto (Winters v. Myers, supra; Loan Association v. Topeka, 87 U. S. 655, 664), who is to determine such question? In the old days, when special laws were frequently enacted notwithstanding the constitutional provision that “in all cases where a general law can be made applicable, no special law shall be enacted” (Const., art. 2, original § 17), it was said by the first chief justice of the state:
“Ewing, C. J. : . . . The legislature must necessarily determine whether their purpose can or can not be expediently accomplished by a general law. Their discretion and sense of duty are the chief, if not the only, securities of the public for an intelligent compliance with that provision of the constitution. Whether we could, in any conceivable case presenting a flagrant abuse of that discretion, hold a private law invalid as contrary to that provision of the constitution, we need not here decide, but we would certainly not hold such a law invalid merely because it would, in our opinion, have been possible to frame a general law under which the same purpose could have been accomplished.” (State of Kansas, ex rel. Johnson, v. Hitchcock, 1 Kan. 178, 185.)
In Beach v. Leahy, Treasurer, 11 Kan. 23, Mr. Justice Brewer, in discussing the challenged validity of a special law, said:
“It may be conceded that this is a special law. . . . It is evident, also, that the result could be accomplished by a general law. . . . Why this distinction was made we do not know, and there is nothing in the record to enlighten us thereon. We may imagine many reasons, but it is useless to speculate. It is enough . . . that there may have been good and sufficient reasons.” (pp. 26, 27.)
To the same effect were Hughes v. Milligan, 42 Kan. 396, 399, 22 Pac. 313, and The State, ex rel., v. Lewelling, 51 Kan. 562, 565, 33 Pac. 425.
Although the validity of special legislation may now be judicially reviewed under the amendment of 1906 (Const., art. 2, § 17; Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583), yet the general principle stated in the foregoing cases as to other matters within legislative control, and not thus hampered by a judicial review, is as potent and logical now as ever. The courts can not impeach the legislative discretion, neither can an executive officer. Paraphrasing the language of Justice Brewer, we must say it is enough that the petitioner presented to the legislature a bill for traveling expenses while in the service of the state, that presumably the legislative committee and the legislature considered the claim, found it reasonable and proper, and supported by some moral claim to the state’s justice, and regularly and lawfully ordained that it be paid.
If we might take judicial cognizance of the enormous area of Kansas City, the metropolis of this state, with its far-flung suburbs, its hundreds of miles of railroad switch tracks, sidetracks, and warehouse and elevator tracks, its public and private elevators towering to the sky, some of them at long distances from others, it would probably be no more difficult a task to convince us than it was to convince the legislature that it was not only proper but wise and economical for the petitioner in pursuing his business of grain inspection to use any reasonable and available means of transportation to reach the various places where his services were required. Apparently the legislature so determined, and its determination can not be gainsaid.
It must be obvious that if the theory of the auditor is correct, it would be bound to apply to all cases where public of fleers and their subordinates had incurred expenses not previously authorized by the legislature. Of course no officer, great or small, may lawfully obligate the state to pay any sum whatsoever unless there is a statute therefor, and the legislature in its discretion might refuse to compensate the state’s servants for any and all such expenses. But suppose the auditor of state, or the secretary of state or any one of the state’s official boards and commissions were dragged into a lawsuit, the expenses of which could not be borne by their limited contingent funds. Would it be said that, since the legislature had made no provision in advance for the payment of such expenses, and the officers and commissioners had accepted their official positions with their attendant advantages and disadvantages at a definitely fixed compensation, they could not afterwards be reimbursed by the legislature ? The case at bar is of little consequence, but the principle involved touches the fundamental sovereignty of the state.
Moreover, the legislature was not even technically giving away the state’s general funds when it appropriated this particular item. It decreed that it should be paid out of the grain inspection fee fund — a fund exacted from the owners of grain solely for the proper expenses of inspection, and not justifiably exacted from them for any other purpose.
3. And this presents possibly another question. The auditor suggests that there is no money in the grain inspection fee fund to pay this claim. We assume that this is because the books for the fiscal year ending June 30, 1915, have been closed, and that any balances then existing in that fund have reverted to the general revenue funds of the state. But the books were open when the petitioner filed- this action. That crystallized the status of the fund as of that date, and if there were moneys in the grain inspection fee fund at that time, the'elosing of the books will not bar the petitioner. There is no magic in bookkeeping. Books which have been closed in derogation of a lawful outstanding claim which had been provided for by the legislature must be reopened and the claim paid and the proper entries made to recite the pertinent facts.
4. Many objections are made by counsel for the petitioner to chapter 14 of the Laws of 1915, but it is needless to follow his somewhat abstruse and complicated philosophy. The con stitution plainly instructs the legislature as to its procedure when it deliberately sets out to amend or repeal a specific statute or a section of a statute. Of course, when the legislature is legislating directly on any subject, it may close its eyes, and frequently does, to all earlier legislation, and a later act, as the last expression of the legislative will, will supersede and repeal by implication all inconsistent earlier legislation. But when the legislature has a direct and special purpose in view, as it had when it attempted to revoke and expunge item 106 in the act of 1913, it was bound to amend the section in which it was incorporated. This it could only do by rewriting the section to suit its determination. In congress, and perhaps in some of the states, the method of repeal attempted here would be valid. It is not so in Kansas. Article 2 of section 16 of the constitution of Kansas provides:
“No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
The section of the act carrying the item appropriated to the petitioner (Laws 1913, ch. 61, § 1) contains many matters which the legislature of 1915 had no intention to meddle with. Therefore the only way to eliminate the item appropriated for petitioner was to rewrite the section. So says the constitution, and consequently the act of 1915 is plainly, palpably and utterly void.
The writ is allowed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for injury to himself and to his automobile, caused by a collision with one of the defendant’s cars. The defendant appeals.
The' yard of the Uncle Sam Oil Company fronts on the east side of Adams street in Topeka, on which street is a switch track of the defendant and a track of the Missouri Pacific Railway Company. The oil company’s buildings and yard are about eight feet from the defendant’s track. Because of a stone wall and buildings, it is impossible to see from the inside of the yard north or south along the defendant’s track. Such a view can not be had until one is standing in the street in front of the building and within eight feet of the track. The plaintiff had gone to the yard for gasoline over a dozen times. Just prior to the accident he had his tank filled with gasoline and started to drive slowly out of the yard, across the defendant’s track. As he approached the gate, going west, he looked but could not see either north or south because of the buildings. He listened and did not hear any engine or cars. From the front end of his automobile to where he sat the distance was about eight feet. He could not see along.the track until the front end of his automobile was where a passing car 'would strike it. He did not stop nor get out of his automobile to ascertain whether or not there was danger. Mr. Allen, one of the Uncle Sam Oil Company’s employees, went outside the building to see if there was danger, at the same time the plaintiff started to go out with his automobile. When Mr. Allen got outside he saw a Santa Fe switch engine pushing two freight cars from the south. He immediately called to the plaintiff to “Look out!” and signaled to the trainmen to stop. At the same time the plaintiff’s car came through the doorway approaching the defendant’s track. A brakeman on the car immediately signaled the engineer,, who at once applied the emergency brake, and the cars were stopped after running from ten to twenty feet. The plaintiff heard Allen’s call and set the brakes as he approached the gate, but did not understand what the call was for and went ahead. Then through the crack between the gate post and the building to his left he saw the cars coming, and stopped the automobile. It was caught by the stirrup of the first car, dragged about ten feet, and damaged. The plaintiff was bruised. The engine and cars were coming down grade without steam pressure, moving about four miles an hour. The engine bell was not ringing. No whistle had been sounded.
The only question in the case is, Was the plaintiff, as a matter of law, required to get out of his automobile and ascertain whether or not an engine or cars were coming?
In Jacobs v. Railway Co., ante, p. 247, 154 Pac. 1023, this court said:
“It has been held that it is the positive duty of the driver of an automobile to stop, look and listen before crossing railroad tracks. . . . On the other hand, it has been held that the driver of an automobile is not under all circumstances as a matter of law required to stop before crossing a railroad track. . . . This state follows the rule last stated.” (p. 251.)
In Railroad Co. v. Brock, 64 Kan. 90, 67 Pac. 538, in the opinion written by Chief Justice Doster, this court said:
“The cases are rare indeed in which the question of the obligation of a traveler about to undertake the crossing of a railroad-track to stop in order the better to employ his senses of sight and hearing should not be submitted to the jury. There may be cases, possibly, in which none of the evidence tends to show that it would have been the part of wise caution to stop, and there are occasionally cases in which the evidence proves without doubt that the traveler should have stopped. In the latter class the obligation to stop must be declared as a matter of law by the court. (Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472.) In all other cases we think the question of the plaintiff’s justification in omitting the precaution should be submitted to the jury.” (p. 92.)
A part of the opinion in Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558, is:
“Findings were made to the effect that the position of one of the freight cars obscured the view of the track so that the front of the automobile was on the track before the driver was able to see the engine. In somewhat similar situations it has been held that the question whether the exercise of due diligence required the traveler to stop, as well as to look and listen, is a question for the jury. ... In exceptional cases the court has declared the failure to stop to be negligence as a matter of law.” (p. 55.)
In C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462, in the opinion by Valentine, J., this court said:
“W'e think the judgment of the court below must be reversed. In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and if dust should temporarily obscure his view, to wait until the dust shall pass away before he attempts to erpss.” (p. 485.)
This was quoted in Butts v. Railway Co., 94 Kan. 328, 331, 146 Pac. 1142. The syllabus to Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472, reads:
“When a traveler on a country highway comes to a railway-crossing with which he is familiar, knowing that a train is about due at that point and liable to pass at any time, it becomes his duty as an act of ordinary prudence to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing unavailing because of preventing noises, it becomes 'his duty, as a further act of ordinary prudence, to stop in order better to enable him to look and listen before entering upon the crossing; and in such case, if by stopping he can see or hear the approaching train, but fails to do so, his negligence in such respect should be declared as a matter of law, and not left to the determination of the jury as a question of fact.”
This was followed in Railroad Co. v. Mercer, 61 Kan. 736, 60 Pac. 735; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Railway Co. v. Moore, 10 Kan. App. 510, 63 Pac. 458. In Railway Co. v. Jenkins, 74 Kan. 487, 87 Pac. 702, it was held that a traveler upon a highway should have stopped to look before driving his team upon a railway crossing. The syllabus in that case when it was a second time before this court (79 Kan. 17, 98 Pac. 208) reads:
“The rule applied that if one about to cross a railroad track voluntarily creates such conditions that he can not by looking without stopping see an approaching train in time to prevent a collision he assumes the additional duty to stop and look, if by so doing he can protect himself.”
“A traveler whose deafness prevented him from hearing the warning signals of an approaching train at a dangerous crossing with which he was familiar, drove upon the track and Was struck by the train and injured. His failure to stop and look from a position where he could have seen the train in time to avoid the injury is contributory negligence which will prevent his recovery in an action against the railway company.” (Butts v. Railway Co., 94 Kan. 328, syl., 146 Pac. 1142.)
A pedestrian is required to be diligent in looking out for his own safety in crossing a railroad track, but his duty is not very great to avoid running into a passing engine or train because of the danger of injury to those on the engine or train. The driver of a team of horses hitched to a vehicle is under the same duty to look out for his own safety as is the pedestrian. It is his duty to exercise some care for the safety of those riding on a .train. The driver of an automobile must exercise care for himself, and because of the character of the machine that he is driving — a heavy steel structure, dangerous to others — he must exercise some degree of care for the safety of those rightfully traveling on a railroad train when he is about to cross the track. His machine is easy of control. It will stand where he leaves it. It will not get frightened. If by his negligence he should derail the train he would be responsible to passengers injured, even though the men in charge of the train were guilty of negligence, if the rule applied to a passenger in an automobile when the driver of the automobile is guilty of negligence is applied to passengers on a train. Under the circumstances surrounding this case, the plaintiff, being unable to see the engine and cars on the track until his machine was in a place of danger, was as a matter of law required to stop his automobile and see whether there, was an engine or cars coming before he drove his automobile on the defendant’s track.
The judgment is reversed and judgment is directed for the defendant.
Johnston, C. J.,
is of opinion that the evidence in the case does not warrant the court in holding as a matter of law that the plaintiff was guilty of contributory negligence and therefore dissents from the order directing judgment for the defendant.
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The opinion of the court was delivered by
Burch, J.:
Mrs. Cooper sued Mrs. Seaverns for damages resulting from slander. After a trial occurring several years later, at which the jury disagreed, the defendant amended her answer by pleading as a set-off a cause of action for slander resulting from words spoken by the plaintiff. At the next trial the jury found both women guilty, assessed the damage of each at $1000, and returned a general verdict in favor of the plaintiff for “no dollars.” Special findings of fact were also returned. The court granted the defendant’s motion for a new trial. The plaintiff appeals and the defendant asks that certain rulings of the court be reviewed.
The motion for a new trial contained the usual grounds. The court did not state on the record its action respecting each ground separately but entered a general order sustaining the motion. Matters outside the record can not be considered (Mason v. Harlow, 92 Kan. 1042, 142 Pac. 248, and authorities cited in the opinion) and the case falls within the general rule relating to the discretion of trial courts in granting new trials.
The plaintiff contends that a cause of action for slander can not be used as a counterclaim in an action for slander. It maybe used as a set-off. (Civ. Code, § 100.) The only present limitation upon pleading a set-off is that the set-off must be a cause of action for the recovery of money and must be pleaded in an action for the recovery of money only.
The plaintiff further contends that the defendant’s cause of action was barred by the statute of limitations when first pleaded. The answer to this contention is found in section 102 of the civil code, which reads as follows:
“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.”
A cross-demand is nothing more than a cause of action which one party might have used as a set-off or counterclaim if sued by the other.
The defendant assigns as error the overruling of her demurrer to the plaintiff’s evidence. The court is of the opinion that the questions of what words were spoken and when they were spoken were properly left to the jury to determine.
The jury were instructed that recovery might be had if the language charged in the petition, or language of identical import or substantially the same, were uttered. Many decided cases hold that the identical words must be proved. To do this is to sacrifice substance to form. Words are important only as vehicles of meaning. If the very slander be established by proof of substantially the language charged, that is sufficient, and that is the thought conveyed to the jury by the words of the instruction.
There appears to have been no legal necessity for reading to the jury the'former testimony of a material witness, the witness having been within reach of process. The findings of fact returned by the jury have not been considered because the court set all of them aside.
The foregoing covers all questions which may be material at another trial should the parties persist in litigation which was commenced in 1907 and was before this court six years ago. (Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
In a petition for a rehearing the plaintiff complains of the failure of the opinion already filed to refer to his contention that the trial court erred in giving a particular instruction. This instruction was to the effect that the verdict should be for the defendant if the jury found that there was an agreement that the plaintiff was to receive compensation for his services in some other form than a commission, arid that he had received such other compensation. It is objected to on three grounds: (1) as inconsistent with the claim that the services were gratuitous; (2) as inadmissible under a general denial; and (3) because under it a verdict for the defendant might have resulted from six jurors believing the services to have been rendered without charge, while the other six believed they had been paid for according to a special contract. We think all the objections untenable. The plaintiff’s theory was that there was no express agreement as to the amount he was to receive for his services, and therefore that he was entitled to their reasonable value. The defendant could without inconsistency endeavor to meet this by showing a special agreement ■covering the matter, whether it was that the services were to be literally gratuitous, or that they were to be regarded as compensated by some advantage he had received in his other dealings with the plaintiff, so that he was to receive no additional payment. As was intimated in the original opinion, the question whether, under a general denial, the defendant should have been permitted to prove a special agreement as to the character of the plaintiff’s compensation, is substantially the same as whether proof should have been allowed of an understanding that they were to be gratuitous. The ruling of the trial court in that respect, whether technically correct or not, is regarded as nonprejudicial, because it does not appear that the plaintiff was taken by surprise by the defense presented, or that the state of the pleadings in any way hampered him in meeting it. No error was committed in instructing that a verdict for the defendant might be rendered upon either one of two theories. By submitting special questions the plaintiff could have guarded against such a verdict being the result of some .-jurors accepting one theory and the rest the other. It often happens that a party to litigation may prevail upon the establishing of any one of several allegations, and a general verdict can not disclose whether the jury were united with respect to any particular one of them. That can be determined, where desired, by the submission of special questions. (Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156.) No such questions were submitted, nor was any instruction asked regarding the matter;
The petition for a rehearing is denied.
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The opinion of the court was delivered by
Larson, J.:
The State of Kansas appeals the trial court’s ruling denying the State’s motion to set aside an agreed nunc pro tunc order which changed Russell A. Vanwey’s 1992 sentence from consecutive to concurrent. We hold the trial court erroneously refused to set aside its nunc pro tunc order, jurisdiction did not exist for a nunc pro tunc order to be issued, and the original sentence remains in full force and effect.
Facts
On March 26, 1992, Vanwey pled guilty to charges of an aggravated weapons violation, K.S.A. 21-4202- (Ensley 1988), a class E felony; criminal trespass, K.S.A. 21-3721 (Ensley 1988), a class B misdemeanor; and intimidation of a witness, K.S.A. 21-3832 (Ensley 1988), a class B misdemeanor.
Vanwey was sentenced on May 4, 1992, to 1 to 5 years’ imprisonment for the aggravated weapons violation, with said sentence to “run consecutively with any other prior felony sentences not suspended for which the Defendant was on parole at the time of this offense.” The sentence for trespassing was a jad term in the Atchison County Jail for 6 months, to run concurrent with the felony charge, and the intimidation of a witness sentence was 1 year in the Atchison County Jail, again concurrent with the previous sentences.
Over 3 years later, in August 1995, Vanwey filed a pro se motion asking for credit for time served. A hearing was held with the motion only briefly discussed, but Vanwey’s counsel stated; “It is my intention to try and convert the consecutive to concurrent pretty soon.” .The county attorney indicated that if a sentencing mistake had been made, the State would not object to a nunc pro tunc order correcting a clerical error.
Subsequently, Vanwey’s counsel moved for a nunc pro tunc order requesting amendment of the May 1992 sentence to reflect that the sentence was concurrent with, rather than consecutive to, prior sentences for which defendant was on parole at the time of this offense.
The matter was twice set for hearing, and both times continued, but ultimately, with other counsel from the initial counsels’ offices appearing, a nunc pro tunc order was submitted. With the apparent agreement of both counsel, the trial court signed the order which provided the sentence of May 4,1992, shbuld'be amended to read as follows: “said sentence to run concurrently with any other prior felony sentences not suspended for which the Defendant was on parole at. the time of this offense.”
Sometime after learning of the nunc pro tunc order, a victim wrote the Disciplinary Administrator and the Attorney General questioning the propriety of the Order and representations of Vanwey s counsel. The Disciplinary Administrator’s office requested a legal opinion from the Attorney General, who responded that “after reviewing the evidence in this case, there does not appear to be any difference between the oral sentence imposed by the court on May 4th, 1992 and the journal entry which memorialized the sentence imposed by the court.” The opinion letter also pointed out the concurrent sentence violated the mandatory consecutive provisions -of K.S.A. 1991 Supp. 21-4608; the court did not have jurisdiction to modify the sentence under K.S.A.1991 Supp. 21-4603(4)(a), as more than 120 days had elapsed since Vanwey’s sentence was imposed; and the nunc pro tunc order was riot proper under K.S.A. 22-3504(2), which allows for the correction of clerical errors..
On July 24,1996, the State moved to set aside the nunc pro tunc order on the basis that the modification had been misrepresented as necessary to correct a clerical error and that the court had no jurisdiction to modify the sentence. The trial court ruled that relief would have to be through appeal and denied the motion. .
The State appealed this ruling to the Court of Appeals. The case was transferred to us pursuant to K.S.A. 20-3018(c).
Arguments and authorities
We first acknowledge the motions to dismiss filed by Vanwey, contending that appeals by the State are not permitted under circumstances as here exist. This contention has no merit. In State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994), the State appealed the trial court’s order allowing the defendant to serve his 90 days of imprisonment by house arrest. After issuing a show cause order requesting the State to establish the jurisdictional basis for the State’s appeal, we held that jurisdiction existed and stated:
“The State characterizes its appeal as whether the sentence imposed by the district court is illegal. This court has previously accepted an appeal by the State alleging an illegal sentence, albeit without explaining the jurisdictional authority for our review of the sentence imposed. See State v. Keeley, 236 Kan. 555, 694 P.2d 442 (1985). We note this court has general statutory jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 1993 Supp. 60-2101(b). The court also has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504. We have jurisdiction to consider the State’s appeal.” 254 Kan. at 929-30.
In State v. Ruff 252 Kan. 625, 628, 847 P.2d 1258 (1993), we implicitly recognized our authority to review an illegal sentence, which we defined as
“either a sentence imposed by á 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. Frazier, 248 Kan. 963, Syl. ¶ 4, 811 P.2d 1240 (1991).”
In Ruff, the sentence appealed from was properly entered. As there was no other statutory authority for the State’s appeal, we therefore concluded that we did not have jurisdiction over the issue raised by the State on appeal.
In this case, exactly the opposite situation exists. If we determine the trial court lacked jurisdiction to enter the nunc pro tunc order which altered Vanwey’s sentence, we must conclude the modified sentence is illegal. We, as do trial courts, have jurisdiction to correct an illegal sentence. We may exercise jurisdiction over this appeal.
All of the questions involved in this appeal are matters of law over which our review is unlimited. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
The question appealed from is whether the trial court erred in refusing to set aside the nunc pro tunc order. However, pur analysis ultimately leads to the question of whether the trial court possessed jurisdiction to grant the nunc pro tunc order in the first place. If the court lacked such jurisdiction, the failure to set aside the order is clearly erroneous. Under the authority of K.S.A. 22-3504 and K.S.A. 60-2101(b), as announced in Scherzer, we always have authority to vacate an order to assure that it is just, legal, and free from abuse. If the trial court lacked jurisdiction to grant a nunc pro tunc order, we may vacate that order regardless of whether the question before us is a direct appeal of the order or an attack on the order through the failure to .grant a motion to set aside the order.
It is apparent the journal entry modification here does not fall within those allowed by K.S.A. 22-3504(2), which grants authority for a court to correct clerical errors. This statute reads: “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.”
The record clearly shows the nunc pro tunc order did not correct any omission or clerical error. What the order actually did was change a statutorily directed consecutive sentence properly entered into a concurrent sentence without any basis or justification. The record reflects the sentence entered by the court in May 1992 was correctly memorialized in the journal entry. Under the facts of this case, there was nothing the trial court could correct pursuant to 22-3504(2). In State v. Thomas, 239 Kan. 457, 720 P.2d 1059 (1986), we held the trial court did not err in denying defendant’s motion to correct sentence when there was no error in the judgment that could have been corrected under K.S.A. 22-3504(2). Such should have been the case here.
Nor does the agreement of the parties and the presentation of an agreed order to the trial court bring life into an otherwise invalid action. In State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387 (1991), the Court of Appeals held the defendant’s agreement with the State to extend probation beyond the maximum provided by law had no legal effect. The Grimsley court stated: “Pursuant to 22-3716(1), revocation must occur during the probationary term. This is a jurisdictional requirement which cannot be waived by estoppel or agreement of the parties.” 15 Kan. App. 2d at 444.
In State v. Christensen, 166 Kan. 152, 156, 199 P.2d 475 (1948), we said: “[N]o stipulation of the parties or consent thereto by the court can change the statute or affect its applicability.” Such is equally true here. We conclude that parties agreeing to a nunc pro tunc order cannot invest the court with the power to change a sentence if the court otherwise lacks jurisdiction to do so.
It is clear that the trial court could not change Vanwey s sentence from consecutive to concurrent through a nunc pro tunc order, but we also must ascertain if it otherwise had power to do so. The statute in effect at the time of Vanwey s crime, K.S.A. 1991 Supp. 21-4603(4)(a), states in applicable part:
“Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.”
In State v. Saft, 244 Kan. 517, Syl. ¶ 1, 769 P.2d 675 (1989), we said:
“The sentencing of a criminal defendant is strictly controlled by statute in Kansas. The time limits of the statutes are jurisdictional. District courts do not have jurisdiction to modify a sentence pursuant to a motion filed after 120 days from the original imposition of sentence, barring those exceptions stated in K.S.A. 21-4603(3).”
Although subsequent decisions regarding 21-4603 have discussed situations where appeals were filed following sentencing, see State v. Waterbury, 258 Kan. 614, 907 P.2d 858 (1995); State v. Smith, 254 Kan. 16, 864 P.2d 1208 (1993); and State v. Hervey, 19 Kan. App. 2d 498, 873 P.2d 188, rev. denied 255 Kan. 1005 (1994), our decisions have uniformly held that after the 120-day modification period expires, a modification may not be entered because the jurisdiction to do so no longer exists, even if circumstances would have previously justified the modification.
In addition to the fact that the trial court lacked jurisdiction to modify Vanwey’s 1992 sentence, at the time of Vanwey s crime, K.S.A. 1991 Supp. 21-4608(3) provided:
“Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole or on conditional release 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.)
The sentencing court was clearly required to order Vanwey’s sentences to run consecutive to his prior sentence for which he was on parole. It did so. As such, the record reveals that the trial court entered the correct mandatory sentence.
Vanwey’s argument that we have no jurisdiction to modify his sentence because it is now running concurrently and the imposition of a consecutive sentence would be a harsher sentence has no merit. This contention was refuted in Barr v. State, 8 Kan. App. 2d 173, 175, 651 P.2d 975, rev. denied 232 Kan. 875 (1982), where the court declared: “[T]he trial court’s reinstatement of a legally entered sentence to correct an illegal sentence modification does not constitute double jeopardy.” A court has authority to reinstate an original sentence when a subsequent modification is illegal.
Based on the clear case law and statutory provisions, we reverse the trial court’s refusal to set aside its nunc pro tunc order. We find the nunc pro tunc order was entered without jurisdiction. We order the reinstatement of the trial court’s May 4,1992, sentence.
Reversed and remanded with instructions.
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The opinion of the court was delivered by
Six, J.:
This case addresses the standing of natural grandparents to assert visitation rights under K.S.A. 38-129 after the minor child, who had been adjudicated a child in need of care, was adopted by foster parents. Barbara V. and James W. Sowers, parents of the natural mother, T., petitioned for grandparent visitation of A.E. following the termination of T.’s parental rights to A.E. and the adoption of A.E. by Peter and Toula Tsamolias. The Sowers are raising B.E., the sister of A.E. The district court granted the Tsamolias’ motion to dismiss, and the Court of Appeals affirmed in Sowers v. Tsamolias, 23 Kan. App. 2d 270, 929 P.2d 188 (1996). We granted the Sowers’ petition for review under K.S.A. 20-3018(b) to resolve the conflict between this case and In re Adoption of J.M.U., 16 Kan. App. 2d 164, 819 P.2d 1244, rev. denied 250 Kan. 805 (1991).
The issue is whether under K.S.A. 38-129, the Sowers have standing to seek grandparent visitation of A.E. We hold they do not. We affirm the Court of Appeals and the district court; however, we disapprove of J.M. U. and accordingly modify the Court of Appeals’ opinion in this case.
The Court of Appeals’ Opinion
The Sowers argued before the Court of Appeals that under K.S.A. 38-129, they were entitled to seek visitation and, alternatively, that the Tsamoliases were equitably estopped from denying them visitation. The Court of Appeals found no merit to these arguments. The Sowers do not seek review of the equitable estoppel issue.
In affirming the district court, the Court of Appeals determined that under K.S.A. 59-2118: (1) the adoption of A.E. created a new legal status of parent and child for the adoptive parents and adopted child; (2) the child no longer remained the child of its natural parents; (3) the child has new parents and new grandparents as well; and (4) whether the natural grandparents can continue contact is left solely to the discretion of the adoptive parents. We agree. Because the Sowers’ daughter, T., was a person whose parental rights had been terminated, the Sowers had no standing to seek visitation under K.S.A. 38-129. 23 Kan. App. 2d at 277. We acknowledge that a relationship could exist between the child and a biological grandparent at the time of the adoption. However, after A.E.’s adoption, A.E. was no longer the grandchild of the Sowers.
The Sowers contend that K.S.A. 38-129 extends visitation rights to grandparents, notwithstanding adoption, the only statutory criteria being that such visitation is in the child’s best interests and that a “substantial relationship” exists between the child and the grandparents. The Sowers also argue that termination of parental rights does not terminate grandparents’ rights. According to the Sowers, the Court of Appeals ignored the plain language of K.S.A. 38-129 and placed undue importance on legislative intent expressed in the minutes to the committee hearings preceding the amendments to K.S.A. 38-129. They further contend that the Court of Appeals’ decision here conflicts with J.M.U. We agree there is a conflict.
We determine that the Court of Appeals’ opinion reached the correct conclusion. We adopt the opinion, except as modified by our disapproval of J.M.U.
J.M.U.
In J.M.U., the paternal grandparent seeking visitation under K.S.A. 38-129 was the mother of the child’s deceased father. J. M.U.’s language to the effect that death, divorce, or adoption were not mentioned as prerequisites to grandparent visitation rights was characterized as dicta by the Court of Appeals in this case. 23 Kan. App. 2d at 277. However, in J.M.U., both parents of the child were deceased at the time the grandmother sought visitation. There was no surviving parent who had remarried, or new spouse of a surviving parent who had adopted the child. Thus, K.S.A. 38-129(b) did not apply. The language in K.S.A. 38-129(b) establishes that adoption of the child by the spouse of the surviving parent will not defeat the natural grandparents’ visitation rights. However, that language leaves open the question of whether adoption by someone who is not the spouse of a surviving parent would defeat grandparents’ visitation rights, when those grandparents are the parents of the deceased parent of the grandchild, as in J.M.U.
We inquire rhetorically, if the failure to mention death, divorce, or adoption as prerequisites in K.S.A. 38-129(a) means that standing to seek grandparent visitation was intended to be extended to natural grandparents, regardless of adoption, then what purpose does K.S.A. 39-129(b) serve?
Although J.M.U. is factually distinguishable, the J.M.U. majority did not rely entirely on K.S.A. 38-129(b) in rendering its decision. Under the reasoning of the J.M.U. majority, the Sowers would have standing to seek visitation here because in the J.M. U. majority view, adoption would not make K.S.A. 38-129 inapplicable. The J.M.U. majority’s interpretation of K.S.A. 38-129 that adoption is no longer material to the existence of standing to seek grandparent visitation rights is disapproved.
In his dissent in J.M.U., Judge Rees relied on Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974), noting that it had never been overruled, modified, or distinguished by this court. “The fundamental holding in Browning was that ‘adoption proceedings . . . override 38-129.' ” 16 Kan. App. 2d at 171-72 (Rees, J. dissenting, quoting Browning). Judge Rees’ reasoning was adopted by the Court of Appeals in this case.
Valid policy reasons may exist for extending natural grandparent visitation to include post-adoption situations, especially in view of the fact that A.E.’s sibling is living with his natural grandparents, the Sowers. However, such an extension would be judicial legislation. “The legislature is the forum to entertain sociological and policy considerations bearing on the well-being of children in our state.” In re Hood, 252 Kan. 689, 694, 847 P.2d 1300 (1993). The 1984 amendment to 38-129 shows legislative intent to extend grandparents’ visitation rights. However, we find no evidence in the legislative history that the legislature intended to change the Browning holding that adoption law has priority over natural grandparent visitation rights (except in the fact situation set forth in K.S.A. 38-129[b]).
The decision of the Court of Appeals is affirmed as modified. The judgment of the district court is affirmed. We disapprove J.M.U.’s interpretation of K.S.A. 38-129.
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The opinion of the court was delivered by
Allegrucci, J.:
Vincent Altum appeals his conviction by a jury of one count of felony murder. The underlying felony count, abuse of a child, was dismissed by the district court following trial. Altum was sentenced to life imprisonment.
The defendant, Vincent Altum, lived with Toni Lynne Phipps and her 14-month-old son, Dylan Cox. When Phipps was at work, Altum, who was unemployed, watched Dylan. Phipps testified that when she arrived home from working the lunch shift on November 1, Dylan was asleep. Altum was in the living room of their apartment playing with his radio-controlled cars. After awhile Phipps heard Dylan moaning. When he was picked up, his neck was limp but his body was stiff and “he was moving his arms and legs like he was riding a bicycle.” Phipps testified that she immediately wanted to take Dylan to the hospital, but that Altum resisted on the ground that Dylan’s bruises might raise a suspicion of child abuse. At Altum’s direction, Phipps went instead to the store for Tylenol for Dylan. About mid-afternoon, Altum and Phipps took Dylan to the emergency room at Riverside Hospital.
Dr. Curtis Piekert first saw Dylan Cox at approximately 5 p.m. on November 1,1995, when Dylan arrived by ambulance at Wesley Medical Center. Because Dylan’s arms and legs flailed about in a nonpurposeful way, his eyes opened and closed absent any indication that he was seeing, arid his breathing was erratic, it was obvious to Dr. Piekert that the child’s brain was not functioning properly. Initial examination of Dylan revealed a number of bruises on his head, bruising on his left arm and scapula, many bruises on his buttocks, and red lesions on a hand and foot. The top of Dylan’s head was mushy, which indicated bleeding under the skin. A CT scan, which was made immediately, showed significant swelling of his brain, bleeding within the skull, and signs of bleeding within the brain.
A pediatric neurologist and a neurosurgeon were consulted for the purpose of determining whether Dylan’s condition could be improved by surgery. They concluded that he was very near death and that surgery was not indicated. His condition was rapidly deteriorating. Dylan was put on a respirator to keep him breathing. “[A]n all-out attempt” was made to save his fife by controlling the pressure in his brain.
A pediatric ophthalmologist examined Dylan and confirmed that he had extensive retinal hemorrhages in the backs of both eyes. Dr. Piekert explained that retinal hemorrhages often are associated with shaken baby syndrome, but may be caused by any trauma that causes a small child’s head to move suddenly in one direction and then in another.
At the hospital, Dr. Piekert interviewed Phipps. She told him that about 6:30 p.m. on October 30, approximately 48 hours before Dylan had been brought to the hospital, he had collided with Al-tum’s knee. Phipps was at work at. the time. When she got home after 10 p.m., Dylan seemed to be fine. Phipps told Dr. Piekert that Altum said Dylan had fallen back, then forward. Dylan was somewhat dazed but then roused and seemed to be all right. At trial, Phipps testified that she arrived home from work at 11 p.m. on October 30, that Dylan was asleep, and that she did not look closely at him until the following day, when she saw a bruise on his forehead.
Altum’s mother testified that she checked on Dylan the evening of October 30 after being told by Phipps that she was concerned about Dylan’s hitting his head on Altum’s knee. Altum’s mother further testified that when she saw Dylan on the morning of November 1, she advised Phipps and Altum to take him to the hospital because he had a purplish color above his eye. This was a separate injury, Altum’s mother believed, from the one she had seen bn October 30. Although she was in the apartment for 20-25 minutes on November 1, she did not take Dylan out of his playpen or examine him. Altum’s mother stated that Phipps was reluctant to take Dylan to the hospital.
Dr. Pickert testified that a blow to Dylan’s head by Altum’s knee would not explain many of the physical findings. Dr. Katherine Melhom, a pediatrician who was consulted in this case due to her expertise in evaluation of children suspected of being abused, testified that Dylan’s many bruises were not inflicted all at the same time, which indicated a pattern of abuse. With regard to the head injuries, Dr. Pickert was of the opinion that the child had received multiple blows to his head, some “of a very severe nature.” Dr. Pickert further testified that the injuries were not consistent with an accident that had occurred 48 hours earlier. Dr. Melhom agreed. Nor were the injuries consistent with Dylan’s being fine at times after the injury, as Phipps described. In particular, Dylan’s critical state upon arrival at the hospital and subsequent rapid deterioration led Dr. Pickert to conclude that the injury actually occurred close to the time medical care had been sought.
Altum gave a statement to the police on November 3. First, he answered the police officer’s question about Dylan’s running into his knee on Monday, October 30. Then, after initially denying that anything unusual had happened on Wednesday, November 1, Al-tum told the officer that he had hit Dylan. He said that while Phipps was at work he had become angry because Dylan would not stop crying. He hit Dylan in the head, knocking him to the floor. Then he hit Dylan three more times while he was on the floor. Altum told police that the first blow was
“with his right fist to the back portion of the top of Dylan’s head. The second blow he delivered with his left fist to the right side of Dylan’s head. The third blow was delivered with the right fist to the left side of Dylan’s head and the fourth blow was delivered with the right fist to Dylan’s forehead area.”
Altum told police, “I hit him hard.”
In spite of the medical efforts, Dylan’s brain continued to swell. On November 3, there was no evidence of brain function. The next morning, on November 4, the complete lack of brain function was confirmed. Dylan was pronounced dead, and the life support system was removed. An autopsy performed on'November 4 showed even more extensive bruising of the scalp than had been visible on the external surface of the head. The pathologist testified that it appeared that there had been “multiple impact[s] between that head and another object.” There were accumulations of blood between the skull and the surface of the brain. The brain was so swollen that it had forced its way downward into the neck through the hole at the base of the skull. The pathologist believed that Dylan showed signs of shaking injuries as well as impact injuries. In the opinion of the pathologist, “Dylan Cox died of blunt force injuries of the head and shaking injuries of the head.” He testified that the injuries were consistent with child abuse and inconsistent with the account of the child’s running into an adult’s knee. He further testified that four blows to Dylan’s head would explain some but not all the head injuries.
Dr. Melhom agreed with the pathologist’s conclusions. She testified that Dylan “had such severe bruising on the outside of his scalp, it was clear that there had to have been some type of impact to his head also and not just a shaking injury.”
Altum first contends that the jury should have been instructed on lesser included offenses. Altum filed proposed jury instructions that included instructions on the lesser included offenses of second-degree murder and involuntary manslaughter. During the instruction conference, however, defense counsel did not object to the trial court’s failure to instruct on lesser included offenses. Nor did defense counsel object to the verdict form, which permitted the jury only the choice between guilty and not guilty of first-de gree murder. The jury was instructed only on the offense of first-degree murder.
The established rule with regard to the need for lesser included offense instructions in felony-murder cases is that they are not required unless the evidence of the underlying felony is weak or inconclusive. State v. Thomas, 252 Kan. 564, 578, 847 P.2d 1219 (1993). In the present case, the underlying offense was abuse of a child. The jury was instructed that the essential elements of that offense were that the defendant intentionally tortured, cruelly beat, or inflicted cruel and inhuman bodily punishment on Dylan Cox, who was under the age of 18. In State v. Hupp, 248 Kan. 644, 809 P.2d 1207 (1991), relied on by the State in this appeal, the court considered the question of whether the trial court should have instructed on lesser included offenses in a felony murder case based on child abuse. Among the principles stated by the court in Hupp is that a specific intent to injure is not a required element of child abuse because “[i]t is the act of hitting and hurting that is made a crime.” 248 Kan. 644, Syl. ¶ 8. The court further concluded that “[c]hild abuse does not require more than one blow.” 248 Kan. 644, Syl. ¶ 9.
In Hupp, the evidence was entirely circumstantial. The court noted that circumstantial evidence may sustain a conviction of the gravest offense. 248 Kan. at 652. The evidence against Hupp showed that an otherwise healthy baby of approximately 4 months of age died from a head injuiy, that on previous occasions Hupp became angry in response to the baby’s crying and physically punished him, and that Hupp made statements which could have been interpreted as incriminating. Contrary evidence included Hupp’s trial testimony denying that he hit the baby and the mother’s testimony that she had hit the baby’s head on a doorknob. The mother’s testimony was subject to question because she was shown to have given different versions of her story at different times. No error was found in the trial court’s failure to instruct on lesser offenses.
In the present case, the medical evidence indicated that the child had been severely beaten and shaken. The type and extent of his injuries did not permit a reasonable conclusion that the injuries were accidentally inflicted. The only question was who had abused the child. Evidence indicating that it was Altum who beat and shook the child included Altum’s own statement. Although the defense conjectures that the child’s mother may have inflicted the injuries, evidence supporting this theory is inconclusive, at best. It consists primarily of instances of Phipps’ evading questions or giving inconsistent accounts. In addition, the jurors heard Altum’s mother contradict Phipps’ accounts and they heard the testimony of several witnesses about Phipps’ apparent lack of concern for her son’s condition. In other words, an unflattering picture of her general character and trustworthiness was painted. Evidence that would have linked her to the abuse that killed Dylan, however, is missing.
In support of his position that evidence that he abused Dylan was so inconclusive that instructions on lesser offenses were required, Altum notes that Dylan died from being beaten and shaken, but he admitted only beating him. This argument is self-defeating because beating a 14-month-old child is abuse, with or without shaking him. Moreover, there was testimony from which the jury could have believed that forceful blows could have caused the retinal hemorrhages typically seen in shaken babies. Altum also argues that he did not intend to cruelly beat the child. This argument has no merit because the only intent required for the offense of abuse of a child, as in this case, is the act of hitting. See Hupp, 248 Kan. 644, Syl. ¶¶ 7 and 8. Thus, evidence of the underlying felony of child abuse was not weak or inconclusive. Under the established rule in a felony-murder case, the jury need not be instructed on lesser offenses unless evidence of the underlying felony is weak and inconclusive. A defendant’s commission of the underlying felony supplies elements which must be absent from the lesser degrees of homicide, and a jury should be instructed only on lesser offenses of which the defendant reasonably may be convicted. In State v. Masqua, 210 Kan. 419, 425, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973), the following explanation was given:
“The state’s theory was that he had committed a murder while perpetrating a felony (forcible rape). Homicide while committing a felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree. It follows that if the appellant was present at the rape,, the mere participation in that felony would supply the elements of deliberation and premeditation, both of which must be absent from second degree murder and manslaughter. Either the rape was perpetrated by the appellant and he necessarily is responsible for the murder, or he was not present at the rape where the killing occurred and not guilty of any degree of homicide.”
In the present case, the State charged Altum with committing a murder while perpetrating a felony — abuse of a child. Applying the reasoning from Masqua in the circumstances of this case, if Altum perpetrated the child abuse, his role in that felony would supply the elements of deliberation and premeditation, both of which must be absent from second-degree murder and manslaughter. Thus, either the child abuse was perpetrated by Altum and he necessarily is responsible for the murder, or he did not perpetrate the child abuse where the child’s death was caused and is not guilty of any degree of homicide. In this case, the evidence of Altum’s committing the offense of child abuse was neither weak nor inconclusive, and there was no call for instructions on lesser degrees of homicide.
Altum next argues that his statement should have been suppressed on the ground that it was given in response to a promise. In the trial court, Altum filed a motion to suppress statements he had made to police. The stated grounds for suppression were that he had not been advised of his rights as required by Miranda and he had not waived those rights. At the hearing on the motion to suppress, an advice and waiver form bearing Altum’s signature was introduced by the State. Defense counsel then argued that there had been two objectionable interrogations. With regard to interrogation at police headquarters, defense counsel argued that even though the signed form showed that Altum had been advised of his rights, the statement he gave there should be suppressed because it was coerced rather than volunteered. The defense theory of coercion was that Altum made his statement on the strength of a promise by the police that they would vouch for his cooperativeness if he changed his story. It appears that the story he was supposed to change was that Dylan’s head collided with Altum’s knee on October 30. Defense counsel also argued that Altum had been questioned and had given information to the police at the hospital. The argument why the hospital interrogation should be suppressed remained the police officer’s failure to advise Altum of his rights.
The district court denied the motion. Noting that defense counsel’s argument went beyond the scope of the motion, the court stated:
“[T]he subject matter of the motion is' declarations against interest made to police officers once the investigation had focused on this particular individual, Mr. Vincent D. Altum.
“So that part of it, as I think we’re dealing with, those statements set out in State’s Exhibit No. 4 [the signed form], I’ll find that those were voluntarily, knowingly, intelligently made and that they are proper insofar as qualified to be proffered into evidence to have the jury consider their weight.”
The district court continued:
“I don’t know what the declarations at the hospital were. Since he was not arrested, Im going to go ahead for the purpose of this motion only and assume that they were not inculpatory, that they were made in the general course of business on a police matter trying to ascertain the facts.”
Although not expressly stated, it appears that the statement at issue oh appeal is the statement given by Altum at police headquarters. There, he told the officers that he used his fists to hit Dylan on the head while Phipps was at work on November 1. Altum contends that his statement “was improperly induced by the detectives’ declaration assuring Mr. Altum that he would not be able to tell the juiy and judge that Mr. Altum cooperated if he stuck to his story.”
Altum concedes that the statement was introduced into evidence at the trial without objection. The general rule followed by this court is as follows: “When either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.” State v. Milo, 249 Kan. 15, Syl. ¶ 2, 815 P.2d 519 (1991). Altum has failed to preserve the issue in this appeal. We note in passing that if the issue were properly before us, the inquiry would center on what the detective said to the defendant and how likely it would be to cause defendant to give a false statement. The detective’s testimony on what he said was. quoted in appellant’s brief as follows: “I told Mr. Altum if he stuck to that story, that he was going to look foolish in court, that I wasirt going to be able to tell the judge or the jury that he cooperated in the investigation.”
It is Altum’s contention that a promise was made to him and that the promise pertained to a consequence of the crime charged. There is an implication in the detective’s statement that he would not be able to tell the judge or the jury that Altum cooperated in the investigation if Altum stuck to the story that the only incident he knew of involving injury to Dylan was the collision with his knee. That implication is simply the positive aspect of the detective’s statement — that he would be able to tell the judge or the jury that Altum cooperated in the investigation if Altum gave additional information about how Dylan was injured. His being able to tell them is not a promise to do so, however. In State v. Johnson, 253 Kan. 75, 82, 853 P.2d 34 (1993), the court considered the voluntariness of a statement made after the interrogating officer told defendant he could not make any deals, he could only “ ‘go to the DA and tell the DA if the person is cooperating or not ... in the investigation.’ ” The court concluded that the officer “did not bargain with or promise the defendant anything by implication or otherwise.” 253 Kan. at 84. There would seem to be no measurable difference between the statement made to Johnson and the statement at issue in the present case.
Even assuming that a promise was implied, it seems highly unlikely that it would have produced any profound effect upon defendant. The benefit to defendant is negligible. Even if one assumes that cooperation in the investigation would be a factor favoring leniency in sentencing or would cause the judge and/or jury to view the defendant somewhat less disfavorably, defendant’s relief would be meager relative to the crime charged. In this regard, Altum argues that at the time the promise was made, the crime charged was child abuse, not murder. The statement was given in the afternoon of November 3, at a time when tests already had shown that Dylan’s brain had ceased to function. He was alive by virtue of the life-supporting machines to which he was connected. There was little, if any, hope for his survival. Thus; in effect, defendant’s assertion that “[h]e was ‘confessing’ only to hitting the child, not to murder” is meaningless.
Finally, Altum complains of the admission of six autopsy photographs. One of those photographs, State’s Exhibit 34, is not in the record on appeal. Examination of appellate counsel’s request for additions to die record shows that State’s Exhibit 34 was not included. “ ‘An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper.’ ” State v. Richardson, 256 Kan. 69, 84, 883 P.2d 1107 (1994) (quoting State v. Milo, 249 Kan. 15, Syl. ¶ 1, 815 P.2d 519 [1991]).
State’s Exhibits 35-39 are photographs of Dylan’s head at progressive stages of the autopsy. The rule governing admissibility of photographs of this kind recendy was stated in State v. Sutton, 256 Kan. 913, Syl. ¶ 3, 889 P.2d 755 (1995):
“The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.”
In the present case, Dylan’s death was attributed by the pathologist to traumatic head injuries from forceful blows to the head. Some bruising was visible on the surface of the child’s skin, but the true extent of the bruising and the amount of hemorrhaging beneath the scalp and beneath the skull were not apparent until revealed by the autopsy. Thus, the photographs of the child’s skull with the scalp pulled back, State’s Exhibits 35-37, and the photograph of the brain with the skull cut away, State’s Exhibit 38, depict the nature of the injuries suffered and were relevant to the pathologist’s testimony.
State’s Exhibit 39 depicts the base of the skull after the child’s brain had been removed. With regard to this photograph, the pathologist testified: “This is a view of the base of Dylan’s skull after the brain has been removed. This is the small hole at the base of the skull that I described earlier.” His earlier discussion of the small hole, the foramen, included an explanation of its significance with respect to brain death:
“Q. When you observed the brain of Dylan Cox, did you make any findings that were remarkable concerning the condition that you found this child in on the date of the autopsy?
“A. Yes, the brain was markedly swollen. It was, the word we use is edematous. It means that the brain itself was larger than its normal size.
“Q. Did you make any other remarkable findings with regard to the interior of the brain?
“A. The large size of the brain had forced the lower portion of the brain to extend downward into the neck. The skull, you will understand, is a fixed space. It’s a bony ball, in a sense, which has a fixed volume. There is only one hole which is at the base of the skull which allows movement of the brain outward and when the brain swells significantly, the lower portion of the brain must go somewhere and in this case, the lower portion of the brain went downward into the upper portion of the neck.
“Q. The area that you just pointed to, does that have a particular name that would be familiar to most people?
“A. This area is called the cerebellum, which is a portion of the lower brain. Another area here is called the pons and the medulla. They are portions of the base of the brain that connect the brain with the spinal cord.
“Q. The area of the brain stem, where is that located?
“A. In this area which I’m identifying with the tip of my finger.
“Q. And in that particular area, what functions of the human body do those areas of the brain perform?
“A. Typically, that portion of the brain performs some vegetative functions. Vegetative means things we do as living organisms without thinking about it, such as breathing, for example.
“Q. When you have this swelling in the brain and where it has no location to go other than down toward the spinal cord, does that affect the way the body is maintained for these types of activities, such as respiration?
“A. Yes.
“Q. And what is [sic] the consequences of significant injury to that area?
“A. Significant injury and swelling causes compression and loss of blood supply, to that area and that is followed by death of important nerve cells in that area. When those nerve cells die, they can no longer perform their vegetative function such as the function that stimulates us to breathe.
“Q. Is that what you would then call brain death?
"A. Yes.”
Altum complains that this photograph is “particularly grotesque” and served only “to give the jury an anatomy lesson.” Although State’s Exhibit 39 does not depict an injury, it certainly was relevant to the pathologist’s testimony about the cause of death.
Altum also contends that the photographs were unduly repetitious. All five autopsy photographs show the child’s head, but there are three distinctly different depictions. State’s Exhibits 35-37 show the skull, Exhibit 38 shows the brain, and Exhibit 39 shows the brain pan. Although Exhibits 35-37 all depict the child’s skull, each shows a different area of bleeding. Exhibit 35 is of one side of the head, Exhibit 36 of the other, and Exhibit 37 of the top. Because there is probative value in each view, there is no undue repetition. See State v. Clark, 261 Kan. 460, Syl. ¶ 11, 931 P.2d 664 (1997).
It is well settled that the admissibility of photographs in a homicide case is a matter within the district court’s discretion. State v. Harris, 259 Kan. 689, Syl. ¶ 10, 915 P.2d 758 (1996). In the circumstances of the present case, the district court was well within its discretion in admitting the autopsy photographs.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
Defendant Bobbie L. Heironimus, declared a habitual violator (K.S.A. 1996 Supp. 8-286), was charged with operating a motor vehicle while his driving privileges were revoked (K.S.A. 1996 Supp. 8-287, a severity level 9, nonperson felony).
Our jurisdiction is under K.S.A. 22-3602(b)(l) (State’s appeal from a dismissal of the complaint). The issue is whether the ha bitual violator statutes (HVS), K.S.A. 8-284 et seq., are unconstitutional because they fail to provide due process.
We find the HVS constitutional and reverse the district court. Heironimus received the process he was due.
FACTS
Heironimus was stopped for speeding on May 25,1996. He had in his possession a Kansas driver’s license issued February 14,1996, with an expiration date of February 6, 2000. On April 3, 1996, he was declared a habitual violator under K.S.A. 8-285 by the Division of Vehicles of the Department of Revenue (Division). The order giving notice of revocation of driving privileges mailed by the Division to Heironimus on April 3, 1996, listed three prior violations for failure to maintain liability automobile insurance, contrary to K.S.A. 1995 Supp. 40-3104, and the conviction dates. The order began: “Our records indicate that you have been convicted of at least three serious moving violations as set out in K:S.A. 8-285.” The order said that Heironimus’ driving privileges were revoked until April 3, 1999, and directed him to surrender his current license, stating that his failure to do so would be a misdemeanor. The order did not mention that continuing to drive after being declared a habitual violator was a felony offense. The order said: “Please do not request any restricted driving privileges. Modifications to the above revocation are prohibited by statute.” The order did not mention any right to request administrative review. Heironimus continued to drive, ignoring the order. He did not surrender his license.
On June 26, 1996, the State filed a felony complaint against Heironimus, alleging a violation of K.S.A. 1996 Supp. 8-287. At the preliminary hearing, Heironimus challenged the constitutionality of the HVS, claiming a due process violation because the HVS do not provide for a prerevocation administrative hearing. The district court found sufficient evidence to bind him over, but declared the HVS unconstitutional for lack of due process and dismissed the complaint without prejudice.
DISCUSSION
The HVS
Key HVS are K.S.A. 8-285 and K.S.A. 1996 Supp. 8-286. K.S.A. 8-285 provides in part:
“The term ‘habitual violator’ means any resident or nonresident person who, within the immediately preceding five years, has been convicted in this or any other state:
“(a) Three or more times of:
(8) violating the provisions of K.S .A. 40-3104 and amendments thereto, relating to motor vehicle liability insurance coverage or an ordinance of any city in this state, which is in substantial conformity with such statute.”
K.S.A. 1996 Supp. 8-286 provides:
“Whenever the files and records of the division shall disclose that the record-of convictions of any person is such that the person is an habitual violator, as prescribed by K.S.A. 8-285 and amendments thereto, the division promptly shall revoke the person’s driving privileges for a period of three years.”
Before amendment in 1994, K.S.A. 8-286 required the Division to forward a certified abstract of a person’s record of convictions reflecting habitual violator status to the district or county attorney, who would then prosecute in the district court. At the hearing, the district court would determine identity and the accuracy of the abstract of the record of convictions. If the information was accurate, the defendant was found to be guilty as a “habitual violator” and directed not to operate a motor vehicle on the public highways. Under K.S.A. 8-287 and K.S.A. 8-288, a habitual violator was guilty of a class-E felony and was not to be issued a'driver’s license for 3 years from the date of the district court order. See State v. Proffitt, 261 Kan. 526, 529-32, 930 P.2d 1059 (1997), for a discussion of the HVS, the 1994 amendment, L. 1994, ch. 353, § 5, and the amendment’s legislative history.
The 1994 amendment eliminated the district court proceeding. Instead, the Division automatically revokes a driver’s license when its records reveal habitual violator status.
The State and amicus curiae contend that the 1994 amendment broadened the scope of the post-suspension/revocation adminis trative review procedures provided under K.S.A. 8-255(c) to include habitual violator revocations. We agree.
K.S.A. 1996 Supp. 8-255(c) provides:
“When the action by the division suspending, revoking or disqualifying a person’s driving privileges is based upon a report of a conviction or convictions from a convicting court, the person may not request a hearing but, within 30 days after notice of suspension, revocation or disqualification is mailed, may submit a written request for administrative review and provide evidence to the division to show the person whose driving privileges have been suspended, revoked or disqualified by the division was not convicted of the offense upon which the suspension, revocation or disqualification is based. Within 30 days of its receipt of the request for administrative review, the division shall notify the person whether the suspension, revocation or disqualification has been affirmed or set aside. The request for administrative review shall not stay any action taken by the division.” (Emphasis added.)
Heironimus responds that the State did not raise the K.S.A. 1996 Supp. 8-255(c) statutory argument in the district court, and, therefore, the general rule against new theories on appeal blocks our review. The record does not support this contention. The district court considered and rejected the State’s argument.
District Court Decision
The district court interpreted the administrative review procedures in K.S.A. 1996 Supp. 8-255(c) as not applicable to habitual violator revocations because the 8-255(c) procedures were part of the Motor Vehicle Drivers’ License Act, K.S.A. 8-234 through K.S.A. 8-271, which is separate from the HVS. The district court viewed K.S.A. 1996 Supp. 8-255(c) administrative review as applicable only to suspensions or revocations under K.S.A. 1996 Supp. 8-255(a). According to the district court, Heironimus’ revocation under K.S.A. 8-285(a)(8) did not fit into any of the categories described in K.S.A. 1996 Supp. 8-255(a). Also, the HVS contained no administrative review provisions.
In the district court’s view, even if8-255(c) administrative review was applicable to Heironimus’ revocation, the order of revocation was deficient, from a due process standpoint, in several respects: (1) The order stated that tire Division’s records showed Heironimus had been convicted of “at least three serious moving violations as set out in K.S.A. 8-285,” when his revocation was based on violations of K.S.A. 1995 Supp. 40-3104, which were not “moving violations” as defined at K.A.R. 92-52-9; (2) the order did not inform him that continuing to drive after the revocation was a felony; and (3) the order did not alert him to any review rights and, in fact, discouraged him from pursuing any review with the statement “Modifications to the above revocation are prohibited by statute.” K.A.R. 92-52-9(c) does not list 40-3104 as a moving violation. K.S.A. 40-3104 was so defined before the Secretary of Revenue amended 92-52-9(c) in 1992. Apparently, the Division had not updated its order of revocation form. We address the language of the revocation order later in our opinion.
1994 Amendment Legislative History and Intent
The rules of statutory construction have been oft-repeated in our opinions. A typical recitation emphasizing our search for legislative intent is found in State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994).
We embark on that search. The first sentence in K.S.A. 1996 Supp. 8-255(c) refers to “action” by the Division in suspending or revoking driving privileges based on a “report of conviction or convictions.” Is this language broad enough to include habitual violator revocations under K.S.A. 1996 Supp. 8-286? We believe it is.
The 1994 amendments to 8-255(c) and 8-286 were both contained in the same bill, H.B. 2579. L. 1994, ch. 353, §§ 1, 5. The legislature has a history of including amendments germane to the broad area of alcohol/drugs, public welfare, driving, and habitual violators in the same act. See State v. Reves, 233 Kan. 972, 666 P.2d 1190 (1983) (holding that 1982 S.B. 699 did not contain more than one subject and did not violate art. 2, § 16 of the Kansas Constitution; K.S.A. 8-255 [Weeks] and K.S.A. 8-285 [Weeks], among other statutes, were amended in that act; see L. 1982, ch. 144, §§ 1-2).
Before the 1994 amendment, the administrative review language in K.S.A. 8-255(c) had been restricted to administrative action based upon convictions for certain specified offenses listed in the statute. The 1994 amendment to K.S.A. 8-255(c) eliminated the references to specific statutes in favor of the following language: “When the action by the division suspending, revoking or disqualifying a person’s driving privileges is based upon a report of a conviction or convictions from a convicting court . . . .” (emphasis added). L. 1994, ch. 353, § 1(c). The language “conviction or convictions” was substituted for “conviction.” The 1994 change shows legislative intent to broaden the applicability of administrative remedies to include habitual violator revocations, which are based on three or more convictions.
The pre-1994 version of K.S.A. 8-286 required the court to “direct such person by appropriate order not to operate a motor vehicle on the public highways in this state.” The district court took action concerning the habitual violator’s driving privileges, not the Division, and the word “revoke” was not used in K.S.A. 8-286. Insertion of the word “revoke” in K.S.A. 1996 Supp. 8-286 thus links into the K.S.A. 1996 Supp. 8-255(c) language “action by the division . . . revoking ... a person’s driving privileges.”
Although no due process issues were raised in Proffitt, we described the 1994 amendment to the HVS, in that opinion saying:
“This streamlined statutory scheme eliminates the prior judicial role in determining habitual violator status and in revoking or restoring driving privileges. No hearing is now statutorily provided for in either the revocation of driving privileges or their restoration. In fact, there is no hearing or proceeding to determine if an individual is a habitual violator.” 261 Kan. at 529.
We call on the familiar maxims of statutory construction expressed in Taylor v. Peredition Minerals Group, Ltd., 244 Kan. 126, 133, 766 P.2d 805 (1988), (“[I]t is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.”) and McCarthy v. City of Leawood, 257 Kan. 566, 578, 894 P.2d 836 (1995) (“[W]e must consider the whole Act and not read one statute in isolation from the other.”). K.S.A. 1996 Supp. 8-286 should not be read in isolation from K.S.A. 1996 Supp. 8-255(c).
Heironimus argues that to construe K.S.A. 1996 Supp. 8-255(c) as applying to habitual violators will produce an absurd result. He observes that 8-255(c) only authorizes habitual violators to request a post-revocation administrative review without a hearing, but per sons subject to revocation under K.S.A. 1996 Supp. 8-255(a)(1), (2), (3), or (5) are entitled to an administrative hearing (K.S.A. 1996 Supp. 8-255[d]). Also, he reasons the suspension or revocation under 8-255(d) may, in certain situations, not take effect until after the hearing. We disagree with his “absurd result” characterization.
We hold that the administrative review procedures in K.S.A. 1996 Supp. 8-255(c) apply to K.S.A. 1996 Supp. 8-286 revocations. The K.S.A. 1996 Supp. ¿-255(c) administrative review procedure applies to a person whose license has been suspended or revoked “based upon a report of a conviction or convictions from a convicting court.” This includes not only habitual violators but also persons receiving suspensions or revocations based on ministerial determinations from convictions shown on the driving records, under any of the applicable categories listed in K.S.A. 1996 Supp. 8-255(a) (as in 8-255[a][1], [2], or [4]), or under any other applicable statutes.
Due Process Cases
Resolving the constitutional status of a statute is a question of law; thus, we exercise an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity. Before a statute may be stricken we must determine, beyond substantial doubt, that the statute violates the constitution. In deciding constitutionality, it is our duty to uphold the statute under attack rather than defeat it. If there is any reasonable way to construe the HVS as constitutionally valid, we should do so. 260 Kan. at 676.
The prologue to our analysis acknowledges that Heironimus does not question the validity of the three K.S.A. 1995 Supp. 40-3104 convictions that sponsor his status of habitual violator. The Division’s paperwork is accurate. Also, the mailing and address on the order are not questioned.
A characteristic of the HVS is that no criminal sanction attaches to being declared a habitual violator until the offender voluntarily decides to operate a motor vehicle while flouting the order of license revocation.
Revocation of a driver s license involves State action that adjudicates important interests of the licensees. In such cases licenses are not to be revoked without the procedural due process required by the Fourteenth Amendment. Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971). We have characterized the loss of driving privileges for 3 years as a “major sanction.” State v. Wood, 231 Kan. 699, 702, 647 P.2d 1327 (1982). We consider possession of a drivers license a regulated privilege protected by due process but not an inherent fundamental right.
The purpose of a hearing mandated by Bell v. Burson is to permit a licensed driver to demonstrate that he or she is free from fault and thus the license should not be revoked. State v. Jennings, 150 Ariz. 90, 93, 722 P.2d 258 (1986). Revocation under the HVS occurs only after the three convictions for the enumerated offenses are final. Heironimus had already had the opportunity of a full trial in connection with each of the three offenses before the mandatory provisions of the HVS applied.
In Bell v. Burson, the Court determined a Georgia motor vehicle safety responsibility statute covering uninsured motorists was unconstitutional for violating the petitioner s due process rights by failing to give him a presuspension hearing on liability. 402 U.S. at 543. The petitioner, an uninsured motorist, faced suspension after being involved in an accident and failing to post the required security for injuries to the other party. Burson reasoned that because a release from liability from the injured party or an adjudication of nonliability could prevent the suspension from taking effect or lift an already imposed suspension, liability was an important factor in the statutory scheme. It was not a no-fault scheme. Thus, the State could not, consistent with due process, “eliminate consideration of [the liability] factor in its prior hearing.” 402 U.S. at 541.
In deciding that the HVS violated due process, the district court applied the three-part test of Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976):
“[D]ue process [analysis] generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
The Eldridge test has been applied in determining the constitutionality of driver s license revocation statutes in two United States Supreme Court cases: Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979), and Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977).
Montrym held that a Massachusetts statute mandating suspension of a driver’s license for refusal to take a breath test upon arrest for driving while intoxicated, without a presuspension hearing, did not violate due process. The Massachusetts statute provided for an immediate postsuspension hearing and provided for an appeal. Montrym’s license was suspended when he initially refused to take a breath test after his arrest. Applying the third part of the Eldridge test (the government’s interest), Montrym concluded “that the compelling interest in highway safety justifies the Commonwealth in making a summary suspension effective pending the outcome of the prompt postsuspension hearing available.” 443 U.S. at 19.
Dixon v. Love, a habitual violator case, is of interest here because of its factual similarity. Love reviewed the constitutionality of an Illinois statute authorizing the Secretary of State to suspend or revoke a driver’s license, without a prerevocation hearing, if official records or other sufficient evidence showed that the driver had been repeatedly convicted of traffic offenses. Love found that “the risk of an erroneous deprivation in the absence of a prior hearing is not great,” because under the Secretary’s regulations, suspension and revocation decisions were largely automatic. 431 U.S. at 113. The Court said:
“Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary’s attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary’s decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. . . . Since appellee does not dispute the factual basis for the Secretary’s decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations. Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations.” 431 U.S. at 113.
Justice Stevens, in his concurring opinion, emphasized that Love’s license was subject to mandatory revocation. 431 U.S. at 117. Justice Brennan, also concurring in the result, said: “[A]s my Brother Stevens demonstrates, a hearing was unnecessary to establish what was already clear — that the revocation of appellee’s license was mandatory.” 431 U.S. at 118.
A hearing for Heironimus was unnecessary to establish what was already clear, that revocation of his license was mandatory. This is not a Bell v. Burson case. Bell’s license was revoked before he had any opportunity for a hearing. Here, Heironimus had the opportunity for a hearing with each underlying conviction'.
Due Process Analysis Under Eldridge
Revocation of driving privileges for 3 years is the private interest affected here. Heironimus argues that the imposition of felony driver status on habitual violators should increase the weight assigned to the private interest involved. We disagree. Heironimus’ due process attack targets the administrative driver’s license revocation procedures, not the felony charge.
Risk of Erroneous Deprivation
The legislative history of the 1994 HVS amendments shows concern that the pre-1994 district court proceeding was an administrative burden on the Division, prosecutors, and the courts, and resulted in many habitual violators remaining behind the wheel.
Heironimus argues that he should be entitled to a prerevocation “full blown evidentiary hearing,” equivalent to the former district court proceeding, in order to prevent an erroneous deprivation. The risk of an erroneous deprivation is slight, however, in view of the limited factual issues in the habitual violator determination. The only issues involved are whether the Division’s records reflect the requisite convictions, and the identity of the violator. A prerevocation hearing is not needed. See State v. Boos, 232 Kan. 864, 659 P.2d 224, cert. denied 462 U.S. 1136 (1983) (In construing the pre-1994 amendment version of K.S.A. 8-286, we noted that the statutoiy civil proceeding for habitual violator status involved only the issues of whether the Division’s records reflected the convictions specified in K.S.A. 8-285 and the identity of the defendant.). Conviction existence, dates, and identity are readily verifiable recordkeeping matters appropriately administratively reviewed through written correspondence.
The postrevocation review procedure provided at K.S.A. 1996 Supp. 8-255(c) is sufficient for due process purposes. Revocation is automatic, once the requisite convictions appear on a record. The HVS do not provide for leniency or exceptions requiring a hearing. The habitual violator had due process for each of the underlying convictions. See Love, 431 U.S. at 113 (“[A]ppellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary’s decision was based.”). Due process was satisfied when Heironimus was notified of revocation because the only issue he could raise would be clerical error. Where there is the possibility of clerical error, written objection will alert the Division, the agency processing the revocation. See Montrym, 443 U.S. at 16; Love, 431 U.S. at 113.
Heironimus also was entitled to a K.S.A. 40-3118(e) hearing in connection with each driver’s license suspension for violating K.S.A. 1995 Supp. 40-3104. K.S.A. 40-3118(e) provides in part: “Upon receipt of a timely request for a hearing, the director shall afford such person an opportunity for hearing within the time and in the manner provided in K.S.A. 8-255 and amendments thereto.”
Heironimus points out that the district court found the likelihood of erroneous deprivation high, based on the other cases in district court involving erroneous action taken by the Division against various drivers. Without more specific information about these cases, it is not clear whether erroneous deprivations have taken place. Heironimus makes no showing that the risk of an erroneous deprivation is great.
Governmental Interest
K.S.A. 8-284 provides:
“It is hereby declared to be the public policy of the state of Kansas:
“(a) To provide maximum safety for all persons who travel or otherwise use the public highways of the state;
“(b) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct, attitude and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts and the statutorily required acts of its administrative agencies; and
“(c) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual violators who have been convicted repeatedly of violations of traffic laws.” (Emphasis added.)
The government’s interest in keeping habitual violators off Kansas roads is a substantial and important one — both from public safety and public welfare perspectives. We believe that Heironimus’ case raises both safety and public welfare concerns. While driving without liability insurance may not impact safety as dramatically as driving while intoxicated, it certainly jeopardizes a potential personal injury victim’s ability to receive adequate compensation.
In Manzanares v. Bell, 214 Kan. 589, 601, 522 P.2d 1291 (1974), we acknowledged the public policy behind the mandatory insurance law:
“The [Kansas No-Fault] Act is a legislative response to a growing public demand for a change in the manner society deals with the enormous legal, social and economic problems resulting from motor vehicle accidents. Every citizen of this state is affected by the carnage occasioned by motor vehicle accidents occurring upon our highways. The state has an interest in protecting those who use the public highways and that interest is not limited to accident prevention.”
The State, relying on Love, 431 U.S. at 114-15, argues that the substantial public interest in prompdy removing habitual violators from the road is “sufficiently visible and weighty” to justify summary revocation and denial of a prerevocation hearing to the licensee. We agree.
The Order of Revocation
We now examine the Division’s April 3,1996, order of revocation mailed to Heironimus. Is the order so misleading that it tramples on his due process rights? We think not. The title, “DRIVERS LICENSE WITHDRAWAL NOTICE HABITUAL VIOLATOR (K.S.A. 8-286)” alerted Heironimus to the HVS. Although the statement that the records showed “three serious moving violations” is not correct (see K.A.R. 92-52-9), the listing of Heironimus’ three convictions for “failure to maint. compulsory lia” and the dates of conviction are accurate.
Heironimus contends that the failure in the order to inform him of any right to administrative review, coupled with the statement “Modifications to the above revocation are prohibited by statute,” violated due process by giving him the impression that no right to administrative review existed. The Division advises that it currently gives notice to habitual violators of their administrative review rights, although it did not do so in the revocation order sent to Heironimus.
The administrative review procedures are published in the statutes. In addition, because the accuracy of the three past convictions listed in the order are not questioned, no error exists to be corrected by administrative review. We agree that the order was bumbled. A preferable order would have omitted the “moving violation” label and also informed Heironimus of his administrative review rights. However, those deficiencies did not deny Heironimus any due process. He has shown no prejudice. Absent such showing, his defective notice claim lacks merit. See Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213-14, 755 P.2d 1337 (1988) (Department’s form held to substantially comply with mandatory notice provisions of K.S.A. 1985 Supp. 8-1001(f)(1)(E); Barnhart failed to show any prejudice caused by the form).
Heironimus argues that due process should require the Division to notify the licensee at the time of revocation that driving after habitual violator revocation is a felony. The order correctly informed him that his failure to turn in his license would be a misdemeanor. See K.S.A. 1996 Supp. 8-260(a)(4) and (b). He was not informed that continuing to drive after the revocation would be a felony. As a matter of public policy, it seems wise for the Division to notify habitual violators that continuing to drive after revocation is a felony. The information may have a salutatory effect on reduc ing the number of habitual violators who continue to drive. The failure to notify Heironimus that continuing to drive would subject him to a felony charge is not a due process violation.
We agree with the rationale of People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980) (habitual traffic offense statute held to accord due process to defendant). “The requirements of due process are satisfied by the notice which is given through publication of the statutes.” 200 Colo, at 497.
The Supreme Court said in Montrym:
“[T]he Due Process Clause has never been construed to require that the procedures used to guard against an erroneous deprivation of a protectible ‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of error. The Due Process Clause simply does not mandate that all governmental decision-making comply with standards that assure perfect, error-free determinations. [Citations omitted.]” 443 U.S. at 13.
Heironimus’ repeated violations under the mandatory insurance law, K.S.A. 40-3104, show his indifference to the welfare of others and his disrespect for the laws of this State. He was not free to ignore the Division’s order of revocation and drive in violation of the law. State v. Damman, 244 Kan. 487, 491, 769 P.2d 662 (1989). We uphold the constitutionality of the HVS. The constitutionality of similar statutes has been upheld against due process attacks in Bryant v. State of Ala. Dept. of Pub. Safety, 494 So. 2d 425 (Ala. Civ. App. 1986) (mandatory 1-year revocation of driving privileges without hearing, following two DUI convictions within 5-year period); State v. Jennings, 150 Ariz. 90 (mandatory revocation of driving privileges, without hearing, following two convictions within 36 months of various driving offenses); Paterson v. Department of Motor Vehicles, 171 Cal. App. 3d 1126, 217 Cal. Rptr. 881 (1985) (mandatory 3-year driver’s license suspension, without prior hearing, upon third DUI conviction within 5 years); Division of Driver Licensing v. Bergmann, 740 S.W.2d 948 (Ky. 1987) (automatic 1-year driver’s license revocation following second DUI conviction); Yeargin v. S. C. Dept. of Highways, 313 S.C. 387, 438 S.E.2d 234 (1993) (mandatory suspension of driver’s license without hearing for certain convictions); Sniffin v. Cline, 193 W. Va. 370, 375, 456 S.E.2d 451 (1995) (“Mandatory administrative revocation of an op erator’s license, without an administrative hearing, under [the statute], where there has been a prior hearing and conviction on the underlying criminal charge, does not deny the person whose license is so revoked due process of law.” [quoting Wells v. Roberts, 167 W. Va. 580, 585, 280 S.E.2d 266 (1981)]); and Scott v. Hill, 407 F. Supp. 301 (E.D. Va. 1976) (automatic 10-year driver s license revocation, without hearing, upon third DUI conviction).
We reverse the district court and remand for trial.
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Opinion by
Simpson, C.:
A motion for a rehearing was filed in this case, that, among other causes assigned for a reversal of the judgment below, alleges the following: ment contained in the Laws of 1887 was borrowed from a state whose supreme court has construed it, at least twice, as claimed by counsel for plaintiff in error.”
“ It had escaped the attention of the court and counsel for plaintiff' in error, until after the argument, that the amend-
It is also claimed that—
“The court inadvertently applied the principle of construction and power of legislative bodies as set forth in Farrar v. City of St. Louis, 80 Mo. 393, and cases referred to, while it will be apparent on a reconsideration that the court of the state from which the rule was borrowed shows that the rule of apportionment — the front foot — is provided by the law, and any change by the council makes the proceedings null and void.”
Again, it is urged that^-
“The court inadvertently overlooked the fact that the proviso and amendment of 1887, providing for grading on a petition, is to be construed independently, or as modifying all the previous laws on the same subject, as this court has decided in another case.”
The petition for the grading of Reynolds avenue from Fifth street to Tenth street asked that the grading be done as provided in § 4 of the act of the legislature entitled “An act to amend §§ 8, 9,11,13,14, etc., of an act entitled ‘An act to incorporate and regulate cities of the first class, and to repeal all prior acts/ etc., approved March 5,1887.” It was stipulated and admitted on the hearing below, that the defendant city was formed by the consolidation of the former cities of Wyandotte, Kansas City, Kas., and Armourdale, in April, 1886, under the provisions of an act of the legislature of the s.tate of Kansas, entitled “An act to provide for the consolidation of cities,” approved February 11,1886, and an act amendatory thereto, approved February 18, 1886. This petition to grade the street was filed in July, 1889, and at that time § 13, or ¶ 557, General Statutes of 1889, was in force, and read as follows:
“Sec. 13. For opening, widening, extending and grading any street, lane, alley, or avenue, and for doing all excavating and grading necessary for the same, and for all improvements of the squares and areas formed by the crossing of streets, and for building culverts, bridges, viaducts, and all crossings of streets, alleys, and avenues, the cost or contract price thereof shall be paid out of the general-improvement fund, except as otherwise provided by law; and for all paving, macadamizing, curbing and guttering of the streets and alleys, the assessments shall be made for the full cost thereof on each block separately; on all lots and pieces of ground to the center of the block on either side of such street or avenue, the distance improved or to be improved, or on the lots or pieces of ground abutting on such alley, according to the assessed value of the lots or pieces of ground, without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council. It shall be the duty of said appraisers, within ten days after being notified of their appointment, to proceed to appraise such lots and pieces of land as may be designated by the council, after having taken and subscribed an oath to make a true and impartial appraisement, which appraisement shall be returned to the city council at its first meeting after the same shall have been completed. When said appraisement is returned, the mayor and council shall appoint a time for holding a special session, on some day to be fixed by them, to hear any complaint that may be made as to the valuation of any lot or piece of ground appraised as aforesaid, a notice of which special session shall be given by the mayor in the official paper of the city; and said mayor and council at said special session shall alter the valuation of any lot or piece of ground, if in their opinion the same has been appraised too high or too low: Provided, That in case a petition of a majority of the resident property-owners of a majority of the front feet on any street or part thereof shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof, at the 'cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.”
Paragraph 1077 was also, it is claimed, in force, and it reads as.follows:
“The grading of all streets, avenues and alleys in said consolidated city, after such consolidation, shall be borne by the property abutting thereon, and the assessments for the payment thereof shall be made on each block separately, in the same manner and with like effect as is provided by the law governing cities of the first class for paving, macadamizing, curbing and guttering of streets.”
It is claimed by the city that the assessments for the grading were made under paragraph 1077, as this was a consolidated city; while it is claimed by the plaintiff in error that these assessments must be governed by the proviso contained in paragraph 557. The opinion heretofore rendered affirmed the judgment below by a construction of the proviso to paragraph 557, General Statutes of 1889; the theory of the decision being that the proviso did not expressly state a rule for apportionment, and, the one adopted being fair, just, and equitable, the court would not interfere. Under the authorities cited by counsel for plaintiff in error, we have serious doubts as to this proposition, and are strongly inclined to the belief that the proviso does fix a rule of apportionment. In the case of City of Lexington v. McQuillan’s Heirs, 9 Dana, 513, the charter of the city gave the mayor and council authority to grade and macadamize streets and alleys of said city, at the cost and expense of the lot-owners fronting such streets or alleys, and required them to apportion the cost and expense of grading and macadamizing equally on the lot-holders. In the year 1836 the council graded and macadamized Main street, from the intersection of High to Maxwell streets, and distributed the cost thereof among the owners of lots on each side of the squares opposite to and adjoining the improvement thus made. McQuillan’s heirs being owners of a lot on the corner of Main and High streets, the city council assessed against them, as their portion of the cost of the . work, the sum of $509.92, that being one-half the amount charged for grading and paving opposite to their ground. This sum greatly exceeded the proportionate cost of the entire work done opposite to the lots of ground respectively in the same square, in consequence of a deep cut and a stone wall made opposite to the lot of'McQuillan’s heirs, and they resisted the payment of the amount so assessed against them. One of the questions discussed in the opinion is as to the rule of apportionment, and the court, by Chief Justice Robertson, says:
“It is manifest that this section of the charter prescribes a distribution of the entire cost of grading and paving a street to the whole extent of the square, among the owners of the ground in that square, according to some principle of equity, and that it did not intend to authorize the exaction from any such proprietor of the cost of construction opposite to and coextensive with the front.of his lot, when the cost of that portion of the work had exceeded the average charge upon the whole square. And it seems to us, also, that the rule of equality prescribed by the legislature is the territorial extent, and not the value of each lot of ground. This is the test of the authority given to a portion of the owners of the grounds in any one square to renovation of the street and sidewalks opposite such square at the cost of all the owners of ground in it. Had the ad valorem principle been adopted, the owner of a comparatively small piece of ground, expensively improved, might control the other owners of ground in the same square, and impose on the majority a heavy burden against their consent, and possibly against their interest. And as the extent of each proprietor’s front on the street is the criterion of authority given to a part of them to control the whole and impose a common burden, it is altogether reasonable to infer that the aggregate responsibility should be, and was intended to be, distributed according to the same principle. Then as the amount assessed against .McQuillan’s heirs is admitted to be much greater than their portion of the cost of the work opposite the whole square, distributed among the several owners of the ground therein, according to the rule prescribed by the statute, the circuit judge did not err in enjoining the coercive collection of the assessment as thus illegally made.”
This is equivalent to saying that under the section of the charter the whole square is a taxing district, and the legal mode of assessment is to ascertain the cost of the improvement of the square, and apportion that cost equally to. the lot-owners in proportion to the frontage of their respective lots on the square.
In the case of the City of Louisville v. Hyatt, 2 B. Mon. 177, it appears that § 9 of the charter of that city is the same as § 11 of the charter of the city of Lexington, construed in the case cited from 9 Dana. It is said in the Louisville case, in • reference to that section —
“That, in distributing the burden of the entire cost of improvement, each lot-holder on the square divided by the graded street should be required to pay, not one-half the cost of the grade opposite his ground, but his adequate portion of the whole cost, estimated according to the relative extent of his lot on the street.”
In the case of The State, ex rel., v. City of Portage, 2 Wis. 562, it will be seen that the charter of the city provided, that upon the application of two-thirds of the owners of lots on a street, the council should have power to have such street graded, and, for the purpose of defraying the cost, to levy and collect a special tax on the lots abutting on such street in proportion to the size or front of such lots, respectively. The city passed an ordinance requiring a certain street to be graded, and directed that each lot should be charged with the.work done in front thereof. This ordinance the court held void, as being repugnant to the charter, Paine, J., saying:
“That all that part of the ordinance which provided that each lot or part of a lot should be chargeable with all the work done in front of it is repugnant to the provisions of the charter on that subject, can admit of no question. The charter evidently requires that, when any street .is ordered to be graded, the section so ordered to be improved shall, for the purposes of taxation, be treated as a whole; and that when the whole amount of tax to be raised for that work is ascertained, it shall be equalized and divided among the various lots chargeable therefor, according to their front or size. This, it is obvious, is an entirely different principle of assessment from that which charges each lot with the entire expense of the improvement in' front of it, and seems to avoid much of the inequality and injustice of the latter system. But it is the latter which is provided for in the ordinance under which the contract is let, and that part of it is of course void.”
The cases of Williams v. Mayor of Detroit, 2 Mich. 560, and Woodbridge v. City of Detroit, 8 id. 274, construing provisions in the charter of the city of Detroit similar to the proviso we are now considering, apart from their value as to the necessity of a just and reasonable rule for the apportionment of the cost of a public improvement, will be found in their general trend in harmony with the cases we have already cited. The general rule deduced from these earlier cases is, that where the grading of a street is to be paid for by the owners of lots abutting on the improved street, the whole length of the street so graded is to be considered as one taxing district, and the individual owner of a lot or lots so abutting is required to pay his fair proportion of the cost of the grading along the whole line of street improved; not the cost of grading of his lot or lots, or of the block in which his lot or lots may be situate, but his proportionate part of the cost of grading the entire distance improved.
This principle was distinctly recognized by this court in the case of Parker v. Challiss, 9 Kas. 155. The charter of the city of Atchison expressly provided that the city council should have power to make sidewalks, and “for making and repairing sidewalks the assessments shall be made on all lots or pieces of ground abutting on the improvement, according to the front foot thereof.” In January, 1869, the city council by ordinance required the owners of lots on 17 different streets to build sidewalks. Challiss owned seven lots in a block fronting on Kansas avenue in said city. He resisted the collection of the special assessment made for the construction of the sidewalk in front of his lots, principally on the ground “that the city had no authority to make assessments for building sidewalks on said various streets upon all the lots on said streets fronting on said sidewalks, the power existing only to assess lots on each street for the sidewalks built thereon;” and this was the finding and judgment of the district court of Atchison county. It will be seen from this statement that the question was, whether the whole distance of all the streets ordered to be improved was the taxing district, or whether each street was a separate and distinct taxing district. Among the facts shown on the trial below was, that some of the streets on which sidewalks were ordered to be built were not graded, and that portions of said sidewalk, by reason of the uneven condition of the streets, were necessarily built on posts, in some cases five feet high. On error to this court, it was said by Brewer, J.:
“The power to make sidewalks is here given absolutely and without limitation. When and upon what streets they shall be made is committed to the discretion of the mayor and council. . . . This discretion is not limited to a single street. They may sidewalk the whole city at once, and by a single contract. But the right to assess the lots fronting on the improvement to pay for the same is coextensive with the power to make it. . . True, as urged, a sidewalk on one street may cost- more than a sidewalk on another, and if both be united in one contract and one assessment, the owner of a lot on the latter street may have to pay more than if his street only was sidewalked. But the same is true not only of two streets, but also of two blocks on the same street, or of two lots in the same block. Still there is no injustice in apportioning the entire cost of a sidewalk upon the several lots fronting it. The value of a sidewalk depends greatly upon its extent.”
It seems to the writer of this opinion that this case is a clear recognition of the principle that where the charter of a city provides that the streets may be graded at the expense of the abutting land-owners, and the council is given power, in the language of the proviso to §4, chapter 99, Laws of 1887, “ to assess the cost of such improvement • against the lots and parcels of land abutting on such street so improved,” the whole length of the street so improved is one taxing district, and that it is not to be divided into blocks, and' each block made liable for the improvement in front thereof.
In the case of City of Lawrence v. Killarn, 11 Kas. 499, it was conceded, in the briefs of counsel for both sides, “that the statute does not charge the property with the cost of building the walk in front of the lots, but the entire improvement — all the walk directed to be built — is to be assessed to the abutting property according to the front foot thereof;” and, with this concession, the question was whether the assessment was illegal because it did not average a wide walk with a narrow one.
The case of Hines v. City of Leavenworth, 3 Kas. 186, is instructive, because of the change in the rule of apportionment during the progress of the improvement. In June, 1863, the city passed an ordinance providing for the improvement of streets, the third section of which provided: “For the purposeof making such improvements', a special tax shall be levied and collected upon adjacent real estate extending to the center of the block on either side of the improvements.” While the work was in progress the legislature passed an act amending the act incorporating cities, by which several methods were prescribed for levying taxes for the improvement of streets, and, among others, a levy according to the area of the abutting property, and providing that this method should apply to improvements then being made. The city passed an ordinance in pursuance to the amended charter. The city engineer made another assessment of the cost of the work according to the area of the lots. Hines et al. attacked the validity of the assessments, they being owners of lots abutting on the improved streets, on the ground that the law under which the assessment was made was not applicable — that the law was unconstitutional, in that the rate of assessment ■authorized was not equal and uniform. The court, after affirming the constitutionality of the amended act and declaring its application to the improvements then in progress, says:
“ The cost of the improvement must be assessed against the adjacent property; the charge must extend back to the middle of the block. It must be levied in one of three prescribed ways, and in proportion to the cost of the whole improvement.”
This is the only equitable construction that can be given to the statute under consideration. Special assessments are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of property peculiarly situated as regards the contemplated expenditure. (Cooley, Taxation, 606.) The principle is that—
“When certain persons are so placed as to have a common interest among themselves, but in common with the rest of the community, laws may be justly made providing that under suitable and equitable regulations those common interests shall be managed so those who enjoy the benefits shall equally bear the burden.” (Shaw, C. J., in Wright v. Boston, 9 Cush. 233.)
In Palmer v. Stumph, 29 Ind. 329, an assessment is spoken of as “being the adjustment of the shares of a contribution to be made by several towards a common object, according to the benefit received.” In this state, assessments by benefits are made by appraisers, who value the property included in the district to be improved, and apportion the cost thereof in proportion to such valuation. This is a legislative requirement, and in the opinion of Judge Cooley, in his work on Taxation, is the most equal and just method. The legislature must determine over what territory the benefits must be diffused, because this is an undoubted and necessary power pertaining to all matters of taxation. The whole subject of taxing districts belongs to the legislature. (Cooley, Taxation, 640. See especially the case of Sinton v. Ashbury, 41 Cal. 525.) Property can only be assessed for local improvement on the principle of benefits received by the property from the construction of the work, and the benefits must be imposed on the property proportionately. (Crawford v. The People, 82 Ill. 557.) It is equally within the power of the legislature to prescribe one district over which the whole cost of the improvement shall be spread, or to make separate districts for the improvement along the several blocks, (Creighton v. Scott, 14 Ohio St. 438,) but when once prescribed, the levy must embrace all the property within the district, and to omit any would defeat the .rule of apportionment. (Hassan v. Rochester, 67 N. Y. 528; Matter of Churchill, 82 id. 288; People v. McCune, 57 Cal. 153.)
Whatever rule of apportionment is adopted, it must be just and equitable, and this is a question for the courts. Judge Dillon, in his work on Municipal Corporations, states that there has been a diversity of opinion in the courts as to whether a law compelling owners of lots to pay the entire cost of the improvement in front of their lots, instead of their proportion of the cost of the entire work, is constitutional; but the later adjudications seem to be, that where this rule is expressly commanded by the statute, it will be upheld. The learned author further says that in his judgment—
“The one right in principle, and most just in its practical workings, is that the assessment be made upon all the property specially benefited by the improvement, according to the exceptional benefit each lot or parcel of property actually and separately receives.” (Dill., Mun. Corp., p. 934, §761, subsec. 5.)
This is the sole object of our statute requiring each and every lot or parcel of ground to be appraised, excluding.improvements thereon, so that each naked lot can bear its proper proportion of the cost made in improving the block in which it is situate, or the entire distance on the street improved. These cases establish the rule that, when the legislature establishes the extent of the taxing district, it cannot be lessened or divided by the council, but that body must act in strict compliance with the terms of the power delegated. If, under this proviso, the extent of the improved street is the taxing district, the council must not depart therefrom, and say that each block must be separately taxed for the improvement made in its front, as that is establishing a different rule for the apportionment of the cost of the work.
From these decisions it inevitably follows that, without some express legislative sanction, the true rule is, that the whole property to be improved constitutes a single taxing district, and the owner of a lot abutting on the improved street is required to pay that portion of the cost of the improvement that the valuation of his lot bears to the valuation of all the lots or parcels of ground subject to assessment in the taxing district. This rule is changed by the legislature in respect to paving, macadamizing, curbing and guttering streets in cities of the first class, and each block separately made a taxing district for these purposes; but, as we think, the rule applies to the proviso we are considering. An examination of § 4, ch. 99, Laws of 1887, will disclose that the first eight lines of the'section provide for opening, widening, extending and grading streets and for other improvements, and for doing the work thereof, and that the cost thereof shall be paid out of the general-improvement fund, except as otherwise provided by law. And then follows the provision that for all paving, macadamizing, curbing and guttering of streets and alleys the assessments shall be made for the full cost thereof on each block separately.. Then follow provisions for appraisement and notice, and hearing complaints of the appraisement. Then comes this proviso:
“That in case a petition of a majority of the resident property-owners of a majority of the front feet on any street or part thereof shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof, at the cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.”
The council has power originally, without petition from lot-owners, to order a street graded, and to pay for such improvement out of the general-improvement fund. If the council refuse or neglect to order a particular street or part of a street graded, the proviso gives the resident lot-owners who have a majority of the front feet on a street the right to have the street graded on certain conditions; but in such a case the cost of grading must be apportioned to the lots and parcels of land abutting on the graded street. This proviso, then, gave a right not granted by the body of the section. The council cannot pay the cost of paving, macadamizing, curbing and guttering streets out of the general-improvement fund, for the full cost of such an improvement must be assessed against each block separately thus improved. If this proviso intended that the grading of a part of a street petitioned for should be paid for in the same manner as paving, macadamizing, curbing and guttering is, why does it contain the words “to assess the cost against the lots or parcels of land abutting on such street?” Or why did it not say, “by each block separately?” Because the intent of the legislature was to provide a different rule of apportionment from that made in the body of the section. We use the word “proviso” because it has crept into the case on the argument in the briefs; but this is not a proviso in the technical sense, but a separate and independent clause in the section, giving a right to petitioners not hereinbefore enjoyed. It seems to us to be an irresistible conclusion, coming to the mind instantly and without mental effort, on the first reading of the section, that the legislature had made separate and distinct rules of apportionment for the cost of paving streets and grading streets. We have endeavored by numerous citations to show that the true construction of the language used in the concluding clause of the section is, that the whole length of the street improved is the taxing district, and not each block separately. No construction of the proviso is admissible that will make it mean the same as the body of the section, because, in the nature of things, the proviso is intended to cover ground not within the balance of the section, or else there would be no reason for its existence. If the legislature intended that the cost of grading a street on the petition of the lot-owners whose property abutted, which each separate block should pay only for the grading in its immediate front, as in paving, macadamizing, curbing, and guttering, the word “grading” would have occurred in connection with the other improvements.. It is evident that a different rule of apportionment was provided for grading, and hence the legislature did establish a rule of apportionment, and the common council of the city had no discretion to exercise. Any other construction renders the concluding part of the section meaningless.
There must be special authority by law conferred upon the city council to make the assessments. The ordinary grant to municipal corporations to levy taxes for municipal purposes will not justify other than ordinary taxes. The power to make assessments is exceptional, and must be strictly construed. (Cooley, Taxation, 609; Hitchcock v. Galveston, 96 U. S. 341.) The method of apportionment is a legislative question, and in every act providing for a local improvement a method of apportionment of the cost must be provided. We hold in this case that the legislature did fix the method of apportionment with reference to this particular improvement. But it is said that this amendment to the law made in 1887 has no application to this cify, because, as appears from the record, it is a city formed by the consolidation of the cities of Kansas City, Wyandotte, and Armourdale, under the provisions of an act of the legislature that took effect on the 12th day of February, 1886, entitled “An act to provide for the consolidation of cities,” commencing with ¶ 1064, Gen. Stat. of 1889. We have referred heretofore to ¶ 1077 of this act, and we are asked now to say that this assessment, having been made in conformity to that section, is good. This raises questions both as to the validity and application of the paragraph. It is a very doubtful question whether it was constitutional or not; not because of its special legislation, but for •the reason that the subject-matter of the section does not seem to be embraced in the title to the act in which it is found. The legislature has power to consolidate cities, and to prescribe the rules and conditions upon which such consolidation shall take place, and every section of the act that can by fair inference be held to be an incident to the power to consolidate, or a condition of such consolidation, may be said to be fairly expressed by the title. But it is difficult for the ordinary mind to realize how a particular manner of apportioning the cost of grading streets in a consolidated city can be held to be a condition, or to be embraced within the meaning of the title of this act. There are no words used in this title •that would suggest to the most acute mind that it contained ¡provisions about grading streets. The strong inclination is to regard it as void. A clearer question is presented of its re Peab We think it is repealed by the act we are considering that was passed at the session of the legislature in 1887, and took effect on the 12th day of March; not expressly repealed, but by necessary implication, because of their antagonism, and because it is impossible to reconcile them. After these enumerated cities were consolidated and formed Kansas City, Kas., that city become one of the first class, and is to be governed in all respects by the laws regulating cities of the first class. Every act passed by the legislature in respect to matters affecting cities of the first class has the same application to that as to any other city of the class in the state. It cannot be maintained that the act providing for the consolidation of cities is in the nature of a contract, whose obligations cannot be changed by legislation. An act of the legislature prescribing a different method and rule of apportioning the cost of a local improvement than the rule expressed in the act consolidating cities, so conflicting that the two cannot be reconciled and one or the other must fall, must necessarily have the effect to repeal the prior one, or that prior one must be invested with some unusual attribute to obviate that result.' We regard the act to provide for the consolidation of cities as a general law of uniform operation, that operates on cities already in existence, and will operate on those that grow in the future; that is subject to amendment or repeal like any other general law upon the statute book. If a later act of the legislature is in actual conflict with one of its provisions or sections, that provision or section must go, for the same reason that applies to all repeals by implication. Hence we say that this assessment by the separate block cannot be upheld by a section of the act under which this city became a consolidated one. Unless there are strongly coercive reasons, it ought not to be held that we have two statutes in force in this state prescribing different methods for the apportionment of the cost of a local improvement in a city of the first class; and every consideration of public policy, as well as the uniformity of our legislation, demands the declaration that, when the act of consolidation became complete, Kansas City was subjected to all the provisions of our statute regulating and governing cities of the first class, as if created in the usual statutory method, and all amendments made to such laws apply to that municipality, as well as all others of that class.
It follows that the motion for rehearing is sustained, and the judgment of the court below reversed, for the sole reason that there is a rule of apportionment prescribed by the legislature making the whole distance on the street to be improved the taxing district. The petition and ordinance are valid, and probably the only thing required is a new apportionment and assessment of each lot or parcel of ground abutting on the graded street, so that it pays its proper proportion of the whole cost of the grading.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
On the 2d day of September, 1887, Maria P. Hawley received from an agent of the Kansas Farmers’ Fire Insurance Company a policy of insurance, issued by said company for one year, upon her residence and household goods, situated in the town of Cullisou, in Pratt county, for §1,050 upon her dwelling-house, and §750 upon the household goods, etc., in said house. On the night of the 28 th of September following, the building, with most of its contents, was destroyed by fire. Suit was brought against the insurance company upon the'policy, and a judgment was recovered for §1,800. To reverse this judgment, the plaintiff in error has brought this proceeding in error.
The first point we are asked to consider is the testimony of the plaintiff' below as to the value of the articles set forth in the exhibit attached to the plaintiff’s petition. The plaintiff stated that the list represented the articles lost in the fire and their value. The question was then asked at what time, and she answered: “I think at the time of the fire.” This was objected to as incompetent, and the objection overruled. The witness was then asked to call over these articles and testify as to the value of each item at the time of the fire. This question was objected to as leading. We see no error in this. It is now claimed that the witness had no knowledge of the value of the articles enumerated. The objection did not properly raise the question. Besides, the question of the value of the property mentioned in the schedule was peculiarly within the knowledge of the plaintiff'; it was not such a class of property as could be said to have a market value. If the owner could not be allowed to fix a valuation, it would be very difficult to furnish evidence as to the value of such household goods and wearing apparel as persons usually keep in residences.
It is next insisted that the court erred in permitting the plaintiff to introduce evidence as to a conversation between the plaintiff and a soliciting agent of the defendant. The statement claimed to have been made by the agent was not prejudicial error. He was asked about the goods rescued from the fire, and said to the plaintiff: “Make yourself comfortable; you will have a week or 10 days to make out a list, and in that time you will probably remember most of the things.” The evidence did not prejudice the rights of the defendant.
The plaintiff in error complains of the admission of the evidence of the son of the plaintiff, in regard to the contents of the proof of loss, without having laid any foundation for the admission of such secondary evidence. The question was: “State the form you put the statement in; state the form of the proof of loss.” The objection was made “that the proof of loss speaks for itself.” We think the question was a proper one. The plaintiff had a right to show in what manner proof was made. The answer was, perhaps, objectionable, but no motion was made to strike it out. If the answer was objectionable, the remedy was by motion to strike out such portion as was not responsive to the question asked. (City of Atchison v. Rose, 43 Kas. 605, and authorities there cited.)
It is contended that the court erred in permitting the plaintiff to prove a conversation with the agent who took the application. We see no material error in the evidence. The evidence indicated what the insured wanted covered by the insurance policy, and was not intended to change or enlarge the terms of the policy. As to the cross-examination of the agent, we think his direct examination authorized the questions complained of. He had been asked upon his examination in chief what statements or representations he made to the plaintiff or her son, at the time he took the application, and it was proper for the plaintiff to question him upon all matters brought out on his direct examination. The evidence could not have had the effect to avoid the clause in the policy that the company should not be bound by any act or statement of the agent, and evidently was not introduced for that purpose, but was only a part of the legitimate cross-examination of the witness.
Our attention is next called to the ruling of the trial court in admitting the statements of the plaintiff and her son, that they had no knowledge of any incumbrance upon the property at the time the application was made. The plaintiff in error sought to avoid the payment of the policy, by showing that the plaintiff, in her application for the insurance, made the statement that the property was not incumbered, when, in fact, there was a mechanics’ lien upon it. The defendant had introduced evidence to show that there was a mechanics’ lien filed against this property upon the 25th day of August, 1887, for the sum of $203.52. We think the evidence was immaterial. The defendant did not prove when the application was made, and it seems, from the special findings returned, that the jury could not determine whether there was any incumbrance upon the property at the time the application was made, for the reason that it was not dated.
Complaint is made that the court below tried this case upon the theory that the statements in the application must not only have been false, but that such knowledge must be brought home to the plaintiff; and our attention is called to the instructions of the court. We cannot consider this assignment of error, for the reason that no exceptions were taken to the instructions or any portion of them. Instructions not excepted to will not be reviewed. (Mercantile Co. v. Fullam, 43 Kas. 181; Gafford v. Hall, 39 id. 166.)
The last assignment of error is the answer returned by the jury to the third special question submitted to them by the defendant below, as to the value of the house insured, exclusive of the lots, at the time the plaintiff made application for the insurance. The answer was, about $1,200. We do not think this such an error as would justify a reversal of the judgment. Five special questions were submitted by each party, and, we think, answered intelligently.
The judgment should be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
Prosecution for forgery. Information filed in the district court of Kearny county April 16, 1889. April 18,1889, change of venue allowed, and case sent to Barton county, Kansas. March 10,1890, motion to quash sustained, and defendant discharged; to which ruling sustaining such motion to quash and order discharging the defendant the state of Kansas excepted, and appeals to this court. The sole question to be determined here is, whether or not the information charges the offense of forgery under our statutes. The information reads as follows:
“I, J. A. Wilson, the undersigned, county attorney of said county, in the name, by the authority, and on behalf of the State of Kansas, come now here and give the court to understand and be informed, that on the 1st day of October, A. D. 1888, in said county of Kearny and state of Kansas, one [H. A. W. Corfield] did then and there unlawfully, feloniously, and fraudulently, falsely make and forge and issue to him, and did willingly aid and assist in falsely making and forging, a certain county order and warrant, of the county of Kearny, in the state of Kansas, issued and purporting to have been issued under the authority of the said county of Kearny, and purporting to have been issued by virtue of the laws of the state of Kansas, providing for the allowance and payment of claims against counties in said state of Kansas, the substance, purport and effect of which said false and forged county order and warrant is as follows, that is to say:
“‘No. i7i. COUNTY olebk’s oeeioe. $1,000.00
“‘Lakin, Kas., October 1, 1888.
“‘ Treasurer Kearny County, Kansas:
“‘Pay to H. A. W. Corfield, or bearer, the sum of one thousand and A/V dollars, for mileage and ex. for co., as commissioner, out of any money in the treasury not otherwise appropriated. By order of the board of county commissioners. W. J. Pbioe, Chairman.
“‘J. B. Wateeman, Clerk.’
“Which said county order and warrant was sealed with the seal of said county, and was of the value of $1,000; a more particular description of which is to said county attor ney now unknown, the said false and forged county order and warrant being destroyed, (or in the possession of some person to said county attorney unknown;) which said county order and warrant was falsely made ana is a forgery, in this: that said county of Kearny did not owe said [EL A. W. Corfield] said sum of $1,000 nor any part thereof, which said defendant well knew at the time he so made and caused and procured said county order and warrant to be so made and issued to him; and that said defendant then and there well knew said county order and warrant to be false and fraudulent, and that he so made and caused and procured said county order and warrant to be so made and issued to him the said [EL A. W. Corfield] with intent to cheat and defraud said county of Kearny, which was then and there an organized county of the state of Kansas, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Kansas.
“Second count: And I, the said J. A. Wilson, county attorney as aforesaid, give the court to further understand and be informed, that on the 1st day of October, 1888, in said county of Kearny, in the state of Kansas, the said H. A. W. Corfield did then and there unlawfully, feloniously, and fraudulently, falsely make and forge, and cause and procure to be falsely made, forged, and issued to him, and did willingly aid and assist in falsely making and forging, a certain county order and warrant of the county of Kearny, in the state of Kansas, issued and purporting to have been issued under the authority of said county of Kearny, and purporting to have been issued by virtue of the laws of the state of Kansas, providing for the allowance and payment of claims against counties in said state of Kansas, the substance and effect of which said false and forged county order and warrant is as follows, that is to say:
‘“No. 475. county clerk’s oeeioe. $380.00
“‘Lakin, Kas., Oct. 1, 1888.
“‘ Treasurer Kearny County, Kansas:
“‘Pay to B. A. W. Corfield, or bearer, the sum of three hundred eighty and -ffig dollars, for four trips to Topeka for county, out of any money in the treasury not otherwise appropriated. By order of the board of county commissioners. W. J. Price, Chairman.
“‘J. B. Waterman, Cleric.’
“Which said county order and warrant was sealed with the seal of said county, and was of the value of $380; a more particular description of which is to said county attorney now unknown, the said false and forged county order and warrant being destroyed or in the possession of some person to said county attorney unknown, which said cpunty order and warrant was falsely made and is a forgery, in this: that said county of Kearny did not owe said H. A. W. Corfield said sum of $380, nor any part thereof, which said defendant well knew at the time he so made and caused and procured said county order and warrant to be so made and issued to him, and that said defendant then and there well knew said county order and warrant to be false and fraudulent, and that he so made and caused and procured said county order and warrant to be so made and issued to him, the said H. A. W. Corfield, with intent to cheat and defraud said county of Kearny, which was then and there an organized county of the state of Kansas, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Kansas. J. A. Wilson, County Atto7'ney.”
The prosecution is under § 115 of the crimes act, which, so ■far as it is material or pertinent, reads as follows :
“Every person who shall falsely make, alter, forge, counterfeit, print, or photograph, or cause or procure to be falsely made, altered, forged, counterfeited, printed, or photographed, . . . any county warrant or order, . . . shall, on conviction, be adjudged guilty of forgery in the first degree.”
This section is a copy of §115 of the crimes act of 1868, as amended by the legislature of 1876. The original section in the statutes of 1868, so far as it is material to this case, reads as follows:
“Every person who shall forge, counterfeit, or falsely alter, or cause or procure to be forged, counterfeited, or falsely altered, any warrant ... of the state of Kansas . . shall, on conviction, be adjudged guilty of forgery in the first degree.”
Comparing this section with original § 115 of the Laws of 1868, we find that the legislature of 1876, in amending said section, so far as such amendments are pertinent to this case, added the word “ make” to the operative words of the section, and extended the effect of the statute to county warrants and orders. The operative words of the old section are “forge, counterfeit, or falsely alter, or cause or procure to be forged, counterfeited, or falsely altered;” while in the new or amended section, they are “falsely make, alter, forge, counterfeit, print, or photograph, or cause or procure to be falsely made, altered, forged, counterfeited, printed, or photographed.” The word “falsely” and the procurement clause are found in both sections. The portion of the section to be construed is the first part thereof, containing the operative words, it being conceded that the present section extends the operation of the statute to county warrants and orders. In the old statute the word “falsely” follows all the operative words of the section except the word “alter,” which alone it modifies, while in the amended section it precedes and modifies them all. By such change, does the phraseology obtain any new or other significance from that which it had in the orginal section, so far as it went? We are unable to discover any. As it now stands, the word “falsely” modifies the words “forge and counterfeit,” as well as the words “ make and alter.” Does the word “falsely” possess any meaning different, when it modifies the word “make” in this section, from that which it possesses when it modifies the words “forge and counterfeit?” Can we say that the word “falsely,” when it modifies the words “make and alter,” in the present section, means “fraudulently,” and that it means something else when it modifies the very next word in the same sentence, to wit, “forge?” We think not. We see no reason for giving the words “falsely make” and “falsely forge,” as found in our statute, any other or different meaning from that which they possess in the ordinary forms of indictment for forgery or counterfeiting, or in the text-books. If the word “false” were eliminated from the section, and it read, “every person.who shall make, or cause or procure to be made, any county warrant or order, with intent to defraud the county,” or if the language was, “every person who shall falsely procure to be made any county warrant or order, with intent to defraud the county,” we could better understand the contention of the appellant; since, in the one case the defendant might be guilty of procuring the warrant to issue, and the information would be good; and in the other, we could say the word “falsely” means “fraud ulently,” and hold the charge good because the defendant fraudulently procured the warrant to issue.
It seems to us that the position of the appellant is based upon a misapprehension of the statute, since it is claimed that the defendant is guilty of the offense of forgery, although it is conceded that he did not make the warrant set out in the information, but that, on the contrary, the warrant was made by the chairman of the board of county commissioners and attested by the county clerk, upon a claim regularly presented to and allowed by the county board. In other words, it is insisted that the defendant is guilty of forgery though he did not make the warrant, and the warrant itself is genuine — that is, was not forged, but made by the parties by whom it purports to have been made — simply because the county did not owe him anything when the warrant was issued; that because the defendant fraudulently presented a claim to the board of •county commissioners, which was allowed, and a warrant issued thereon, he is guilty of forgery. The language of the statute is, “falsely make, or cause or procure to be falsely made.” The defendant did not make the warrant, and the warrant was not falsely made by any person or authority; hence the defendant did not cause or procure the warrant to be falsely made, and his conduct, therefore, did not amount to forgery.
It is intimated by the state in its brief that the defendant cannot be punished at all unless for forgery under this statute. That is wholly immaterial so far as the question presented to this court is concerned. We hardly think, however, that if the defendant made out and swore to a fictitious claim against the county of Kearny, and presented the same to the county board, and procured its allowance by it, and then procured a warrant to issue therefor, our statutes are so barren of remedies as to furnish none in such a case. We think the motion to quash was properly sustained. It is therefore recommended that the judgment of the district court thereon be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam: We are satisfied with the law declared in the former opinion handed down, (ante, p. 207.) See, also, Mann v. People, 15 Hun, 155, and the numerous decisions cited therein; the same case in 75 N. Y. 484. In that case it was said:
“A county officer, who without authority has executed in his own name, as the official representative of the county, an instrument purporting in its body to be the contract or obligation of the county, cannot be convicted of forgery.”
(The State v. Willson, 28 Minn. 52; The State v. Young, 46 N. H. 266.)
We have examined Ex parte Hibbs, 2 Fed. Rep. 421; Luttrel v. The State, 85 Tenn. 232, also all the other cases cited on the part of the state. So far as these cases conflict, if in any way they do conflict, with the former opinion, we are not inclined to follow them. .
The motion for a rehearing will be overruled.
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Opinion by
Simpson, C.:
Action in the district court of Brown county by Snively against A. J. Hill, Fred. F. Hill, and L. S. Herbert, a justice of the peace, to restrain the collection of a judgment rendered by Herbert as a justice of the peace against Snively, and in favor of Hill Bros., for $161.37' and costs of suit. The trial court sustained a demurrer to the petition of the plaintiff, and- he brings the cause here for review, standing on the petition. The petition alleged the commencement of the action before the justice; that on the return-day of the summons both parties appeared in person and by counsel, and the cause was continued by agreement until the 1st day of August, 1888, at 10 o’clock A. M.; that on the same day it was agreed by the parties that the matters in dispute should be submitted to arbitration, and under said agreement Hill Bros, selected an arbitrator, and Snively chose one, and these two were to select a third, and the decision of two was to be binding upon the parties; that the arbitration was postponed, at-the request of one of the defendants in error, on account of sickness and death in his family; that a day or two before the 1st day of August, 1888, the attorney of the plaintiff in error went to the office of the justice of the peace, and was then informed by the said justice that he had made no entry on his docket of the adjournment of the trial from the return-day of the summons until the 1st day of August, and that it was then agreed by the justice and the said attorney that the case would not be called for trial unless the said attorney was notified of the time; that the attorney then went away and awaited such notice, but that no notice was ever given to him; that on the 1st day of August, Hill Bros, appeared and continued the case until the 16th day of August, at 10 o’clock a.m.; that on the 16th the plaintiffs below appeared by counsel and continued the case until August 31, the defendant below not. appearing; that on the 31st the plaintiffs appeared and continued the case until the 15th day of September, at 10 o’clock a.m.; that on the 15th of September, the defendant not appearing, the plaintiffs below took judgment for $161.37 and costs. These are all the necessary averments in the petition.
The plaintiff in error bases his claim for reversal on these three propositions: First, the judgment was fraudulent, because there was an agreement with the justice that Snively’s attorney should be notified before the case was called for trial, and judgment was rendered weeks after without the knowledge of the plaintiff in error or his attorney, or without giving the plaintiff in error his day in court, and by lulling him to repose; second, that by the neglect of the justice to make the entry of the order of continuance on his docket, he lost jurisdiction of the cause; third, that the agreement to arbitrate was a discontinuance of the suit, and for the defendants in error to afterward take judgment without notice was unfair, dishonorable, and fraudulent. The question for us is, does the petition state a good cause of action by its various recitations respecting these matters?
I. As to the first of these it is apparent, both from the recitations of the petition and the entries on the justice’s docket, a transcript of which is embodied in the petition, that the plaintiff in error was present on the return-day of the summons, when the case was continued by agreement; that it was set for trial on the 1st day of August; and that it was his bounden duty to be there in person or by attorney. The justice, in the absence of the parties who brought the action, had no legal right to assure the attorney of the plaintiff in error that the case should not be called for trial until the attorney was notified of the time. The time of trial had been fixed on the 1st day of August by agreement. The justice could not change it without a further agreement by the parties. The petition does not allege that either the plaintiff in error or his attorney was not present on the 1st day of August by reason of the pending proposition to arbitrate, but the claim is based exclusively upon the proposition that the justice had agreed with the attorney that the case should not be called for trial until the attorney was notified of the time, and the time had already been fixed by agreement of all parties.
. Again, it is said that the justice informed the attorney that he had made no entry of the continuance from the return-day of the summons to the^lst day of August, and yet they place in the petition an extract' from the' docket of the justice that recites, “that now, on this 2d day of July, 1888, at 10 o’clock A. m., the plaintiffs appear in person and by attorney; defend ant also appeared in person; and by agreement this case was continued till August 1st, 1888, at 10 o’clock A. M. of said day.” With these two contradictory statements both contained in the petition — one that no entry was made, the other showing by the docket itself, on its face, that it was made at the proper time — we will not disturb the ruling of the district court on this question'.
II. The second contention is, that the justice lost jurisdiction of the case by reason of not having made the proper entries at the time the particular proceeding took place j but what we have already said with respect to the continuance from the return-day of the summons is a sufficient answer.
III. The third contention is, that the agreement to arbitrate was a discontinuance of the suit. As it is not alleged that this agreement was made before-the justice or in the justice’s court, or that it was ever called to the attention of the justice, or that it was ever made the basis of a motion to dismiss the action or discontinue the suit, it is difficult to see how it could have had the effect claimed. Without adverting to other evident reasons, this contention is not sound.
IV. The record shows affirmatively that from the return-day of the summons the plaintiff in error and his attorney paid no attention to the proceedings in this action. The parties who instituted it before the justice continued it three times in the absence of the plaintiff in error, and these continuances, made under such circumstances, are very strong protests against any inference of fraud or undue means. If there was an agreement to arbitrate, such as could have been enforced, ordinary care in the management of a lawsuit would have prompted any reasonable man to have called the attention of the justice to it.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff owns a home on Mulberry street, in Blue Mound, and the defendant, with the permission of the city, built its line of railroad along the street and in front of the plaintiff’s home. She brought this action against the railway company to recover $450 as damages for the alleged obstruction of the street, claiming that the company had built a main and side track in such a way as to take up the whole street, and leaving the plaintiff no means of egress from or ingress to her home, except through the alley in the rear thereof. It appears, however, that the railroad tracks were laid upon the street in pursuance of an ordinance enacted by the city, and in compliance with its terms. Instead of occupying the entire street, it appears that the street is 80 feet wide, and that, exclusive of that portion reserved for sidewalks, is 70 feet wide. It is also shown that the nearest railroad track is 34 feet from the street line of the plaintiff’s property, which affords abundant room for ingress to and egress from her premises. The road.is built in a workman-like manner, and although there is some contention that the laying of a side-track was without auy authority from the city, an examination of the ordinance granting the right-of-way over the street discloses that there is authority for both a main and side-track. The case, therefore, falls within the rule stated in K. N. & D. Rly. Co. v. Mahler, 45 Kas. 565, (26 Pac. Rep. 22,) and other authorities there cited, that, “to entitle an abutting lot-owner to recover damages for locating a line of railroad, under the authority of the city council, in one of the streets of a city, there must be a practical obstruction of the street in front of his premises, so as to virtually deprive him of ingress to and egress from his property.” Following these decisions, we must give a judgment of affirmance.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Replevin for a horse and a cow, of the value of $70, brought originally before a justice of the peace by the Bank of Glen Elder against the Farmers’ and Merchants’ Bank of Cawker City. An appeal was taken to the district court. In that court the plaintiff below was permitted to amend its bill of particulars twice. To the last amended bill of particulars, or petition, the defendant below filed a general denial. Upon the trial, at the close of the plaintiff’s evidence, the defendant filed a demurrer for the reason that it failed to prove a cause of action. The court sustained the demurrer, but allowed the plaintiff to reopen the case and introduce further evidence. When the plaintiff finally rested, the defendant for a second time demurred to the evidence, but the demurrer was overruled. The jury returned a verdict for the plaintiff. Subsequently the court entered a judgment that the plaintiff recover $75.70 as its interest in the property in controversy, and also its costs. The defendant below excepted, and complains of the judgment rendered.
It is urged that the trial court erred in permitting the plaintiff below to finally amend its bill of particulars so as to charge the Farmers’ and Merchants’ Bank of Cawker City as a coparternership composed of U. G. Paris and F. M. Owen, instead of a corporation, as originally alleged. “Discretion is largely vested in a trial court to allow amendments to pleadings, and such amendments will not be grounds for error, unless it is shown that there was a flagrant abuse of discretion.” (Smith v. Fullinwider, 40 Kas. 73; Carr v. Catlin, 13 id. 393; Board v. Campbell, 17 id. 537.) The district court also has power, in the furtherance of justice, to permit the amendment of a petition by striking out one name and inserting another, when it is shown that the first name was used by mistake. (Bank v. Tappan, 6 Kas. 456; City of Atchison v. Twine, 9 id. 350; Hanlin v. Baxter, 20 id. 134; Weaver v. Young, 37 id. 70.) The trial court, in its discretion, had the power, after sustaining the first demurrer to the evidence, to reopen the case and permit further evidence to be introduced. (Civil Code, §139; Cook v. Ottawa University, 14 Kas. 548; Railroad Co. v. Dryden, 17 id. 278.)
It is further urged that the trial court erred in overruling the objection to the introduction of any evidence under the second amended bill of particulars or petition. It is said that there was no allegation of any demand for the property prior to the commencement of the action. The defendant, upon the trial, attempted to show title in itself, and the right of possession incident thereto, under a chattel mortgage dated the 8th of March, 1886, and which was attempted to be renewed the 31st of March, 1887. Therefore no proof of demand and refusal was required. (Rapar v. Harrison, 37 Kas. 243; Bogle v. Gordon, 39 id. 31; Machine Co. v. Mann, 42 id. 372.)
The bill of particulars or petition, however, as amended, stated that the plaintiff below claimed special ownership of the property under a mortgage executed by R. H. Mattern to the plaintiff through J. C. McNerney, the cashier of the plain tiff. The amended pleading also alleged that E. H. Mattern, at the time that he executed the chattel mortgage, was the absolute owner of the property described therein, and had the lawful authority to mortgage and incumber the same; that the debt secured by the mortgage had become due and payable, and the mortgagor was in default; that the plaintiff was entitled to the immediate possession of the property; that the defendant wrongfully, unlawfully and unjustly detained the same from the plaintiff, and wholly deprived the plaintiff from all use and benefit thereof. These allegations were sufficient, as against the general objection to the introduction of any evidence, to show that the detention of the property by the defendant was wrongful, and a demand and refusal might have been properly offered in evidence, if it were necessary, under Rapar v. Harrison, supra, to establish a demand and refusal. If the amended pleadings were not sufficiently specific, they could have been amended on motion of the defendant below.
It is finally urged that the trial court erroneously instructed the jury as follows:
“ That in no event can the defendant prevail in this action on account or by virtue of any rights claimed to have accrued to it under and by virtue of the chattel mortgage offered in evidence. Such chattel mortgage of defendants, not having been shown by the evidence to have been renewed as is required by law, is of no force as to the plaintiff’s mortgage, if any mortgage plaintiff had upon the property in controversy.”
Upon the same ground, the trial court withdrew from the consideration of the jury the renewal affidavit of the chattel mortgage executed March 8, 1886, and filed March 10,1886. This renewal is referred to in the .record as .“Exhibit H,” and was filed March 31, 1887 — more than a year after the filing of the mortgage of March 10, 1886. One mortgage of the plaintiff below was filed April 17, 1886, and the other mortgage, called “Exhibit A,” was filed May 12, 1886. Both of these mortgages were subsequent to the mortgage of de fendant below of March 10, 1886. The instruction was erroneous, under the authority of Howard v. National Bank, 44 Kas. 549 (24 Pac. Rep. 983). It was said in that case:
“A subsequent mortgagee with notice of prior mortgage is not a subsequent mortgagee in good faith, under ¶ 3905 of the General Statutes of 1889. The words ‘subsequent purchasers’ and ‘subsequent mortgagees in good faith,’ in ¶ 3905, mean only purchasers and mortgagees who purchased or took their mortgages after the expiration of the year from the filing of the mortgage.”
Jones on Chattel Mortgages, (3d ed.,) §293, states the rule in the same way:
“Purchasers or mortgagees, who become such before the expiration of the year from the first filing, cannot take advantage of an omission to refile the mortgage. Such purchasers or mortgagees have notice of the existing mortgage, and take title subject to it. The statute was intended to prevent imposition upon them, and not to relieve them from incumbrances valid against them when they acquired their own title. They stand in the same position the mortgagor was in when they took their title from him.” (See the authorities there cited.)
The decisions in Michigan and Ohio are contrary to this rule, but the great weight of authority is as stated in the prior decision of this court.
Again, ¶3906, Gen. Stat. of 1889, reads:
“If such affidavit be made and filed before any purchase of such mortgaged property shall be made, or other mortgage deposited, or lien obtained thereon, in good faith, it shall be as valid to continue in effect such mortgage as if the same had been made and filed within the period above provided.”
It was also said in the Howard case, supra, that ¶ 3905, Gen. Stat. of 1889 —
“Does not include intermediate purchasers or mortgagees. This construction is based upon reason. He who purchases after the year has expired during which a mortgage remains in force has a right, in the absence of the renewal affidavit, to suppose the mortgage has been paid, even though not released on the record. But he who purchases before the year expires takes with notice of the mortgage and the rights of the mortgagee under the same.”
Therefore, the plaintiff below, having taken a second chattel mortgage soon after the filing of the first mortgage, was not a subsequent mortgagee in good faith, so as to have a prior lien to the first mortgage, although the first mortgage was not properly renewed within the year.
Upon the oral argument, the sufficiency of the record was challenged, and the claim was made that there is nothing here for review. We must decide in favor of the sufficiency of the record.
In Ryan v. Madden, ante., p. 245, it was ruled that—
“Where there is attached to a petition in error a case-made in which are found what purport to be copies of the pleadings and proceedings in the cause, but which are not specifically referred to and identified by marks or numbers, and there is attached to the case-made a certificate of the judge and the attesting signature and seal of the clerk, the presumption will be that the copies of the pleadings and proceedings therein are what they purport to be, and that all were included in the case-made when it was served upon the defendants and settled and signed by the judge.”
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The defendants, Con. Morrison (whose-full name is Cornelius Morrison) and Thomas Cooney, were convicted in the district court of Jackson county of the offense of having knowingly and willfully obstructed, resisted and opposed the sheriff of said county in the service of an execution and an order to sell personal property in a civil action. The defendant Morrison was sentenced to pay a fine of $200, and the defendant Cooney was sentenced to pay a fine of $150, and they were adjudged' to pay the costs-jointly, and each was to stand committed to the county jail until their respective fines and the costs should be paid; and both appeal to this court.
The first claim of error is, that the court below erred in-overruling the defendants’ motion to quash the information. The statute under which this information was drawn reads as follows :
“Sec. 165. If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff, or any other ministerial officer, in the service or execution, or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any other duty, in any case, civil or criminal, other than felony, or in the service or attempt to serve any order or rule of court, in any case, every person so offending shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail for a term not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment.” (Act relating to Crimes and Punishments, §165.)
The information under which the defendants were prosecuted, after averring all the necessary preliminary matters,, and that the defendants with others, on September 1, 1890, unlawfully assembled together with the intent to disturb and to forcibly resist, oppose and prevent the sheriff from executing the aforesaid writs of execution and order of sale then in his hands, and copies of which are given in the information, and from proceeding with the sale, then charges as follows :
“And the said Con. Morrison, Thomas Cooney, . . . then and there being, did then and there unlawfully, knowingly and willfully obstruct, resist and oppose the said R. B. Francis, sheriff as aforesaid, in executing the said order of sale and writ of execution, and in his attempt to proceed with said sale of said personal property thereunder as aforesaid, by then and there knowingly and willfully using loud, profane, vulgar and threatening language towards him, the said sheriff, and language calculated to provoke an affray, and by conducting themselves in a-threatening and boisterous manner, and by intimidating and assaulting said R. B. Francis, sheriff as aforesaid, in his attempt to perform his official duty as aforesaid, and by then and there disturbing the peace and quiet of said R. B. Francis, and preventing him from proceeding with said official sale, by reason of their (the said defendants’) said unlawful acts and conduct, against the will of said R, B. Francis, and against the peace and dignity of the state of Kansas.”
Section 108 of the criminal code, with reference to indictments and informations, reads as follows:
“Sec. 108. Words used in the statutes to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.”
In the case of The State v. McGaffin, 36 Kas. 315, it is decided as follows:
“As a general rule it is sufficient if an indictment or information charges an offense in the language of the statute; and even the statutory words need not be strictly pursued, but others conveying the same meaning may be used.”
See, also, the case of The State v. White, 14 Kas. 538. In the case last cited it is decided as follows:
“ The common-law rules of construing criminal pleadings have been set aside by our code of criminal procedure, and to that code must we look for the rules to determine the sufficiency of an information or indictment. It is not necessary in an information to use the exact words of the statute in charging an offense. It is sufficient if words are used conveying the same meaning.”
See also the following cases: The State v. Craddock, 44 Kas. 489; The State v. Foster, 30 id. 365; The State v. Hart, 33 id. 218; Madden v. The State, 1 id. 340, 348, 349; The State v. Barnett, 3 id. 250. In the case of The State v. Schweiter, 27 id. 499, 506, it was decided as follows:
“Where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all together one offense only. In such cases, the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction.”
Section 110 of the criminal code reads as follows:
“Sec. 110. No indictment or information may be quashed or set aside for any of the following defects: First, For a mistake in the name of the court or county in the title thereof. Second, For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or information. Third, That dates and numbers are represented by figures. Fourth, For an omission of any of the following allegations, viz.: ‘ With force and arms/ ‘contrary to the form of the statute/ or, ‘against the peace and dignity of the state of Kansas! Tifth, For an omission to allege that the grand jurors were impaneled, sworn, or charged. Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, seventh, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
In the case of Madden v. The State, 1 Kas. 340, 348, et seq., the following language is used in the opinion of the court:
“ The legislature evidently designed by the code of criminal procedure to simplify pleadings so that the technicalities, which had become so interwoven with the old system, should no longer be used to defeat the ends of justice. . . . The legislature has attempted to close these avenues of escape by the provisions of the code, whether wisely or not it is not for us to consider. It is for courts only to give effect to its provisions according to the rules prescribed by it. . . . The code has specified, in §§ 89 and 90, the requisites of an indictment, but has provided, in § 96, a large class of defects, for the existence of which the indictment may not be quashed or set aside. Now, it must be obvious to anyone reading the indictment in this case, that it does not state the facts constituting the offense in plain and concise language, without repetition, as directed in the second clause of § 89. But the sixth subdivision of § 96 declares that for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged, the indictment shall not be quashed or set aside. The 89th and 90th sections are the guides for the pleader, from which he ought never to depart. The 96th section limits the court in the application of the requirements of those sections, and furnishes a different rule for its judgment than it had given the pleader for his guidance in §§89 and 90. By the 6th subdivision of the 96th section, if sufficient matter is alleged to indicate the crime and person charged, the indictment may not be quashed, although it may contain surplusage and repugnant allegations. Now, surplusage and repugnant allegations cannot be that ‘plain and concise language, without repetition/ directed to be used in § 89. Yet the court must disregard such surplus-age when called upon to pass upon the indictment, applying the criterion provided in §§ 89, 90 and 95, as explained and limited by § 96, and we think it will be found that the indictment, though inartificially and clumsily drawn, must be sustained.”
Sections 89, 90, 95, and 96, above mentioned, correspond respectively to §§ 103, 104, 109 and 110 of our present criminal code. (See, also, The State v. Furney, 41 Kas. 115, 116.) Following the statutes and the cases above cited, it necessarily follows that the court below did not err in ovcrruling the defendants’ motion to quash the in- ° t # . ■*- formation. No indictment or information shall be quashed, “Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, seventh, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (Criminal Code, § 110.)
The next alleged errors have reference to instructions given by the court to the jury; but before proceeding to the considation of these instructions, it will be proper to state some of the evidence in the case. Evidence was introduced tending to show, among others, the following facts: In 1890, Reuben B. Francis was the sheriff of Jackson county. On August 18, of that year, he held in his hands an execution and an order of sale against personal property of the defendant Con. Morrison, and about that time he levied upon such property, and advertised the same to be sold on September 1, 1890, at 2 o’clock in the afternoon. On Tuesday, August 26, 1890, he was at Morrison’s house, but Morrison was not at home; Mrs. Morrison and some of the children were there. The sheriff believed that some of the oats that he had previously levied on had been removed, and that Morrison was responsible for their removal. He told Mrs. Morrison that he knew where the odts had gone, and that if Morrison did not give him the money for them he would have him arrested and put in jail. The above is according to the sheriff’s testimony. James Morrison, a son of the defendant, testified that this was on Thursday, August 28, 1890, and that the sheriff, among other things, told his mother, using some profane language, that he would have a warrant for his father, and put him in the penitentiary. This the sheriff denies. Mrs. Morrison at the time was in an advanced stage of pregnancy, and on the Sunday following gave birth to a child. On Monday morning, Judge McAloon, the principal adviser of Morrison, and Morrison and others, procured a warrant from a justice of the peace for the arrest of the sheriff, upon grounds in some manner connected with the aforesaid conversation had between the sheriff and Mrs. Morrison, and placed the warrant in the hands of a constable named Frank Jackson to serve. On that day, and before the time for the sale to occur, a large number of persons gathered at Morrison’s house. Jackson, the constable, testified that McAloon said to him, “Don’t serve the warrant unless he [the sheriff] commences to sell.” This was said in the presence of Morrison, and McAloon, as a witness, admitted on his cross-examination that lie had heard Morrison tell the constable “not to arrest him [the sheriff] unless he commenced the sale.” Jackson arrested the sheriff before the time for the sale to commence. But it would seem that the arrest did not interfere materially with the sheriff’s liberty, or his freedom to proceed with the sale. The sheriff testified on the trial that the following then occurred:
“ McAloon came to me, and in the presence of all these defendants he said I could not go on with the sale, for the reason that I was under. arrest. . . . Mr. Cooney was standing behind me, and he says, ‘ To come down to a man’s place and do as you have done here, damn you, you will get a rope around your neck before you get away from here.’ . . . £You need not laugh, God damn you; I mean it!’ . . . Mr. Morrison about that time says: £I would like to see any son of a bitch move a hoof of this stuff away,’ or something of that nature. At that time McAloon* took me off over toward the stable, and Morrison followed; came over there and cursed me; called me sons of bitches, and all kinds of names. He came right up in front of me and said: ‘ God damn you! I would like to wipe the ground with you.’ He wanted to whip me, whether or no. . . . He [Morrison] drove Mr. Fellows away from there. . . . He told him, God damn him, he had no use for him there, and to get out from there. . . . He went, and went quick. I seen a revolver in Mr. Morrison’s pants, right in there [pointing to his own pants]; think it was on that side; it was what I took to be a revolver; could see the handle sticking a little above top of his pants. . . . The tone of voice was pretty wicked; think they meant what they said.”
On cross-examination, the sheriff, Francis, testified: “He [Morrison] said he would like to see a son of a bitch move any of that stuff from there. . . . About that time there was one Mr. Cooney began to talk about hanging me, and I got my mind off the other business.” McAloon, who resides at St. Marys, brought a law book with him. The sheriff also testified that Morrison shook his fists at him while he was talking to him, and also testified that he announced that he postponed the sale for one week, and he did this because he thought there would be trouble and somebody would get hurt if he went on with the sale. The sale did not take place on that day, nor for about twp weeks afterward. The constable, Jackson, testified, among other things, that Morrison —
“ Became enraged and' said: ‘ Mr. Francis, I want you to understand one thing right here, you won’t sell a damn thing that is on this place.’ . . . ‘No God damn son of a bitch could come from Holton and take anything off that place.’ . . . Mr. Morrison says [to Fellows] : ‘ What are you doing here? I did not tell you to come here, damn you; get out of here; and he got. ... I heard him [Morrison] say that the sheriff could not sell anything — could not sell anything that was on that place.’ Mr. Swetlick testified that Morrison says: ‘ You don’t come and sell this property; you or no damn son of a bitch from Holton should sell it.’ . . . They were shaking their fists right at the sheriff.”
Mr. Faulk testified that, after the time at which the sale was to take place, Morrison “said that the sheriff came down there to sell some property that belonged to him, and that he stopped the sale and would not let him sell it.” Mr. Fellows testified that, on the day that the sale was to take place, he went there to bid on some of the things to be offered, and “ there was something that I took for a revolver in the pocket of Morrison. I did not care about opposing that thing.” He also testified to Morrison’s threatening demonstrations. Fellows left the place. He testified, “ I thought there would be trouble if I stayed.” Mr. Franze testified that Morrison said that “no Holton son of a bitch, or sons of bitches— don’t know whether he used the singular or plural number, —could take any property from there.” He also testified that both Morrison and Cooney seemed “excited and violent,” and that Morrison seemed “ very much enraged.” Indeed, all the witnesses testified that Morrison and Cooney were both angry, and seemed to mean what they said. Judge McAloon, Morrison’s principal adviser, testified that he “thought that it would not be safe to proceed with the sale;” and he also testified that “ Mr. Cooney came up to the sheriff in an angry and violent and threatening manner; shook his fists at him, and told him that no son of a bitch from Holton could take away any property off that farm.” Mr. Cleveland testified that, before the day on which the property was to be sold, Morrison said that “it would not be sold; no one would take anything off the place; he would not permit it.” There was much other testimony of the same character as the above.
On the side of the defendants, the witnesses testified that all the trouble that occurred on the day on which the sale was to take place occurred because of what was said by the sheriff to Mrs. Morrison, on the Tuesday or Thursday prior to the day on which the sale was to take place, and that nothing was said or done for the purpose of preventing the sale, or hindering the sheriff from making it. The evidence on many points was very conflicting, but the jury and the court evidently did not fully believe the testimony of the defendants’ witnesses, and did believe the testimony of the ^jfogggeg for state_ it probably true that what was said by the sheriff to Mrs. Morrison, prior to the day on which the sale Avas to take place, partially furnished the excuse for some of the threatening demonstrations that were made by the defendants and their friends; but evidently, from the evidence, the principal object on the part of the defendants and their friends Avas to preA'ent the sale, and they accomplished their object so far as that day was concerned.
The court beloAV instructed the jury, among other things, that they could not find the defendants guilty unless they found beyond a reasonable doubt that the defendants did, as charged in the information, knowingly and willfully obstruct, resist and oppose the sheriff with respect to his intended sale; and also instructed the jury as follows:
“You are the exclusive judges of the testimony, and of the credibility of the witnesses. If any one or more of them has willfully testified falsely to any material fact in the case, you arc at liberty, but not bound, to disregard the whole of the testimony of that witness. If in considering the testimony you are unable to reconcile it, which would be your first duty, then it is for you to determine which side, when it is directly in conflict, you will believe. You are not at liberty to arbitrarily disregard the testimony of any witness. You should consider it and give it the weight it is entitled to, considering all the surrounding circumstances that throw any light upon it; and it is your duty to consider the interest of the person testifying, if any is shown on the stand; his intelligence, his means of knowledge, his bias in any direction, from friendship or otherwise, in determining the weight of testimony of any witness on any side; and from all such considerations and. any other that in your judgment would throw any light on the value of the testimony of the witness, and from it all, determine its weight. I need not call your attention to the fact that there is conflicting testimony with regard to material matters in the case. If you are convinced that any one of them testified falsely, as some of them must have done, if their testimony conflicts, it is for you to determine which you will believe and give it the weight it is entitled to.”
The last sentence of the above instruction is objected to, but considering it in the light of the testimony and of the other instructions, it cannot be considered as erroneous or materially erroneous. The defendants also objected to other instructions. The court instructed the jury that the question for them to determine was “ whether or not the defendants, or any of them, willfully and knowingly obstructed, resisted or opposed the sheriff in the execution of a lawful duty;” and then defined these various words. In defining the word “willfully,” the court used the following among other language :
“Willfully, in this connection, means that, if they knew the effect of what they were about to do would be to obstruct the officer in the performance of his duty, or such effect might be reasonably apprehended from their acts, then they may be found to have willfully so acted.”
The judge also in this connection instructed the jury as follows:
“And so I say to you, that it is not absolutely necessary to a conviction under this section of the statute that they should, in what they did, have actually intended that no sale should take place, if what they did do would, reasonably considered, prevent a sale. In reference to the claim on the part of the defense, that whatever was done there was in regard to some grievance Mr. Morrison had against the sheriff for misconduct toward his wife at the time when he was not present— I say, if the purpose of these people, Mr. Morrison or his friends, these defendants, was to get up an altercation there with the sheriff, the reasonable consequence of which would be — not that they intended to do so — but the reasonable consequences of which would be that the sale could not take place, then they would be within the statute, although they did not intend, actually intend, to disturb the sale at all. The statute says, if they shall obstruct an officer in the execution of his duty; that would mean, if they put impediments in his way, as getting the property away so that he could not get it for sale, would be obstructing an officer in the execution of his duty. Opposing: That might be done in various ways; by ordering away bidders; giving notice to the bidders that the title was not good ; that the sheriff had no right to sell, and various things of that sort, would be within the meaning of this clause, opposing the sale or resisting an officer in the execution of a writ. In this case, if the sheriff was there to sell the property, and they had prevented him by force from collecting the property together at a place where it could be sold, that would be resisting the execution of this process.”
Some portions of these instructions may not be technically correct, and yet, taking the whole of the instructions together, we do not think that they were misleading or . tl . , • t • ,i i erroneous as to anything material in the case^ and certainly not so misleading or erroneous as to require a reversal of the judgment. If, for instance, some person had been at the place of the intended sale, who in good faith believed that he owned the property, and not Morrison, and that the sheriff for that reason had no right to sell it, he would have had a right to give notice of his claims to the sheriff, and to the bidders, and to all other persons, and to have warned all persons not to bid on the property for the reason that he claimed to own the same. But there is nothing of that kind in this case, so far as the present defendants are concerned. They knew what they were doing, and certainly must have known that the tendency of their acts would be to prevent the sale. In this connection it is necessary to make some further comment upon the instructions. While the defendants must have known that the tendency of their acts and conduct would be to prevent the sale, and while in all probability they actually intended that such acts and conduct should bring about such result, yet the court below instructed the jury that it was not absolutely necessary to a conviction that the defendants should have actually intended that no sale should take place, provided if what they did would, when reasonably considered, prevent the sale. We are inclined to think that the instruction, under the circumstances of this case, was right. The tendency of the acts and conduct of the defendants was to provoke a quarrel with the sheriff, and to bring about a breach of the peace. Their conduct was wrong, and they should be held to be responsible for all that would necessarily and reasonably follow from it, and which did in fact follow from it. The sale was prevented because of the defendants’ conduct, and they evidently had reason to believe, and did believe, that such would be the result.
We cannot say that material error was committed by the court below, and therefore its judgment will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
This was an action in replevin to recover possession of certain hay. The material facts are, that some time in the month of July, 1887, Douglass, Keyes & Co. made a contract with one William Sproul to put up for them all the hay that he could with his force and teams on sections 13,14, and 23, in township 23, range 6, in Sycamore township, Butler county. This hay was to be stacked on the land above described, or on land belonging to Sproul. This hay was to be cut, on grass lands furnished by Douglass, Keyes & Co., who had leased land for that purpose, and a large part, if not all the hay, was cut on that land. On the 5th day of September, 1887, Sproul executed and delivered to Douglass, Keyes & Co. a bill of sale for 10 stacks of hay, estimated to contain 100 tons, then in stack on the south half of section 13, also for 8 small stacks, estimated to contain 40 tons, located on the same land, and 2 stacks, estimated to contain 15 tons, inside the fence on Sproul’s quarter-section of land. In this bill of sale Sproul acknowledged having received $310, being payment in full for said hay. Each of the stacks of hay enumerated in the bill of sale of September 5th was numbered and marked with a piece of lath with the name of Dougiass, Keyes & Go. placed near the bottom of the stack. On the 13th day of the same month Sproul executed another bill of sale for several more stacks of hay, put up after September 5th. These stacks were numbered and marked in the name of Douglass, Keyes & Co. on a piece of lath placed near the bottom of the stack. The sum of $121.50 is acknowledged as payment in full of this lot of hay. On the 23d day of September another bill of sale was executed by Sproul to Douglass, Keyes & Co., for 176 tons of hay, the bill of sale reciting that this includes all the hay that was put up on section 23 to this date. It also recites that ®ouglass, Keyes & Go. furnished the grass, and it acknowledges the receipt of $308 for full payment of the cutting and putting it into the stack. Hoy was the agent of Douglass, Keyes & Co., and had charge of the hay, and it was in his possession, and he looked after it.
On the 6th day of September, 1887, Sproul made a contract with Griggs, with whom he had dealings, and from whom he had been buying provisions with which to feed his workmen, and to whom he was indebted, to sell Griggs all the hay he had to put up. At the time Griggs made this contract with Sproul, he had not seen the hay, and did not go out to where Sproul was putting up hay until the 11th day of September. In the meantime he agreed with Sproul that he (Griggs) would pay the hired help by whose aid Sproul was cutting and stack ing the hay. About the 23d day of October, 1887, Douglass, Keyes & Co. learned that Griggs had taken possession of the hay, and was having it baled and shipped, and they sent Hoy, the plaintiff in error, up there, who took possession of the hay, and held it. On the 2d day of November this action was commenced in replevin by Griggs against Hoy, to recover the possession of the hay. The case was tried by a pro tem. judge and a jury, at the October term, 1888, of the district court of Butler county, and a verdict returned for Griggs, and a judgment rendered in his favor, that at the commencement of this action the plaintiff was the owner of and entitled to the possession of the property in controversy. A motion for a new trial was made and overruled, and all exceptions saved. We ought to have stated that neither Griggs nor Douglass, Keyes & Co. knew of the contracts that Sproul had made with the other until about the time Griggs commenced to have the hay baled and shipped.
Among the many assignments of error made by counsel for plaintiff in error, we select two as being important.
I. The trial court, over the objection of the plaintiff in error, permitted Griggs to introduce and read in evidence to the jury a contract made between Griggs and Brown, for the purchase by Brown of Griggs of the hay in controversy, and also permitted Griggs, while on the witness stand, to statPwhat Sproul said respecting this hay at the time this contract between Griggs and Brown was made; also permitted the deposition of Brown to be read in evidence, reciting this same conversation. The pretense under which this was done was, that the contract was virtually one between Sproul and Brown, and, assuming this to be true, we are at a loss to account on what principle the declarations of Sproul, and a contract for the sale of this hay to another person, can be admitted to bind Douglass, Keyes & Co., in their absence and without their knowledge. It is true that, under certain circumstances, the declarations of a party in possession of chattels in respect to the ownership thereof are admissible, but such declarations were not made under such circumstances as entitle them to any consideration in this case. Sproul was not in the visible possession of this hay. It was not a matter of common observation to all that he had been in the possession, use and enjoyment of it for a long time, acting as the owner, and always and on all occasions claiming to be the owner of it. For this is the law. And not that alone; it has been repeatedly and universally held', that such declarations, to be binding, must have been made at a time when the declarant had the title to the property in question, and his admission subsequent to a sale made by him cannot be received to affect the title of his grantees.
Again, if it is conceded that the contract was in fact one between Sproul and Brown, whereby the hay was sold directly by Sproul to Brown, what right has Griggs to maintain this action? Under such circumstances, the right to the possession is in Brown, and not in Griggs. The admission of this contract, and the evidence of Griggs and Brown as to the statements of Sproul as to his ownership of the hay at the time the contract between Griggs and Brown was entered into, all in the absence and without the knowledge of Douglass, Keyes & Co.', were material errors.
The only ground upon which counsel for defendant in error seek to justify the admission of the declarations of Sproul at the time he sold the hay to Griggs is this: That as Douglass, Keyes & Co. and Griggs both claim under Sproul, he being the common source of title to the hay, his declarations concerning the property in controversy would be competent evidence against his grantees. But this is not the law; the same principle quoted above applies. The declarations or admissions of the grantor must be made while he is in possession of the property. So declarations of the seller of personal property, made after a sale, and after he has parted with the property, are admissible against the buyer. (1 Greenl. Ev., 14th ed., § 190, and foot-notes.) Apply this to the facts in this case, and it appears that on the 6th day of September, when Sproul asserted in the presence of Griggs and Brown that he was the owner and was in possession of the hay, he had sold it the day before to Douglass, Keyes & Co.; indeed, put it up under a previous contract with them, had yielded possession, and had in writing acknowledged full payment for the same.
Again, it may be seriously doubted whether Sproul ever had either the title to or the possession of the hay. His contract with Douglass, Keyes & Co. was to cut and stack hay from grass lands furnished by them, and the evidence discloses, that most, if not all, of the hay cut and stacked by Sproul was from land to which Douglass, Keyes & Co. had the grass rights. A fair construction of this contract, with the accompanying facts, seems to determine that under no circumstances can it be fairly said that Sproul was either in legal possession or had title to the hay. It seems conclusive, therefore, that his declarations respecting ownership or possession were not admissible for any purpose. We have no doubt but that the admission of this contract between Griggs and Brown was one of those things that tended to influence and prejudice the mind of the average juror against the plaintiff in error. The same may be said, and we think with more force, as to the admission of the declarations of Sproul on the 6th of September, at the time he sold the hay to Griggs, and Griggs sold it to Brown.
II. The trial court gave the following instruction, numbered 13:
“If you find that both parties are in the same position, in this, that each of them in good faith and without fault hired said Sproul to put up the hay replevied in this action, or a part thereof, and that through the fault of said Sproui each was deceived, and that neither party has by any subsequent act obtained a superior right over the other, and you also find that one of the parties can be placed in the same position that he was in before said contract was made, and that the other cannot be placed in the same position he was in before such contract was made, then you should find in favor of that party who cannot be placed in the same position as he was before the contract was made, to the extent of the amount of hay put up under such contract made with each.”
We cannot see any possible application of this instruction to the facts in this case; indeed, the exact facts in the case are not stated in the instruction. This is not a case that calls for any new or novel application of principle. Douglass, Keyes & Co. are first in right ai.d first in time. The same principle controls here as if one person had furnished a tailor materials with which to make him a full suit of clothes and agreed to pay him a certain price for his work, and the tailor had sold the suit when made to another.
The case cited to support this instruction is that of Henderson v. Gibbs, 39 Kas. 679. In that case property was fraudulently procured by a purchaser from an innocent owner, and the fraudulent vendee afterward sold the property to an innocent and bona fide purchaser, the only consideration moving from one to the other in the last sale being the partial payment of a preexisting debt due from the fraudulent vendee to the second purchaser; and it is held under this state of facts, that the original owner may rescind the contract made by him with his fraudulent vendee, and recover his property. Now suppose this decision applied to the facts in this particular case: what would be the result of a fair application of it? Was Sproul the original owner and the hay procured from him by Griggs in a fraudulent manner? or was Griggs the original owner and had somebody fraudulently procured the hay from him? or were Douglass, Keyes & Co. the original owners, and did Sproul fraudulently procure the hay from them? It will be seen that the only possible theory upon which the rule in Henderson v. Gibbs, supra, can be made to apply to this case is upon the assumption that Sproul was the innocent owner of the hay, and that Griggs was his fraudulent vendee, and this application will not be satisfactory to the defendant in error. There are several very controlling reasons why Sproul cannot be regarded as the original owner. Even if at one time he was the owner of the hay, he had sold to Douglass, Keyes & Co. before Griggs bought, and hence had divested himself of ownership; and, secondly, he never was the owner and never was in the legal possession of the hay, because by the terms of his contract all he agreed to do was to cut and stack hay on lands furnished by Douglass, Keyes & Co. The instruction was a most pernicious error.
III. The jury by their verdict, and the court by its ruling on the motion for a new trial, entirely ignored the twelfth instruction, as follows:
“You are instructed that if one S. C. Rodman owned the southwest quarter and the west half of the southeast quarter of section 13, township 23, range 6 east, in Butler county, Kansas, and that before the hay was cut from said land said S. C. Rodman had leased in writing to Douglass, Keyes & Co. said land, and said Douglass, Keyes & Co. had employed William Sproul to put up the hay on said land, then defendant would be entitled to the possession of all the hay cut from said above-described land.”
This instruction is all right as far as it goes, and while there is some confusion in the minds of witnesses as to the sections and fractional parts of sections upon which the hay was cut, there is sufficient in the evidence to establish the fact that a part, at least, of the hay was cut upon land that had been leased by Rodman to Douglass, Keyes & Co.; but the jury ignored the fact, and both jury and court disregarded the instruction. There can be no reasonable contention but that, in any view that may be taken of the facts in this case, Douglass, Keyes & Co. were entitled to the possession of all hay cut and stacked before the 6th day of September, and that they were entitled to all hay cut from the lands leased by them from Rodman. The verdict of the jury and the ruling of the trial court on the motion for a new trial totally ignored their legal rights with reference to these propositions, and it was grievous error so to do.
It is recommended that the judgment be reversed, and a new trial granted.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This action was commenced in the district court of Atchison county by B. F. Wallace, against Cain Brothers Company, to recover the sum of $978.65 as a balance claimed to be due him for wheat sold to the defendant. The petition alleged —
“That on or about the 20th day of October, 1886, the defendant, Cain Brothers Company, was and still is'a corporation, duly incorporated and organized under the laws of the state of Kansas, and as such was doing business in divers counties of said state of Kansas as a buyer, seller and shipper of grain; and that on or about October 20, 1886, and for a long time prior and also subsequent thereto, one E. B. Buck was the duly-authorized and acting agent of said defendant company in the matter of making contracts for and in buying and shipping of grain in behalf of said company in the county of Jewell, and in the state of Kansas; and that on or about the 20th day of October, 1886, said defendant, by and through its duly-authorized and acting agent, E. B. Buck, upon examination, inspection and test of the certain grain then belonging to and the property of this plaintiff, contracted with this plaintiff for the purchase of a large quantity of wheat then in the possession of the plaintiff, to be delivered on board of cars at Jewell City, Kansas, near the place of business of said defendant company at said Jewell City, and thereafter and under and by the terms of said contract, and between the 20th day of October, 1886, and the 6th day of November, 1886, this plaintiff delivered to said defendant; on board the cars at said Jewell City, 5,310 bus. and 55 lbs. of wheat, which the said defendant, by and through its said acting and duly-authorized agent, contracted, promised and agreed to pay to this plaintiff the price and sum of 50 cents per bushel, or $2,655.45; that of said sum said defendant paid to this plaintiff' the sum of $1,676.80, and the balance due to plaintiff thereon is $978.65.”
To this petition, the defendant answered by a general denial, and, as a second defense, alleged “that although said R. B. Buck was in the employ of the defendant at the said time, he was not then or at any other time the duly-authorized and acting agent of the defendant in the matter of making contracts for, and in buying and shipping, grain on behalf of defendant,” and then denied specifically the contract for the sale of wheat by plaintiff, and alleged what was claimed by defendant as being the contract in relation thereto, alleging, in brief, that the contract was to ship the grain to Atchison, to be delivered and graded at Atchison, and then alleged that said wheat was not of the grade represented, and contracted for, and that for that reason the said grain was shipped to St. Louis and other markets and sold, and the proceeds — accounted as $788.65 —paid to plaintiff in full settlement thereof; and for a further defense set up a counterclaim for $250 damages, by reason of the failure of the plaintiff to perform his contract. The jury returned a verdict in favor of plaintiff for the sum of $728. A motion for a new trial was overruled. Judgment was rendered for the amount of the verdict and costs, and the defendant brings the case to this court.
I. The first assignment of error is the introduction of evidence, upon the part of the plaintiff, to show the authority of R. B. Buck to make the contract alleged in plaintiff’s petition. It was. conceded that the defendant opened its business in Jewell City about the 1st of September, 1886, for the purpose of buying grain, and that Buck was in charge of such business and authorized to purchase grain under certain re strietions. The evidence complained of tended to prove Buck’s authority to make the contract claimed by plaintiff, by showing that he inspected, received and paid for different lots of wheat as brought to defendant’s warehouse. We think the evidence was competent. The authority of the agent was not in writing, so as to make the scope of such authority a question of law for the court. Buck was the recognized agent of the defendant, so that the question was not whether the relation of principal and agent existed,, but what was the scope of the agency? The fact and scope of an agency may be determined not alone by what the principal may tell the agent to do, but also from what he knows, or in the exercise of ordinary care might know, as to what the agent is doing. It has been said :
“In most cases, if not in all, the question of agency is a matter of fact, which it is the province of a jury to determine upon under the instructions of the court; and if the testimony tends to prove that the person acting as agent had authority from his principal to do the act, then it is manifest that the court cannot exclude from the jury the act itself without overstepping the law of its duty, and assuming to determine a matter which belongs to the jury, to wit, the authority of the agent to do the act. The correct rule is this: If there is no proof whatever tending to prove the agency, the act may be excluded from the jury by the court; but if there is any evidence tending to prove the authority of the agent, then the act cannot be excluded from them, for they are the judges of the sufficiency and weight of the evidence.” (McClung’s Ex’rs v. Spotswood, 19 Ala. 165; Brett v. Bassett, 63 Iowa, 340; Thomp., Trials, § 1370; Jacobson v. Poindexter, 43 Ark. 97; Kingsley v. Fitts, 51 Vt. 414.)
II. The plaintiff in error claims that the special findings of the jury are against the weight of the evidence, and therefore must be set aside and a new trial ordered. It is insisted, in support of this claim, that plaintiff had delivered all of his wheat raised in 1886 from the thresher, excepting about 200 bushels, prior to October 20, 1886r and amounted to 1,524 bushels, together with a crop of oats raised in the same year, amounting to $683.25 for wheat, and $178.25 for oats, making a total of $861.50; and from this state of facts it is argued that the plaintiff’s crop of wheat raised in 1886 could not have been in the consignment shipped between October 25 and November 12, and that a certain item of $441.63 could not have been for the 1886 wheat, but for the crop of 1885; and also that the sum of $1,347.03 was paid on account of the wheat crop of 1885, and that, therefore, there could not be a balance, as the jury found, of $670.09 on account of the 1885 crop. According to the evidence of the plaintiff, he delivered about 5,700 bushels of wheat to the defendant, and had received payments at different times aggregating $2,650.15, and that the grain sold amounted to $2,645.45, so that, according to his own evidence in the first instance, he had been paid for his grain. The production of a check for $361.50, and a draft for $500, with the plaintiff’s indorsements, seemed to confirm the defendant in its position. This matter, however, was explained to the apparent satisfaction of the jury. It was shown that the plaintiff had sold a lot of wheat and oats which he had received from some of his neighbors, and it had been delivered to the defendant and paid for by a draft for $500 and a check given by Buck upon a local bank in Jewell City for $361.50, and had no connectiou with grain sued for; and having been settled for, had doubtless passed out of the mind of the plaintiff until the transaction was recalled by the production of the draft and check.
The plaintiff in error calls attention to the inconsistency between the answers to questions numbered 4 and 6 and the answer to number 7 of plaintiff’s series of questions. We think the answers can be very easily reconciled by the fact that they referred to two different sales; 4 and 6 had reference to the wheat which had been sold and settled for, and 7 related to the last wheat delivered. Keeping in mind the two transactions-, which were separate and distinct sales, we think* there is some evidence to support the series of special findings submitted by the plaintiff, and that they are not inconsistent.
The findings in the defendant’s series of questions and answers plaintiff in error claims are equally wrong, and says that No. 3 finds this wheat not inferior to No. 2, and calls our attention to the evidence in regard to the official inspection at Atchison. The finding was as follows: “Was the wheat sued for in this action greatly inferior in quality to that contracted by the plaintiff to be delivered to defendant ? Ans. No.” This finding is not subject to the objection made by the plaintiff in error.
Objection is made to the fourth finding, that Atchison inspection was not intended, and the argument is urged that Buck had received 1,524 bushels of wheat upon his own inspection, and counsel ask, “Why was the grain inspected in Atchison, if it was not to be delivered there?” The claim of the plaintiff was, that the inspection and delivery were at Jewell City, and the defendant insisted that the contract called for Atchison delivery and inspection. The jury found with the plaintiff, and there was evidence to support the finding.
We have carefully examined the evidence bearing upon the other special findings complained of, and, without mentioning each specially, we think they are not subject to the strictures placed upon them by counsel, and are not unsupported by evidence.
The next complaint of counsel is, the jury’s refusal to answer this special question: “ Did the defendant in good faith cause the wheat, the subject of this action, to be inspected, and thereafter make disposition of the same?” Answer: “Unable to say.” No objection was made to the answer when the jury returned with the general verdict, and the error cannot now be considered. (Arthur v. Wallace, 8 Kas. 267; K. P. Rly. Co. v. Pointer, 14 id. 52.)
III. Our attention is next .called to the general charge of the court, and complaint is made that it is misleading, particularly instructions numbered 6 and 7. ' In these instructions the court said to the jury that, if they found that the agent had such authority, and made the contract as alleged by plaintiff and stated in the first of the instructions, then the plaintiff would be entitled to recover the difference between the aggregate amount of wheat so delivered under the contract and the amount paid thereon, not exceeding $672.06, with 7 per cent, interest from the time of the delivery at Jewell City; that if they should find that the contract was made between the plaintiff and the defendant, as stated in the first and sixth instructions, it would not be necessary for them to consider the counterclaim of the defendant. The delivery of the wheat was admitted, and there was no controversy over the amount. We see no error in these instructions, taken in connection with the rest of the charge.
“ Instructions should be., read and construed in connection with one another and as a whole, and where detatched sentences, which standing alone might seem inaccurate, are so qualified by other portions of the charge as to fully state the law of the case, and not calculated to mislead, they afford no ground for reversal.” (C. B. U. P. Rld. Co. v. Andrews, 41 Kas. 383.)
IV. The last assignment of error urged is, the misconduct of the jury. This claim is supported by the affidavits of two of the members of the corporation as to what one of the jurors told them after the trial had been concluded and the jury discharged. Statements made by a juror after the trial, and not under oath, are not competent evidence. They would simply be hearsay, and, when the testimony of the juryman himself is not offered, should not be considered.
(Sharpe v. Williams, 41 Kas. 56; Gottlieb v. Jasper, 27 id. 770.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the 28th day of September, 1886, Thomas Craven, the husband of Mrs. Kate Craven, was arrested in the city of New Kiowa, in Barber county, by the city marshal, for being drunk in the streets of the city, and also for using indecent and profane language. He was taken to the city prison by the marshal, in the afternoon of the 28th of September, and confined in the jail until about 9 o'clock the next morning. On the 9th of October, 1886, he died. Subsequently, Mrs. Kate Craven, his widow, was appointed administratrix of his estate, and on the 3d day of December, 1886, she brought her action against the city of New Kiowa, a city of the third class, to recover the sum of $10,000. She alleged that the city prison was a small wooden building, poorly ventilated, dark, filthy, and uninhabitable; that the city of New Kiowa failed to properly ventilate the prison,‘or provide a bed for persons confined therein to sleep; that on account of the exposure and confinement in the prison, together with being compelled to breathe the poisonous air thereof, her husband, Thomas Craven, contracted a violent disease, of which he afterward died. Trial before the court, with a jury. The jury found a verdict for $1,000 against the city, and judgment was entered thereon. The city excepted, and brings the case here.
It is contended, on the part of the city, that the case of La Clef v. City of Concordia, 41 Kas. 323, is decisive against the right of any recovery by the plaintiff below. In that case, it was decided that—
“Where a person is confined in a city prison, upon a conviction for disturbing the peace and quiet of the city, the city is not liable for damages for injuries sustained by such person by reason of the bad character of the prison, or the negligence of the officer in charge of the same.”
On the part of plaintiff below it is insisted that the La Clef case is not conclusive. It is stated that there are statutes making it the duty of a city of the third class, to which class the city of New Kiowa belongs, if it undertakes to keep and maintain a city prison, that it shall be comfortable and safe. The only statutes referred to by counsel for plaintiff below in support of their assertion, are as follows: ¶ 1013, General Statutes of 1889, which reads:
“The marshal shall be chief of police, and shall at all times have power to make arrests with or without process, or order the arrest of all offenders against the laws of the state, or of the city, by day or by night; to keep all persons arrested in the city prison, county jail, or other proper place; to prevent their escape until a trial can be had before the proper officer; and to execute all processes issued by the police judge and delivered to him for that purpose.”
And ¶3552, General Statutes of 1889, which provides:
“All prisoners shall be treated with humanity, and in a manner calculated to promote their reformation. Juvenile prisoners shall be kept, if the jail will admit of it, in apartments separate from those containing more experienced and hardened criminals. The visits of parents and friends, who desire to exert a moral influence over them, shall, at all reasonable times, be permitted.”
Neither of these statutes makes it the duty of a city of the third class to keep or maintain a comfortable and safe city prison. Paragraph 1013 gives a city marshal authority to keep all persons arrested in the city prison, county jail, or other proper place. By this statute no duty is imposed upon the city. Paragraph 3552 is a part of the statute concerning county jails, and has no application to city prisons or jails. Notwithstanding this statute, it was decided in Pfefferle v. Comm’rs of Lyon Co., 39 Kas. 432, that —
“A county is not liable to the inmates of its county jail for negligently permitting such jail to become and remain in such a bad condition that the inmates thereof become sick and diseased.”
If a county is not liable under this statute for negligently permitting its jail to become and remain in a bad condition, certainly it cannot be claimed that this statute, which was adopted to control county jails and not city jails, will make a •city liable for negligently permitting its jail to become and remain in an unhealthy condition. It would be illogical and unjust to hold a statute concerning county jails, that did not and could not make counties liable for failing to keep a comfortable and safe county jail, shall be so construed as to make cities liable for failing to keep a comfortable and safe city jail.
Upon the evidence presented upon the trial, the plaintiff below was not entitled to recover. (See, also, Peters v. City of Lindsborg, 40 Kas. 654.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the 5th day of December, 1883, David Hardesty commenced his action against Volney Ball in the district court of Lincoln county to recover damages alleged to have been sustained by reason of the erection of a mill-dam by Ball below the mill and dam of Hardesty, thereby backing the water upon the latter’s mill. Hardesty resided in Lincoln county, and filed a bond for costs. He has continued to reside in that county. The action was tried at the March term of the court for 1884, and resulted in a disagreement of the jury. Another trial was had in October, 1884, with like result. At the March term, 1885, the action was again tried before the court with a jury, resulting in a verdict-and judgment in favor of Hardesty, which verdict, on motion of the defendant, was set aside, and a new trial granted. A fourth trial was had in October, 1885, in which a verdict was again returned in favor of Hardesty, and judgment rendered in his favor. This judgment was reversed by this court, and the case remanded for a new trial. (Ball v. Hardesty, 38 Kas. 540.) On the return of the case to the district court, the defendant, on May 14, 1888, made a motion to require the plaintiff to give additional security for costs. The costs then amounted to $1,200. Upon the hearing of this motion, the court made an order requiring the plaintiff to give additional security for costs in the sum of $1,000 within a time named, and, upon his failure so to do, directed the case to be dismissed. Previous to the making of this order, and before the hearing of the motion, Hardesty made a deposit of $15 as security for costs with the clerk of the court, and also filed his affidavit that he was unable to give further security. After the making of the order, Hardesty attempted compliance, by filing an additional bond for costs with several persons as sureties, who qualified to the requisite amount, one of them being A. G. Hardesty, a son of the plaintiff, and who was a practicing attorney in that county. At the next term of court, the defendant moved to dismiss the case, claiming that the sureties on the bond were insufficient, and objecting to A. G. Hardesty as a surety, because he was a practicing attorney. Upon the hearing of this motion, the plaintiff' again presented his affidavit, and also testified orally, that he was unable to further comply with the .order of the court; but the court held the security insufficient, and dismissed the case, taxing all the costs to the plaintiff. To all these rulings exceptions were taken.
The provisions of the code which we are required to consider in this matter are as follows:
“Sec. 581. In any civil action hereafter brought in any district court of this state, before the clerk shall issue summons, there shall be filed in his office, by or on behalf of the plaintiff or plaintiffs, a bond, to be approved by the clerk, conditioned that the plaintiff or plaintiffs will pay all costs that may accrue in said action in case he or they shall be adjudged to pay them, or in case the same cannot be collected from the defendant or defendants if judgment be obtained against him, her, or them, that the plaintiff or plaintiffs will pay the costs made by such plaintiff or plaintiffs: Provided, That in any case where the plaintiff or plaintiffs having a just cause of action against the defendant or defendants, by reason of his,- her, or their poverty, is or are unable to give such security for costs, on affidavit of the plaintiff or plaintiffs made before the clerk that such is the fact, no bond shall be required: Provided further, That in case of nón-resident plaintiff or plaintiffs, such plaintiff or plaintiffs may deposit with the clerk of the district court such sum or sums as in the opinion of said clerk will be sufficient to cover all costs in case such non-resident plaintiff or plaintiffs become liable to pay the same, and in the case of resident plaintiff or plaintiffs, such plaintiff or plaintiffs may deposit the sum of $15, which sum shall be in lieu of all security for costs as herein and otherwise provided.
“Sec. 582. The affidavit provided for in the preceding sec tion shall be iu the form following, and attached to the petition, viz.:
“State oe Kansas,- County,-. In the district court of said county: I (or we) do solemnly swear that the cause of action set forth in the petition hereto prefixed is just, and I (or we) do further swear that, by reason of my (or our) poverty, I (or we) am (or are) unable to give security for costs.
. “Sec. 583. Any person or persons willfully swearing falsely in making the affidavit aforesaid, shall, on conviction, be adjudged guilty of perjury, and punished as the law prescribes.
“Sec. 584. In an action in which security for costs has been given, the defendant may at any time before judgment, after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court be satisfied that the surety has removed from this state or is not sufficient, the action may be dismissed, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff.”
Section 581 of the civil code was passed by the legislature on March 1,1875, but it took effect on the 15th day of May, 1875. Section 584 was in force a long time prior to the adoption of said §581. It appears in the Gen. Stat. of 1868, in chapter 80, page 746, and took effect October 31,1868. Section 584 must be construed in connection with §581. Prior to 1875, a resident of the county in which an action was brought was in no case required to give security for costs. (Carr v. Osterhout, 32 Kas. 277.) Section 584 of the civil code, prior to 1875, had application only to actions brought by non-residents of the county where the action was commenced, or actions where the plaintiff became a non-resident after the action was commenced. Section - 581 has not so broadened or extended its provisions as to include resident plaintiffs who have filed a poverty affidavit or deposited $15 for costs. When the motion was filed, on the 14th of May, 1888, to require Hardesty to give additional security for costs, § 581 was in full force. At that time this action could have been commenced by Hardesty without any security for costs', by his filing a poverty affidavit provided for by § 581 of the civil code, or by his depositing $15 in lieu of all security for costs. (Carr v. Osterhout, supra.)
If a poverty affidavit, or a deposit of $15 in lieu of alt costs, by a plaintiff was sufficient at the commencement of the action, it ought to be sufficient at any subsequent stage of the proceedings to keep the action in the court. When the motion was made, on the 14th day of May, 1888, to require him to give additional security for costs, he filed both his poverty affidavit and also deposited $15 in lieu of all security for costs. Within the terms of said §§581, 582 and 583 of the civil code, the district court ought not to have dismissed the action. He had fully complied with the provisions of said §581. Said §584 has application to non-residents, but not to residents who have filed a poverty affidavit or deposited $15 for costs. Therefore it had no application to Hardesty, the plaintiff in this action, and the case must be reinstated for trial. With this conclusion, it is unnecessary to pass upon the validity of ¶476 of Gen. Stat. of 1889, prescribing the qualifications of sureties on official bonds. After his poverty affidavit was filed and the deposit of $15 for costs, Hardesty ought not to have been required to file any additional bond for costs.
The judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This proceeding in error in this court is founded upon an appeal by James W. Parker to the district court from the action of the appraisers denying to him damages claimed by him to have been caused by a change of the grade of a portion of Sixth street in front of his property, in the city of Atchison. Parker was the plaintiff in the district court, and is the plaintiff in error in this court; while the city of Atchison was the defendant in the district court, and is the defendant in error in this court. The plaintiff’s supposed right to damages is founded solely upon the provisions of §18, ch. 37, of the Laws of 1881, (Gen. Stat. of 1889, ¶ 562,) which section reads as follows:
“Sec. 18. The mayor and council shall have the power to establish by ordinance the grade of any. street, alley, lane or avenue within the city; and when the grade of any street, alley, lane or avenue shall have been so established, or shall have been heretofore established, and the grade thereof accepted by the council, such grade shall not be changed until declared necessary by resolution by a three-fourths vote of all the council elected, and not then until the damage to property-owners, which may be caused by such change of grade, shall have been assessed by three disinterested appraisers, who shall be appointed by the mayor, with the consent of the council, for that purpose, who shall make such appraisement and file their report under oath with the city clerk, within twenty days after receiving notice of their appointment from the city clerk; and the city clerk shall give notice to interested property-owners by publication in the official paper of the city for at least ten days prior to the assessment of damages, which notice shall specify the names of the appraisers, the time when they will meet to make such appraisement, and the name of the street between the points wherein such change of grade is to be made, and the amount of damages so assessed shall be deposited with the city treasurer, subject to the order of said property-owner or owners, or their agent or agents, before any such change of grade shall be made; and any person feeling himself aggrieved by such amount of damages may appeal therefrom within ten days after confirmation of said report by the council, by serving a written notice upon the mayor, or in his absence the acting mayor, or in his absence the city clerk, of such intention to appeal to the district court, and by executing a bond to the city, conditioned to faithfully prosecute such appeal to a final determination thereof, and to pay all costs so incurred in case such appellant does not recover a judgment greater than the damages awarded by said appraisers. The taking of such appeal shall not operate in any manner to prevent the change of said grade, and the cost and expense of changing the grade of said street and grading the same shall be paid by the city.”
The case was tried before the court and a jury, and a verdict and judgment were rendered in favor of the defendant and against the plaintiff", and the plaintiff brings the case to this court.
The facts of the case are substantially as follows: The plaintiff owned and owns lots numbered 11,12,13, and 14, in block numbered 39, in that part of the city of Atchison known as “Old Atchison.” The lots lie west of Sixth street, north of Main street, and south of an alley which runs east and west through the middle of the block. The ground occupied by the lots is low when compared with the surrounding land, the stream called “White Clay creek” running through such lots, and a portion of the lots occupying its bed. The grade of Sixth street was changed in 1887, and was increased in height from nothing at the alley at the northeast corner of the plaintiff’s property to 12 feet 9 inches at the north line of Main street and at the southeast corner of the plaintiff’s property, the object of this change of grade being for the purpose of constructing a viaduct over Main street and over a large number of railroad tracks. The work was commenced in March, 1887, and was completed some time in the summer of 1887; and the viaduct was completed and opened for travel in April, 1888. At the line between the plaintiff’s land and Sixth street a retaining wall of great thickness and of solid masonry was built. A portion of the wall about 18 or 20 inches in thickness was built with the consent of the plaintiff upon the plaintiff’s land, and it was built in such a manner that it could be used by the plaintiff in making improvements upon his land. Evidence was introduced on the trial to show how the plaintiff’s land lay, how the grade and the viaduct were constructed, of what materials they were constructed, the value of the plaintiff’s property immediately before the grading was done, and also the value of his property afterward; and all these things were taken into consideration by the jury. The case, however, was tried upon the theory as stated by the court to the jury in the following instruction, which reads as follows:
“4. In determining the amount of damages plaintiff is entitled to recover in this action, if any, you' will ascertain from the evidence the market value of lots 11, 12, 13, and 14, described in plaintiff’s petition, immediately prior to said change of grade, and their market value immediately after said change of grade; and if you find that their market value was less after said change of grade than before, then the difference in such values would be the amount plaintiff would be entitled to recover of the defendant in this action, and you should give him a verdict for that amount; but if you should find that the market value of said lots was as great or greater after said change of grade as before, the plaintiff would not be entitled to recover, and you should return a verdict for defendant.”
We would think from the evidence that the plaintiff’s property was in fact of much greater value after the change of the grade and by reason thereof than it was before. But it is claimed by the plaintiff that nothing should be taken into consideration in determining the amount of his recovery except that which would tend to cause injury or inconvenience; hat nothing should be taken into consideration which would tend to make the property more valuable or more convenient for use; that all the evils, inconveniences, disadvantages and losses caused by the change of the grade should be carefully brought together, massed and aggregated, and he allowed damages for the whole of the same; while all the benefits, conveniences, advantages and gains should be carefully excluded from all consideration. We think the plaintiff is wrong. In making the change of the grade the city took nothing from the plaintiff. The fee in the street was and is in the county in trust for the use and benefit of the public in general; and the exclusive control of the street, with the right to the exclusive control thereof, was and is in ‘the city. It is true that a portion of the retaining wall 18 or 20 inches in thickness was built upon the plaintiff’s property upon the east side of lot numbered 14; but it was so built with the consent of the plaintiff, and it now belongs to the plaintiff and is a benefit to his lots instead of being an injury thereto. Except for the statute above quoted, the plaintiff would not be entitled' to recover anything under any circumstances, even if the change of the grade had injured him; and with the statute, we do not think that he can recover where the change of the grade has really and actually benefited him.
As' to another point in the case, see the case of City of Topeka v. Martineau, 42 Kas. 387; same case, 22 Pac. Rep. 319.
We think, the case was tried in the court below upon the right theory, and that no material error was committed in the case; and therefore the judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought in the court below by L. J. Early against the Inter-State Rapid Transit Railway Company, to recover damages to certain lots owned by him in Kansas City, in this state, on account of the construction of its railway on Sixth street in front of his prop erty. Soon after, because of the consolidation of this and other companies, under the name of the Inter-State Consolidated Rapid Transit Railway Company, an amended petition was filed. Trial had before- the court with a jury. Judgment was rendered for the plaintiff below for $500 and costs. The railway company excepted, and brings the case here.
Sixth street in the old city of Wyandotte, (now Kansas •City, Kas.,) between Minnesota avenue and the south end of Sixth street, is a public street, varying in width at various places. It was the chief street in the old city connecting the ■north and south ends. In some places, between Minnesota avenue and Orville street. Sixth street was as wide as 90 feet; but in front of the property of Mr. Early it is somewhat difficult to determine the exact width of the street. Upon his part, it is claimed to be 45 feet only; while Mr. McAlpine, one of his witnesses, testified that the street at that point was from 60 to 80 feet wide. It had been traveled a great number of years, the city had improved it somewhat by making a cut in front of this property, varying at the -northwest corner thereof to the southwest corner, from two to eight feet. It left the property well situated for residence or business purposes.
In 1884 and 1885 ordinances were adopted authorizing the railway company to construct its road on Sixth street. There was no grade in front of the property of Mr. Early until after these ordinances were passed. The ordinances that authorized the railway company to construct its road on the street fixed the official grade of the street. These ordinances provided for the construction of a double-track railway, past the property in controversy, upon the street, at the established grade thereof. Mr. Early owned a number of vacant lots ■upon Sixth street, in the old city of Wyandotte, at the time the railway company built its road thereon. The lots face west and corner upon Orville street. The railway runs past these lots in a north and south direction. The city having failed to bring Sixth street to grade, as by the ordinances it had agreed to do, the railway company proceeded, in April, 1886, to do the grading; and as the railway was to be built, according to the terms of the ordinance, upon the street at the established grade thereof, the company was obliged to grade so much of the street in front of Mr. Early’s property as was necessary for the construction and operation of the road. In October, 1886, the railway company commenced the operation of its trains past his property. Late in 1886 this action was commenced. Upon January 25, 1887, the amended petition was filed. The grade that the railway company made in front of this property was about 18 feet deep at the south line of the property, and varied as it went north until it was something like seven or eight feet at the north line. The cut made in front of the Early property was about 30 feet wide at the top and about 23 feet wide at the bottom. A double-track railway was constructed in the street. The tracks take up about 15 feet, although it is claimed that from the ends of the ties of the road about 22 feet of the street are occupied.
The jury, in their special findings, stated that they assessed the damages of the land-owner at $500, and that these damages were allowed solely on account of the grading done by the railway company. In grading Sixth street for the construction of the street railway, the company acted for the city. It held a position, as it were, of a contractor for the city. The city established the grade, and under the statute had the right to do so. (Gen. Stat. of 1889, ¶ 562.) It is only when the grade of a street, alley, lane or avenue within a city is changed, after being once established, that damages can be allowed the property-owners which may be caused by the change of grade. Of course, the railway company in grading Sixth street, under authority from the city, was compelled to cut down the street in front of the Early property, but it had the lawful right to do that. This cutting or grading of necessity — to some extent — destroyed plaintiff’s means of ingress to and egress from the street, because, by cutting the street, or a part of it, down to its established grade, it left the Early property above grade, or higher than the street. The railway company ought not to be held liable because the- city failed to grade the street to its full width at the time the company constructed and put in operation its railway. The trial court so instructed the jury. It is possible from the evidence that there was a temporary obstruction of the street on account of the failure of the railway company to properly construct its road and track, but the jury did not allow damages for any act of omission or commission of this kind. Then again, the railway company had a reasonable time after grading the street to construct its tracks and road-bed and to put in macadam or ballast.
This case is not like Railway Co. v. Twine, 23 Kas. 585, 26 id. 702, and 30 id. 590, because the real complaint in this case is, that the damages were caused by cutting the street down to an established grade required by the city.
It is almost impossible to tell what, if any, permanent damage the Early property will suffer on account of the construction of the street railway, until Sixth street is brought to grade. If the grading was properly done, in a good and workmanlike manner, and confined wholly within the street, Early cannot recover because in cutting the street down to grade his lots are left elevated, or above grade. The jury hearing this case do not seem to have fully understood this rule. They were not clearly or sufficiently instructed upon this point; hence the erroneous verdict.
As to railroad companies occupying streets, see Railroad Co. v. Larson, 40 Kas. 301; Railway Co. v. Cuykendall, 40 id. 234; W. & C. Rly. Co. v. Smith, 45 id. 264; and K. N. & D. Rly. Co. v. Mahler, 45 id. 565.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
As near as we can ascertain from the record brought to this court, we think 'the facts of this case are substantially as follows: The action was one of replevin, brought originally by O. S. Ford against Levi Gladfelter, before R. W. Dunlap, a justice of the peace of Montgomery county. Afterward, on motion of the defendant for a change of venue, the case was transferred to T. R. Pitman, a justice of the peace of the’same township. Afterward, on motion of the defendant, Justice Pitman dismissed the plaintiff’s action, and rendered a judgment for costs made before both justices in favor of the defendant and against the plaintiff. Afterward, the plaintiff took the case to the district court on petition in error, where the judgment of Justice Pitman was wholly affirmed. Afterward, the plaintiff brought the case to this court for review on petition in error.
The case is brought to this court by a case-made, and this case-made does not contain, and apparently the transcript of the proceedings taken from Justice Pitman’s court to the district court did not contain, any copy of the plaintiff’s bill • of particulars, or his affidavit for replevin, or his replevin bond, or the summons or writ of replevin, or the application for a change of venue, or the order granting the change of venue, or anything showing that any of the costs accruing in Justice Dunlap’s court had been paid, or that a judgment for the same had been confessed before the change of venue was granted, or anything showing whether the costs accruing in Justice Dunlap’s court, and taxed to the plaintiff by Justice Pitman, were costs made by the plaintiff or made by the defendant, or by both, or whether they were for witnesses’ fees, or for issuing or serving subpoenas, or were costs in transferring the case from Justice Dunlap to Justice Pitman, (Justices’ Code, §§ 78, 79,) or were costs for something else, as for Justice Dunlap’s other fees in issuing the summons and writ of replevin, making docket entries, filing papers, approving bonds, administering oaths, etc., and the constable’s other fees in serving the summons and writ of replevin, keeping the property taken on the writ of replevin, and possibly many other things. The burden of showing all these things, both to the district court and to this court, devolved, and. now de volves, upon the plaintiff, who was the plaintiff in error in the district court, and is the plaintiff in error in this court. How could the district court say, or how can this court say, that Justice Pitman erred in dismissing the plaintiff’s action, and in taxing some of the costs against him, without any of these things being shown ? It is not clearly shown why the justice of the peace dismissed the action, and rendered judgment for costs as he did, and we shall not speculate concerning his reasons; but, if the ruling of the justice was right, we could not reverse the same, even if we should think that he gave a wrong reason therefor. As to dismissing actions for want of jurisdiction, and taxing all the costs to the defeated party, see the case of Kent v. Comm’rs of Labette Co., 42 Kas. 534. Taking the showing that was made by the plaintiff in error to the district court, we cannot say that that court erred in affirming the judgment of the justice of the peace, and therefore the judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
Tbe Farmers’ State Bank, as plaintiff in the court below, brought this action against defendant in error on three notes, made June 13, 1887, by defendant to one J. H. Brady, and by Brady indorsed and transferred to plaintiff before maturity, as collateral security for certain indebtedness then owing from Brady to said bank. The notes sued on were for the aggregate sum of $5,000, with interest at the rate of 8 per cent, from their' date. No part of said notes had been paid. They secured a debt of $4,367.63. On the trial the defendant pleaded, and attempted to prove, a failure of consideration for said notes; but the court, having found that plaintiff was a bona fide holder for value before maturity, and without notice of any defenses thereto, refused to hear the evidence offered by defendant as to the claimed invalidity of said notes, and rendered judgment thereon in favor of plaintiff for $4,367.63, the amount of the indebtedness from Brady to plaintiff which said notes were security for. The plaintiff claimed judgment for the full amount of the collateral notes, which claim was denied by the court, and exceptions to the ruling taken by plaintiff.
The only question for determination by this court is, whether, in an action against the maker of notes which have been transferred before maturity to an innocent and bona fide holder as collateral security for an indebtedness existing between the payee of such notes and the indorsee, the indorsee and hblder is entitled to recover against the maker the full amount of such collateral notes, where such amount exceeds the indebtedness which they were transferred to secure, without regard to any defenses that may exist between the original parties to such notes; or whether, in such a case, the right of the plaintiff to recover is limited to the amount of the principal debt. The plaintiff in error in this case has no interest in the question, except as the decision of the court below might involve it in a controversy with Brady, should he call upon it to account for the difference between the amount of the collateral notes and the debt he was owing to the bank. No trial or determination was had as to the merits of the defense made against the notes, and it does not appear at this time whether, as between Brady and Blevins, the full amount thereof could be collected. It is said that Brady may demand of the bank to account to him for the full amount of these notes, and that it cannot defend against such claim by saying that the surplus over its debt was not collected because Blevins had a defense to them as against Brady. If the bank is limited in its right to recover to the amount of its claim against Brady, the right to the balance of the notes being undetermined, can Blevins be subjected to another action by Brady to recover such balance? Brady, or his assignee, must have his day in court before he can be deprived of any portion of these notes; but, if the bank can only recover to the extent of its interest, and Brady is given the right to sue for the balance of the notes, do we not subject Blevins to two actions for the same cause? On the other hand, it does not seem just that Blevins shall be deprived of his defenses, except to the extent of the actual interest of the bank, simply because the bank took the notes before maturity in good faith and without notice of such defenses.
The question involved in this case is not presented in a fair attitude by the plaintiff in error. At the commencement of this action to recover on the notes as pledgee, the bank ought to have made Brady a party. He was the payee of the notes sued upon. He had transferred them by indorsement to the bank, which claims to be an innocent holder for value. Even after Blevins filed his answer setting up his various defenses as against Brady, and the knowledge of the bank of these equitable defenses, the bank, for protection against Brady, ought to have made Brady a party, as it now insists upon a recovery for the full amount of the notes; and yet it is shown that Brady’s preexisting indebtedness to the bank is less than the face of the notes and interest. As Brady was not a party then, and is not now, he will not be bound by the decision of this court on the question presented.
As to the controversy between the bank and Blevins, re specting the amount of the recovery, we think the ruling of the trial court was right. Where negotiable promissory notes, pledged as collateral security, are subject to equitable defenses, as between the maker and payee, and the collateral securities are of greater amount than the preexisting debt of the payee to the pledgee, the recovery of the pledgee against the maker is limited to the amount of the preexisting debt. This is the text of § 92, p. 123, of Colebrooke on Collateral Securities, and it is supported by many cited cases, notably, that of Bank v. Hemingray, 34 Ohio St. 381. It is said in that case:
“ If the pledgee sues the maker, the latter may attempt a complete defense, without, in case of failure, thereby incurring a liability to pay to the pledgee anything in addition to the amount of the debt secured by the notes.”
In this case we note the equitable defenses made by the pleadings. It is true that, under the rulings of the trial court, the defendant in error was not allowed to show them, but he should have been permitted to have done so, for the purpose of limiting the recovery of the bank to the amount of the preexisting indebtedness of Brady to the bank. (34 Ohio St. 381.) The trial court finds that amount, however, and also finds that there is a controversy between Brady and Blevins respecting said notes, and we regard these findings as sufficient to make the rule above stated applicable to the facts presented in this record. This same rule applies in cases of fraud by the payee against the maker, or where there is a failure of consideration, or where the paper indicates the amount it can be pledged for, or where the paper is subject to equitable set-offs, or in cases of accommodation paper, or in cases of misappropriation between makers, payees, or indorsers, and possibly in other cases. The trial court finds that the bank is an innocent holder for value of the notes sued upon, and there is no doubt but that the bank, taking these notes under these circumstances, is protected against equities.' (1 Daniel, Neg. Inst., § 832, and the many authorities cited in the foot-note.) We apprehend that the degree of protection afforded the bank, by reason of being a bona fide holder for value, is measured by the extent of the preexisting obligation. It is said in this same section:
“ When it appears that the bill or note was acquired by the holder as collateral security for a debt, he is entitled to recover upon it; but he is still limited to the amount of the debt, if there be a valid defense against his transferer.”
This text is supported by the cases of Duncan v. Gilbert, 30 N. J. Law, 527; Fisher v. Fisher, 98 Mass. 303; Stoddard v. Kimball, 6 Cush. 469; Chicopee Bank v. Chapin, 8 Metc. 40. We are not aware that this question has ever been passed upon by this court, but we think that the doctrine that the pledgee cannot recover more than the amount of the debt of the pledgor is in accord with natural justice; and, while we hesitate to state that as a rule, yet we do think that any other rule, or any exceptions to or limitation of this doctrine, ought ,not to be indulged in without great caution. It is true that cases can be found, that hold that the pledgee can recover the full amount expressed by the face of the collateral paper, without reference to the amount of the debt secured thereby, where none of the limitations heretofore referred to exist; but, without a special examination of them, we expect that it will be found that in such cases the payee and indorser are parties as well as the holder and maker, or else that none of the questions that affect the bona fides of the pledgee or the equities between maker and payee, were raised by the pleadings. Be that as it may, upon the question now before us, and under the circumstances surrounding it, we recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
Sarah A. Pettigrew brought an action against J. F. Lewis and J. F. Willard, partners as Lewis & Willard, to recover damages in the sum of $5,000, alleged to have resulted from a negligent, careless and unskillful operation performed on her eye by Willard. She alleged that defendants held themselves out to the public as skillful surgeons, well qualified to perform operations upon the eyes and to treat the same; that she had an affection of one eye, called strabismus, and that the defendants undertook to straighten the eye, but performed the operation in such a negligent, careless and unskillful manner that her eye became sore and weak, rendering her unable to complete her education or to perform ordinary household work. She avers that she has suffered and still suffers great physical pain in consequence of the unskillful operation and treatment, which has continued to increase since the time of the operation. The answer of the defendants was a general denial. The parties proceeded to a trial upon the issues formed, but after the plaintiff had concluded her evidence, the court sustained a demurrer thereto, holding that it was insufficient to establish a liability against the defendants or either of them, and gave judgment accordingly:
The plaintiff complains, and urges that the testimony offered by her was sufficient- to take the cause to the jury. The sufficiency of the evidence is the only question that we need to consider. Plaintiff offered proof to show that an operation was performed on her left eye by Doctor Willard, on January 16, 1886; that prior to the operation her eye was strong and in good condition, except as to the affection of strabismus. The operation was successful so far as straightening her eye was concerned, but she stated that afterward neither the eye operated on nor the right eye was as strong as before. She stated that sometime after the operation she had what she called “ a spell of sore eyes.” The lids were afterward somewhat inflamed, and her eye watered when she was out in the wind or cold. When she returned to school she found her eyes were weak, and that it was necessary to bring objects closer to her in order to see clearly. It further appeared, however, that her father, brother and sister were afflicted with sore and defective eyes. Was the proof sufficient to sustain a cause of action against the defendants? We agree with the district court, that it did not show the operation to have been unskillfully and negligently performed; nor yet, that the present condition of her eyes was the result of the operation that was performed. No proof was offered of the instruments used or the manner in which the operation was performed. No medical or scientific evidence was offered showing the cause of the present condition of the plaintiff’s eyes, nor that the defendants were negligent or careless in the performance of the operation. In fact, no witnesses having special skill or knowledge with reference to the treatment of the eyes were introduced in behalf of the plaintiff. The burden rested on the plaintiff to show a want of due care, skill and diligence in the operation, and that the defective condition now existing is the result of such want of care, skill and diligence. The defendants were not held to the exercise of the highest degree of skill, nor as warranting a cure. It is clear from the evidence that there was no special contract to that effect; and while something is claimed by the defendants on account of a variance between the pleadings and proof, we agree with the claim of the plaintiff, that the doctor, having undertaken the operation, was held to the exercise of due care and skill.
“ His contract as implied in law is, that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the ease which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not responsible in damages for want of success, unless it is shown to result from a want of ordinary skill and learning, and such as is ordinarily possessed by others of his profession, or from want of ordinary care and attention. He is not presumed to engage for extraordinary skill, or for extraordinary diligence and care, nor can he be made responsible in damages for errors in judgment, or mere mistakes in matters of reasonable doubt or uncertainty.” ( Tefft v. Wilcox, 6 Kas. 46; Branner v. Stormont, 9 id. 51; 14 Am. & Eng. Encyc. of Law, 78.)
There was no proof, however, of a want of skill or care on the part of the defendants; and negligence cannot be presumed. The mere fact that the plaintiff’s eyes have been weak and sore since the operation was performed, does not prove negligence in the defendants, nor establish a liability against them. To maintain her action, the plaintiff should have offered the evidence of skilled witnesses to show that the present condition of her eyes was the result of the operation, and that it was unskillfully and negligently performed.
“This evidence must, from the very nature of the case, come from experts, as other witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculiar with the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations.” (Tefft v. Wilcox, supra.)
“The question whether a surgical operation has been unskillfully performed or not is one of science, and' is to be determined by the testimony of skillful surgeons as to their opinion, founded either wholly on an examination of the part operated upon, or partly on such examination and partly on information derived from the patient; or partly on such examination, partly on such information, and partly on facts conceded or proved at the trial.” (McClelland, Civil Malpractice, 304.)
It would have been easy for the plaintiff to have submitted to an examination by an experienced physician or oculist capable of determining whether the condition of her eyes was the result of the operation, and whether that operation was performed with reasonable skill and care. Cases may ai’ise where there is such gross negligence and want of skill in performing an operation as to dispense with the testimony of professional witnesses, but not so in the present case. It is not conceded or proved that the weakness of her eyes had materially resulted from the operation; and even if it was, the questions would still arise: Was she in a fit physical condition to undergo the operation? Did the defendants, before beginning the operation, make due examination to determine her condition and the necessity for an operation? Was the operation performed in a careful and skillful manner? What was the standard of professional skill and scientific knowledge required of these men in that locality? Was the after-treatment, and were the directions given for the subsequent care of the eye, such as would meet the approval of the profession in its present advanced condition? If a mistake was made,, was it a ease of reasonable doubt or uncertainty, or a mere error in judgment for which there is no responsibility? It was the duty of the defendants “to exercise ordinary care and skill; and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed, in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved. This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment.” (The State v. Housekeeper, 70 Md. 171.)
The present condition of her eyes may be attributed to many other causes. It may be the result of disease contracted in that vicinity, or from misuse and improper exposure of her eyes; or, it may be an hereditary complaint similar to that with which her brother, sister and other members of the family were afflicted. Whatever may be the cause, we cannot say that it is the result of the fault or negligence of the defendants. The operation may have been performed at a suitable time, with proper instruments, and in the most skillful and efficient manner, and yet have failed; and in the absence of competent proof, showing that the defect in plaintiff’s eyes was due to a want of ordinary care and skill on the part of the defendants, the district court ruled correctly in sustaining the demurrer to the evidence. (See Getchell v. Hill, 21 Minn. 464; McCandless v. McWha, 25 Pa. St. 95; Leighton v. Sargent, 7 Fost. 460; Holtzman v. Hoy, 19 Ill. App. 459: Vanhooser v. Berghoff, 90 Mo. 487; The State v. Housekeeper, 70 Md. 162; Whart. & S. Med. Jur., § 766.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Mason, J.:
T. J. Hinshaw appeals from a conviction on a charge of obtaining property by false pretenses.
The information was drawn in two counts. • A verdict of guilty was rendered on each, but as he was sentenced only on the second, that alone is here involved. No motion to quash the information was filed, but its sufficiency was challenged by a motion in arrest of judgment. It is contended-that the second count fails to state a public offense, even when given the liberal interpretation to which it is entitled when attacked in this manner. The substance of the charge, leaving out superfluous words, is that the defendant did fraudulently aid James D. Henderson to obtain from E. W. Parsons goods and money of the value of thirty-five dollars, by presenting to the said E. W. Parsons a false and bogus check for thirty-five dollars purporting to be drawn by the Auto Supply and Tire Company, per O. M. Nichols, and by buying a ring of the value of twenty dollars from the said E. W. Parsons, and giving him the said false and bogus check for the said ring and by receiving fifteen dollars in money in addition; and that the defendant, with the intent to assist James D. Henderson in cheating and defrauding, wrote the check and signed thereto the name of O. M. Nichols. In other words this, count of the information charges that Henderson obtained property from Parsons by means of a false token — a check purporting to have been signed by O. M. Nichols — and that the defendant aided him by signing the name of Nichols to it. The statute permits one who aids in the commission of an offense to be charged as if he were a principal. (Crim. Code, § 115.) But it is no objection to an information that it sets out the actual facts in this regard. The information follows substantially the language of the statute defining the offense of obtaining property by a false token. The following suggestions are thought to meet the various specific objections made to the information: It was not necessary to allege that the check was ever presented for payment to the bank on which it was drawn. The allegation that it was false and bogus — that the defendant signed the name of Nichols to it with a fraudulent purpose — is sufficient to bring it within the statute. It was not necessary that the information should allege in so- many words that Parsons parted with his property believing that the check was good, or relying on representations that it was good. “An allegation that ‘by means of the false pretense,’ or ‘relying on the false pretense,’ or the like, is sufficient where it is apparent that the delivery of the property was the natural result of the pretense alleged.” (19 Cyc. 430.) “It is not necessary to allege specifically that the prosecutor relied on the pretense, if the connection between the pretense and the obtaining is otherwise sufficiently shown by the indictment. . . . An averment that defendant obtained the property by means of the false token is sufficient.” (Notes, 19 Cyc. 431.) The value of the property obtained having been stated as thirty-five dollars, it was not necessary to add that this value was according to the financial standard of the United States; that was fairly implied. The information stated in substance that the defendant fraudulently signed the check, and conspired with Henderson for the commission of the crime; it was not necessary that any further participation on his part should be alleged. (12 Cyc. 191.)
It is contended that the verdict is not supported by the evidence. The argument made is that the testimony connecting the defendant with the offense is incredible, rather than that there is no evidence tending in that direction. Henderson as a witness for the prosecution admitted his own guilt freely, and stated that the defendant was his accomplice in the affair, writing the check with a knowledge of the use to which it was to be put, and receiving a part of the proceeds of a similar transaction. The state introduced evidence that the check was in the handwriting of the defendant; after considerable testimony had been given on the subject, the defendant admitted the writing. He did not take the stand himself. In view of these considerations, and under all the evidence, we think the question of the defendant’s guilty participation in the fraud was one of fact to be determined by the jury.
Henderson was cross-examined as to his arrangements with the defendant for a division of the proceeds of this and other similar checks. He said in effect that ■there was no express agreement on the subject; that he naturally. presumed the defendant wanted something out of it. He said: “I tried to settle with him as soon as possible; he was to have part of it, and I gave it to him as soon as possible after I got it.” He was asked: “Were you to divide it equally, each a half?” He answered: “No, I was to divide it; I was at more expense than he was.” Later the defendant’s attorney sought to renew .the cross-examination on this subject, •and asked what the understanding was as to what the defendant was -to get out of the transaction. This was objected to as repetition. The trial judge in sustaining the objection remarked: “He said in substance that he was taking the risk and doing the work, and he allowed the defendant a part of the money.” The remark is objected to as invading the province of the jury by drawing an inference from the testimony. From what has already been stated we think it clear that no prejudice could have resulted. The defense attempted to show that Henderson had paid one of the checks to the holder. The evidence was ruled out on the ground that as Henderson admitted his guilt it ivas immaterial. We think the ruling was correct.
The defendant’s father was called as a witness in his behalf. He testified in effect that he furnished his son all the money he required — that his son was allowed to check on his account whenever he wanted money. In cross-examination he was asked,- over the defendant’s objection, a number of questions as to his json’s career, having a tendency to suggest wrongdoing in other respects. It is urged that material error was thereby committed. In every instance, however, the witness returned such answers as to exculpate the defendant from the suggested charge, so that no injury could have resulted to him.
In the course of the trial a delay was asked in behalf of the defendant in case a witness did not arrive when expected. The judge said: “We are not going to do any more waiting in this case, gentlemen. We spent all yesterday afternoon on the question of handwriting and comparisons, and now it is admitted that the young man wrote these checks.” The contention is made that this remark tended to create a prejudice in the minds of the jury against the defendant. It perhaps amounted to a suggestion that the time of the court had been needlessly taken up, but we can not regard it as seriously prejudicial.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff, alleging that he has resided in the state more than fifteen years and in the county more than ten years and is destitute of means of support and has no near relatives who are financially able to support him, and that he has lost the sight of both eyes and is otherwise by reason of disease and infirmities and his great age unable to perform any labor, has demanded of the county board that he be granted a pension sufficient for his maintenance, compliance with which request being refused he prays may be compelled by mandamus. The board answers that in its opinion it would be unwise to grant the pension, but that the county is and has been paying the plaintiff $10 per month for his support; that the granting of such pension is discretionary with the board. The plaintiff contends that the duty of the board is mandatory.
The constitution requires that the respective counties of the state shall provide as may be prescribed by law for those inhabitants'who by reason of age, infirmity, or other misfortune may have a claim upon the aid of society. (Const., art. 7, § 4.) Chapter 146 of the Laws of 1911, “An act authorizing the board of county commissioners of any county in Kansas to pay a monthly pension to certain disabled residents thereof,” provides that any county is authorized and empowered to pay such pension, not exceeding $50 a month, to persons afflicted like the plaintiff, whose parents and near relatives are not financially able to care for them, provided such persons have been residents of the state fifteen years and of the county ten years previous to the taking effect of the act. By chapter 149 of the Laws of 1913 this provision was amended so that the board is authorized and empowered to pay a monthly pension to a person thus afflicted who is wholly disabled from performing any manual labor, provided he has been a resident of the state for fifteen years and of the county for ten years previous.to the date of application. In all other respects the act remains the same. It is quite apparent that the language of this legislation purports to grant authority, but not to prescribe a mandatory duty. By section 2 of the original act the board can not grant a pension in excess of $25 ■a month without submitting the matter to popular vote. It is suggested that unless the later act is mandatory there was no reason for the amendment, but the ■change added the provision that the applicant must be unable to perform any manual labor and could date the ■period of residence from the time of the application .and not from the taking effect of the act. Phelps v. Lodge, 60 Kan. 122, 55 Pac. 840, and Inhabitants of Veazie v. Inhabitants of China, 50 Maine, 518, are cited. It was held in the former that the municipality in ■question being clothed with statutory power to appropriate money and provide for the payment of its debts was in duty bound to do so, and that a creditor could compel the performance of such duty by mandamus. In the latter case it appeared that Maine had a general statute making it the duty of the overseers of the poor to relieve destitute persons found in their towns, but a later act was passed authorizing and empowering cities and towns to make proper provisions for the support of the families of volunteer soldiers enlisting in the civil war under an act authorizing the raising of ten regiments, and providing that the relief furnished under this act should not work any disabilities. The pre•amble recited that it was not only the duty but the pleasure of the citizens at home to provide for the support of such families as “a suitable compensation for such patriotic services. The town where the soldier .resided extended aid to his family and sought to hold .liable the town where he had his settlement. It was Jheld that such was not the intention of the act, but that it was to extend such aid without working any such disability as would justify such recovery from the towjn ■of the soldier’s settlement, and the act was held to be mandatory. An examination of the opinion shows that the court regarded the aid as a compensation owed by the town. The rule frequently stated is the one laid down by Chancellor Kent that “may” means “must” only in cases where public interests and rights are ■concerned, and where the public or third persons have a claim de jure that the power should be exercised. (Newburgh Turnpike Co. v. Miller, 5 Johnson’s, Ch. 101, 9 Am. Dec. 274; see, also, In re McCort, Petitioner, 52 Kan. 18, 21, 34 Pac. 456; Phelps v. Lodge, 30 Kan. 122, 124, 55 Pac. 840; Note, 10 L. R. A. 499.) In State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A., n. s., 340, a somewhat similar question arose. The constitution provided that “The legislature may place the convicts on a state farm or farms, and have them worked thereon, under state supervision exclusively, in tilling the- soil or manufacturing, or both, and may buy farms for that purpose.” (p. 145.) It was held that the purchase of farms was not required. The •opinion and note furnish an exhaustive review of decisions upon permissive and mandatory statutes.
It is always the rule that the meaning of a statute is to be derived from its general terms and manifest purpose, and the most cursory or the most thorough examination of the legislation in question leads alike to the conclusion that there was no thought in the legislative mind of compelling each county board to grant a pension to every applicant coming within the terms prescribed. Aside from the fact that a pension is usually regarded as a matter of grace and not of right (6 Words & Phrases, p. 5280), the language of the original act in the title and in both' sections is clearly permissive and bears no indication of a mandatory purpose. While there is an express prohibition upon granting any pension in excess of $25 a month without submitting the same to a vote of the electors, even such vote is not made binding upon the board to grant the pension, but simply “sufficient to authorize the granting of the same.” Neither before nor after the enactment of this legislation did the persons therein described have a right de jure to such a pension, and had the legislature deemed it a matter of public obligation so to provide for citizens thus afflicted, no reason can be suggested why apt language was not used to express such intention.
Following the statutory requirement. (Gen. Stat. 1909, § 9037, subdiv. 2) to construe words and phrases according to the approved usage of the language, we must hold that the granting of the pension demanded is discretionary and not mandatory.
The writ is therefore denied.
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment against the city for damages received by an electric shock in his place of business. He alleged that the city was operating a light plant and supplying its citizens with, electricity for lights; that over the wires strung upon the poles on the streets and alleys a current approximating 2200 voltage was passed while only about 110 voltage was required for lights for each consumer; that, along the main light wires were installed transformers consisting of iron boxes in which were placed coils of' insulated wire directly connected with the power plant ; that to further protect the users from an overcharge-each transformer must be kept filled with a good quality of oil and kept in repair, which requires frequent inspection; that if they should become empty or should, not contain the proper quality of oil or get out of repair the result would be to overcharge the insulated wires of each consumer; that at the point of entrance where the defendant’s wires connect with the building of the consumer the consumer has attached to his insulated wires small switches with a thumb piece used by the consumer to shut off or turn on the current for light; that near the plaintiff’s place of business was an electric light pole on which was placed á transformer which on December 9, 1911, became dry, having absorbed the oil therein, and out of repair, thereby permitting an increased voltage of from 1000 to 2000 volts to pass over the wires in plaintiff’s place of business; that about five o’clock P. M. the plaintiff drove up to the meat market and was informed by. an employee that there was something wrong with the wires in the sausage room, in which room was a lamp cord, and the plaintiff, taking hold of the thumb-button switch attached thereto to turn off the current, received a severe shock of electricity which knocked him to the floor, causing the cord to fall upon him and injuring him. It was expressly charged that the. city officers and commissioners had full knowledge of the defect and full advice of the condition at 1:30 P. M. of the date in question, but took no steps to repair the defect or correct the condition. The jury in answer to a question as to whether the transformer was empty of oil at the date in question answered, “Don’t know,” but proceeded to find that it was out of repair on that date the defect being due to “lack of oil or worn insulation.”
“Q. If you find that the transformer was empty of oil or out of repair, state how long it had been in that condition. A. We don’t know.”
They also found that one of the commissioners was notified between two and three o’clock from the creamery that something was wrong in that vicinity with the electricity, and that the person or persons in charge of the meat market discovered that the meat was charged with electricity between two and three o’clock.
“Q. No. 28. Did any of the city’s officers or employees have any notice or knowledge of any defect or of anything being wrong with the electric equipment or current at the plaintiff’s meat market before the plaintiff alleged that he sustained the injuries complained of? A. No.”
The same transformer that controlled the current in plaintiff’s shop also controlled the current in the creamery, the two places being about 100 feet apart. So, when the report was received, between two and three o’clock, that there was something wrong with the electricity in that vicinity it was practically the same as if the report had come from the shop, and the city, knowing that both places were affected by the same transformer, was made aware that attention should be given at once to the matter complained of. The city commissioner who received the report testified that he told a lineman he should have some one go and look it up. “Afterwards I got a report that some one was sent up there but I never found out who it was. Further than that I know nothing about it.” According to the counter-abstract, he testified that the stenographer’ was told to ask what the trouble was and was answered that “they would get a charge from touching either of the wires,” and “I went in the hall and put an order on the file telling Mr. Curtis the condition and made out a work order to that effect and told him to go up there and look at it and see.” There was testimony that if the transformer did not have the proper quality of oil the effect would be to charge the consumers’ wires with excessive voltage, and if a lack of oil was allowed to continue this would have a similar effect. It was testified that the transformer was repaired the morning after the injury. One witness, a general electrician who had been in the electrical business about twelve years and was familiar with the electricity used by cities like Iola for making lights, described the nature and operation of transformers, and among other things stated:
“The voltage on the secondary wires might be increased by means of dropping down insulation where the primary leads enter the transformer box, or a dropping down of the insulation where the secondary leads come out of the transformer box, or by an improper amount of oil in the transformer box, which would allow the two currents to char the insulation on the two coils. They should be attended to, because it is a dangerous proposition. They ought to be inspected frequently. They frequently get out of repair.”
From the foregoing it appears that when the commissioner was notified, between two and three o’clock on the day of the injury, in the manner and to the effect testified to by him, the city thereby had notice that the transformer controlling the current in the plaintiff’s place of business needed immediate attention, and the finding by the jury that there was no notice or knowledge of any defect or anything being wrong with the equipment or current at the plaintiff’s meat market before the injury occurred, while doubtless literally true, does not militate against the fact as shown by the other findings and the evidence that two or three hours before the injury the city had such notice and information as if made use of would have put it in full .control of the situation at the meat market as well as at the creamery. Hence the answer “We don’t know” to the question how long the transformer had been empty of oil or out of repair can not as a matter of law be deemed, as counsel suggest, a finding in effect that it had not been long enough to amount to notice to the city. When a jury are asked as to the existence of a fact and answer that they do not know, the logical and legal significance is that the plaintiff has not proved that such fact exists, and therefore, so far as his proof is concerned, it does not exist. Of such answers it has been said:
“They imply a denial of the existence, or perhaps more correctly of proof of the existence, of the facts concerning which the questions were propounded.” (Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484, 504; Railway Co. v. Hale, 64 Kan. 751, 754, 68 Pac. 612.)
(See, also, Croan v. Baden, 73 Kan. 364, 85 Pac. 532; Jolliff v. Railway Co., 88 Kan. 758, 129 Pac. 1178.)
But when the question is how long a certain condition existed, the answer “We don’t know” necessarily means, not that such condition did not exist at all or for any certain time, but that the evidence fails to show the duration of such existence.
The city in furnishing electricity to its patrons was acting in its proprietary capacity, and was liable for damages caused by its negligence. (Emporia v. White, 74 Kan. 864, 86 Pac. 295; Davoust v. City of Alameda, 149 Cal. 69, 84 Pac. 760, 9 Ann. Cas. 847, Note, p. 851, 5 L. R. A., n. s., 536; Note, Ann. Cas. 1912B, 817; Note, 20 L. R. A., n. s., 648.) The duty of the city is to exercise the highest care to avoid injury to its customers. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807; Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778.) The jury were justified in'finding generally that the defendant fell short of its duty in this instance.
It is contended that the plaintiff by his contributory negligence precluded himself from the right to recover. The jury found that he was told by his employee that there was something wrong with the electricity in the meat room, and that he entered, took hold of the meat or something, and received a shock, but they also found that after this he did not take hold of the light wire in use in the room; that it was hanging in the same room until he received a shock . and pulled it down; also, that there was a switch for turning off the current; that he knew its location, and there was nothing to have prevented his throwing it. But these matters were all for the jury to consider and do not, as a legal proposition, bar his recovery. The plaintiff testified that he was not familiar with the quantity, strength or force of an electric current; that when he touched a spare-rib he got an electric shock, “had not then touched any wire; . . . touched it and was knocked down; extension wire was on that light, hung over the 2 by 4 all wound up; when I went to shut it off it knocked me down and I jerked the cord down with it; the button was to shut off the light, nothing else. Knew then where the switch was; never thought of any switch; knew at that time that the switch was to shut off the entire current; didn’t want to cut off thé entire current ; there was nothing to prevent him from going and turning off the switch; did n’t want to turn it off.”
In direct examination he said:
“I reached over on the wires and I just picked up the cord hanging down, and in doing so it knocked me down.”
On cross-examination:
“There was thumb button for that wire; touched it and was knocked down.”
On redirect examination, after stating that he undertook to turn the current off at the thumb button, he was asked, “And after that, you took hold- of this wire; you didn’t take hold of the wire, you took hold of the switch or little button there?” and answered, “Yes, sir; I took hold of the little button there.” It appeared by other evidence that the switch had not been used, but instead the button on the cord, when it was desired to turn off the current. While the plaintiff stated on the stand that before he touched the thumb piece he had touched the meat and it “liked to have burned my finger all up,” and.he said “that -will kill somebody,” we do not think this shows negligence on his part in immediately attempting to shut off the current in the way he had been in the habit of doing, by turning the thumb piece on the suspended cord; and from the entire account of the incident the jury were warranted in finding in the plaintiff’s favor.
We have carefully considered each point presented, but find no material error in the record.
The judgment is therefore affirmed.
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