text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
Opinion by
Green, C.:
Sarah J. Johnson brought this suit in the district court of Wilson county, against the Missouri Pacific Railway Company, to recover damages for alleged personal injuries which she claims to have sustained. She alleged in her petition:
“That on the 3d day of April, 1887, the defendant was operating a certain line of railroad through the county of Wilson and state of Kansas, known as the Verdigris Valley, Independence & Western Railroad, which said railroad so operated by defendant runs across a certain highway, which said highway was duly and legally laid out and traveled prior to the construction of said railroad; that where said railroad crossed said public highway, and prior to the construction of said railroad, the ground was smooth and level; that in constructing said railroad, an embankment some six feet high was thrown up by the defendant company, upon which it constructed its said road; that the defendant negligently and carelessly constructed approaches to said crossing which were narrow, steep and unsafe, and has failed to restore said public highway to its former condition, or to such condition as did not materially impair its usefulness; that the approach to the railroad by the public highway was obstructed by a high hedge along the north side of the highway, so it was impossible for a person using the highway to observe a train or other object through the hedge; that where the railroad passes through the hedge fence, an opening was cut for a distance of eighty feet in width, and aside from this opening this hedge fence grew upon the north side of the highway a distance of half a mile, and a distance of a quarter of a mile on each side of the railroad track, which rendered said crossing very dangerous • unless a great deal of care was exercised upon the part of the railway company in operating the road; that on the 3d day of April, 1887, the plaintiff was traveling upon said highway in a wagon drawn by two mules, going in an eastern direction; that said railroad, by reason of said hedge fence, was entirely obstructed from the view of the plaintiff north of the crossing; that the plaintiff, knowing the dangerous condition of said crossing, approached the same with great care, intending to stop, look and listen for an approaching train; but upon approaching said crossing, and before she could get a view of said track, said defendant, its agents and servants, ran one of its trains of cars, drawn by a locomotive engine, down said track, in a southeasterly direction, and over said crossing, which said train of cars passed directly in front of the mules driven by plaintiff’s husband, and caused them to jump from the narrow approach to said crossing down an embankment, a distance of six feet, carrying with them the wagon in which plaintiff was then sitting. By reason of the premises the plaintiff was thrown out of said wagon, down said embankment, striking a post upon the side of the highway, then dragged by said team a distance of about eighteen feet, and was mangled, bruised, and injured. Plaintiff avers that defendant neglected and failed to sound the whistle of said locomotive engine eighty rods before approaching said crossing; by reason thereof she was not warned of said approaching train until the same passed over the crossing immediately in front of the mules driven by her husband; that had defendant’s agents and servants sounded said whistle, as it was their duty to do, eighty rods before approaching said crossing, she would have heard the same, and averted the accident.”
To this petition, the railroad company interposed a general denial, and for a second defense set up contributory negligence upon the part of the plaintiff, which directly contributed to the injury. The cause was tried in October, 1887, before a jury, and the plaintiff below recovered a judgment for $1,700, which was approved by the trial court.
A number of errors are assigned upon the rulings of the district court.
I. The first is, that the court should have sustained the demurrer of the defendant to the evidence of the plaintiff. The accident occurred on the afternoon of Sunday, April 3, 1887; the plaintiff was returning home with her husband and two children from a neighbor’s; they were riding in a wagon drawn by two mules; on the north side of the highway on which they were traveling, there was a tall hedge fence which obstructed the view of a train passing on the track of the defendant’s railroad; this hedge extended for about a half-mile east and west of the railroad crossing; the railroad at the crossing was not quite parallel with the hedge, the railroad running from northwest to southeast and more east than south. The plaintiff below testified that before passing behind the hedge, and while she had a view of the railroad, she looked up the track to see if any train was approaching, and she could see none, although she could see the track for a quarter of a mile or more — possibly a mile; that the mules were brought to a walk, in order that she might see; that while she approached the crossing, she was listening for the train and that her ears were unobstructed by any wraps; she continued to listen for the train during all the time that her view was obstructed. About the time the wagon got within seventy-five or eighty feet of the crossing the mules became frightened and started to run toward the crossing; and just as they came within three or four feet of the track the train passed directly in front of them, the mules turned suddenly to the right down an embankment thrown up to make the crossing over the railroad track, and threw the plaintiff out; that the whistle was not sounded before the train approached the crossing; that if it had been, she would have heard it; that if the whistle had been blown and given her warning, the accident would have been avoided. Four other witnesses corroborated the statement of the plaintiff, that the whistle was not sounded until the train reached the crossing.
We think the evidence was sufficient to permit the case to go to the jury. There was testimony tending to support the allegations of the petition, and to establish every necessary fact. (Kiff v. A. T. & S. F. Rld. Co., 32 Kas. 263; Wolf v. Washer, 32 id. 533; Brown v. A. T. & S. F. Rld. Co., 31 id. 1; Waterson v. Rogers, 21 id. 529; Jansen v. City of Atchison, 16 id. 358.)
II. The second error assigned is, that there was no evidence given on the trial of any mental suffering in consequence of injuries, and that the charge of the court which said to the jury that the plaintiff would be entitled to recover in the event they should find for her, such sum as would compensate her for physical pain she may have suffered in consequence of such injury, and also for mental suffering resulting from such physical pain. It will be unnecessary for us to notice this error, as the defendant did not except to the general charge, or to any portion of it. Alleged errors to the instructions of the court, to be considered by this court, should be excepted to by the party wanting them examined. (Mercantile Co. v. Fullam, 43 Kas. 181; Gafford v. Hall, 39 id. 166.)
III. The next complaint the plaintiff in error makes is, the refusal of the court to give the sixth and seventh special instructions. The sixth special instruction did not state the law correctly. It was to the effect that the railroad company had a right to precedence in crossing a highway. The correct rule, as we understand it is, that both the railroad company and the traveler have an equal right to cross, and the law imposes on both parties the duty of using reasonable and prudent precautions to avoid accident and danger. (Sackett, Inst, to Juries, 406.)
As to the seventh special instruction refused, the court had already instructed the jury fully upon the duty of a person approaching a railroad crossing, and this was sufficient. (Deitz v. Regnier, 27 Kas. 94; Evans v. Lafeyth, 29 id. 736; The State v. Bailey, 32 id. 83.)
IV. Counsel for plaintiff in error insists that the trial court erred in refusing to give the eighth, fifteenth and sixteenth special instructions. We have carefully examined the general charge of the court, and we think all of the matters embodied in these special instructions are fully covered by the instructions given by the court.
V. The next complaint is based upon the refusal of the court to give the twentieth special instruction, which was to the effect that the engineer, seeing the plaintiff’s team upon the highway, had a right to believe that the plaintiff’s team was gentle and in the hands of a competent driver, and that he would not approach so close to the track as to incur danger. This requested instruction assumed a fact which was for the determination of the jury. There was a disputed question as to whether or not the parties approaching the crossing could see the engine or the approaching train, and whether the engineer could see the parties approaching the crossing. We think-the instruction was properly refused.
VI. The complaint that the trial court erred in its refusal to give the twenty-second and twenty-fourth special instructions is not good. In each it is assumed that the engineer, brakemen and conductor gave evidence that the whistle was sounded eighty rods before the engine reached the highway crossing. This is not the case. One of the brakemen testified that the whistle was blown about two hundred yards from the crossing. The other brakeman said the whistle was sounded about three hundred yards before reaching the crossing. The conductor estimated the distance to be about two hundred yards, and the engineer fixed the distance about the same.
Complaint is made to the ruling of the court in refusing to give the twenty-third special instruction, in relation to the. evidence of the plaintiff and defendant in regard to sounding the whistle, one being of a negative character and the other positive.
In this case, the testimony of the plaintiff was quite as positive as that of the defendant, and we do not think it was error for the court to refuse the instruction. This court has stated the rule in regard to negative and positive testimony, in the case of K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kas. 702. Measured by the rule established in that case, it was proper for the court to refuse this instruction.
Upon the final objection, that the trial court should have set aside the verdict and special findings in this case, it is sufficient for us to say that an examination of the testimony shows that there was some evidence to support and uphold the verdict of the jury.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
|
[
-15,
110,
-76,
-17,
-68,
98,
32,
10,
67,
-77,
-27,
83,
-81,
-118,
-127,
47,
-26,
-65,
-11,
121,
-26,
-93,
83,
-94,
-78,
19,
-79,
79,
-69,
75,
100,
-57,
77,
16,
10,
85,
70,
72,
69,
30,
-114,
4,
-85,
-24,
3,
98,
56,
123,
70,
71,
117,
-65,
-13,
42,
24,
-29,
109,
47,
111,
-83,
-109,
113,
-62,
85,
92,
22,
1,
100,
-104,
3,
-52,
59,
-40,
-75,
104,
-104,
99,
-90,
-105,
-10,
65,
-103,
72,
-26,
102,
35,
20,
-113,
-20,
-120,
14,
-10,
15,
-89,
-126,
8,
67,
10,
-65,
-99,
84,
6,
7,
120,
-4,
68,
27,
120,
-123,
-53,
-80,
49,
-97,
-96,
-98,
103,
-21,
-91,
50,
97,
71,
34,
95,
69,
50,
-101,
-49,
-66
] |
The opinion of the court was delivered by
Horton, C. J.:
On the 8th day of July, 1886, Mrs. Rosana Richardson, the wife of M. J. Richardson, sold to Miss Louisa U. Emmert a stock of millinery goods in the city of Fort Scott for $2,000. A written agreement was signed and executed by the parties at the time of the sale. Mrs. Richardson covenanted, among other things, that she would “ never enter into or be interested in any manner in the millinery business in the city of Fort Scott.” Prior to the purchase by Miss Emmert, Mrs. Richardson had carried on this business in Fort Scott for ten years: During that time she had built up a large trade. After Miss Emmert had made the purchase, she took possession of the store and carried on the business at the old place — Mrs. Richardson having transferred the lease of the store to her. In February, 1887, Mrs. Richardson, with her husband, left Fort Scott, going to Ireland. They returned to Fort Scott in the winter of 1888,, and on April 12th of that year they commenced to carry on the millinery business in a room opposite the street where Miss Emmert was in business. On the back of the store the sign was “Richardson.” On the front the sign was “M. J. Richardson.” The business was carried on in the name of M. J. Richardson, but Mrs. Richardson had the supervision of it. She bought the dry goods and millinery which they offered for sale. About the time the millinery business was opened up in the name of M. J. Richardson, the following advertisement, with the consent of Mrs. Richardson, was published in the leading newspaper of Fort Scott:
“Thursday is the day set for the grand millinery opening at M. J. Richardson’s, at Bright’s old stand on Main street. The rapid growth of Fort Scott has had the effect to cause all our merchants to buy larger and finer stocks of goods this season than ever before, and particularly is this so in the line of millinery goods. The ladies of the city and county have never before had so fine an opportunity to make selections of styles and goods to their taste as at present, and foremost among our merchants to take the lead in their line is M. J. Richardson (at Bright’s old stand), the Main street milliner. Mrs. Richardson is well known, and her taste in the purchase and selection of fine goods is superb. She has bought and is displaying a stock of millinery goods this season that is more beautiful and exquisite than ever before, and every lady in the city will be pleased by a visit to her store on Thursday next, the occasion of her grand opening. She invites all the ladies of the city and county to call and see her display of goods.”
Afterward, the following advertisement was published, with the consent of Mrs. Richardson, in another paper of Fort Scott:
“The ladies of Fort Scott and vicinity are cordially invited to visit the new and attractive millinery and dry goods store of M. J. Richardson, on Main street, in Bright’s old stand. . . . They have just opened another invoice of those elegant French sateens, which have been so pleasing and satisfactory to former purchasers. As to prices, the public is assured that nowhere can better bargains be attained. These goods were purchased for cash, and the best discounts secured. Therefore the lowest possible prices can be made to customers. The ladies are cordially asked to call and confirm these statements by personal examination.”
This action was brought on March 14,1888, by Miss Emmert, to enjoin Mrs. Richardson from entering into or being interested in any manner in the millinery business at Fort Scott, and also for damages. The trial court granted the injunction prayed for, and rendered judgment against Mrs. Richardson for costs. No damages were allowed. Mrs. Richardson complains, and brings the case here.
The contention is that Mrs. Richardson, since the sale of her stock of millinery goods to Miss Emmert, has never entered into or become interested in any manner in the millinery business in the city of Fort Scott; that she is simply aiding her husband in the conduct of his business, and that the assistance rendered by her to her husband is not a violation of the letter or spirit of her contract with Miss Emmert. As the trial court granted the injunction prayed for and rendered a judgment for costs against Mrs. Richardson, the general finding of the trial court is against her. We must assume that if the evidence and the inferences establish that Mrs. Richardson has violated her contract, the judgment must be sustained. That such contracts as were entered into between Mrs. Richardson and Miss Emmert are valid, see Roller v. Ott, 14 Kas. 609. All contracts of this kind are to some extent against public policy, and their provisions are not to be extended by construction or implication. (Roller v. Ott, supra.) There is sufficient in the evidence, in view of the general finding of the trial court, to show that Mrs. Richardson, after her sale of her stock of millinery goods, entered into and again became interested in the millinery business in Fort Scott, in violation of her contract. The business evidently is carried on for the joint benefit of Mr. and Mrs. Richardson, but under her supervision. The husband furnished the money in the business from the sale of the homestead of the parties, the title of which was in his name, and the store is operated in his name, yet it is carried on for the interest of the wife as well as of the husband. Both are interested. Under her contract, Mrs. Richardson cannot become interested in any millinery business in Fort Scott in competition or opposition to Miss Emmert. (Guerand v. Dandelet, 32 Md. 561.)
It is claimed that the cases of Harkinson’s Appeal, 78 Pa. St. 196, and Tabor v. Blake, 61 N. H. 83, are decisive against the judgment of the trial court.
In the Harkinson case, the mother sold a bakery and covenanted that she would not engage in the same business, directly or indirectly, in the same place for ten years. Within that time she established her son in the same business in the same place, advancing him money as she had done to her other children in their business. The trial court found as a fact that the business was carried on in good faith by the son, and not by the mother, and as no actual damage was shown, an injunction was refused. Mercer, J., in delivering the opinion in that case, said:
“ In the present case the appellant did not erect nor furnish the establishment with any intention that she would engage in the business, or be in any manner interested therein. In furtherance of her plan for aiding her children, she had substantially advanced to him his supposed share in her estate. It was invested in that particular for his benefit and not hers. The effect was the same as if she had given or loaned to him money, with a knowledge that he intended so to use it. It is certainly going very far to say that by the general terms used in this agreement a parent has covenanted to control the business of her son by withholding from him his share in her estate. . . . The appellant denies in her answer, that she has encouraged and promoted the business of others with the intent and effect of injuring complainant; on the contrary, she alleges and avers that she has. advised and encouraged the old customers of her place to continue their custom, and has endeavored to remove objections on their part to purchasing of the appellee.”
That case is quite different from this. Mrs. Richardson has not advised or encouraged her old customers to continue their custom with Miss Emmert, nor has she endeavored to remove objections on their part from purchasing of Miss Emmert. Again, the mother in that case invested her money for the particular benefit of the son, and not for herself. In this case, Mrs. Richardson does not obtain wages, or pay for her services, but in carrying on the business the fair inference from the evidence is that she is interested in the business the same as her husband. Both get the benefit.
In the Tabor case, Blake agreed that “he would not open or cause to be opened a grocery, a billiard or an eating-saloon for trade in the village of Woods ville.” Subsequently, Mrs. Blake, his wife, opened an eating-saloon in the village, and her husband acted as her agent in carrying it on. The finding of the court was that the business belonged to the wife, and that as the husband conducted the business in good faith as her agent, he did not violate his agreement. The findings of fact in that case were in favor of the party who had covenanted not to again engage in business, but in this case the finding is against such party. In many respects the cases are similar, but yet the facts are somewhat different. With the finding of the court against Mrs. Richardson, which is sustained by the evidence, we think it cannot be said, as in the Tabor case, that the defendant has not violated her contract.
The written contract contained the following clause:
“ In case of any differences, they shall be settled by arbitration, the first party selecting one, the second party one, and the two so selected the third, and their decision shall be final and accepted.”
It is contended that Miss Emmert cannot maintain any action until the prescribed method of arbitration has been pursued, or some valid excuse exists for not pursuing it. We do not think that the clause in question was intended to oust the courts of their legitimate jurisdiction. Evidently the differences referred to related only to the inventory, the articles purchased, the money to be paid, and other matters of that kind. (2 Wood, Fire Ins., §456.) Again, the defendant did. not allege in her answer that she offered to arbitrate, or that she had selected any person for arbitration.
The judgment of the district court will be affirmed.
All the Justices concurring.
|
[
-16,
104,
-76,
-36,
58,
-32,
34,
-102,
82,
-128,
53,
-37,
-87,
-40,
16,
107,
110,
77,
80,
104,
-30,
-77,
22,
-25,
-46,
-101,
-101,
-49,
-71,
91,
-76,
85,
92,
52,
74,
29,
2,
-128,
1,
-100,
68,
-127,
41,
-31,
-35,
0,
52,
59,
50,
72,
81,
14,
-15,
47,
28,
-61,
57,
40,
-25,
-65,
-16,
-6,
-86,
-52,
93,
29,
19,
48,
-116,
7,
-40,
42,
-104,
53,
64,
-88,
83,
38,
18,
116,
107,
-21,
12,
48,
98,
33,
-79,
-17,
40,
-100,
15,
90,
-115,
-57,
4,
88,
-14,
41,
-66,
-99,
-7,
54,
-125,
-10,
-10,
29,
25,
-20,
5,
-98,
-106,
-79,
-81,
56,
-112,
86,
-1,
-121,
51,
81,
-51,
126,
125,
82,
55,
-101,
-114,
-8
] |
The opinion of the court was delivered by
Valentine, J.:
In all cases in the district court, the issues of fact may be tried by a jury. In some cases they must be so tried unless the parties consent that they may be otherwise tried. In other cases they may be so tried in the discretion of the trial court. (Civil Code, §§ 266, 267, 289, 291, 292.)
The judgment of the court below will be affirmed.
All the Justices concurring.
|
[
-15,
110,
-27,
-4,
10,
64,
34,
-40,
-62,
-127,
51,
-9,
109,
-54,
20,
125,
-85,
63,
84,
123,
-35,
-110,
7,
1,
-10,
-13,
-45,
-43,
-79,
-1,
-26,
61,
13,
-79,
-30,
-43,
102,
-55,
-123,
94,
-122,
-113,
-85,
81,
-61,
80,
36,
123,
114,
11,
101,
15,
-61,
44,
-101,
67,
41,
-68,
74,
113,
-48,
-39,
12,
-107,
109,
6,
-77,
36,
28,
-93,
-8,
46,
-40,
49,
8,
-24,
27,
-74,
0,
116,
9,
-85,
-120,
98,
103,
0,
13,
-54,
-8,
-120,
37,
-1,
-81,
-89,
27,
88,
104,
-116,
-74,
-65,
124,
112,
46,
126,
-57,
-107,
31,
108,
11,
-113,
-76,
-77,
-113,
112,
-102,
-30,
-53,
-125,
17,
113,
-51,
120,
86,
64,
18,
-37,
-34,
62
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Saline county, on June 21,1888, by the Baker Wire Company, a corporation of the state of Iowa, against Freeman Kingman, Frank Kingman, A. D. Kelley, and J. T. Kelley, copartners as Kingman & Kelley, to recover on two promissory notes and an account not due. An affidavit was filed in the ease for an attachment, setting forth among other grounds therefor, that the defendants—
“Are about to convert a part of their property into money for the purpose of placing it beyond the reach of their creditors; have property which they conceal; have rights in action which they conceal; have assigned, removed, and disposed of a part of their property with the intent to hinder, delay and defraud their creditors; are about to assign, remove, and dispose of a part of their property with intent to hinder, delay and defraud their creditors.”
An order of attachment was granted by the probate judge, issued by the clerk of the district court, and levied upon property of the defendants by the sheriff. Afterward the defendants filed a written motion to discharge the attachment for the alleged reason that the grounds set forth in the foregoing affidavit were not true. This motion, coming on to be heard in the district court, the defendants then interposed an oral motion to discharge the attachment because of the alleged in sufficiency of the aforesaid affidavit. The court then held that the affidavit was not sufficient, and thereupon the plaintiff asked leave of the court to file an amended affidavit, which was then and there presented to the court, but the court refused, and discharged the attachment; and to reverse this ruling of the district court, the plaintiff, as plaintiff in error, brings the case to this court.
The original affidavit filed in this case was drawn principally under §190 of the civil code, and was sufficient for an •attachment if the claim upon which the action was brought had been due; but as before stated, the claim was not due, and hence the affidavit should have been drawn exclusively under § 230 of the civil code, which reads as follows:
“Sec. 230. Where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to •cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or conveyance or disposition of his property, with such fraudulent intent, or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or •defrauding his creditors, or of hindering or delaying them in the collection of their debts, a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor.”
It will be seen that the grounds for the attachment as stated in the original affidavit were not stated in the form prescribed by §230 of the civil code, and were therefore subject to criticism; but the plaintiff presented an amended affidavit which was in every way sufficient under § 230 of the civil code, and we think the court should then, instead of discharging the attachment, have overruled the defendants’ second motion, and ■should have permitted the plaintiff to amend its affidavit by filing its amended affidavit. It will be noticed that the grounds set forth in the original affidavit, and the grounds required by § 230 of the civil code, and which were amply set forth in the amended affidavit, are not so very different. That affidavits for attachment may be amended, see the following cases: Burton v. Robinson, 5 Kas. 287; Ferguson v. Smith, 10 id. 396; Wells v. Danford, 28 id. 487; Tracy v. Gunn, 29 id. 508; Bunn v. Pritchard, 6 Iowa, 56.) And that courts may commit material and substantial error by discharging attachments for insufficient affidavits, without giving the plaintiff in the particular case an opportunity to amend his affidavit, see the second, third and fifth of the above-cited cases.
The order of the court below discharging the attachment will be reversed, and the cause remanded, with the order that the court below permit the plaintiff to amend its affidavit as requested, and for further proceedings.
All the Justices concurring.
|
[
-16,
105,
-72,
28,
10,
-32,
42,
-102,
-46,
-127,
-93,
87,
105,
-38,
4,
127,
114,
21,
113,
104,
70,
-77,
7,
-85,
-110,
-13,
-39,
85,
-79,
92,
-28,
21,
77,
32,
98,
-107,
70,
-128,
-59,
94,
-50,
-127,
-87,
-24,
-37,
64,
20,
-85,
18,
75,
113,
-82,
-1,
43,
61,
-57,
73,
46,
-37,
57,
104,
-72,
-70,
-59,
127,
22,
-77,
-122,
-104,
67,
120,
42,
-104,
49,
-112,
-23,
114,
-74,
-122,
118,
107,
9,
-88,
98,
102,
17,
-107,
-17,
-68,
-104,
47,
-10,
-103,
-90,
-48,
89,
11,
13,
-76,
-99,
69,
16,
7,
-2,
-86,
7,
28,
108,
2,
-54,
-46,
-109,
45,
126,
-104,
11,
-49,
39,
20,
113,
-52,
-32,
93,
99,
57,
-101,
-49,
-79
] |
Opinion by
Strang, C.:
July 3, 1885, the plaintiff, by its agent, H. C. Chipchase, hired of the defendant a team, harness and buggy to drive in connection with the business of said company in and about the repair of its telephone lines in and around the city of Wellington. In driving out of said city along their telephone line leading from Wellington to Hunnewell, the said agent of the plaintiff had to cross State creek, and in crossing the same the team was drowned and the buggy and harness injured. Plaintiffs below demanded of the defendant below the value, of the horses drowned, and $50 damage to the harness and wagon — in all $300 — which was refused, and this action was brought in the court below to recover therefor. The case was tried by a jury. Verdict for plaintiffs. Motion for new trial; motion overruled, and judgment for plaintiffs.
The record in this case is badly mutilated. We do not think a trial judge should settle and sign a case-made in the condition in which this one was when settled and signed. When a party makes a case for this court, and omits so much that should have been incorporated therein, and puts so much therein that is foreign thereto, that in order to make it speak the truth it becomes necessary to so alter and mutilate it that it becomes almost or quite unintelligible, the trial judge should refuse to sign it until it is properly made. In this case as made and served, there are ten pages of evidence, and it required thirteen pages of amendments to correct the case so made and make it speak the truth, so that the trial judge would settle and sign it.
There are numerous errors assigned in the case, but most of them are answered by the amendments allowed to the case as served. We will notice but two of the assignments: First, that the verdict is against the evidence. The evidence is meager upon the question of negligence, and what there is in the case seems to have got in rather accidentally than by any orderly attempt to make such proof. There is, however, some evidence upon the question of negligence; and it is the rule of this court, too well settled to require citations in its support, that where there is any proper evidence on a matter in issue before a jury, the verdict of the jury thereon, approved by the trial court, will not be disturbed. The condition of the stream and its surroundings should have put Chipchase on his guard, and thus notified him of the danger to himself and team in crossing the stream at that time. We think Chipchase in his evidence discloses negligence. He testifies that after he had crossed the main stream and reached a branch, the place in which the team was drowned, he found that the small bridge that was usually there was gone, and yet he drove into the stream. Now it is quite apparent that a stream that requires a bridge to cross it ordinarily could not, with safety, be crossed at such a time, with the water as high and running as swiftly as the evidence shows it was on that occasion. And the attempt to cross at such a time, with the bridge gone, displayed such a want of care and prudence as in our judgment amounted to negligence. One witness testifies that he called to Chipchase and warned him not to attempt to cross the stream. He says he does not know that Chipchase heard him, but that he called loud enough so that he could have heard, and Chipchase does not directly say he did not hear the call of that witness. Chipchase attempts to justify his crossing by reason of the remark of Dr. Barnet, that he had come through. But this remark of the Doctor’s was made near the crossing, and the condition of the Doctor’s horse and buggy, being dry, should have satisfied Chipchase that Barnet did not mean him to understand that he had crossed the stream. If Chipchase had so understood the Doctor he would have been curious to note how much of the horse and wagon had been buried in the water, that he might have formed some idea as to the safety there was in crossing. Besides, the party in the buggy with Barnet, immediately following Barnet’s remark, informed Chipchase that they had not crossed. We think there was evidence to support the charge of negligence. -
It is alleged in the petition in error, but not in the briefs, that the jury was guilty of misconduct. It is perhaps unnecessary to notice this in the absence of any complaint or reference thereto in the arguments. Upon the authority, however, of Kingsley v. Morse, 40 Kas. 577, the method in finding the verdict of the jury is not sufficient misconduct to set it aside.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
|
[
-14,
126,
-80,
-83,
-56,
-32,
26,
90,
65,
-95,
-27,
83,
-113,
-57,
1,
35,
107,
-3,
85,
107,
-10,
-77,
7,
-94,
-118,
-45,
-21,
-57,
-77,
72,
-12,
-33,
77,
48,
-118,
85,
70,
66,
85,
-44,
-50,
2,
-119,
97,
72,
80,
52,
123,
54,
71,
113,
-113,
-13,
42,
29,
-61,
-19,
62,
107,
37,
-47,
113,
-86,
-121,
93,
18,
-125,
-92,
-70,
3,
90,
60,
-112,
49,
8,
-24,
114,
-74,
-122,
-44,
9,
-119,
12,
98,
100,
33,
13,
-19,
-16,
-116,
39,
-2,
-113,
-89,
-80,
25,
3,
5,
-98,
-35,
82,
18,
7,
126,
-4,
20,
21,
36,
7,
-49,
-106,
-125,
-49,
-90,
-124,
39,
-37,
35,
54,
97,
-51,
-30,
93,
69,
48,
27,
-97,
-98
] |
The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution commenced in the district court of Saline county, in which it was charged upon information that the defendant, Walter S. Wait, published in the Lincoln Beacon, a weekly newspaper published in the city of Lincoln, in Lincoln county, and having a circulation in Saline county, a libelous article concerning J. G. Mohler, the prosecuting witness. A trial was had before the court and a jury, and the defendant was found guilty and sentenced to pay a fine of $10, and the costs of suit taxed at $723.25; and from this sentence the defendant appeals to this court.
It appears that on Jauuary 3, 1888, in Lincoln county, Patrick Cleary shot and killed Jesse Turner; that afterward he was charged with murder in the first degree, and tried therefor and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for the term of twenty years; that the sentence was afterward reversed by the supreme court, and a new trial granted, (The State v. Cleary, 40 Kas. 287;) that on May 16, 1889, and succeeding days, he was again tried in the district court of Lincoln county for murder; that during such trial J. G. Mohler, an attorney at law residing in Saline county, assisted in the defense; that on May 29, 1889, the jury retired to deliberate upon their verdict, but failing to agree, they were discharged on June 1, 1889; that on June 3, 1889, Cleary was taken by a mob in Lincoln county, and hung until he was dead; that on June 13, 1889, the present defendant, Walter S. Wait, published in a weekly newspaper edited and published by him in Lincoln county, and known as the Lincoln Beacon, an article which reads as follows :
“Sentimentalists cannot arouse sympathy for Pat Cleary by appealing to the heart, or saying that the murder was committed in self-defense. Pat was a murderer on at least three occasions; was a highway robber plying his vocation from Salina to Denver, and ought to have been killed years ago. . . . Kansas people ought now to be convinced of the necessity of capital punishment. Men commit the most cold-blooded murders imaginable, and after spending thousands of dollars, a sentence of from three to twenty years is the result. We do not want the legislature abolished until after they pass a suitable law on this subject. . . . Senator Mohler is getting a great deal of free advertising these days. We will have to spring his name as a candidate for the senate; not against Ingalls, but against Burton, if this thing continues. — Salina Daily Republican.
“The number of people in Lincoln county who would have raised a finger to remove Pat Cleary had his attorney been content to have let him serve his first sentence of only twenty years, could have been counted on the fingers of one hand. That Pat Cleary is dead can be laid at the door of his attorney, J. G. Mohler, whose insatiate greed to secure not only the last dollar that Pat’s family had, but the last penny his relatives and friends had, and also a $400 judgment covering what they might hereafter earn, must be satisfied. He had no possible hope of being able to clear Cleary with a fair jury. His only hope lay in a packed jury, and his manner of conducting the last trial showed that he relied upon hanging the jury by a ‘fixed man.’ His effort before the jury was so weak that it was noticed by nine out of ten who heard it. His whole effort was constituted of abuse of the witnesses and Mr. Downey, one of the attorneys for the state. The people felt that it was absolutely necessary that Pat Cleary should be where he could take the lives of no more men; and they would have been satisfied had he been imprisoned for even twenty years, for that would virtually have been a life-term. Society would then have been safe from depredations by him. But a mob could not imprison him. They had but one alternative, and Jerry Mohler forced that upon them. If he likes the advertising, he is welcome to it.”
The newspaper in which this article was published also had a circulation in Saline county. On June 17, 1889, this present criminal prosecution was commenced in the district court of Saline county, J. G. Mohler being the prosecuting witness. Only that portion of the aforesaid article commencing with the words, “The number of people in Lincoln county,” etc., and closing with the end of the article, is complained of. The ease was tried in the manner and with the result aforesaid.
Section 11 of the bill of rights of the constitution, reads as follows:
“Sec. 11. The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”
Sections 270, 272, and 275 of the act relating to crimes and punishments, (Gen. Stat. of 1889, ¶¶2444, 2446, 2449,) read as follows:
“Sec. 270. A libel is the malicious defamation of a person, and made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”
“Sec. 272. In all prosecutions or indictments for libels, the truth thereof may be given in evidence to the jury, and if it appears to them that the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted.”
“Sec. 275. In all indictments or prosecutions for libel, the jury, after having received th'e direction of the court, shall have the right to determine at their discretion, the law and the fact.”
That portion of §272, above quoted, requiring the defendant, in order to make a good defense of justification, to prove that the alleged libelous matter was published “ with good motives,” has been held to be in violation of the constitution, and void. (The State v. Verry, 36 Kas. 416.)
It is claimed by the defendant that there was no proof of the publication of the aforesaid article in Saline county. The newspaper was published in Lincoln county, and the proof is meager of any publication or circulation thereof by the defendant, or at his instance, in Saline county. We think, however, the evidence was sufficient to go to the jury, and sufficient to sustain a finding by the jury that the article was published in Saline county.
The defendant also claims that the publication of the article belongs to a class which is privileged, or at least conditionally privileged. Now it is generally true that a newspaper publisher may without committing libel publish judicial proceedings, although such proceedings may contain false statements injurious to individual persons. In such a case he merely publishes the proceedings as judicial proceedings, without giving the statements contained therein any credit on his own account, and without reference to whether such statements are true or false. And in such, cases he need not publish the entire proceedings, or publish them verbatim; but he may publish merely their substance. But this he should do fairly and truthfully. He may also make comments upon the proceedings, but the comments should also be fair, and should be such only as the proceedings themselves, or as the proceedings and the actual extrinsic facts would fairly warrant. He cannot assume to be true extrinsic defamatory matters which are not true, nor can he assume to be true anything in the proceedings which is still controverted, or which has not yet been judicially determined. To the extent already mentioned, the publication and comments respecting judicial proceedings may go to all persons connected with such proceedings, to the judges or justices, to the jurors, witnesses, sheriffs, constables and bailiffs, and to the parties and their attorneys or counsel. There are also many other kinds of privileged publications or communications, and conditionally privileged publications or communications, including such as have reference to the official conduct of public officers, and to the qualifications and fitness of candidates for public office, etc.; but the matters published in the aforesaid article do not come within any of them. As to candidates for public office, see The State v. Balch, 31 Kas. 465. It is true that the matters published in the aforesaid article had some connection with judicial proceedings, but such matters were not the proceedings themselves, nor were they determined to be true by such proceedings. It is claimed that Mohler relied upon hanging the jury by a “fixed man.” This “fixed man” was the juror J. P. Harman, who, it is claimed, was bribed. Now the fixing of this juror, and the procuring of a hung jury by means thereof, was no part of the judicial proceedings. Nor was the procuring of the last dollar that Pat Cleary’s family had, and the last penny that his relatives and friends had, and the $400 judgment covering what they might subsequently earn, any part of the judicial proceedings; neither was the hanging of Cleary, for which it is claimed that Mohler is responsible, any part of such proceedings. Now upon the theory that these matters as published in the aforesaid article are false, we think they are also libelous, and not privileged or conditionally privileged. (Weeks, Attorneys, §§ 137, etseq.; Odg., Lib. &S1. 7, 29, 30, 99, 253, 254; Newell, Defam., SI. &Lib., pp. 184— 186, §§18-22; pp.544-559, §§147-167; pp.580, 581, §§19 to 21; Townsh., SI. & Lib., §§ 230, 252; Ludwig v. Cramer, 53 Wis. 193; Hetherington v. Sterry, 28 Kas.426.) It is claimed, however, that attorneys at law are to some extent public officers, and this for the reason that they are often spoken of as “officers of the court,” and therefore it is inferred that false and defamatory matters may be published of and concerning them with impunity, provided of course that the publisher does so in good faith. Now an attorney at law is not, except in a very limited and remote sense, a public officer. His business or vocation is to him a private matter. It is the means by which he procures his livelihood, and with reference to it and to his good character and reputation he is treated just as other persons are treated with reference to their private business or vocation, and their character and reputation. He is treated in these respects just as a physician, or farmer, or artisan, or mechanic, would be treated. The authorities seem to universally sustain this view, and not a single authority, so far as we are informed, can be found that promulgates or enunciates any different doctrine.
It is also stated that the public is vitally concerned in knowing the truth with reference to the conduct of attorneys at law, and therefore it is inferred that a newspaper publisher may publish falsehoods of a defamatory character concerning attorneys at law with impunity, provided of course that the newspaper publisher does so in good faith. This is hardly the law. The authorities seem universally to lay down the doctrine that a newspaper publisher has no greater right to publish falsehoods of a defamatory character concerning attorneys at law, or concerning anyone else, than any other person has. All are equally required to tell the truth. We have already stated that newspaper publishers have a right to publish judicial proceedings, aud to make fair comments thereon; but when they resort to extrinsic matters, they should be sure that such extrinsic matters are not false and defamatory. Innocent persons should not be defamed by falsehoods, nor should the public be deceived by the same; each is entitled to demand that whatever is published should be the truth. The public is certainly interested in knowing the conduct of attorneys at law as well as of all other persons whose acts or conduct might in any manner affect the public, but the vital interest of the public in this respect is in knowing the truth, aud not in being deceived by falsehoods; and the public interest is not fairly satisfied by the publication of falsehoods instead of the truth. The publication of falsehoods is like giving stones, or something worse, where bread is wanted. In our opinion an article published in a newspaper concerning an attorney at law which would tend to injure ° . t , his character and reputation as an honest and honorable attorney at law, would, like any simi]arj^ injurious article published against any other person, be prima fade libelous; and the fact that it had some connection with judicial proceedings, though not a report of any portion thereof, would not render it privileged or conditionally privileged. Nor would the burden in a criminal prosecution founded thereon against the publisher for libel be devolved upon the state to prove express malice, but malice would be presumed, and nothing would be a complete defense to the action except a showing that the alleged defamatory matter was true in fact and published for justifiable ends, and such a showing would, under the constitution and statutes of Kansas, be a complete defense; and in such a case the supposed libelous matter would not be libelous.
The defendant further claims that the court below erred in refusing to permit evidence to be introduced on the trial tending to show the conduct and actions in the jury-room of the juror J. P. Harman, who, it is claimed, was a “fixed man,” or in other words, was bribed to prevent, and who did prevent, the jury from agreeing upon a verdict that Patrick Cleary was guilty of murder, or of any other offense charged against him. That portion of the aforesaid newspaper article which had reference to this matter, with the innuendoes explaining the same, as set forth in the information in this case, reads as follows:
“He [meaning the said J. G. Mohler] had no possible hope of being able to clear Cleary [meaning the said Patrick Cleary], with a fair jury. His [meaning the said J. G. Mohler’s] only hope lay in a packed jury [meaning thereby, a jury composed of one or more persons unduly or dishonestly biased or prejudiced in favor of said Patrick Cleary], and his [meaning the said J. G. Mohler’s] manner of conducting the last trial [meaning the trial aforesaid of said Patrick Cleary] showed that he [meaning the said J. G. Mohler] relied upon hanging the jury by a ‘fixed man’ [meaning that said J. G. Mohler, either by himself or others with his knowledge, did unlawfully bribe or induce a member of the jury on said trial, corruptly, not to agree to a verdict of guilty against the said Patrick Cleary on said charge of murder in the first degree, and relied as his defense of bis said client Patrick Cleary, on said trial upon a jury composed of one or more persons unduly or dishonestly or corruptly biased or prejudiced in favor of said Patrick Cleary]. His [meaning the said J. G. Mohler’s] effort before the jury [meaning the jury in the case aforesaid] was so weak that it was noticed by nine out of ten who heard it [meaning that the said J. G. Mohler did not labor all in his power as an advocate,"attorney and counselor before the jury aforesaid and in the case aforesaid, and on the trial thereof, because that the said J. G. Mohler knew that one or more of said jury was unduly or dishonestly or corruptly biased or prejudiced or influenced in favor of said Patrick Cleary, or against rendering a verdict in said cause against said Patrick Cleary of guilty of any of the offenses of which he stood charged in said cause].”
Some evidence was introduced on the trial of this case tending to show that Mohler did rely upon some one hanging the jury in the Cleary case. Other evidence was introduced tending to show that an improper effort was made, presumably by bribery, to procure some one to hang the jury in that case. And evidence was also introduced tending to show that J. P. Harman, one of the jurors in that case, acted very strangely, to say the least. He refused to have his photograph taken along with the other jurors, and gave as a reason therefor that “there might be some hard feelings against the jurors by some people, and if they had their photographs, they could very easily hunt them out; and they would know the jurors and the jurors would not know them.” And when a fellow-juror said to him during the trial that the judge was very strict, and did not intend that they should be tampered with, Harman said: “No, you might have an envelope slipped into your hand with a hundred-dollar bill in it.” And although Harman upon his voir dire, while the jury were being impaneled, qualified as a competent and an impartial juror, and one who knew nothing about the case, yet it was shown on the trial of this case that he was and had been a subscriber to the Lincoln Beacon, that gave a full report of the proceedings of the former trial. The defendant further attempted to show in this case what Harman said and did, and what he omitted to say and do, while the jury in the Cleary case were in their room deliberating upon their verdict, but the court refused to permit anything of the kind to be shown. It is claimed that all the jurors except Harman voted for conviction, and that Harman voted constantly for acquittal, and that he did in fact hang the jury. But the court refused to permit anything of the kind to be shown. The court refused to permit anything to be shown which occurred in the jury-room during the deliberation of the jury, although it was stated that what did occur in the jury-room had come to the knowledge of the defendant in this case before he published the alleged libelous article. The court excluded the foregoing evidence upon the following ground, as stated by the court, to wit:
“If that kind of evidence is admissible, it would be necessary to recall to this court every witness who testified in that case, and to show whether or not he had reasons for taking the position he did upon the jury. I do not believe that evidence ought to be admitted.”
It will be noticed that the evidence was not excluded because no sufficient foundation for its introduction had been laid, but because its introduction would involve the calling as witnesses all the witnesses who had previously testified in the Cleary case. Now we do not think that the introduction of this kind of evidence would necessarily or even probably involve any such consequences; but even if it would, it would hardly be a sufficient reason for its exclusion. In proving Harman’s conduct in the jury-room, only so much . , 1 , lt; cotu(* be proved as might tend to show that lie was a “fixed man,” or in other words, to show that he had been bribed or tampered with, and this might not have required the calling of a single witness who had previously testified in the Cleary case. We think the evidence should have been admitted.
The defendant claims that the court erred in giving a certain instruction to the jury, wherein the court said: “But the truth so shown must be as broad as the libelous publication, and the proof of one of these matters alone does not constitute a defense in such a case.” This, however, was modified by another instruction given to the jury, wherein the court stated that the defendant must be found guilty, “ unless you further find that said article was substantially true, and was published for justifiable ends; but if you find that it was both substantially true and published for justifiable ends, then you should acquit the defendant.” And the court also gave full instructions with respect to “ reasonable doubts.” Taking all these instructions together, we think no material error was committed, nor was the jury probably misled. As to the first of the above instructions, see Newell on Defamation, Slander and Libel, p.796, §45; as to the second, see the case of The State v. Verry, 36 Kas. 416. Where the defendant in a criminal prosecution for libel justifies upon the ground that the alleged libelous matter was and is true, and was published for justifiable ends, he is required to prove, or in some manner to show only its substantial truth, and that it was published for justifiable ends; and he is not required to prove or show the truth of any of the alleged libelous matter except such as would in fact be libelous if not true; and he is not required to prove or show the truth of even that portion of the alleged libelous matter by a preponderance of the evidence, but only by evidence sufficient to create a reasonable doubt in the minds of the jury. His proof, however, should extend to all the alleged libelous matters that would in fact be libelous if not true, and in this sense the proof should be “asbroad as the libelous publication.” In this state in every criminal action it devolves upon the state to prove beyond a reasonable doubt every fact, ingredient or element necessary to constitute the offense charged. (Crim. Code, §228; The State v. Crawford, 11 Kas. 32, 42, et seq.; The State v. Child, 40 id. 482.) It may be different with respect to such defenses as admit in effect that the offense charged may have been originally committed, as, once in jeopardy, a former acquittal, a former conviction, or a pardon. These are affirmative defenses that admit substantially that the offense charged may have once been committed, and are not negative defenses included in the general plea of “not guilty,” which in substance denies that the offense charged was ever committed. If the alleged libelous matter was true and published for justifiable ends, then no offense was ever committed; and if upon the whole of the evidence introduced, with all the relevant legal presumptions, the jury cannot say that they are convinced beyond a reasonable doubt that the alleged libelous matter was not true, or was not published for justifiable ends, the defendant should be acquitted.
The defendant further complains of the following matters, that occurred in the closing argument of counsel for the state, to wit:
“In the closing argument upon the part of the state, J. E. Burton, after referring to the position taken by defendant and his counsel that the juror Harman had been bribed, and that Pat Cleary was a murderer, he said: ‘The supreme court takes a different view from what they do as to Cleary’s guilt/ and thereupon, taking up the 40th volume of the Kansas Reports, and turning to the case of The State v. Cleary, that he would read what the supreme court said as to the guilt or innocence of Cleary.
“Thereupon counsel for defendant interrupted Mr. Burton in his argument, and objected to the court to counsel’s reading from the report of the case which he had just referred to; the court overruled said objection, remarking that ‘counsel for defendant had been allowed great latitude in presenting the case to the jury.’ To which ruling defendant excepted.
“Thereupon said J. R. Burton read from the decision of the court in the case referred to above, on page 299, as follows :
“‘We are loth to express an opinion upon the merits of this case, but we are compelled by an unavoidable necessity to say, that the evidence preserved in this record does not so strongly impress us with the guilt of the defendant as to incline us to the opinion that the substantial rights of the defendant have not been invaded by this erroneous ruling. On the contrary, we think as the case is one of fact entirely, and grave doubts may be fairly entertained, that the district court should have given the defendant the benefit of the doubt and sustained the motion for a new trial, for the reason that the jury was not fairly constituted.’
“Counsel stated to the jury that that was the language of the decision of the supreme court upon the evidence in that case.
“Thereafter, and in another part of this argument, said J. R. Burton read from the alleged libelous article: ‘He had no hope of being able to clear Cleary with a fair jury/ again took in his hands said report of the case of The State v. Cleary, and said to the jury, ‘The supreme court says that he has.’
“And again, in another part of his argument, said J. R. Burton again referred to said report and said expression of opinion in said report of said case, and said to the jury, ‘Cleary may have been guilty, or there may have been agrave doubt, as the supreme court says there was.’ ”
The views or supposed views of the supreme court referred to by counsel for the state in the closing argument, are found in the opinion prepared by one of the commissioners of the supreme court in the case of The State v. Cleary, 40 Kas. 288, et seq. These views, however, have nothing to do with the law of the present case; nor indeed with any law. They are really only an expression of opiuion with regard to the facts of the Cleary case, as deduced from the evidence introduced on the first trial of that case. This report of the views of the supreme court was not introduced in evidence in the present case except by counsel for the state in his closing argument-And it was then introduced for the purpose of rebutting any opinion that might be deduced from the evidence in this case, or be entertained “that the juror Harman had been bribed;” or “that Pat Cleary was a murderer,” or that Mohler “had no hope of being able to clear Cleary with a fair jury.” It was an attempt to make the supreme court testify in the present case with regard to some of the facts of the Cleary case supposed to be involved in the present case. And it was new evidence not introduced on the trial of the present case, nor in the case at any time prior to the closing argument of counsel for the state, and it could not properly have been introduced at all. We think the court committed error when it permitted this to be done. Some of the decisions which have some application to this question are as follows: Huckell v. McCoy, 38 Kas. 53, 59, and cases there cited; Wolffe v. Minnis, 74 Ala. 386; Bulloch v. Smith, 15 Ga. 395; Dickerson v. Burke, 25 id. 225; Forsythe v. Cothran, 61 id. 278; Tucker v. Henniker, 41 N. H. 317; Bullard v. B. & M. Rld. Co., (N. H.) 5 Atl. Rep. 838, 844, and note; B. & O. Rld. Co. v. Boyd, (Md.) 10 Atl. Rep. 315; Hall v. Wolff, 61 Iowa, 559; Henry v. S. C. & Pac. Rld. Co., (Iowa) 30 N. W. Rep. 630, 632, and note; Ricketts v. C. & O. Rly. Co., (W.Va.)19 S. E. Rep. 801; Coble v. Coble, 79 N. C. 589; Paper Co. v. Banks, 15 Neb. 20; C. & A. Rld. Co. v. Bragonier, 13 Brad. (Ill.) 467; Kinnaman v. Kinnaman, 71 Ind. 417; Rudolph v. Laddwerlin, 92 id. 34; Town of Rochester v. Shaw, 100 id. 268; Campbell v. Maher, 105 id. 383; Hoxie v. Home Ins. Co., 33 Conn. 471; Bedford v. Penny, 58 Mich. 424; Rickabus v. Gott, (Mich.) 16 N.W. Rep. 384; H. & T. C. Rld. Co. v. Nichols, (Tex.) 9 Am. and Eng. Rld. Cases, 361; Willis v. McNeill, 57 Tex. 465; G. H. & H. Rld. Co. v. Cooper, 70 id. 67; G. H. & S. A. Rld. Co. v. Kutac, (Tex.) 37 Am. and Eng. Rld. Cases, 470; same case, 11 S. W. Rep. 127; Insurance Co. v. Cheever, 36 Ohio St. 201; Brown v. Swineford, 44 Wis. 282; Bremmer v. G. B. S. P. & N. Rld. Co., 61 id. 114; Baker v. City of Madison, 62 id. 137; Koelges v. Ins. Co., 57 N. Y. 638; The State v. Balch, 31 Kas. 465.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
Johnston, J., concurring.
|
[
-15,
104,
-80,
94,
56,
96,
106,
-104,
80,
-94,
-32,
115,
-55,
-53,
69,
121,
42,
53,
85,
105,
-28,
-106,
3,
-15,
-110,
115,
-15,
-35,
51,
93,
-28,
-35,
79,
112,
10,
93,
70,
106,
65,
94,
-114,
0,
-87,
-16,
82,
64,
52,
123,
122,
10,
53,
-82,
-93,
42,
30,
-13,
-55,
44,
-37,
-81,
16,
-79,
50,
-99,
-35,
6,
-93,
-125,
-100,
5,
80,
46,
-40,
49,
66,
-4,
115,
-90,
-124,
-12,
101,
-55,
-84,
102,
35,
49,
20,
-54,
-88,
-87,
-65,
-9,
-119,
-25,
16,
88,
98,
45,
-106,
-103,
105,
-12,
-126,
-12,
-27,
7,
93,
-4,
-127,
-98,
-76,
-109,
111,
60,
-110,
-38,
-53,
-91,
36,
113,
-52,
-30,
92,
71,
122,
59,
-113,
-80
] |
The opinion of the court was delivered by
Harman, C.:
This is a proceeding in civil contempt brought to enforce the judgment which is the subject of the appeal in case No. 44,750, Campbell v. Campbell, 198 Kan. 181, 422 P. 2d 932.
That judgment was rendered against the defendant Ralph L. Campbell on October 29, 1965. Ralph appealed to this court but in doing so did not file a supersedeas bond. On November 12, 1965, the plaintiff Max L. Campbell filed a motion for citation in contempt alleging that Ralph had violated the judgment in several particulars. The trial court heard evidence and on December 28, 1965, found that Ralph had not complied with the judgment rendered against him and was thereby guilty of indirect contempt of court but the court imposed no punishment.
On January 5, 1966, Max again filed a motion for citation in contempt against Ralph. Various other pleadings were filed, including an answer by Ralph, and on February 18, 1966, the trial court heard evidence offered by Max. On February 23, 1966, the trial court made its ruling. In essence it reexamined its judgment of October 29, 1965, and concluded that Ralph was not guilty of contempt. Max has appealed from that ruling.
The factual background of this litigation is reported in case No. 44,750, Campbell v. Campbell, ante.
Although there were others, the principal items urged by Max as constituting contempt by Ralph were that Ralph has not offered for sale to the other stockholders the additional shares of stock of the Hydro-Flex Corporation purchased by him, and that on November 5, 1965, at the annual stockholders’ meeting of the corporation he voted these shares adversely to Max’s interest in the corporation. Other contemptuous conduct alleged on the part of Ralph related to Ralph’s management of the Hydro-Flex Corporation.
Although the trial court in its October 29, 1965, judgment made findings of fact favorable to Max on the basis of his continuing business relationship with his brother Ralph, the decretal part of that judgment was based on the court’s interpretation of the corporate by-laws. The court declared that Ralph holds in constructive trust all of the additional shares of stock purchased by him, and it ordered Ralph to offer the disputed shares for sale through the corporation secretary to Max and the other shareholders on a pro rata basis as provided by the corporate by-laws. It is this directory part of the judgment with which we are concerned.
In the principal controversy in case No. 44,750 we have now substantially modified that judgment with directions to the trial court. More specifically, we have held that the trial court misinterpreted the by-laws and therefore had no authority to order an offer of sale of stock through the corporate secretary. It follows then this contempt proceeding based on that former judgment necessarily falls and must be dismissed.
A proceeding in civil contempt is remedial in nature designed to advance the private right of a litigant won by court order. Any penalty inflicted is intended to be coercive; the party in contempt can only be relieved by compliance with the order (see Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 269 P. 2d 435).
To illustrate how a holding of contempt by this court in the case at bar would be academic and ineffectual for any other purpose, and why there can be no other result, we cannot order Ralph committed to jail there to remain until he complies with an order since changed. In civil contempt the penalty inflicted is by way of execution of the court’s order, necessarily prospective in application, and is not primarily punitive as in criminal contempt.
The rule that this court will not consider and decide a question when it appears that any judgment it might render would be unavailing has been applied frequently and under varying circumstances (see 1 Hatcher’s Kansas Digest, rev. ed., Appeal & Error, §§387-389; 2 West’s Kansas Digest, Appeal & Error, §§781, 790).
Inasmuch as the principal appeal in this bitter controversy must go back to the trial court for adjustment of the rights and equities between the parties, it perhaps should be emphasized that nothing herein is to be taken in diminution of the inherent power of the district court to punish for contempt and to make such reasonable orders as are necessary to preserve and protect its judgment if a litigant maintains a position at variance with that judgment.
The appeal is dismissed.
APPROVED BY THE COURT.
|
[
-76,
-2,
-80,
-116,
10,
-32,
56,
-38,
127,
106,
-105,
83,
-55,
-42,
0,
57,
119,
111,
85,
107,
87,
-78,
7,
97,
87,
-109,
-5,
-123,
-75,
74,
-12,
95,
-51,
-96,
-118,
-99,
-26,
-126,
-58,
-108,
-58,
20,
57,
-60,
-39,
4,
112,
27,
84,
75,
65,
14,
-13,
47,
31,
-54,
40,
40,
127,
104,
80,
-8,
-102,
15,
79,
18,
35,
6,
-120,
7,
88,
62,
16,
49,
1,
-24,
51,
-74,
6,
-44,
43,
-83,
40,
36,
98,
-127,
85,
-25,
120,
-104,
54,
-21,
-99,
-89,
80,
120,
42,
65,
-74,
-99,
114,
22,
-121,
126,
-18,
-99,
20,
-20,
11,
-113,
-90,
-111,
15,
52,
-98,
22,
-53,
-95,
48,
49,
-51,
-96,
92,
15,
123,
-117,
70,
-100
] |
The opinion of the court was delivered by
Fromme, J.:
This appeal is a sequel to Campbell v. Nako Corporation, 195 Kan. 66, 402 P. 2d 771. Defendants, B. W. Klippel and Alleen P. Klippel, in said case brought themselves within the provisions of K. S. A. 60-309 and were let in to defend. The action was brought for cancellation of an oil and gas lease.
The case was returned to the court below and a trial resulted in judgment for plaintiffs, A. D. Campbell and Ava Campbell. The defendants appeal from this judgment on the ground they were not given their day in court. The trial court did not permit them to introduce any evidence which might tend to prove the oil and gas lease had remained alive and was a valid and binding lease. A statement of the history behind this case is necessary to understand the questions presented in this appeal.
On April 2, 1907, an oil and gas lease was made and executed on land in Allen county. The lease was made for a primary term of ten years. It provided if no oil or gas well was drilled within six months the contract would cease unless the lessee paid an annual delay rental. The lease further provided if oil or gas be found the contract should continue so long as either can be procured in paying quantities. It further stated that rentals were to be paid until royalties exceeded rentals, and if royalties should stop then rentals were to commence.
Oil wells have been in production on this land for many years. The present landowners, A. D. Campbell and Ava Campbell, filed an action to declare the lease cancelled on this eighty acres. The petition was filed October 2, 1962, and a copy of the lease was attached. Plaintiffs allege they are the owners of the land and Nako Corporation is the present owner and operator of the lease, having acquired the lease by a sheriffs sale transfer on May 2, 1961. Plaintiffs state that B. W. Klippel and Alleen P. Klippel are the present owners of a one-sixteenth overriding royalty interest in said lease. Lienholders, with whom we are not concerned, were joined in the action. The plaintiffs further allege there are eight completed oil wells on the eighty acres. The last well was drilled in November 1961 but has not been placed on pump. Plaintiffs state the owners and operators of the lease have failed to develop the lease, have improperly maintained and operated the same and at the time of filing the petition the lease had been abandoned.
The lessee, Nako Corporation, appeared and filed an answer to the petition in the nature of a general denial. The overriding royalty owners, B. W. Klippel and Alleen P. Klippel, were served by publication service but did not know of or appear in the action. A default judgment was rendered against all defendants on February 15, 1963. The lessee, Nako Corporation, had become involved in financial difficulties. They made no appearance when judgment was entered declaring the lease forfeited and cancelled.
Forty-four days later the Klippels filed an application under K. S. A. 60-309 to open the judgment and to be let in to defend. Their answer attached to the application admitted ownership of a one-sixteenth overriding royalty interest in the lease. They denied plaintiff was entitled to cancellation of the lease, alleged Nako Corporation was diligently operating the lease, stated the lease had not been abandoned and the previous judgment cancelling the lease was obtained by fraud and collusion. This application to open the judgment was granted on appeal to this court in Campbell v. Nako Corporation, supra.
Nako Corporation in the meantime had gone into receivership and the receiver sold the interest in this oil and gas lease to M & B Drilling Company, Inc. on October 4, 1963. M & B Drilling Company, Inc. brought a separate action to open the judgment cancelling the lease. Their right to open the judgment was denied on appeal to this court in M & B Drilling Co. v. Campbell, 197 Kan. 323, 416 P. 2d 777.
On first impression it would appear the law is inconsistent in permitting one defendant in an action to open a judgment when another defendant is denied that right. However, we note M & B Drilling Company, Inc. acquired its interest in the subject matter of the action from Nako Corporation who had personal notice of the action. In M & B Drilling Co. v. Campbell, supra, the court applied our rules of procedure which determine the right to open a judgment and found that notice of the default judgment had been given and plaintiff had not brought itself within the procedural requirements of our statute.
On the other hand the Klippels had no notice of the prior proceedings. They were served by publication in a newspaper and were let in to defend the action under the procedural requirements of K. S. A. 60-309 (a). This statute provides:
“A party against whom a judgment has been rendered without other service than publication in a newspaper, may, at any time within two (2) years after the entry of the judgment, have the same opened and be let in to defend. Before the judgment may be opened the applicant shall give notice to the adverse party of Ins intention to make such an application and shall file a full answer to the petition, pay all costs if the court require them to be paid, and make it appear to the satisfaction of the court by affidavit that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. The adverse party on the hearing of the application may present counter affidavits.”
The reason for the different results reached in the two cases is based on procedural requirements.
Our next consideration is whether or not the judgment in M & B Drilling Co., v. Campbell, supra, renders inquiry into cancellation of the lease res judicata. The action in both of these reported cases was determined on procedural issues. The question was whether or not the parties should be let in to defend. The determinative issue decided in each case was whether they had personal notice of the proceedings. The question of cancellation of the oil lease was never reached and no issues on this question were decided. Our court has previously determined this question in Messing v. Faulkner, 83 Kan. 115, 109 Pac. 1001. In Messing a mortgagee sought foreclosure of a mortgage but was denied relief because of a judgment in a quiet title action rendered without notice to him upon publication service. Judgment was rendered in favor of the landowner-mortgagor. Thereafter the mortgagee applied and was let in to defend in the quiet title action. He set up his mortgage and requested foreclosure as his defense. The plaintiff contested on the ground that judgment denying foreclosure in the previous action was conclusive and the doctrine of res judicata applied. The court rejected this plea of res judicata and said at page 117:
“That argument has no force as applied to the situation here presented. The judgment denying a foreclosure did not need to be set aside in order to allow a foreclosure in another action, because all it decided was that as matters then stood the plaintiff had no right of action. And that is all it could rightfully have decided. If it had gone further and decreed the cancellation of the mortgage it would doubtless have been a bar to a subsequent action thereon, but the remedy would have been to procure its reversal for error. . . .”
(See Routh v. Finney County, 84 Kan. 25, 113 Pac. 397; Ingalls Land & Loan Co. v. Cohen, 136 Kan. 556, 16 P. 2d 500; Kinsey v. Farmers State Bank, 132 Kan. 694, 297 Pac. 693.)
In M & B Drilling Co. v. Campbell, supra, judgment was based on issues of fact relating to procedural matters. The issues of fact determined did not concern the oil and gas lease or grounds for cancellation thereof. Therefore the judgment did not have the effect of rendering the issues res judicata in the action to cancel the oil and gas lease.
Let us now turn to matters presented by the parties to this appeal. After the Klippels were let in to defend against the action the trial court placed a limitation on the issues to be decided. The limitation is set forth in the pre-trial order as follows:
“The petition heretofore filed by the appellants to be let in to defend and to reopen the case insofar as it adversely affects them, is now granted and their answer presented in connection with said application is now considered filed.
“Under the opinion of the Supreme Court, the only question for determination now presently existing in this case is that of whether the cancellation of the oil and gas lease in question under which the appellants held an overriding royalty interest was obtained by collusion between the lessee, Nalco Corporation and the plaintiffs, and was the result of fraud against the appellants.
“Since the judgment in this case cancelling the lease is a final judgment, and since the interests of the appellants was dependent upon said lease, it follows that if no fraud or collusion is shown no further remedy is available under the Supreme Court opinion to the appellants. If on the other hand it is established that such fraud and collusion existed, then the question will arise as to whether the judgment cancelling the lease should be set aside and the issues as to the right of cancellation be retried or whether the appellants have only a claim for damages against those perpetrating the fraud.”
At the trial defendants attempted to introduce evidence bearing upon the present status of the lease by offering testimony that the lease had been operated in a proper manner and if the wells were shut down this was temporary and with no intent to abandon the lease. Defendants attempted to show the lease might be held by payment of minimum rentals if royalties should stop. All such evidence bearing upon the present status of the lease was excluded on the ground that the previous judgment cancelling the lease remained in effect and that defendants were limited to proof of fraud or collusion.
At the conclusion of the trial the court found no fraud or collusion had been proven and entered judgment against defendants. The defendants, B. W. Klippel and Alleen P. Klippel, have perfected the present appeal and will be referred to as appellants. They set forth eight separate grounds for error in the statement of points. These eight points bear upon one ultimate question in the appeal. Did the judgment of February 15, 1963, against the lessee, Nako Corporation, remain a final adjudication which terminated the oil and gas lease even though the appellants (Klippels) had obtained relief under K. S. A. 60-309? If so the lease was cancelled by judgment and the overriding royalty owners would be limited to issues of fraud and collusion which presupposes a termination of the lease.
The nature of an overriding royalty interest and its dependence upon the continued life of the lease has been explored and explained. We need not explore the matter further for the puiposes of this appeal except to say the “override” terminates with the parent lease. (See Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631; Anderson-Prichard Oil Corp. v. Unknown Successors, etc., Okla. Royalty Corp., 167 Kan. 432, 207 P. 2d 417; Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326.)
The appellants strenuously urge that the right to be heard granted by this court in Campbell v. Nako Corporation, supra, included the right to question the sufficiency of the evidence upon which the landowners base their theory of cancellation and to introduce evidence upon which the court might deny cancellation of the oil and gas lease. They contend that otherwise the right to defend granted by the court became a hollow gesture for they are prevented from introducing evidence to prove the validity of the source of their interest which was the lease.
This leads to a determination of the effect of opening a judgment against multiple defendants when one defendant is let in to defend as provided by K. S. A. 60-309. We have not previously considered this question as it concerns multiple defendants.
In McCulloch v. Dodge, 8 Kan. 476, the court discussed the nature of the order setting aside a default judgment. At page 479 of the opinion the court said:
“Third: Neither will it be claimed that said order is ‘an order that involves the merits of the action, or some part thereof.’ It simply opens up the judgment and the default, and allows the said defendants to answer, so that the merits of the action may be heard and considered, and the case disposed of on its merits. Courts will always as far as they can favor rulings that will allow cases to be disposed of on their merits, and will always as far as they can discountenance every attempt to prevent cases from being heard on their merits. . . .”
In Albright v. Warkentin, 31 Kan. 442, 445, 2 Pac. 614, the court .appeared to recognize the possibility of interrelated rights of multiple defendants who might be affected by the opening of a judgment when it said:
“. . . Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reason ably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done consistent with the rights of other parties. . .
In Messing v. Faulkner, supra, a party not previously in a case was permitted to come into the case. The judgment quieting title to land was set aside and he was permitted to defend by setting up his mortgage and asking for its foreclosure.
In Taylor v. Woodbury, 86 Kan. 236, 238, 120 Pac. 367, it was stated:
“. . . All that the judge at chambers does in granting the application is to make a provisional or interlocutory order permitting the defendant to set up his defense to the action. If on the final hearing the court shall decide that the defense is insufficient, no new judgment is rendered; the original judgment stands as of the date it was rendered. . . .”
We have examined many other cases in which there were multiple defendants affected by the order but none of these opinions treat multiple defendants or decree a partial vacation of the judgment. (See, also, Withers v. Miller, 140 Kan. 123, 34 P. 2d 110.)
The question posed here is treated in the annotation in 42 A. L. R. 2d p. 1030. The courts are divided as to the effect of allowing one of several defendants in to defend after a judgment has been rendered against multiple defendants. A minority of the states follow the common law unit-judgment rule and hold a judgment is inseparable and its vacation as to some of the parties against whom it runs requires its vacation as to all of the parties.
A majority of the states hold that a judgment may be partially set aside as to one defendant and the judgment against other defendants whose rights are in no way related is not disturbed thereby. The general wording of K. S. A. 60-309 and our case law on the subject would indicate that the common law unit-judgment rule does not apply in Kansas. If a single defendant is let in to defend the action, a judgment rendered against multiple defendants is not disturbed as to other defendants if their rights are in no way interrelated with the applicants who are permitted to defend.
Generally it has been held in other jurisdictions when the interests of multiple defendants are inseparable and their defenses to an action are interrelated and dependent upon the other defendant’s rights an order setting aside the judgment operates as to all whose rights are interrelated and inseparable and the judgment in such case is set aside as to all codefendants. (See District of Clifton v. Pfirman, 33 Ky. L. R. 529, 110 S. W. 406; Sturgis, Cornish & Burns Co. v. Miller, 79 Neb. 404, 112 N. W. 595; 42 A. L. R. 2d 1037 Anno.)..
In Sturgis, Cornish & Burns Co. v. Miller, supra, judgment was rendered against both principal and surety on a bill of exchange. The principal was let in to defend the action and the court opened the judgment as to both principal and surety since the rights of the defendants were interrelated and inseparable. The liability of the surety was dependent upon the judgment against the principal. When the principal was let in to defend, the judgment was opened as to both defendants.
In Campbell v. Nako Corporation, supra, at page 75 of the opinion we said:
“We should point out that the question before us is not what should be done when the case is finally presented, but whether the appellants have a right to be heard, and we hold that having brought themselves within the provisions of K. S. A. 60-309 (a), they have such right and should have their day in court.
“In view of all that has been said, we conclude the trial court erred in its order denying appellants’ application and that order is reversed and the case remanded with directions to open the judgment rendered against appellants and that they be let in to defend.”
The interests of the overriding royalty holders are dependent upon the lease and are interrelated and inseparable to such an extent that the rights of the overriding royalty holders (Klippels) depend in this case upon a defense of the action to forfeit and cancel the (Nako Corporation) lease. Under the particular circumstances of this case the interests of these two groups of defendants were inseparable and the previous judgment declaring a forfeiture and cancellation of the lease was set aside as to both groups of defendants under Campbell v. Nako Corporation, supra. B. W. Klippel and Alleen P. Klippel should have been let in to defend upon all issues framed by the pleadings.
The appellees (landowners) insist that the right to make a defense against the action should be denied the appellants because no privity of estate and contract exists between the landowners and the owners of the overriding royalty interests. It should be noted that this action is not brought by the overriding royalty owners to enforce rights arising out of a contract or estate. This action was brought by the landowners to have the court declare a forfeiture and obtain cancellation of an oil and gas lease. It cannot be denied that appellants are interested parties. They were considered so and made defendants in the action. The landowners are required to establish the allegations in the petition upon which the court can decree forfeiture and cancellation of the lease. The appellants may defend their interests by questioning the sufficiency of the evidence upon which the plaintiffs base their claim to forfeiture and may introduce contradictory evidence. The appellants hold rights dependent upon the life of the oil and gas lease. They may lack privity of estate and contract which would prevent them from enforcing covenants in the lease against the landowners or the lessee, but they should not be precluded from defending an action brought by the landowners to declare the lease forfeited and cancelled. They may attempt to prove the lease is in production and continues to be properly and prudently operated, if such be the case.
The owners of a royalty interest dependent upon continued production were permitted to defend an action to cancel an oil and gas lease in Brack v. McDowell, 182 Kan. 368, 320 P. 2d 1056. The right to defend against actions to quiet title against terminable interests depending upon continuous oil production has been generally recognized in Kansas. (See Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P. 2d 1039.)
One additional question is raised on this appeal. The case was tried after a pre-trial order was entered by the trial judge. The contention is made that this pre-trial order was agreed to by the parties and entered by the judge three months before trial, that it limited the issues to fraud and collusion and must control the subsequent course of the action, including this appeal. The appellants did not present a motion to modify the pre-trial order. The appellants did resist the original entry of the order and insisted upon introducing evidence to establish the lease.
This pre-trial order contains no admissions, agreements or stipulations by the parties upon which a limitation of factual issues can be made. The pre-trial order was the trial court’s ruling on a question of law.
Issues of fact to be tried may be limited by admissions, agreements and stipulations of counsel and when set forth in the pre trial order will govern the scope of the trial issues. (See Andersen v. Andersen, 173 Kan. 467, 249 P. 2d 686.)
The pre-trial order in the present case covered a ruling of law based upon an erroneous interpretation of our previous decision in Campbell v. Nako Corporation, supra. A pre-trial order does not preclude review of the trial courts ruling on a question of law. (1A Barron and Holtzoff, Federal Practice and Procedure §471, 473; Smith, Kirkpatrick & Co. v. Continental Autos Ltd. [D. C. D. C. 1960] 184 F. Supp. 764; Macklin v. Kaiser Co., [D. C. Or. 1946] 69 F. Supp. 137.)
The appellants, B. W. Klippel and Alleen P. Klippel, should be permitted to defend on all issues framed by the pleadings and amendments thereto.
The judgment is reversed.
|
[
116,
106,
-11,
13,
28,
-32,
40,
-102,
91,
-77,
-10,
87,
-51,
-38,
4,
121,
-61,
29,
96,
104,
-61,
-78,
65,
80,
64,
-5,
-39,
-51,
-72,
94,
-26,
84,
72,
32,
-54,
-107,
-58,
64,
69,
-36,
-114,
5,
-103,
-28,
-39,
0,
52,
107,
34,
11,
65,
-123,
-13,
46,
29,
-61,
-24,
44,
-5,
45,
-55,
-14,
-94,
21,
95,
18,
3,
-124,
-112,
-59,
72,
78,
-112,
49,
8,
-20,
83,
38,
-60,
-12,
43,
-103,
44,
-82,
99,
33,
28,
-17,
104,
-104,
15,
-34,
-115,
-94,
-48,
24,
-77,
32,
-106,
29,
124,
86,
65,
126,
-26,
-123,
95,
120,
22,
-53,
-16,
-127,
15,
113,
-112,
25,
-21,
-93,
-92,
80,
-55,
-78,
92,
71,
112,
27,
70,
-80
] |
The opinion of the court was delivered by
O’Connor, J.:
This appeal grows out of an action on a promissory note. The case, tried with the aid of an advisory jury, resulted in a judgment in favor of the plaintiff, J. J. Jarnagin, and against the defendant, Verner F. Ditus, the appellant here.
The principal question involves the statute of limitations and whether or not a credit claimed by the payee extended the running of the statute.
The promissory note, dated October 1, 1957, in the amount of $4,624.22 payable to plaintiff, was executed by three brothers, Verner F. Ditus, W. C. Ditus and Leon Ditus. By its terms the note became due one year after date of execution — October 1, 1958. Upon default, an action was instituted on April 20, 1964, by Jarnagin against the three brothers. The case was subsequently dismissed, without prejudice, by the district court. The present action was filed on April 2, 1965, the pleadings being nearly identical to those in the first action. It should be noted that a motion to dismiss the defendants W. C. and Leon Ditus was sustained by the trial court, and consequently, we are concerned only with the liability of Verner F. Ditus.
To avoid the bar of the five-year statute of limitations [K. S. A. 60-511 (1)], plaintiff’s petition alleged:
“On or about the 8th day of October, 1960, the said Verner F. Ditus agreed to renew said note and on said date claimed a credit due on said note in the amount of $649.91, which credit was given by plaintiff and credited to said note as of October 8, 1960.”
The defendant, by answer, denied that credit on the note was given by the plaintiff on October 8, 1960, and alleged the action was barred.
The plaintiff presented one witness at the trial — his former attorney, Jack Dalton. The facts will unfold with a resumé of Dalton’s testimony. On October 8, 1960, at a meeting held in Dalton’s office at Jetmore, Jarnagin, Dalton, Verner F. Ditus and the latter’s son discussed the matter of the note to Jarnagin being past due. Dalton stated Jarnagin would like to have it paid, or have some payment made on it. Ditus responded he did not have the money to pay it then, but that Jarnagin owed some money to Ditus Bros, (a trucking business operated by the three brothers) that should either be paid or credited on the note. Dalton asked Ditus how much was owed. Ditus replied he didn’t know. Dalton requested Ditus to determine the amount so credit could be given on the note. Later that same day Ditus returned and handed Dalton a slip of paper and said, “This is the amount that we are talking about.” Dalton replied, “All right.” The information on the paper was as follows:
“1-23 1000.00
Returned bull 9-8-300.00
9-8-58 649.91
4-8-58 — 2 cows credit 323.00”
On the reverse side of the paper were the figures “649.91” appearing alone. Dalton took the paper, wrote on it “Presented by Verner Ditus 10/8/60,” clipped it to the original note, and placed both in his safe.
On November 5, 1962, Dalton wrote the following letter to Ditus:
“Dear Mr. Ditus:
“I advised Mr. Jarnagin that you were in my office in response to my letter requesting some payment on your note to Mr. Jarnagin. I indicated that you were willing to renew the note. We can renew tire note for one year. You mentioned that you were entitled to some credit for the trucking and Mr. Jarnagin mentioned that you were able to sell some of these cattle. The new note should be for the principal amount, plus accrued interest, less any credits that you are lawfully entitled to. Will you kindly advise me the credits you feel that you are entitled to and I will discuss them with Mr. Jarnagin and prepare a new note and send it to you for execution.”
Dalton further testified the reference in the letter to a conversation with Ditus concerned a conference Dalton had with him “probably within a month prior to November 5, 1962,” and did not refer to their conversations on October 8, 1960. Tire reference to Ditus’ being entitled to some credit for trucking referred to the latter conference held just prior to Dalton’s letter of November 5, 1962. In a conversation had about the same time, Jarnagin told Dalton he “owed the Dituses for trucking but there weren’t any other credits they were entitled to.” Not until March 30, 1964, when Dalton wrote a letter to Ditus, did Ditus receive anything “to evidence the granting of any credit on the note.” A day or so before filing the first action (April 20, 1964) Dalton wrote on the back of the-note the following:
“10/8/60 Credit Amount Balance
649.91
(per instructions from Verner Ditus).”
Affidavits executed in Alaska by Verner Ditus and his son were presented and admitted by stipulation at trial as defendant’s evidence. In addition, defendant introduced the answers given by plaintiff to two sets of interrogatories — one set taken in the first action; the other set taken in the present case. Verner F. Ditus acknowledged a discussion occurred at the meeting on October 8, 1960, concerning Jarnagin’s being indebted to Ditus Eros, for hauling cattle, and that Dalton told him “to figure it up, and that he was sure Mr. Jarnagin would pay it,” but nothing further transpired that day with regard to the indebtedness. Ditus confirmed Dalton’s testimony concerning the letter of March 30, 1964, as being the first notice Ditus received that a credit had been given on the note on October 8, 1960.
Prior to trial the district court overruled a motion for summary judgment filed by the defendant, Verner F. Ditus.
The issues submitted to the advisory jury were determined as follows:
“1. Was a credit in the amount of $649.91 claimed by the defendant, Verner F. Ditus?
“Answer: Yes.
“2. If the answer to Question # 1 above is ‘Yes/ was such a credit given on October 8, 1960?
“Answer: Yes.”
Thereafter, the defendant filed a motion to amend, or make additional findings, or in lieu thereof, to grant a new trial. The motion was overruled, W. C. Ditus and Leon Ditus were dismissed from the case, and judgment was entered against Verner F. Ditus in the sum of $7,026.30 plus interest from date of judgment, and costs.
An orderly disposition of the points raised on appeal requires consideration first of defendant’s contention that the trial court erroneously overruled his motion for summary judgment because of certain admissions by the plaintiff in his answers to interrogatories. Space does not permit the detailing of defendant’s argument on this point. The essence of his contention appears to be that because of inconsistencies between plaintiff’s answers to interrogatories taken in the first action and his answers to those posed in the present action, of which some were in the nature of admissions, the motion for summary judgment should have been sustained. We do not agree.
The motion for summary judgment was based solely on the pleadings and plaintiff’s answers to the two sets of interrogatories. Attached as part of the pleadings were the note (with the credit notation) and Dalton’s letter of November 5, 1962. We have examined them in detail. In all fairness, it would appear from the record that plaintiff was ill at the time he answered the first set of interrogatories. Several answers indicated lie lacked personal knowledge about many events in which his attorney participated after the meeting of October 8, 1960. A considerable portion of defendant’s argument is focused upon Dalton’s letter to Ditus on November 5, 1962, in which he referred to unascertained credits claimed by Ditus. Ry his answers to the first set of interrogatories plaintiff appeared to be uncertain of just what credits were referred to in the letter; however, his answers to the second set of interrogatories were more definite and indicated the letter referred to possible credits other than the $649.91 allegedly given on October 8, 1960. Although there were variances in several of the answers, we are unable to conclude that they were clearly inconsistent with each other, or contained admissions which as a matter of law would preclude the plaintiff from offering evidence to support his allegation that a credit of $649.91 was, in fact, given on October 8, 1960.
When ruling on a motion for summary judgment, a court must resolve against the movant any doubt as to the existence of a genuine issue of material fact; the evidentiary material submitted by the party opposing the motion must be taken as true, and such party must be given the benefit of all reasonable inferences that may be drawn from such material. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964; Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110.)
Measured by these rules, our conclusion is that plaintiff’s answers to the interrogatories, when considered together, were such as to show the existence of a genuine issue of fact about whether or not the statute of limitations had been tolled.
The remaining points on appeal relate primarily to die sufficiency of evidence to support the findings of the advisory jury which were adopted by the trial court. In considering the points, we must adhere to our well-established rules of appellate review.
It is the province of the trier of facts to pass on the credibility of witnesses and the weight of their testimony. Our function as an appellate court is confined to the determination of whether or not there is substantial and competent evidence to support the trial court’s findings. In making such determination, we must examine the record in the light most favorable to the prevailing party below; and when the findings are based on substantial, competent evidence, they are binding and conclusive on appeal, notwithstanding there may be evidence that would have supported contrary findings. (Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988, and cases cited therein.)
Defendant complains no evidence was presented to support the finding that his offer of credit on October 8, 1960, was limited to only the one item of $649.91. He argues that the paper handed to Dalton contained four items; that these were all offered as credits, and, thus, there could be no partial acceptance of the offer. Defendant’s argument ignores the fact that on one side of the paper appear the figures “649.91” standing alone. According to Dalton, when the defendant handed the paper to him on October 8, 1960, defendant stated, “This is the amount we were talking about.” (Emphasis added.) In defendant’s affidavit no attempt was made to explain the four items. Thus, there was evidence from which it could be determined the only credit proposed on October 8, 1960, was the one item of $649.91.
Defendant next asserts there was no evidence that the $649.91 credit was granted by plaintiff’s attorney on October 8, 1960, and that there was no acceptance thereof until defendant was notified in Dalton s letter of March 30, 1964 (five years and six months after the note’s maturity).
Refore we consider the point, a review of our law on the subject of part payment and its effect on the statute of limitations is appropriate.
In order to effectively toll tire statute, a part payment must have been voluntarily and deliberately made on the indebtedness in question by the debtor, or by someone at his direction, and under such circumstances as to amount to an acknowledgment of the debtor’s existing liability on such obligation. The principle upon which part payment extends the running of the statute is that the debtor intended by such payment to acknowledge and admit the greater debt to be due, and from which the trier of facts would be warranted in finding an implied promise to pay. (Fisher v. Pendleton, 184 Kan. 322, 336 P. 2d 472, 74 A. L. R. 2d 1274; Pessemier v. Zeller, 144 Kan. 726, 62 P. 2d 882, 107 A. L. R. 1523; Elmore v. Fanning, 85 Kan. 501, 117 Pac. 1019; Shanks v. Louthan, 79 Kan. 363, 99 Pac. 613; Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545.) Part payment need not be in money in order to toll the the statute; it may be by the giving of another note (Pracht v. McNee, 40 Kan. 1, 18 Pac. 925), by an endorsement of credit on a note by the payee, if authorized or ratified by the maker (Wil loughby v. Sheedy, 157 Kan. 505, 142 P. 2d 799; Gorrill v. Goff, 148 Kan. 765, 84 P. 2d 953, 124 A. L. R. 223), or by an agreement to apply, as a credit, a debt owing by the creditor to the debtor (54 C. J. S., Limitations of Actions § 329).
With the foregoing rules in mind, we believe the fallacy of defendant’s contention is apparent. In our view, the evidence previously set out concerning the events occurring between Dalton and Ditus on October 8, 1960, was sufficient to show that an agreement culminated on that date whereby Jarnagin’s indebtedness to Ditus in the amount of $649.91 was to constitute a credit on the note. Dalton’s clipping of the paper to the promissory note was consistent with the agreement. Thus, we believe Ditus acknowledged his liabiltiy on the existing note, and his promise to pay the balance due could be implied therefrom.
The fact the credit was not endorsed on the note by Dalton until shortly before an action was instituted is of little significance. It is the date of payment, not the date of the endorsement thereof, that operates to toll the statute. Long ago in Hastie v. Burr age, 69 Kan. 560, 77 Pac. 268, there was evidence a payment was not actually endorsed upon the note until after the expiration of the time that the statute of limitations would have run. It was claimed that such endorsement was necessary to toll the statute, and that mere payment alone was not sufficient. The court, in rejecting the contention, said:
“. . . It is the payment of a part of the principal or interest, and not the indorsement of such payment upon the account or evidence of debt, which tolls the statute. . . .” (p. 563.)
Conversely, in the case of In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198, it was urged that an endorsement of credit on the back of a note before the statute of limitations had run was evidence of partial payment which would toll the statute. The court held that the notation of payment, standing alone, was no evidence that payment was actually made, and it was noted:
“The fact that must be proven in order to toll the statute is that payment was made on the note by the maker before the statute had run. . . .” (p. 743.)
(Also, see Anno. 23 A. L. R. 2d 1331.)
Likewise, the Badger decision repels any notion of there being a presumption of payment on the date of endorsement, as urged by defendant for the first time in his motion before the lower court to amend its findings.
Defendant’s final complaint pertains to an allegation in plaintiff’s petition in the first action that a credit in the amount of $649.91 “was subsequently given by plaintiff and credited to said note as of October 8, 1960.” (Emphasis added.) His argument is twofold, as nearly as we can ascertain, and centers on tire use of the word “subsequently” as being an admission which was binding on the plaintiff, and (1) when considered with plaintiff’s answers to interrogatories, required that the defendant’s motion for summary judgment be sustained, and (2) precluded proof by the plaintiff that the credit was, in fact, given on October 8, 1960. The contention lacks merit, for in either instance defendant ascribes a restrictive connotation to the word that is violative of its ordinary meaning.
The word “subsequent” is defined in Webster’s Third New International Dictionary as: “following in time; coming or being later than something else.”
The use of the word, in our opinion, neither precluded proof of the events relied on by plaintiff as transpiring later on the same day (October 8, 1960), nor did it constitute an admission that compelled a ruling contrary to that made by the district court on the motion for summary judgment.
After a careful examination of the entire record, we believe this was essentially a fact case resolved adversely to the defendant. There being no showing that the lower court erred in any of the matters about which complaint is made, the judgment is affirmed.
|
[
112,
120,
-47,
62,
11,
96,
-86,
-102,
87,
-62,
-75,
83,
-23,
-61,
-124,
105,
-9,
45,
81,
104,
-89,
-77,
55,
65,
-46,
-69,
-104,
-43,
-79,
77,
-28,
87,
12,
52,
-118,
85,
102,
98,
-61,
86,
78,
-73,
57,
76,
121,
2,
48,
58,
16,
79,
-75,
-114,
-29,
46,
60,
78,
109,
40,
75,
41,
-64,
-80,
-85,
5,
127,
16,
-77,
7,
-100,
68,
-24,
14,
-112,
49,
49,
-24,
50,
-90,
70,
-12,
107,
57,
44,
102,
102,
32,
85,
-51,
-68,
-72,
6,
-2,
21,
-121,
-109,
88,
9,
101,
62,
-99,
127,
20,
-89,
116,
-4,
13,
21,
108,
0,
-114,
-42,
-95,
-33,
122,
30,
-125,
-6,
-93,
32,
113,
-51,
32,
92,
103,
57,
27,
7,
-109
] |
The opinion of the court was delivered by
Harman, C.:
This is an action for specific performance of a contract for the sale of real estate. In the lower court judgment on the pleadings was entered for the defendant, resulting in this appeal. The issue is whether certain correspondence between the parties constituted a contract.
The action was commenced by the filing in the district court of Logan county, Kansas, of plaintiffs’ petition in which they alleged they are partners doing business at Russell Springs, Logan county; that defendant, a resident of Modesto, California, owned a quarter section of land in Logan county; that in the fall of 1964 defendant offered in writing to sell this real estate to plaintiff partners, the offer being in words and figures as follows:
“WYCOFF REALTY CO.
“Russell Springs, Kansas.
“You may purchase or sell my NW 6-12-36, Logan Co. Ks. This offer expires Jan 1, 1965, at $6,000 all cash, net to me. There is a mortgage now against the land of none due about_at_interest. There are soil bank acres in cultivation, and is rented for-delivered to market, rent share to go. The place is (is not) improved. Possession may be had on sale.
“NAME (s) Gerald E. Grover
“ADDRESS 1717 Yosemite Blvd.
Modesto, Calif.”
Plaintiffs alleged they thereafter orally and in writing accepted defendant’s offer, but that defendant refused to sell the real estate to them, and plaintiffs ask for specific performance of the sale contract. Ry an amendment to their petition they alleged their acceptance of defendant’s offer to sell was in the form of a letter to defendant dated and mailed November 12, 1964, the letter being as follows:
“November 12, 1964
“Mr. Gerald E. Grover
“1717 Yosemite Blvd.
“Modesto, California
“Dear Mr. Grover:
“I have just talked to your tenant, Mr. Kistler at Colby and told him we had a long talk with you yesterday and come to a complete agreement on the sale of your quarter west of Winona.
“We agree to give you $6,000.00 for the land, net to you. Also agree to leave it in the soil bank for the contract term and pay for the Revenue stamps.
“As you mentioned yesterday, since your divorce you are having trouble locating the Abstract. If you cannot find it, I am sure a new one would not cost to much. If you find it, send it to the Logan County Abstract Co. to be brought to date or notify them to make a new one.
“When your attorney has the new deed prepared, please send it and our check to the Farmers & Merchants State Bank at Colby, Kansas for collection.
“Yours very truly,
“Wycoff Brothers
“Richard Wycoff”
Defendant filed his answer admitting his residence and ownership of the land but denying all other allegations of the petition. He expressly denied the mailing by plaintiffs and the receipt by him of the letter of November 12, 1964. Defendant filed a counterclaim against plaintiffs in which he alleged that about October 13, 1964, the plaintiffs solicited a listing for sale of defendant’s real estate by means of a post card sent to defendant through the mails which card was as follows:
“What will it take to buy your land in Western Kansas, which we have listed on the reverse side of this card, all cash, net to you, if sale is made in 60 days?
“Write us on the attached card, giving us your lowest price and we will see if we can’t use this in a deal.
“Price it on a cash, net to you basis, no commission to anyone.
“In writing us we will appreciate it if you will please betubn the attached
CABD.
“WYCOFF REALTH CO.
“Russell Springs, Kansas”
Defendant further alleged that attached to such post card was a return card which defendant completed and returned to plaintiffs, being that pleaded by them in their petition; that thereafter in response to this reply defendant received a letter from plaintiffs dated November 6,1964, as follows:
“WYCOFF BROS.
“Livestock and Farming
“Russell Springs, Kansas
“TELEPHONES
“Winona TI 6-3466
“Oakley OR 2-4008
“November 6, 1964
“Mr. Gerald E. Grover
“1717 Yosemite Blvd.
“Modesto, California
“Dear Mr. Grover:
"Thank you for your exclusive listing of your Logan County, Kansas land (NW 6-12-36), until January 1,1965.
“My brother and I looked at your 160 acres this morning and thought we would make you a bid. We have several non-residents wanting to buy small tracts of un-improved land.
“We feel $5600.00 ($35.00 per acre) is a fair price for this land. If you care to accept this bid, we are enclosing our check for $500.00 as good faith money.
‘We are enclosing a deed for you and your wife, if married, to sign before a Notary Public and then send the deed and abstract to our bank, The Farmers & Merchants State Bank, Colby, Kansas, for collection of the balance. “If the ■title is good, we agree to pay this balance in fifteen days. Please have your Notary Public fill in the blanks as to names, marital status, county in California and etc.
“Yours very truly,
“Wycoff Brothers
“RW/mw “/s/ Richard Wycoff
“Enel. “Richard Wyocff”
Defendant alleged that plaintiffs represented themselves to be real estate brokers or agents authorized by law to accept listings for real estate but that such representation was false in that plaintiffs were not licensed real estate brokers or agents; that on November 16, 1964, defendant mailed a letter to plaintiffs stating his land was no longer for sale, such letter being as follows:
“Modesto, California
: “11-16-64
“Sir:
“I have decided to take my land off the market at this time. It is not for sale. .
“(s) Jerry Grover”
Defendant further pled that the alleged acceptance letter of plaintiffs dated November 12, 1964, was on terms different from those on which the land was offered and that defendant had not at any time accepted those terms; that notwithstanding plaintiffs on December 3, 1964, caused to be filed in the office of the register of deeds of Logan county an instrument entitled “Notice of Lien” wherein they recited an offer and acceptance for the sale of defendant’s land, defendant’s refusal to convey, and the fact that plaintiffs claim defendant’s real estate; that this filing constituted a cloud on defendant’s title; that plaintiffs acted fraudulently in seeking to deprive him of his real estate, causing him damage in defending his title, and he asked for equitable relief including actual damages in the sum of $275.00 and exemplary damages of $1,000.00.
In their reply plaintiffs denied they solicited a listing of defendant’s real estate; they admitted they were not licensed real estate brokers or agents; they admitted sending the November 6, 1964, letter to defendant, the receipt by them of defendant’s November 16, 1964, letter, and the filing of the alleged “Notice of Lien” but denied fraud on their part.
Thereafter defendant filed a motion for judgment on the pleadings upon plaintiffs’ alleged cause of action against him. The court sustained this motion, entered judgment for defendant thereon, and continued the case for trial upon defendant’s counterclaim against plaintiffs. Plaintiffs appeal from the entry of the aforesaid judgment on their cause of action.
Recapitulating chronologically, the pleadings reveal the following writings between the parties:
1. Plaintiffs’ solicitation card (October 13, 1964)
2. Defendant’s return card offer of sale
3. Plaintiffs’ counter offer (November 6, 1964)
4. Plaintiffs’acceptance letter (November 12, 1964)
5. Defendant’s withdrawal letter (November 16, 1964).
The pleadings admit the foregoing except defendant denies receiving plaintiffs’ November 12th letter addressed to him. However, for the purpose of defendant’s motion for judgment on the pleadings, plaintiffs’ factual allegation of the mailing and receipt by defendant of this letter must be taken as true.
At the outset it should be noted that although plaintiffs alleged an oral acceptance in their petition, they make clear in their brief and argument the fact this alleged oral acceptance of defendant’s offer to sell was upon the same terms and conditions as those stated in their November 12th letter, the latter being the written confirmation of the oral acceptance. Indeed, plaintiffs state the crux of the lawsuit is the analysis and interpretation to be given that letter. Hence we treat the letter as the acceptance relied upon and the one determinative of this action, and we are not further concerned with the alleged oral acceptance.
It is elemental, of course, that in order to constitute a binding contract resulting from an offer to sell real estate, the terms of the offer must be unconditionally accepted (Spiher v. Johnson, 110 Kan. 339, 203 Pac. 696).
Plaintiffs urge that their November 12th letter constituted an unqualified acceptance of defendant’s offer, creating a contract binding upon him. They argue that the mention of an abstract and place and method of payment amounted only to immaterial conditions which would not affect the validity of the acceptance. Defendant urges, and the trial court held, that these items constituted counter proposals by plaintiffs which were never accepted by defendant.
We have precedent on the subject.
In Cox v. Chalfant, 105 Kan. 127, 181 Pac. 548, the owner of land, in answer to an injuiry, wrote a letter to a real estate agent, stating: “I will sell the N. E. M . . . for $2,800 net to me.” Thereafter the agent on behalf of the owner attempted to enter into a written contract of sale of the land to another. The contract recited that upon delivery of an abstract to the purchaser he would pay the purchase price to a named bank as agent for both parties. Upon the owner’s refusal to convey in accordance with the contract, the would-be purchaser brought suit against him for specific performance. Although there were other grounds for the decision, this court, in affirming judgment for the owner, had this to say:
“The terms of the contract, at least as to the abstract, the place of payment, and the mutual agency of the Elk City Bank, were not embraced in the letter.” (p. 128.)
In the Spiher case, supra, a widow who resided in Illinois owned an undivided half interest in land in Gove county, Kansas. The plaintiff wrote her a letter of inquiry about the land stating, “I have a friend that could use it.” The widow replied stating a minimum sale figure for the land. Plaintiff then sent her a telegram and a letter of instructions with a deed to himself to be signed stating he would pay the purchase price to a Gove county bank after the necessary legal steps in probate court had been completed. The widow later sold the land to another, whereupon plaintiff brought suit against her for specific performance of an alleged contract for the sale of the land. This court directed judgment for the widow, saying:
"... if plaintiff had been frank in his first letter and had said that he desired to purchase the lands, and Mrs. Johnson had written the letter she did, his telegram and the two letters would not have constituted a contract binding Mrs. Johnson, for the reason that the so-called letter of confirmation imposed various conditions upon the other party with respect to matters about which nothing had been said in the previous correspondence. One requirement which he made has been held sufficient of itself to prevent a contract, until accepted by the seller. When the deed, abstract and other papers were satisfactory to him, he proposed to deposit the purchase money in, a bank, where he lived, ‘for you.’ Before the correspondence would constitute a contract, Mrs. Johnson must have accepted the new conditions.
“Where nothing is said as to the place of payment, it is presumed to be where the seller lives or does business, and not where the buyer is. In this case Mrs. Johnson might well have said that she would not agree to a contract obligating her to execute a deed to be delivered upon the payment of the consideration by depositing the money to her credit in a bank a thousand miles from where she lived; and that if the money was to be deposited in a bank, she would name the bank. It sometimes happens that disputes arise after the papers have been delivered, and the purchaser immediately after depositing the consideration in his local bank brings suit against the seller and attaches the money on some claim, such as that he found a third party in possession, or that some provision of the contract has been violated by the seller, and the latter finds himself in a lawsuit brought in a foreign jurisdiction which he must defend and win before he actually receives tire consideration for the sale of his lands. If defendants had made a written offer to sell the lands to plaintiff, his letter introducing a new condition would have destroyed the effect of his alleged acceptance because the defendants in that case would have had the right to accept or reject the new .terms and conditions, and until they did accept there could be no contract.” (pp. 341, 342.)
Finally, in Pope v. Pine, 131 Kan. 668, 293 Pac. 396, plaintiff’s petition set up correspondence between the parties allegedly constituting a contract to sell real estate in Hamilton county, Kansas. After a preliminary exchange of negotiatory communications in which there was no mention of an ábstract of title or place or method of payment, the defendant landowner sent a telegram to the plaintiff buyer as follows:
“Will accept eight dollars per acre net cash or one-half down remainder in three years, six per cent.”
Plaintiff then sent ihe following letter to defendant:
“April 20,1929.
"Mrs. Nettie Pine, Waterloo, Iowa:
“Dear Madam — Your wire received accepting my offer for the south one-half of section 13, township 25, range 42, Hamilton county, Kansas, for eight dollars per acre net to you.
“I am inclosing a Kansas form of deed prepared for your signature, and will fix up the mortgage papers and send them to you for your approval. You may send me your abstract on this piece of land, and I will send it out to Hamilton county and have it brought up to date, and if the title is all right, as I have no doubt but what it is, as you perhaps had it examined when you got it, then I will be ready to complete the deal.
“You may send the deed to the Macksville State Bank at Macksville, Kan., as I do some of my business over there with instructions to them, upon payment of $1,280 in cash and mortgage of $1,280 signed by myself and wife, to turn the deed over to me.
“I will return the abstract to you, as it is customary for it to be held with the mortgage.” (pp. 669, 670.)
Upon defendant’s refusal to convey the real estate to plaintiff, the latter brought suit for damages for breach of contract. The lower court sustained a demurrer to plaintiff’s petition. Upon appeal the same arguments were made as are made in the case at bar — that there was a complete contract and the so-called acceptance letter did not attempt to impose new terms or conditions, but merely made suggestions as to the manner of consummating the transaction. This court affirmed judgment for the defendant saying:
“It is true that a merchantable title is implied as a matter of law, as contended by appellant, but there is no implication of law that a vendor will furnish an abstract of title. That is a matter which is a proper subject of contract between the parties. Unless the vendor agrees in the contract to furnish one there is no obligation resting upon him to do so. This stipulation in the letter of April 20, written by appellant, was a new condition not previously covered in the correspondence between the parties. . . . Appellee’s reply in which she offered to take part cash and part on time was a continuation of the negotiations. Appellant in reply undertook to negotiate further on the new feature thus injected by appellee and wrote his letter of April 20. It proposed several new conditions, among them being the furnishing of the abstract, sending the deed to the Macksville bank and the place and method of payment. It is true that inasmuch as a merchantable title is implied, his statement ‘if the title is all right’ did not amount to adding a new condition, because if he had a contract otherwise complete he thereby did not impose any condition except that which was already imposed by law on the appellee.
“Upon a careful consideration of the petition in this case and comparing it with the tests outlined in the numerous decisions of this court hereinbefore cited, we conclude that the letter of plaintiff dated April 20, 1929, brought new terms and conditions into the deal; that a contract was not in fact entered into between the parties. We further conclude that upon receipt of the letter of April 20 the defendant had a right to treat the transaction as still open and could refuse to proceed and that her motive in so doing was immaterial.” (p. 675.)
We think these cases are sound in principle; to follow them here will result in justice. Other cases of like import could be cited. However, those quoted from sufficiently illustrate why we conclude plaintiffs’ November 12th letter was not an unqualified acceptance of defendant’s offer to sell. Instead the letter introduced, to defendant’s disadvantage, new terms and conditions not previously mentioned or agreed upon — the furnishing of an abstract of title and the place and method of payment — all of which were subject to further negotiation between the parties before a binding contract could be reached. Defendant withdrew his offer before it was unqualifiedly accepted; hence there was no contract.
The judgment appealed from is affirmed.
APPROVED BY THE COURT.
|
[
81,
104,
-15,
13,
26,
-32,
42,
-104,
121,
-79,
103,
91,
-23,
-54,
20,
121,
-10,
13,
100,
107,
-41,
-78,
86,
-63,
82,
-13,
-47,
-35,
-77,
76,
-92,
71,
76,
32,
-54,
-107,
-30,
-62,
-57,
28,
78,
-89,
-103,
100,
-39,
98,
52,
43,
114,
74,
81,
-113,
-13,
45,
29,
67,
1,
46,
-69,
59,
-48,
-72,
-85,
-99,
93,
3,
-126,
100,
-36,
-57,
-56,
74,
-112,
61,
8,
-24,
83,
38,
-42,
52,
11,
11,
8,
102,
98,
34,
-12,
-17,
-40,
-104,
15,
123,
-115,
-90,
-11,
88,
34,
96,
-66,
-100,
52,
16,
3,
-2,
-49,
5,
29,
108,
7,
-54,
-42,
-77,
-115,
126,
-98,
9,
-5,
3,
49,
112,
-49,
-94,
92,
103,
16,
-101,
-113,
-70
] |
The opinion of the court was delivered by
Fontron, J.:
This appeal grows out of an action commenced by the Kansas Power and Light Company, the plaintiff and appellee in this case, to collect deficiency charges for transporting natural gas produced from wells owned by Mobil Oil Company and Cities Service Oil Company, the defendants and appellants herein. Summary judgment was entered for the plaintiff, and the defendants have appealed. For convenience, the parties will be designated as plaintiff, or KPL, on one side, and as defendants, or Mobil and Cities Service, on the other.
From the record we glean the following facts: In January, 1956, the parties executed a twenty-year contract in which plaintiff agreed to buy certain quantities of natural gas from Mobil’s predecessor, and from Cities Service (similar contracts being made between KPL and other producers in the Spivey-Grabs Field in King-man County). The contracting parties recognized that the future production of gas from that field might exceed KPL’s needs and accordingly they agreed that if, at the end of five years, excess gas was being produced from the defendants’ wells, KPL would release such gas to the defendants and would transport it to a processing plant at a reasonable cost to be negotiated by the parties. The contract contained a further provision requiring arbitration on matters on which the parties were unable to agree.
As had been contemplated, excess gas was produced from the defendants’ wells (as was true with other wells in the field) and a supplemental agreement was made in 1961 under which KPL was to transport the defendants’ gas to Anadarko. No agreement could be reached as to the reasonable cost of transportation and the parties agreed to waive arbitration of that matter and to submit this question to the State Corporation Commission of Kansas in proceedings which KPL agreed to initiate within a reasonable time. It was agreed that an interim charge of 3.5$ per MCF would be made, but that whatever charge the Commission should find to be reasonable was to relate back to gas already delivered.
KPL did not initiate proceedings before the Commission, as it had agreed, but instead filed a schedule, hereafter referred to as Trans No. 1, setting up a charge of 3.79‡ per MCF plus a deficiency-charge of like amount in the event total deliveries from the defendants fell below a certain volume. Upon learning of this action, the defendants, apparently in conjunction with other producers in the same field, initiated proceedings themselves to have the Commission determine the reasonable cost of gathering and transporting their excess gas.
Assuming jurisdiction, the Commission set the matter for hearing and conducted a thorough investigation, hearing extensive testimony and considering a diversity of factors. On October 18, 1962, the Commission filed its order, in which it found the reasonable cost of gathering and transporting the defendants’ excess gas was 2.5‡ per MCF and that the charge then on file, or then being made, was not a reasonable charge for such services. The Commission concluded by ordering KPL to file and put into effect, within thirty (30) days, the 2.5</; per MCF rate and to refund the amount of all overcharges. Copies of this order were furnished all parties.
In response to this order the plaintiff, on November 21, 1962 filed a second schedule, designated as Trans No. 2, setting out the 2.5‡ per MCF transportation charge and, in addition, listing a deficiency charge of like amount. Minutes of the Commission for that date read that it was “moved and carried” that this filing, among others, “be noted and filed.” The record does not show that copies of Trans No. 2 were furnished to Mobil or to Cities Service.
Matters seemed to have gone along smoothly until, on December 20, 1963, KPL sent statements to the defendants claiming amounts due for deficiencies occurring during the year August 27, 1962 to August 27, 1963. So far as the record reveals, and for that matter, so far as the plaintiff contends, this was the first actual notice either Mobil or Cities Service had of the deficiency charge provision included in Trans No. 2. Correspondence then passed between the parties, in which each defendant denied owing KPL any amount whatever. Eventually this suit was filed to recover the indebtedness allegely due from each defendant.
The conflicting theories of the parties may be summarized briefly: The plaintiff contends that once Trans No. 2 was filed by the Commission, the charges set forth in that document became the legal rates to be charged and that, by statutory mandate, KPL was required to collect such charges until the same might be changed by Commission order.
In opposition, the defendants assert that once the Commission found the reasonable cost of transporting their excess gas to be 2.5<¿- per MCF, that cost became the contract rate and that, under their agreements with the plaintiff, KPL was bound by the 2.5<f' MCF rate and could not charge or collect' a higher price until ( that rate was legally changed by the Commission.
We agree with the rationale underlying the defendants’ position. Very simply, our view is this: KPL agreed, in a written contract whose validity is not disputed, to transport excess gas produced from the defendants’ wells at a reasonable cost, such cost to be determined by the Kansas State Corporation Commission; after comprehensive investigation the Commission found the reasonable cost to be 2.5(1; per MCF and ordered KPL to put that rate into effect and to refund overcharges; and that by virtue of the Commission’s finding that 2.5‡ per MCF was the reasonable transportation cost, that figure became the contract rate.
It is an ancient legal maxim that contracts freely and fairly made are favorites of the law. This, we believe, is as true in the field of public utilities as it is elsewhere. Many years ago, the right of public utilities and common carriers to enter into contracts for the sale of then services was expressly recognized by statute, and today K. S. A. 66-108 requires that all contracts between common carriers or public utilities, pertaining to services to be rendered by them, be filed with the State Corporation Commission.
The right of public utilities to negotiate private contracts with their customers was accorded judicial recognition in Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 316 P. 2d 277, where this court said:
“The Kansas Public Utility Act expressly recognizes that gas sales rates to individual customers may be set by private contract, by providing that such contracts shall be filed for approval by the commission (G. S. 1949, 66-108). The act indicates no purpose to abrogate private rate contracts as such, (pp. 826-827.)
Because of the public interest with which the business of common carriers and public utilities is affected, private contracts negotiated by them, it is true, are subject to curtailment, or even to abrogation, through the medium of the exercise of the state’s police power, provided the public welfare is being adversely affected by such contracts. (Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, 214 Pac. 797; Central Kansas Power Co. v. State Corporation Commission, supra.) However, this court said in Railroad and Light Co. v. Cowt of Industrial Relations, supra:
“But contracts cannot be waved aside by mere lip service invocation of the police power, “by simply invoking the convenient apologetics of the police power,’ to use the language of Mr. Justice Holmes, in Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75, 79, 58 L. Ed. 857. Before a contract can be interfered with through the police power, it must appear that the contract does in some measure affect adversely the welfare of the public.” (p. 229.)
Once the Commission determined that the reasonable cost of gathering and transporting the defendants’ excess gas was 2.5^ per MCF and ordered that this rate be filed, that rate, as we have said before, became the contract rate. Being the rate fixed by contract, it was not subject to change except upon a finding made by the Commission that the same was unreasonable. Such is the express holding of this court in the Central Kansas Power Co. case, supra.
That case arose from an order of the Kansas Corporation Commission, which was entered after hearing an application filed by the Kansas-Nebraska National Gas Company, pursuant to K. S. A. 66-117, seeking an increase in rates. The order made by the Commission granted a general increase in rates, including rates which had been fixed in private contracts filed with the Commission. However, the Commission made no finding that the rates set by such contracts were unreasonable or that they were harmful to the public interest. This court held that existing contract rates could not be abrogated by order of the Commission, acting either on its own initiative, or on a complaint, or simply on the filing of a new schedule, unless there was an express finding that existing rates were unreasonable or damaging to the public.
In filing Trans No. 2, the plaintiff was not, in fact, complying with the order made by the Commission on October 18, 1962, but was filing a different schedule — a schedule which departed both from the findings and from the order entered by the Commission, by adding a new dimension, i. e., a deficiency charge. But, it is argued, the Commission accepted and approved Trans No. 2, thereby breathing life and legality into its schedule of charges, including the added deficiency charge. If we assume the Commission, by its order “noting and filing” Trans No. 2, thereby approved the schedule as changed from the Commissioner’s former order, and such is the tenor of an affidavit signed by one of its employees, that approval was not valid because there was no finding that the reasonable cost determined by the Commission less than thirty days before had, in the meantime, become unreasonable.
It is true that K. S. A. 66-117 provides that whenever a public utility desires to make any charge in a rate or charge, it shall file a schedule with the Commission showing the desired change, but no change shall be made without the Commission’s consent. This statute does not mean, however, that Commission consent may be given, at least where private contract rates are concerned, by desultory action or routine approval; it can be given only after investigation and upon a finding of unreasonableness.
A similar situation was thoroughly canvassed by this court in the Central Kansas Power case, where we said:
“We hold that where contract rates are sought to be changed by the filing of schedules of new rates under G. S. 1949, 66-117, a duty is imposed on the commission to investigate the existing contract rates. Those rates may be abrogated only upon express finding that they are unreasonable and that they ‘affect adversely the welfare of the public.’ Absent such a finding, commission approval of proposed schedules of rate changes cannot and does not abrogate existing contract rates.” (p. 828.)
We believe that application of this principle to the circumstances of the present case is not only legally required, but is equitable as well. Twice, KPL has filed schedules under somewhat unusual circumstances; first, after it had agreed, but failed, to initiate proceedings before the State Corporation Commission to determine the reasonable cost of gathering and delivering the defendants’ excess gas, and second, after the reasonable cost had been determined by the Commission, by then filing a schedule which deviated from the Commision’s order, copies of which were not furnished to the defendants, at least until after indebtedness accrued under the altered schedule.
In view of the foregoing facts, we think it comes with poor grace for plaintiff to contend that it was the defendants’ obligation to attack Trans No. 2 if they disliked the charges there set forth. Of course, the very converse is true; it was the plaintiff’s place to object to the findings and order of the Commission, if it felt them unfair. Had this been done, the defendants would have had an opportunity to defend the Commission’s findings and order.
Counsel for plaintiff cite us to legal authority (Columbia Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P. 2d 773) that an interpretation by an administrative body of its order is entitled to great weight in construing the meaning and effect of the order. This citation is called to our attention in connection with the plaintiff’s claim that the Commission had approved Trans No. 2.
Assuming, again, that the Commission’s acceptance of the filing of Trans No. 2 constituted its approval thereof, there are at least two reasons why the citation is inapposite. First, we believe the rule can be pertinent only when the Commission’s order is ambiguous. When an order is clear and not susceptible to more than one interpretation, as we believe the Commission’s order is, there can be no reason for interpretative aids. In the second place, as we have already said, administrative approval would be without legal effect in this case because no investigation was conducted and no finding made that the existing rate was unreasonable or adverse to the public interest.
One further comment may be justified concerning an additional contention advanced by the plaintiff. It is maintained that under the holding in Kansas Electric Power v. Thomas, 123 Kan. 321, 255 Pac. 33, the plaintiff was required by law to collect the charges set out in Trans No. 2. This argument assumes, of course, that the schedule of charges set out in Trans No. 2 was the lawfully filed and published tariff: Since we hold that Trans No. 2 did not effect a unilateral abrogation of the contract rate, this argument is founded upon the sands and must fall of its own weight.
The defendants have somewhat sketchily briefed a point on unjust enrichment. In view of our conclusion that this case must be reversed, discussion of that issue would be entirely superfluous.
The judgment of . the court below is reversed with directions to enter judgment in favor of the defendants.
|
[
80,
104,
-16,
-52,
26,
96,
58,
-102,
89,
-77,
-27,
83,
-51,
-49,
-124,
121,
-25,
61,
-12,
106,
-13,
-77,
15,
81,
-46,
-13,
-7,
-51,
-71,
95,
-28,
-41,
72,
96,
-54,
85,
-90,
-62,
85,
92,
-50,
4,
-103,
-32,
89,
-126,
-76,
107,
50,
75,
81,
-114,
-13,
40,
24,
-29,
-51,
44,
-5,
44,
-55,
112,
42,
-121,
31,
20,
0,
-124,
-100,
-59,
-40,
62,
-104,
-79,
56,
-20,
90,
38,
-122,
-12,
43,
-7,
-120,
-90,
98,
33,
4,
-19,
-4,
-72,
7,
-34,
-115,
-92,
-108,
24,
99,
96,
-98,
29,
100,
70,
-121,
-2,
-2,
5,
95,
125,
2,
-117,
-76,
-31,
15,
103,
-118,
-111,
-17,
-93,
5,
100,
-55,
-14,
92,
71,
58,
-97,
79,
-8
] |
The opinion of the court was delivered by
Fontron, J.:
This is an action to recover damages sustained by the plaintiffs decedent, Lillian Price, which allegedly resulted from the faulty execution of a will. The trial court sustained the defendant’s motion for summary judgment and the plaintiff has appealed. We shall refer to the parties as plaintiff, on the one hand and as defendant, or Holmes, on the other.
The facts which give rise to this rather bizarre lawsuit are these: On November 16, 1960, Henry H. Weber, who was a very sick man, drove to The Riley State Bank and asked the banker, Harold B. Holmes, who is the defendant in this action, to prepare a will leaving one-half of his estate to his wife and the other one-half to his niece, Lillian Price. In response to Weber’s instructions, the banker drafted a will which Weber signed and two witnesses attested. Five days later, on November 21,1960, Mr. Weber died.
Weber’s will was offered for probate on November 26, 1960, and was contested by his widow on the ground that it had not been legally executed, i. e., that it had not been executed in the presence of the attesting witnesses, nor attested by the witnesses, in Weber’s presence. Both the Probate Court and the District Court of Riley County found that Weber’s will had been duly executed and attested and should be admitted to probate. The district court’s judgment to such effect was then appealed to this court.
On November 25,1963, while the appeal was still pending, Lillian Price died. Twelve days later, on December 7, 1963, this court reversed the Riley County District Court and held the Weber will to be void. Our opinion in that case is reported in In re Estate of Weber, 192 Kan. 258, 387 P. 2d 165.
Von T. Price was appointed administrator of Lillian Price’s estate on February 3,1964, and filed his petition in this case on June 4,1965. Omitting formal parts, the petition alleges in substance that the defendant, Holmes, a banker and owner of a funeral home, represented to the public and to Weber that he was qualified and possessed sufficient knowledge, training and ability to draft and supervise the execution of Weber’s will so that Weber’s property would pass according to his desire when, in fact, he (Holmes) was not qualified and did not have the requisite knowledge, training and experience to draw, direct or supervise the execution of the will; that Holmes, using Weber’s instructions, but without warning Weber of his limited ability, did prepare a will dated November 16, 1960, and supervised its execution; that Weber died on November 21, 1960, and his will was filed and admitted to probate in the Probate Court of Riley County, Kansas, November 26, 1960; that an appeal was taken to the District Court of Riley County, which also entered an order admitting the will to probate; but that the Kansas Supreme Court ordered that the judgment admitting the will to probate be set aside, which holding has not been reversed or modified.
The petition further alleged that Holmes failed to have the will properly executed according to the laws of Kansas, contrary to his oral agreement with Weber; that Holmes negligently supervised and directed the execution of the will and failed to exercise the degree of care required; and that, if the will had been executed according to the laws of this state, Lillian Price would have received property approximating $58,611 (being half the value of Weber’s estate). Judgment is asked in such amount and an additional $20,000 is sought for punitive damages.
To the petition, Holmes filed a motion for summary judgment on three grounds: (1) That plaintiff’s cause of action did not survive under G. S. 1949, 60-3201; (2) that the statute of limitations had run on plaintiff’s cause of action under G. S. 1949, 60-306; and (3) that plaintiff was estopped to maintain this action by reason of his decedent having joined and consented to the former will contest action. After a hearing, the district court sustained the defendant’s motion on all three grounds, and entered judgment accordingly. This appeal followed.
It will be helpful, at the start of our discussion, to recapitulate the dates of importance:
“11-16-60 Will Drafted and Executed.
“11-21-60 Weber Died.
“11-26-60 Will Offered for Probate by Ben Heer.
“11-25-63 Lillian Price Died.
“12-7-63 Judgment Admitting Will to Probate
Reversed by Supreme Court.
“2-3-64 Administrator of Lillian Price Estate Appointed.
“6-4-65 Administrator Filed Petition.
“6-5-65 Holmes Summoned.”
The sufficiency of the plaintiff’s petition to allege a cause of action was not put in issue by the defendant’s motion for summary judgment nor is it raised in this appeal. Accordingly, we shall assume, for purposes of this opinion, that the petition is sufficient to allege a valid cause of action, and we will be called to determine what the cause, or causes, of action may be.
Three points are raised by plaintiff on this appeal: (1) That his cause of action is not barred by the statute of limitations; (2) that the cause of action survived the death of Lillian Price; and (3) that he is not estopped to maintain this action. We proceed to his first point.
The plaintiff maintains that whether his cause of action sounds in implied contract, or in tort, or in fraud, it accrued either when the will was drafted and faultily executed on November 16, 1960, or when Mr. Weber died on November 21, 1960, or when the will was offered for probate on November 26,1960.
To us, it seems clear that the plaintiff has endeavored to allege his cause of action in the alternative, the first sounding in contract for breach of implied warranty and the second sounding in tort on the ground of negligence. Plaintiff’s counsel has also asserted that his client has a further cause of action for fraud but we have been wholly unable to find this theory expressed in the petition. ■ Fraud is not alleged, even by remote implication, and we shall expend no further time or effort in pondering this claim.
As against a motion for summary judgment, filed under K. S. A. 60-256, pleadings are entitled to be liberally construed in favor of the party against whom the motion is directed (Gard, Kansas Code of Civil Procedure, annotated, p. 259). See, also, Carpenter v. Strimple, 190 Kan. 33, 372 P. 2d 571, and Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 23, 403 P. 2d 93, stating a similar rule when a demurrer (an archaic term) has been directed against a pleading. We therefore proceed on the assumption that the petition before us, given a liberal interpretation, contains two causes of action: one, ex contractu; the other, ex delicto.
We pause here to note that we have held it permissible for a pleader to allege a cause of action in the alternative provided the alternatives are not repugnant (McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 337, 362 P. 2d 841), it being elementary, of course, that the pleader will be limited to but a single recovery. Our decisions have also upheld the right of a plaintiff to plead twin causes of action arising out of a single transaction, the one sounding in tort and the other being in contract for breach of implied warranty. (Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; McCoy v. Wesley Hospital & Nurse Training School, supra.)
If either the cause of action sounding in tort or the cause of action sounding in contract survived the death of Lillian Price and, in addition, was not barred by the statute of limitations, then the defendant’s motion for summary judgment should have been overruled. In Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986, this court was called upon to construe a petition in an action seeking to recover damages resulting from faulty plumbing installation, where damage had not occurred until after the death of the plumbing contractor. The plaintiff contended that his cause of action was in contract for breach of implied warranty, while the defendant claimed that the plaintiffs petition sounded in tort. In our opinion, we said:
“While good practices require the plaintiff’s initial pleading to proceed on a single and definite theory, under modem code systems, his pleading may be held sufficient if it states a cause of action on any theory. . . .” (p. 504.)
To determine whether a cause of action survived, either in tort or in contract, we must ascertain when each would have accrued. On this particular phase of the law, we believe the circumstances attending this case fall within the ambit of Crabb v. Swindler, Administratrix, supra, and that the rules enunciated there are apropos to the present situation. In Crabb we held that a tort action would not accrue under the facts alleged there until damage had resulted from the defective plumbing. On the other hand, we determined that a cause of action in contract for breach of an implied warranty to install the plumbing fixxtures in a good and workmanlike manner accrued when the faulty plumbing work was done.
In support of the proposition that a cause of action in tort accrues when the damage results, this court, in Crabb, followed Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64, where suit was filed to recover damages sustained when gas, escaping from pipes connecting a hot water heater, caused an explosion. The action was predicated on negligence, i. e., the faulty installation of a shutoff valve. The explosion did not take place until about two years after the valve was installed. The court discussed at considerable length, and with frequent citations, the question of when the cause of action arose and concluded that no cause of action accrued until the tortious act had occasioned damage.
Carrying that analogy to the situation which confronts us, we are constrained to hold that any cause of action existing against Holmes for negligence accrued when this court declared Weber’s will void on December 7, 1963. That was the date on which the.ground fell from under Lillian Price; prior to that time the will had been' held valid by two courts, and Lillian had suffered no damage at the hands of Mr. Holmes.
At first blush, it might appear that what we are saying here, and what we said in the Kitchener and Crabb cases, is inconsistent with what we held in Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475, and McCoy v. Wesley Hospital & Nurse Training School, supra. However, a critical analysis will disclose a distinction between the two groups of cases. We pointed out in Kitchener that actual resulting damage is an essential component of an actionable tort, and that some damage follows as a matter of course from, leaving part of a drill in a patient’s jaw (see Becker v. Porter, 119 Kan. 626, 240 Pac. 584), or leaving radium beads in a woman’s uterus (see Graham v. Updegraph, supra). Likewise, a fall from a hospital bed, which was the gravamen of the tort alleged in McCoy, necessarily would occasion some immediate actual damage even .though the full extent thereof might not be known at once.
Immediate damage was not involved in either Crabb or Kitchener, nor is it' here. The actual damage, did not occur in Crabb, or in Kitchener, or in this case, until years had passed; nor was it even certain when the alleged wrongful act was committed- that damage would ever result. In Kitchener, for example, an unfortunate combination of circumstances, which might never have occurred, triggered the failure of a valve leading to the explosion. In the instant case, had no contest of Weber’s will developed, Lillian Price would have sustained no such damage as' plaintiff now claims. We believe the two lines of cases are distinguishable, and that under the circumstances present in this case, the tort action did not accrue until Weber’s will was finally declared invalid.
If no cause of action in tort accrued in favor of Lillian Price until she sustained damage, then no cause of action in tort survived at her death for the simple reason that she had died before that time. This was our holding in Crabb where we said that since the defendant, who was responsible for the faulty plumbing installation, had died before the damage occurred, no cause of action in tort survived against him. This is the law generally. (See 1 C. J. S., Abatement and Revival, § 136, p. 184.) The rule is plainly stated in Neal v. Neal, 250 F. 2d 885, 890:
“. . . A cause of action does not survive in favor of a personal representative of a decedent unless it accrued in favor of the decedent in his lifetime.”
But, as we have already indicated, a cause of action for breach of contract accrues when a contract is breached. In Crabb v. Swindler, Administratrix, supra, we said:
“. . . Where there is a contractual relationship between the parties, the plaintiff’s cause of action accrues when the contract or agreement is breached. (Regier v. Amerada Petroleum Corp., 139 Kan. 177, 181, 182, 30 P. 2d 136; Dougherty v, Nodin, supra [147 Kan. 565, 78 P. 2d 65]; Rex v. Warner, 183 Kan. 763, 769, 770, 332 P. 2d 572.) See, also, Rucker v. Hagar, et al, 117 Kan. 76, 230 Pac. 70.
“In 1 Am. Jur., Actions, § 62, p. 453, the rule is stated as follows:
“ ‘A cause of action in contract accrues at the time of the breach or failure to do the thing agreed to, irrespective of any knowledge on the part of the plaintiff or of any actual injury it has occasioned him. . . .”’ (p. 507.)
If Mr. Holmes did breach an implied warranty, the breach occurred, and the cause of action based thereon accrued, long before this court held Weber’s will invalid and long before Lillian Price died. This is so whether the cause of action be considered as accruing on the date the will was executed, or on the date of Mr. Weber’s death. Did this cause of action, then, survive? We believe it did.
By the terms of our statute (G. S. 1949, 60-3201, now K. S. A. 60-1801), a cause of action which survived at common law survives in this state. At common law, it was the rule that a cause of action founded on contract survived the death of either party where the breach resulted in a property loss or an injury to a property right (1 C. J. S., Abatement and Revival, § 137a, pp. 184-186). This principle was imbedded in the Crabb decision. In C. J. S., Abatement and Revival, § 137 b, p. 186, there is further elaboration of the rule:
“A cause of action survives where it is on contract, even though the contract was breached by a tort. . . . There may be a survival of an action or cause of action on an implied or quasi contract, even though it is founded on a tort.”
See, also, Cory v. Troth, 170 Kan. 50, 223 P. 2d 1008, Syllabus 1 of which reads:
“Under G. S. 1947 Supp. 60-3201, any cause of action accruing to a promisee either for fraud in procuring the contract or for breach thereof survives the death of the promisee and an action therefor may be maintained only by his personal representative and not by his heirs.”
We hold that the cause of action alleged for breach of warranty survived the death of Lillian Price.
This brings us to a sensitive point: Is the plaintiff’s cause of action for breach of implied warranty barred by the statute of limitations? It is obvious that more than three years had elapsed (See K. S. A. 60-512) between the date Weber’s will was executed and the time this action was commenced. However, the plaintiff argues that the statute was tolled by the pendency of the proceedings to contest Mr. Weber’s will and he supports this contention by citing, among other authorities, the cases of In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305, and Newcom, Administrator v. Potterf, 182 Kan. 73, 318 P. 2d 1069.
In Brasfield, the general rule which has often been followed by this court, and which we find reiterated in Newcom, is expressed in these words:
“The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by die pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues.” (Syl. f 7.)
While the defendant acknowledges the authority of the Brasfield and Newcom decisions, he maintains that neither decision is in point because of factual differences. He points out that each case revolves around a delay in the appointment of an administrator due to protracted litigation and the effect such a delay has on a creditor’s right to file his claim, on the one hand, and an administrator’s right, after appointment, to recover estate property, on the other hand.
We have found no case with facts identical to those now before us, but we believe the rationale of the rule defined in Brasfield covers the present case. In our judgment, Lillian Price was effectively prevented from suing Holmes for breach of warranty until Weber’s will was found to be invalid. Stated conversely, it was only in the event the will turned out to be void that Lillian Price would find herself in a position to maintain this type of action at all. Before she could proceed against Holmes for damages, we believe it would be incumbent on Lillian, or some other interested party, to attempt, at least, the probate of Mr. Weber’s will and only when such endeavor failed would Lillian have been able, under any theory, to recover from Holmes. We presume that Lillian Price did participate in efforts to secure probate of the will in which she was designated a devisee and legatee.' This attempt was turned into a will contest by the guardian of Webers incompetent wife, a contest which eventually, after passing through three courts, ended in an adjudication that the will was invalid.
The situation is somewhat analogous to that which obtained in McGregor v. McGregor, 101 F. Supp. 848, where the legatees under a will filed an action for damages against the testator s widow for wilfully and wrongfully having presented and obtained the probate of an earlier will which left the entire estate to her. The plaintiffs did not allege an attempt on their part to probate the will under which they claimed as legatees. In dismissing the action, the federal court said:
“There is little, if any, dispute among the authorities that a person who has wrongfully deprived' another of his just bequest under a will has perpetrated an actionable tort. (Citing cases.) However, the courts have ruled with almost equal unanimity that before the deprived legatee can seek relief in a tribunal other than the proper probate court, an attempt first must have been made to probate the will which is alleged to give rise to the claim, or that, in the alternative, it must be alleged and shown that such probate is impossible under the circumstances of the particular case. . . .” (pp. 849, 850.)
See, also Riggs v. Rankins’ Executor, 268 Ky. 390, 105 S. W. 2d 167.
The case of Lee C. Hess Company v. City of Susanville, 176 Cal. App. 2d 594, 1 Cal. Rptr. 586, bears comparison. This was an action for breach of contract. The city had awarded a contract to the plaintiff as low bidder. Thereafter, the city council, after deciding that plaintiff was not a qualified bidder, awarded the contract to the next lowest bidder and instituted an action to validate the second contract. The Hess Company intervened in that lawsuit and its contract with the city was ultimately found to be valid. Hess then sued for damages for breach of contract and the city pleaded the statute of limitations. The court, in rejecting this defense, ruled that the running of the statute was suspended during the pendency of the validation proceedings.
A comparable set of circumstances came before the Arizona Supreme Court in City of Phoenix v. Sittenfeld, 53 Ariz. 240, 88 P. 2d 83. Sittenfeld, a city police officer, was dismissed under circumstances which he claimed violated civil service rules and regulations. The Civil Service Board refused to grant Sittenfeld a hearing, whereupon he filed suit to review the Board’s action. Following a judgment of the circuit court, which voided his dismissal, the officer sued for back salary.
It was urged by tire city that Sittenfeld’s action was barred by the statute of limitations but it'was held that the statute did not begin to run until the date the circuit court’s judgment annulling the officer’s dismissal. In the opinion, the rule is stated in this wise: Two additional Kansas cases deserve mention. In City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589, the owner of a tract of land dedicated it to public use as a city park. Subsequently, the owner procured an order purporting to vacate the park and then proceeded to mortgage the land. Some years later, the city brought an action to annul the vacation, to cancel the mortgage and to quiet the city’s title. During the pendency of that lawsuit title to the land was transferred to new owners. Eventually a judgment was entered quieting title against the city.
' “It is generally held that where the decision in a pending action is practically conclusive as to the nature and extent of a party’s rights, and where his success thereunder is a prerequisite to his right to maintain a new action, the statute does not begin to run as to the new action until the determination of the pending suit, which decides whether the new right of action exists. .. . .” (p. 249.)
After title of the new owners had been quieted, the purchaser of the mortgage filed a cross-petition seeking to foreclose his mortgage. The present landowners defended on the ground that the claim was barred by the statute of limitations. This court refused that defense and held that where the character of legal proceedings is such that the law restrains a party from exercising his legal remedy against another, the running of the statute is suspended while the restraint continues. In arriving at its conclusion, the court quotes from United States v. Wiley, 78 U. S. (11 Wall.) 508, 513:
“ ‘. . . it is the loss of the ability to sue rather than the loss of the right that stops the running of the statute. . . . Statutes of limitations are indeed statutes of repose. They are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time, if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. . . (pp. 523, 524.)
In the second case, Campbell v. Durant, 110 Kan. 30, 202 Pac. 841, the plaintiffs were beneficiaries under a will leaving them one-half of the testator’s personalty (in addition to certain real estate). After some seven years of contest by the testator’s widow, the will was eventually held to be valid. The plaintiffs then brought suit to recover possession of their share of the personal property which was then in the hands of the widow. The statute of limitations was pleaded in bar. In overruling this defense, the court said:
“. . . The time which elapsed between tire death of the testator in 1909 and the commencement of this action in 1916 is accounted for by long-drawn-out litigation provoked by defendant over the probating and contest of the will. The pendency of that litigation prevented the plaintiffs from enforcing their rights against the defendant (25 Cyc. 1278), and this action was begun in ample time upon the termination of the litigation over the will.” (p. 35.)
True, Holmes was not, strictly speaking, a party either to the proceedings to probate Weber’s will or to the will contest which followed (See In re Estate of Weber, supra). However, under the circumstances oí this case, that fact is not material. Lillian Price was just as effectively precluded from proceeding against Mr. Holmes as if he had been an actual party to the will contest. We might mention at this point that Mr. Holmes was fully apprised of the contest proceedings, having testified in district court on behalf of the proponent of the will.
What we have already said disposes of the defendant’s claim that the plaintiff is estopped from maintaining this action because Lillian Price participated in the proceedings to probate Weber’s will. The institution of probate proceedings, either by Lillian Price or some other party interested in establishing the will, and an adjudication that the will was invalid, were both prerequisites to the institution of the present action. The record before us does not clearly disclose what part Lillian Price took in the former proceedings, but if we assume that she actively participated therein, no estoppel is to be inferred from that; she would be doing only what was required be done before this action could be maintained.
For reasons set out herein, the judgment must be reversed with directions to overrule the defendant’s motion for summary judgment. It is so ordered.
|
[
-47,
109,
-8,
-113,
-118,
-32,
42,
-118,
115,
-47,
-75,
83,
-17,
-62,
4,
107,
118,
13,
80,
107,
119,
-77,
23,
33,
-46,
59,
-39,
-57,
-79,
-37,
-10,
-33,
76,
32,
2,
-35,
-90,
-62,
-63,
-44,
-116,
18,
-55,
-31,
-39,
0,
48,
121,
118,
74,
101,
-70,
-13,
43,
61,
-21,
104,
40,
-37,
61,
-47,
-72,
-17,
-122,
127,
18,
0,
-122,
-104,
71,
88,
42,
-112,
53,
0,
-24,
115,
-74,
2,
84,
13,
-119,
12,
102,
102,
49,
21,
-21,
-8,
-71,
39,
-73,
-115,
-89,
-110,
73,
-96,
45,
-66,
-99,
117,
48,
11,
-2,
-20,
5,
-35,
-68,
10,
-114,
-42,
-111,
55,
116,
26,
11,
-5,
-101,
38,
113,
-53,
80,
92,
7,
117,
-69,
-50,
-80
] |
The opinion of the court was delivered by
Kaul, J.:
The defendant, Maceo Freeman, Jr., was convicted of robbery in the first degree in violation of K. S. A. 21-527.
The defendant was tried on charges of forcible rape under K. S. A. 21-424 and robbery in the first degree. The jury found defendant guilty on the robbery charge and not guilty of rape. Defendant’s motion for new trial was overruled and he perfected this appeal.
Defendant was represented by court-appointed counsel during all proceedings in the district court. Present counsel was appointed to represent defendant in this appeal.
Defendant relies on three points for reversal of the conviction. They will be considered in the order presented in the briefs.
Defendant first complains that the district court erred in permitting the prosecution to try him on the charge of robbery in the first degree rather than assault with felonious intent. This contention is premised on a notation in the transcript and commitment of the City Court of Kansas City, Kansas, in which the charges against defendant were noted as “rape, assault W/I.”
We have examined the complaint filed in the city court and the amended information filed in the district court. We find the language used in setting out the offense of robbery in the first degree contained in the second count of each instrument to be substantially the same and in each case properly charged an offense of robbery in tire first degree. The defendant concedes the language of the complaint and amended information to be substantially the same and sufficient to charge robbery in the first degree. Defendant merely contends the notation by the city court “rape, assault W/I” is sufficient in itself to show the state proceeded at the preliminary hearing to try defendant for assault with felonious intent, rather than robbery in the first degree, and that defendant was bound over for trial in the district court on the former resulting in reversible error.
We find no merit in defendant’s contention. Preliminary examination was waived and when defendant appeared before the district court he waived arraignment, entered a plea of not guilty to both charges and proceeded to trial. Defendant made no attempt to raise the point by a plea in abatement nor does he show here where he was surprised or prejudiced in any way. We have invariably adhered to the well-established rule in this jurisdiction that where — as here — the defendant in a criminal action, while represented by counsel, waives arraignment, enters a plea of not guilty and goes to trial on the information, any claimed irregularities pertaining to the preliminary examination and/or preliminary hearing are deemed to have been waived. See Portis v. State, 195 Kan. 313, 403 P. 2d 959; State v. Osburn, 171 Kan. 330, 232 P. 2d 451, State v. Wallgren, 144 Kan. 10, 58 P. 2d 74; and State v. Perry, 102 Kan. 896, 171 Pac. 1150.
We have examined cases cited by defendant and find none to be applicable to the circumstances reflected by the record here.
Defendant next contends it was error to overrule his motion for a new trial on the ground the verdict was the result of a compromise by the jury.
Our consideration of this contention requires a summary of the evidence. The alleged victim of the rape and robbery was a 62-year-old woman who operated a store in Kansas City, Kansas known as the Haskell Confectionery. She testified that on the day in question, July 25, 1965, she reopened her store at 3 p. m. A man whom she identified as the defendant entered the store and asked for a package of cigarettes, but left without completing the purchase. He returned shortly thereafter with the money and purchased the cigarettes. The victim testified her granddaughter came into the store while defendant was there and that defendant left and in a few minutes (about 3:25 p. m.) her granddaughter also left. Soon after the granddaughter left the defendant came back into the store. She testified defendant struck her and knocked her down, then locked the door and turned the “open” sign to “closed.” Then according to the victim the defendant dragged her back into the kitchen, connected with the store, raped her, tied her hands with a twisted towel, then went to the cash register and took all the money (about $80) and left the store. She also testified defendant had some difficulty in getting the cash register open.
The state offered the testimony of another granddaughter who stated that while defendant was at the cash register she approached the door of her grandmothers store and defendant (whom she identified at the trial) shouted at her to go away.
Robert Hazen, a Fingerprint Examiner for the Federal Rureau of Investigation, was called as a witness for the state. He testified that a “palm” impression lifted from the cash register could be identified with a “palm” impression on an identification card bearing the name of defendant and submitted to him by the Kansas City, Kansas, Police Department.
The defense was exclusively by way of alibi. Defendant testified that he lived about four blocks from the confectionery. He went to the store on the morning of July 25, 1965, for cigarettes but found he did not have enough money and after going home for more money returned to the store and purchased the cigarettes. After leaving the store he met an uncle who took defendant “back down home and picked up Edna and the two girls and we left there, left my house there at 2071, and went to my mothers at 2019 North First.” Defendant testified that he left his mother’s house about 3:15 or 3:30. For corroboration of his alibi testimony, defendant offered the testimony of his mother, three sisters and a friend, Murle Tyler. The incomplete record discloses several inconsistencies in the testimony of defendant’s witnesses.
The defendant claims that under the evidence the jury's conviction of robbery is so inconsistent with an acquittal of rape as to render the verdict so uncertain in law that no judgment should be entered thereon.
We cannot agree with defendant’s rationale of the jury’s verdict. We are convinced from our examination of the record the jury was persuaded beyond a reasonable doubt as to the robbery charge by the testimony of the victim, corroborated by the testimony of the granddaughter and that of the F. B. I. agent, and on the other hand, it was not so convinced by the uncorroborated testimony of the alleged victim as to the rape charge. There was latitude in the evidence for the jury to find defendant guilty of robbery and not guilty of rape.
Defendant concedes that Dunn v. United States, 284 U. S. 390, 76 L. Ed. 356, 52 S. Ct. 189, 80 A. L. R. 161, is the landmark case dealing with the subject. Justice Holmes in speaking for the court in Dunn stated:
“Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. . . .
“That tire verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (pp. 393, 394.)
The same principle has been recognized and adhered to in this jurisdiction. (State v. Hund, 115 Kan. 475, 222 Pac. 766; State v. Hobl, 108 Kan. 261, 194 Pac. 921; State v. Wheeler, 95 Kan. 679, 149 Pac. 701; and State v. Graves, 120 Kan. 499, 243 Pac. 1060.)
See, also, Blackford v. United States, 195 F. 2d 896 (10th Cir. 1952) and Thomas v. Hudspeth, 127 F. 2d 976 (10th Cir. 1942).
Under the Dunn rule the existence of an inconsistency would not warrant the vitiation of the verdict. The defendant, however, argues that his defense was solely by way of alibi and since the commission of the robbery and rape was not denied then the jury could only convict on both counts or neither and that therefore the rule stated in Dunn is not applicable. We cannot adopt the reasoning of defendant.
In our view the marked difference in the weight of the evidence as to the charge of robbeiy in relation to that in support of the rape charge substantiates the jury’s finding of guilty as to the former and not guilty as to the latter.
Finally defendant claims prejudicial error based on a comment of the assistant county attorney in his closing argument to the jury. The assistant county attorney commented that a woman who was listed as a witness for defendant and referred to by a witness as defendant’s common-law wife did not “show up” to testify. On objection by defendant’s counsel the court stated: “The jury will remember the instructions.” The objection was not pointed at the impropriety of commenting on the failure of a wife to testify but was stated as follows: “Your Honor, I’d like to object; it’s not upon us to prove his innocence; it’s not our witnesses, it’s his witnesses.” No request was made to strike the comment or to further admonish the jury.
This claim of error was not contained in defendant’s motion for a new trial nor is it shown to have been presented to the trial court when the motion was argued. Such being the case the question is not subject to review. (State v. Jolly, 196 Kan. 56, 410 P. 2d 267; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981; and State v. Trams, 189 Kan. 393, 369 P. 2d 223.) Notwithstanding our rule we have considered the question and do not find reversible error under the circumstances of this case.
The abstract fails to clearly disclose the status of the witness in question. She is referred to by one witness as defendant’s girl friend, by another as his wife, and by defendant as merely “Edna.”
K. S. A. 62-1420 prohibits any prosecutor from commenting or referring to the circumstances of the neglect or refusal of the person on trial or the husband or wife of such person to testify.
Misconduct of a prosecutor under the provisions of the statute in referring to the failure of a wife to testify for her accused husband has been considered by this court on three occasions. (State v. Stubbs, 186 Kan. 266, 349 P. 2d 936, cert. den. 363 U. S. 852, 4 L. Ed. 2d 1734, 80 S. Ct. 1632; State v. Smith, 114 Kan. 186, 217 Pac. 307; and State v. Peterson, 102 Kan. 900, 171 Pac. 1153.) In each case we found the prosecutors remarks improper but affirmed the convictions because of the absence of a showing that the jury was so influenced as to prejudicially affect any substantial right of the defendant. In this case, even though the state of the record as to the status of the witness is not clear and the application of the statute therefore questionable, we do not approve of the overzealous comment of the assistant county attorney. The indefinite record before us here, however, precludes a finding of prejudicial error on this issue.
We find no error to warrant a reversal and the judgment of the trial court is affirmed.
|
[
112,
-22,
-23,
-98,
26,
64,
2,
-72,
19,
-73,
52,
115,
45,
-34,
0,
123,
59,
125,
84,
105,
-106,
-73,
15,
-63,
-74,
-13,
-48,
-43,
-77,
-33,
-18,
-12,
72,
-64,
-30,
-43,
102,
-54,
33,
-36,
-114,
5,
-88,
-64,
83,
73,
32,
42,
34,
10,
49,
-98,
-13,
41,
26,
-46,
-23,
44,
-117,
-65,
64,
-111,
-55,
-107,
109,
20,
-93,
-92,
-98,
7,
80,
53,
-100,
49,
0,
104,
-13,
-74,
-122,
116,
111,
-101,
-115,
98,
98,
1,
21,
-50,
44,
-127,
47,
95,
-99,
-90,
-104,
89,
73,
13,
-106,
-35,
111,
20,
11,
-4,
-11,
20,
59,
108,
3,
-50,
-80,
-79,
-115,
53,
18,
-5,
-21,
1,
16,
113,
-50,
-30,
88,
87,
56,
-5,
-97,
-107
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an action brought by the parents of a minor, Gary Bogle, to recover damages for the wrongful death of the minor. Death came to Bogle as the result of injuries he sustained in an accident while riding as a passenger in one of two automobiles approaching the crest of a hill side by side at high speed when they met another automobile approaching from the other side.
The basic question presented on appeal is whether the evidence supports the findings of the trial court.
Donáld G.' Conway and Henry E. Fisher (defendants-appellants) are both minors and were the drivers of the two automobiles which engaged in a drag race. The parents of Bogle were forced of necessity to prove their cause of action by the testimony of the defendants. They called the defendants to testify at the trial, and they also used their deposition testimony. Based upon their testimony the essential facts of the case may be stated as follows:
On Sunday, the 29th day of September, 1963, Gary Bogle, Donald G. Conway and Henry E. Fisher were all residents of Meade, Kansas. Shortly before 1:15 p. m. Conway was driving his Chevrolet automobile in Meade, and as he stopped for a stop light Bogle, who had been sitting in front of the snooker hall, started walking toward the Conway automobile in such a way that Conway thought Bogle wanted to say something to him. Conway turned the corner, stopped and Bogle got into the automobile with him. They met some other boys and decided to go to the football field and play touch football. Conway and Bogle then drove to a Mobil Service Station where Conway worked. They went there to use the telephone to call more boys to play football. Both boys wént into the station where Conway used the telephone. While Coriwáy was using the telephone, Fisher drove up to the station in. his Pontiac automobile. Fisher alighted from his vehicle and met Conway and Bogle in the station. Fisher proposed a race. Conway declined at first, but according to the testimony of Conway, Boglé worked on him, and Conway finally agreed to race. Before they entered their automobiles, Conway asked Bogle if he wanted to go along. Bogle said he did, and got into Conway’s automobile. Conway put some gasoline in his automobile and then followed Fisher to a point on the highway about a mile north of Meade where they both stopped. Conway took the left lane and Fisher the right. The race started from a standing start, but Conway’s automobile accelerated faster than Fisher’s. When Conway and Bogle were sufficiently ahead of Fisher, Conway pulled his automobile into the right-hand lane ahead of Fisher. They proceeded north on the highway at a high rate of speed, Fisher admitting that they had reach a speed of 120 m. p. h., according to his speedometer, after which they slowed down. Conway also admitted a speed of 120 m. p. h. and decided he had gone far enough. He then let off of the gas pedal and slowed down.
Fisher then pulled into the left lane and started to pass Conway on the incline of a hill. At that time the automobiles were side by side and traveling at a speed of 80 or 90 m. p. h. Another automobile approached from the north coming up the other side of the hill. Fisher upon seeing the approaching vehicle attempted to slow down and pull behind Conway and Bogle. As Fisher tried to pull behind the Conway Chevrolet, the front bumper of his Pontiac locked with the rear bumper of the Chevrolet, throwing the Chevrolet out of control and off the highway. Bogle was thrown from the Chevrolet sustaining injuries which resulted in his death the following Tuesday.
Upon the evidence presented in the case the trial court made written findings as follows:
“1. The Court finds that Gary Bogle died on October 1, 1963, as the result of injuries sustained in a two-car automobile accident which occurred in Meade County on September 29, 1963, while a passenger in the vehicle driven by defendant, Donald G.- Conway.
“2. Such accident was proximately caused by the gross and wanton negligence of the defendant, Fisher, in trying to pass the defendant, Conway, at a speed in excess of 80 miles an hour as the cars driven by the two defendants approached the crest of a hill, and the gross and wanton negligence of the defendant, Conway, in driving his automobile at a speed in excess of 80 miles an hour and failing to reduce his speed as the cars approached the crest of the hill in a marked no-passing zone when both drivers knew that an accident would undoubtedly ensue if there was a car appproaching on the other side of the hill and continued on their own way in complete disregard of the consequences.
“3. The plaintiff, Ruth Bogle, now Ruth Weaver, was the mother and had custody of Gary Bogle, and during the lifetime of Gary Bogle necessarily incurred expense for medical and hospital treatment of the injuries that he received in such accident in the amount of $493.99.
“4. Plaintiffs were the parents of the decedent, Gary Bogle, and plaintiff, Ruth Bogle, suffered damage by reason of his wrongful death in an amount in excess of $25,000.00.”
The journal entry discloses that both parties proceeded to trial without a jury, no demand for a jury having been filed. Accordingly, judgment was entered in favor of the plaintiffs for the sum of $25,000 and costs, and Ruth Bogle, the mother of the deceased minor, was given judgment against the defendants for the sum of $493.99. The defendants’ motion to alter the judgment and their motion for a new trial, after argument to the court, were both overruled.
The appellants contend the trial court erred in refusing to find that Bogle was an active and willing participant in an automobile race which caused his death. They argue the fact of the race and the fact of Bogle’s desire to participate are established by the plaintiffs’ evidence, and that there is nothing in any of the evidence to the contrary.
The appellants argue whether voluntary participation in racing on a public highway be called “assumption of risk” or “voluntary assumption of risk” or “consent to the injury” or any other name, the fact remains that the willing participant is guilty of the same conduct which he seeks to use as a basis for imposing legal liability on the other participants, and if the conduct of the others in the race may be called wanton, so may the conduct of the guest racer.
It must be conceded that contributory negligence is not a defense to a defendant’s willful or wanton conduct, but willful or wanton conduct of a plaintiff is a defense to the defendant’s wantonness. (Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P. 2d 980, Syl. ¶ 4.)
This court has recently held that assumption of risk is no defense to an action arising under the guest statute. In Perry v. Schmitt, 184 Kan. 758, 339 P. 2d 36, the court said:
“. . . The defense of assumption of risk is generally confined to master and servant situations. We have never applied that doctrine as a defense to an action arising under the guest statute and we are not disposed to do so now. . . .” (p. 762.)
In that case the plaintiff, a minor, bought a half pint bottle of whiskey, from which both plaintiff and defendant had two drinks on the way to Liberal. There they met some friends and drank “two or three beers.” They then drove around town until about 11:00 p. m. when they started back to Hugoton. The plaintiff went to sleep after they left Liberal and the next thing he remembered was waking up in the Amarillo Air Force Base Hospital. The jury found that the liquor and beer consumed by the defendant contributed to the accident in which the plaintiff was injured; that the defendant was driving between 80 and 85 m. p. h.; and that high speed was the proximate cause of the accident which injured the plaintiff. It also found the plaintiff knew how much liquor and beer the defendant had consumed when he went to sleep. On appeal this court sustained a finding by the jury that the defendant was guilty of gross and wanton negligence. In approving an instruction that plaintiff’s right to recover for gross and wanton negligence was not barred by the failure of the plaintiff to exercise ordinary care for his own safety, the court said entering an automobile with only the knowledge that the driver had been drinking does not, as a matter of law, preclude recovery by a guest for injuries arising from the gross and wanton negligence of the driver.
In the instant case the only evidence that Bogle consented to the race is the direct testimony of Conway.
In the direct testimony of Conway at the trial he said that when Fisher asked him if he wanted to race he said, “no.” He then testified:
“. . . And Gary [Bogle] said, ‘Aw, come on.’ They was kind of working on me, trying to get me to say yes. So I finally said ‘Oh, I guess so.’
“Q. What did Bogle say to you, if you remember?
“A. When Fisher asked me if I wanted to race, I said no, and Gary said, ‘Aw, come on. Race him.’
“Q. Is that all he said?
"A. Yes.”
When Conway was cross examined concerning Bogle’s willingness to participate in the race, counsel referred to the deposition testimony of Conway in which he said in substance that Bogle had not said anything favorable to the race prior thereto while the boys were at the Mobil Service Station. A careful study of the deposition testimony of Conway discloses that at no place did he say Bogle worked on him urging that Conway agree to the race.
Nowhere in the deposition testimony of Fisher is there anything said about Bogle consenting to the race or any attempt by Bogle to urge Conway into the race. The direct testimony of Fisher at the trial was simply that Conway answered in the negative when Fisher asked him to race. He testified that Bogle then said “something” to Conway, after which Conway agreed to race.
It is the position of the appellants the plaintiffs established by their own evidence that Bogle consented to the race.
Technically, the testimony of Conway was a part of the plaintiffs’ evidence, but no one is ever bound by the testimony of an adverse party. (Gorman v. Hickey, 145 Kan. 54, 65, 64 P. 2d 587.)
In view of all of the testimony given by Fisher and Conway in this case, including their deposition testimony which was at variance with their direct testimony at the trial, the trial court was not bound to give the testimony of Fisher and Conway more credence than the court thought it deserved. It is presumed that a deceased person used due care for his own safety, and the burden of proving otherwise is upon the adverse party.
Even assuming the court believed the testimony of Conway, there is no evidence that Bogle consented to anything as suicidal as what actually occurred. The appellants used the expression “drag race,” which is a test of acceleration usually run on a level quarter or half mile strip. Assuming that Bogle consented to such a race, he would not be consenting to more than the drag race itself, and it was over before the accident occurred. The testimony was that the drivers started a little over a mile north of Meade, and the accident was five miles north of Meade, after both automobiles and slowed down to about 80 or 90 m. p. h. Reprehensible as drag racing may be, even on level ground during daylight hours, there are many places in Western Kansas where the visibility is such that it would involve a minimum of risk. But driving side by side at 80 or 90 m. p. h., approaching the crest of a hill on a two-lane highway is suicidal. The one who was passing could have no excuse for doing so on a hill, and the one who was being passed could have no excuse for driving at such a high speed while being passed on a hill. Here either could have avoided an accident if he had not chosen to take the chance of killing someone in the event they met an automobile approaching from the other side of the hill. Both drivers elected to take the chance. The fact that the driver on the left elected to try to return to his side of the road, instead of hitting the approaching automobile head on, does not change the fact that both drivers deliberately took the chance. Liability in such situation arises not from negligence after the emergency arises, but rather from conduct calculated to create the emergency.
The appellants urge upon this court the adoption of a rule to the effect that one who consents to ride in an automobile which he knows is about to be used for drag racing on a highway, who is fully cognizant of the hazard, and who makes no effort to get out of the automobile, or express disapproval, assumes the risk so as to preclude recovery for injuries sustained during the race. Decisions from other jurisdictions upon which the appellants rely supporting this rule are: Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379, 84 A. L. R. 2d 444 (1959); Lessen v. Allison, 25 Ill. App. 2d 395, 166 N. E. 2d 806 (1960); Bordelon v. Couvillion, 130 So. 2d 453 (La. App. 1961); Giemza v. Allied American Mut. Fire Ins. Co., 10 Wis. 2d 555, 103 N. W. 2d 538 (1960); and Roberts v. King, 102 Ga. App. 518,116 S. E. 2d 885 (1960).
These cases are based primarily upon the doctrine of assumed risk.
On the record here presented we are not called upon to consider the rule urged by the appellants, commendable as it may seem. It must be assumed from the findings of the trial court, and in particular finding No. 2, that the drag race was over before the accident occurred. Here the appellees prevailed in the trial court and they are entitled to all inferences from the evidence favorable to them which support, or tend to support, the findings of the trial court. Inherent in the findings and judgment of the trial court is a finding that the conduct of Bogle was not sufficiently culpable to constitute gross and wanton negligence. On the record here presented we cannot say the trial court erred in failing to find Bogle guilty of gross and wanton negligence.
The appellants contend the trial court’s findings are contrary to the evidence, and that the trial court failed to apply the guest statute. The appellants first argue that the evidence does not disclose gross and wanton misconduct on the part of the drivers, and second, that if it does Bogle was likewise guilty of gross and wanton misconduct and precluded from recovery under the principle announced in Kniffen v. Hercules Powder Co., supra. The second argument has already been answered.
The appellants’ argument proceeds upon the assumption that racing on a public highway is not invariably gross and wanton negligence. They argue Fisher was guilty of trying to pass Conway at a speed in excess of 80 m. p. h. as the automobiles approached the crest of a hill; that trying to pass at 80 m. p. h. in and of itself is not wanton negligence. (Citing, Tuminello v. Lawson, 186 Kan. 721, 352 P. 2d 1057.) They argue that the collision was with Conway, not the approaching automobile, which Fisher saw; that Fisher’s negligence was in not keeping his automobile under control as he attempted to pull back behind Conway; that Fisher miscalculated the clearance he had with which to pull behind Conway, which amounts to nothing more than simple negligence. They argue that the trial court found Conway drove in excess of 80 m. p. h. as he approached the crest of a hill in a no-passing zone; that he was in his proper lane; and that this amounts only to a finding of excessive speed.
We think the evidence in the record is ample to support the finding of the trial court that both drivers were guilty of gross and wanton negligence. On the whole record it cannot be said the trial court erred in its application of the guest statute.
The judgment of the lower court is affirmed.
|
[
112,
106,
-40,
-82,
56,
98,
42,
90,
117,
-57,
100,
83,
-83,
-61,
4,
121,
-37,
-115,
84,
107,
-41,
-77,
23,
-69,
-104,
-13,
-5,
-59,
-73,
73,
108,
-9,
76,
34,
-54,
85,
-30,
74,
-27,
-42,
-50,
4,
57,
-12,
25,
-107,
-94,
104,
86,
15,
21,
-98,
-61,
46,
62,
-1,
-87,
44,
91,
-87,
-64,
48,
-53,
7,
-35,
18,
-78,
4,
-70,
-91,
120,
13,
92,
-71,
8,
-4,
50,
-92,
-110,
-44,
105,
-119,
-120,
-96,
98,
33,
53,
-81,
-3,
-120,
78,
-5,
13,
-90,
62,
105,
0,
97,
-65,
-99,
50,
16,
12,
-8,
-37,
85,
85,
-28,
1,
-49,
20,
-77,
-49,
-94,
-106,
24,
-21,
-19,
50,
117,
-55,
-42,
92,
69,
122,
-111,
22,
-106
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the petitioner from an order of the district court of Rooks County, Kansas, denying relief in a proceeding instituted pursuant to K. S. A. 60-1507.
The petitioner raises three points on appeal: (1) That he did not have counsel at his preliminary hearing; (2) that he did not know the nature of the charges against him; and (3) that he was not advised of his right to a jury trial or an appeal.
The petitioner was granted a full evidentiary hearing upon his motion filed pursuant to K. S. A. 60-1507, at which he was present and represented by court-appointed counsel. Those testifying at the hearing were the petitioner, Mr. D. A. Hindman, his court-appointed attorney in the criminal proceeding, and the judge of the county court who conducted the preliminary hearing. At the conclusion of the hearing both the petitioner and the county attorney of Rooks County were given time to file requested findings of fact and conclusions of law.
The trial court made fourteen detailed findings of fact and concluded the petitioner was not entitled to relief on any of the grounds asserted in his motion. An examination of the record presented on appeal sustains the findings of the trial court on all material points and its conclusions of law based upon those findings.
The facts sustained by the record and the findings of the trial court may be summarized as follows:
The petitioner is an inmate of the Kansas State Penitentiary at Lansing, Kansas, having been sentenced for statutory rape by the district court of Rooks county, Kansas, on the 18th day of June, 1964. At that time he was a resident of Natoma, Osborne county, Kansas.
On Friday, June 12, 1964, the petitioner was arrested on a warrant charging him with statutory rape. It was alleged that on or about the 11th day of June, 1964, in Rooks county, Kansas, he “did then and there unlawfully, feloniously and wilfully, carnally and unlawfully know a certain female person [name omitted], age thirteen years, being the daughter of the defendant, Arnold Ferdinand John, contrary to G. S. 1949, 21-424, and against the peace and dignity of the State of Kansas.”
The information upon which he was later tried was similarly worded and also designated the foregoing statute as having been violated.
On the morning of June 13, 1964, prior to the petitioner’s appearance in the county corut of Rooks county he consulted with Mr. D. A. Hindman, an attorney at law of Stockton, Kansas, by telephone. On that date bond was set but the preliminary hearing was continued until June 15, 1964. On his appearance June 13th in the county court the warrant was read to him by the county attorney. The statute under which he was charged was also read to him by the county attorney. (G. S. 1949 [now K. S. A.] 21-424.) The judge of the county court also advised him of his legal right to a preliminary hearing, fully explaining the nature of a preliminary hearing to him.
The petitioner again talked to Mr. D. A. Hindman in person and in private immediately prior to his preliminary hearing on June 15th, but Mr. Hindman did not accompany him to the preliminary hearing and was not present in court at the hearing.
When the petitioner appeared in the county court on the 15th day of June, 1964, he announced that he desired to waive his preliminary hearing to the charge of statutory rape and was bound over to the district court for trial.
On the 18th day of June, 1964, the petitioner was taken into the district court for arraignment and trial. At that time Mr. D. A. Hindman was appointed by the court to represent the petitioner, and he was given an opportunity to further consult with the petitioner. Mr. Hindman advised the petitioner, if he should enter a plea of guilty to the crime of statutory rape as charged in the information, he would be sentenced for a term of one to twenty-one years in the state penitentiary. After further consultation the petitioner decided to plead guilty and ask for a parole immediately after his sentence was pronounced.
The trial court found the petitioner voluntarily entered a plea of guilty to the charge of statutory rape, as defined in 21-424, supra; that he fully understood the crime with which he was charged; and that at the time of his entry of a plea of guilty to the charge, he fully understood the charge against him and the consequences of a plea of guilty. The trial court also found that the petitioner understood the nature of the crime, the sentence which could be imposed, his right to a preliminary hearing if requested, and his right to a jury trial prior to the entry of his plea of guilty. The trial court further found the petitioner is a person of average intelligence, and that Mr. D. A. Hindman, who represented him as court-appointed counsel at the criminal proceeding, was an attorney of more than forty years’ experience, with substantial practice in criminal law; that the petitioner at the time of his plea was represented by an extremely able attorney.
The record indicates Mr. D. A. Hindman, an attorney at law of Stockton, Kansas, was the only attorney the petitioner knew at the time he was arrested on the 12th day of June, 1964; that he consulted with Mr. Hindman and fully discussed the offense for which he was apprehended. The petitioner, an indigent, was informed by Mr. Hindman that he would not represent him unless he was appointed by the court to represent him.
Mr. Hindman testified at the 1507 hearing that when he consulted with the petitioner prior to the preliminary hearing, he explained the nature of a preliminary hearing to him; that he could waive the preliminary hearing, or he could have a preliminary hearing; that if he waived the preliminary hearing counsel would be of no benefit to him at that time because he could waive it himself; that if he decided to have a preliminary hearing he could have court-appointed counsel, and Mr. Hindman would represent him, if the court appointed him.
Inasmuch as the petitioner made a decision to plead guilty, Mr. Hindman informed the petitioner there would be no need for a preliminary hearing, or that he have counsel appointed for him at the preliminary hearing. Accordingly, it was not until just prior to arraignment in the district court on the 18th day of June, 1964, that the petitioner made request for counsel. The court appointed Mr. Hindman to represent him.
The primary thrust of the petitioner’s individual argument (added for the court’s benefit in the record) seems to be that after Mr. Hindman was legally appointed to represent him there is no evidence or testimony on the part of anyone to show that either Mr. Hindman or the court ever advised him of his legal rights. We find no merit in this point. The petitioner did have the benefit of competent legal advice throughout the proceedings, and after his appointment Mr. Hindman was not obligated to rehash everything he had discussed with the petitioner prior thereto.
First, the petitioner contends the trial court erred in concluding his right to a preliminary hearing was not denied him. The petitioner contends he waived his preliminary hearing without knowing what in fact was happening.
This point has been raised on numerous occasions and found to be without merit on facts substantially identical to those in the instant case. Here the petitioner entered a plea of guilty to the charge set forth in the information after arraignment, at a time when he was represented by court-appointed counsel.
It is well established in this jurisdiction that a preliminary hearing is not a trial, and that failure to appoint counsel for an indigent defendant in a criminal proceeding at a preliminary examination is not error. It has also been held that any so-called alleged irregularities pertaining to a preliminary examination are deemed to have been waived where a defendant enters a voluntary plea of guilty in the district court. (Witt v. State, 197 Kan. 363, 416 P. 2d 717, and cases cited therein at p. 369 of the official report.)
Second, the petitioner contends he did not know whether he was charged with the crime of statutory rape or incest when he appeared before the county court for a preliminary hearing, and further that the information was defective or misleading.
The record does not sustain the petitioner on this point. He informed Mr. Hindman that he was charged with statutory rape when he first privately consulted with Mr. Hindman. The testimony of Mr. Hindman discloses the petitioner was quite sure about this because the county attorney advised him the penalty for statutory rape would be one to twenty-one years in the state penitentiary. The offense with which the petitioner was charged was specifically set forth in the warrant and in the information. It made reference to the statutory section on statutory rape. The warrant was served upon him at the time of arrest, and the information was read to him prior to his entry of a plea, after he had consulted with counsel.
This court has held it proper for a person to be correctly charged with statutory rape and incest in two different counts of the same information. (Wiebe v. Hudspeth, 163 Kan. 30, 180 P. 2d 315, cert. den. 333 U. S. 848, 92 L. Ed. 1130, 68 S. Ct. 651.)
In the instant case the petitioner entered a plea of guilty to an information charging him with statutory rape, for which he was sentenced to be punished by confinement and hard labor for not less than one nor more than twenty years in the Kansas State Penitentiary at Lansing, Kansas, pursuant to G. S. 1949 (now K. S. A.) 21-424.
Here the petitioner was not charged or sentenced for the two crimes, but one only.
After sentencing, the petitioner made application for parole through his attorney, Mr. Hindman. In this oral application his attorney said:
“. . . I will say that what happened, he made his decision to plead guilty. It was not at my urging. It was the procedure he desired to take himself. After consulting with him, and his telling of the facts, I agree that was the thing to do. This man has made a mistake, probably the most serious mistake a father can make. Now, he is extremely sorry for what happened. He had a choice of pleading guilty or going on the witness stand and lying, dragging his family through the court, which he didn’t wish to do. He has adopted the attitude all the time he would like to go ahead and serve the penalty, serve whatever is necessary for him to do, then try to make amends to his family the best he can. . . .”
The petitioners last contention is that nowhere in the transcript it is established as a fact that he was advised of his right to a trial by jury, as guaranteed by the United States Constitution, nor that he was advised of the consequences of a plea of guilty. On this point the record discloses the contrary.
The petitioner at his hearing on the motion testified that Mr. Hindman said he had no choice but to plead guilty; that he never advised him at any time that he was entitled to a jury trial, and then testified:
. . He also stated that I should plead guilty and for the reason that it would be 90 days before I could have a jury trial, and, therefore, if I did plead guilty, I would go to the penitentiary and get credit for the 90 days rather than spend the 90 days in the county jail and not get credit.”
By the petitioner’s own testimony the county attorney advised him at the preliminary hearing that the penalty for statutory rape was one to twenty-one years. He thus knew the consequences of a plea of guilty to statutory rape.
The petitioner s contention that he was not advised of his right to appeal his conviction is without merit. (Ware v. State, 198 Kan. 523, 426 P. 2d 78.)
Upon a careful review of the record presented on appeal in the instant case, it cannot be said the trial court erred in denying the petitioner’s application for relief.
The judgment of the lower court is affirmed.
|
[
-44,
-22,
-3,
-68,
42,
96,
106,
16,
66,
-77,
116,
115,
-17,
-54,
1,
123,
-54,
61,
20,
121,
-61,
-73,
119,
-63,
50,
123,
-8,
-43,
114,
79,
-92,
-12,
72,
-80,
10,
21,
70,
-56,
5,
28,
-114,
7,
-103,
-44,
80,
8,
32,
111,
124,
11,
-79,
30,
-29,
106,
28,
-62,
-55,
44,
75,
-67,
88,
-47,
-21,
23,
-37,
84,
-93,
-106,
-100,
-121,
80,
55,
-104,
57,
0,
-8,
123,
-122,
-122,
117,
75,
-103,
45,
46,
98,
35,
-99,
-53,
-87,
-103,
30,
31,
-99,
-25,
-103,
72,
99,
105,
-106,
-99,
97,
86,
47,
124,
-27,
12,
19,
108,
-117,
-53,
-80,
-79,
-51,
52,
-110,
-69,
-13,
-75,
112,
113,
-49,
96,
88,
-41,
120,
-69,
-82,
-80
] |
The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from the dismissal of a class action brought by the taxpayers of Rural High School District No. 4, Marion County (appellants), against the defendants (appellees) to recover taxes paid under protest that had been levied pursuant to the provisions of K. S. A. 72-5715.
The basic issue presented is whether or not the appellants’ taxable tangible property was properly subjected to a levy for the “special high-school equalization fund” authorized by the statute. The facts are undisputed.
Late in 1964 and early in 1965 Marion county sought to unify its school system. A proposed county unification plan was submitted to the voters, and rejected. Each existing district, therefore, was left to solve its own unification problem. In January 1965, District No. 4 (hereafter referred to as Tampa) voted to unify with Joint Rural High School District No. 11 (hereafter referred to as Centre) as of July 1, 1966. Subsequently, Tampa learned that the unification could be effected on July 1, 1965, and in April voted not to conduct school for the 1965-66 school year. A tentative agreement was made between the Tampa and Centre boards that if both districts did not approve unification as of July 1, 1965, Centre would accept the students from Tampa if Tampa, at its own expense, would provide its students transportation to Centre and pay a $500-per-student-per-year tuition.
The annual meeting of each district was to be held on the same date. Neither district knew what action would be taken by the other regarding unification. Tampa, at its meeting, in addition to voting to unify, adopted a $28,625 budget to cover the transportation and tuition for its thirty-six students, in the event Centre voted not to unify. Centre voted against unification, and Tampa’s adopted budget, which required a levy of 9.65 mills, was filed with the county clerk.
Shortly after November 1, the appellants received tax notices stating that the county commissioners had made a levy of 6.37 mills on all taxable tangible property in the district for the “special high-school equalization fund” pursuant to the provisions of the above-mentioned statute. Thus, a levy totaling 16.02 mills was made against the property of the Tampa district The 6.37-mill levy on property in the Tampa district would produce $16,673.47 in taxes.
During the 1965-66 school year no classes were conducted in any high school within the Tampa district; however, during this time the Tampa district had not been abolished, and still had a school board which had adopted the above-mentioned budget.
Under written protest several of the Tampa taxpayers paid their 1965 taxes. The matter was presented to the board of county commissioners, then to the state board of tax appeals. Upon adverse rulings by these public bodies, the taxpayers filed a petition in the district court. Appellees filed a motion to dismiss. After a hearing on the motion, the court made findings of fact and conclusions of law and dismissed the action. It is from this ruling the taxpayers have appealed.
Pertinent portions of K. S. A. 72-5715 are as follows:
“Annually, . . . the board of county commissioners of every county in this state shall make a tax levy of six and one-half (6/2) mills on all the taxable tangible property of the county which is not located in a school district of any type maintaining a high school within the district. . . ." (Emphasis added.)
The appellants’ principal basis of protest is that the legislature did not intend for the statute to apply to a factual situation such as is present here. Appellees, on the other hand, seek to uphold the tax by the argument that since Tampa did not actually operate a high school during the school year in question, it was not “maintaining a high school within the district;” therefore, it was not subject to the levy.
A high-school equalization fund statute was originally enacted in 1949. (G. S. 1949, 72-5715.) The statute, as written, applied only to Osage and Stafford counties, and was declared unconstitutional in Missouri Pacific Rld. Co. v. Board of County Comm'rs, 172 Kan. 80, 238 P. 2d 462, as being special legislation where general legislation could have been made applicable. To cure the constitutional defects of the earlier statute, the legislature, by the enactment of chapter 411, Laws of 1951, made it applicable to all counties in the state. The 1951 statute, with certain amendments which are not germane to this case, now appears in its present form as K. S. A. 72-5715.
It is a primary rule of statutory construction that an enactment should be construed to carry out the purpose and intent of the legislature, and when such an intent is once ascertained, it should be given effect, even though literal meaning of the words used therein is not followed. (Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973.) In determining legislative intent, the court is not limited to a mere consideration of the words employed, but should look to the existing conditions, the causes which gave rise to the enactment, and to the object sought to be obtained. (Perkins v. Lenora Rural High School, 171 Kan. 727, 237 P. 2d 228.)
Appellants concede they were not “maintaining a high school” within the literal terms of the statute. They contend, however, that the legislature sought only to tax rural territory which was not included within the boundaries of any high-school district; that since the Tampa district was still organized and had a school board which had adopted a budget providing for the education of its students, it did not come within the purview of the statute. We are inclined to agree.
In deciding this case, we need not burden the opinion with a comprehensive review of the historical development of statutory law pertaining to the establishment and maintenance of high schools in this state. During the time preceding the enactment of the 1951 statute there was increasing concern among school and taxing officials that rural territory in approximately eighty counties of the state was not included within the boundaries of any high-school district. High-school students from the “non-high-school” territory attended high schools in other districts, but the “non-high-school” territory, while subject to the general county high-school levy (see K. S. A. 72-5702), was not subject to the levy of any organized district maintaining a high school. (Kansas School Board Bulletin, Oct. 1950.) This concern found expression through the Kansas Legislative Council, which, at the request of the Kansas Association of School Boards, submitted “Proposal No. 15” to the 1951 session of the legislature for consideration. This proposal outlined a plan for financing high schools. One of the essential objects and features of the plan was to provide a levy against all property having a tax situs outside an organized high-school district. (Report and Recommendations of the Kansas Legislative Council, Ninth Biennial, 1951.) Against this background, Senate Bill No. 294 was introduced in the 1951 legislative session, and was enacted into law. Section 5 of the bill appeared in the statute books as G. S. 1951 Supp. 72-5715, and provided a levy on all taxable tangible property “not located in a school district of any type maintaining a high school.”
From the foregoing chronology of events leading up to the enactment of the statute, it is obvious the lawmakers were concerned about territory outside the boundaries of any high-school district not bearing a share of the high-school tax burden. This they sought to remedy by the levy provided for in the statute.
One other feature of the statute bears mention. Based on an attendance formula, the taxes derived from the levy are distributed to other school districts maintaining high schools in the county. Such provision seems perfectly consistent with the object of the statute. Prior to the enactment, high-school students from territory outside an organized district depended on nearby districts for their education; however, the “non-high-school” territory rendered no tax support to the organized districts providing educational facilities for those students. The statute partially relieved this inequity by placing a portion of the tax load on “non-high-school” territory for the benefit of other districts maintaining high schools in the county.
From what has been said, we are of the opinion that the import of K. S. A. 72-5715, when considered in its entirety, is to impose a tax on taxable tangible property not located within the boundaries of any organized high-school district which has adopted a budget and thus made provisions for the education of its own students. While it is true the Tampa district did not conduct classes or operate a high-school facility, it remained organized as a district, and its board adopted a budget providing for the cost of educating its students for the school year. The territory within the district was subject to a tax levy to meet the district’s budget. Under the circumstances existing, for us to adopt the appellees’ contention as to the interpretation of the statute would be to defeat the manifest purpose of the legislature.
The judgment of the lower court dismissing the appellants’ petition is reversed.
|
[
-112,
-4,
-107,
60,
42,
-60,
59,
-98,
83,
51,
101,
87,
-19,
-39,
5,
97,
-9,
45,
64,
105,
-62,
-77,
83,
-126,
24,
-13,
-55,
-59,
49,
-52,
-10,
85,
76,
-79,
-118,
85,
102,
74,
-27,
84,
-114,
6,
-85,
65,
-39,
22,
52,
96,
50,
15,
53,
-114,
-13,
44,
28,
-61,
72,
40,
-39,
105,
64,
-78,
14,
-113,
111,
2,
-71,
32,
-120,
-127,
120,
46,
-103,
51,
0,
-24,
50,
-26,
22,
-12,
1,
-103,
-119,
-32,
38,
1,
61,
-1,
-4,
-87,
54,
63,
-67,
-90,
-106,
24,
35,
4,
-99,
29,
116,
80,
-113,
118,
-27,
-123,
31,
108,
-17,
-86,
-42,
-77,
-51,
-67,
10,
3,
-33,
3,
48,
97,
-115,
-110,
94,
102,
58,
-5,
-58,
-100
] |
Per Curiam:
On February 13, 1967, David Thad Hanna voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is by order of the court
CONSIDERED AND ACCEPTED.
The Clerk of this Court is ordered and directed to mark the certificate void and to strike David Thad Hanna’s name from the roll of attorneys.
|
[
-80,
-39,
-36,
63,
10,
-32,
58,
45,
123,
-41,
103,
83,
-19,
-49,
5,
105,
3,
45,
81,
121,
-85,
-77,
54,
1,
102,
115,
-55,
-59,
48,
-1,
-11,
-35,
76,
-88,
10,
85,
-122,
10,
-57,
24,
-64,
6,
-103,
20,
-46,
1,
48,
33,
-32,
-113,
113,
-66,
-111,
43,
30,
99,
-52,
62,
31,
-120,
80,
-47,
-99,
20,
108,
94,
-79,
36,
31,
-125,
96,
111,
-112,
-75,
9,
-20,
114,
-90,
6,
-26,
77,
-23,
-71,
102,
34,
33,
25,
-3,
-72,
-104,
29,
102,
-99,
-90,
-93,
92,
97,
24,
-97,
-35,
105,
20,
35,
-8,
101,
70,
28,
40,
-102,
78,
-44,
-109,
-97,
111,
-116,
-101,
-9,
6,
-128,
21,
-125,
-76,
-42,
99,
-8,
-106,
-54,
-12
] |
The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507. Appeal has been duly perfected by the petitioner from an order of the district court of Labette County entered on the 21st day of June, 1965, overruling the petitioner’s motion to vacate his sentence.
The underlying question is whether the record in the criminal proceeding which resulted in the petitioner’s conviction and sentence in the district court of Labette County is sufficient to disclose compliance with the provisions of G. S. 1949 (now K. S. A.) 62-1304.
The pertinent facts are that on the 9th day of April, 1953, the petitioner (appellant) was sentenced by the district court of Labette County, Kansas, to the Kansas State Penitentiary for one to ten years upon his plea of guilty to a charge of second degree forgery.
He later filed a petition for writ of habeas corpus and writ of coram nobis in the Labette County district court while still incarcerated in the state penitentiary. The district court denied the petitioner s writ on the ground that it, the Labette County district court, did not have jurisdiction. On appeal this court affirmed the decision in State v. Chance, 187 Kan. 27, 353 P. 2d 516.
Upon completing the sentence imposed by the district court of Labette County the petitioner was released.
Thereafter in 1958 the petitioner was sentenced by the Linn County district court to fifteen years in the state penitentiary upon his plea of guilty to burglary in the second degree and attempted larceny. In so doing the district court of Linn County invoked the provisions of the habitual criminal act, G. S. 1949 (now K. S. A.) 21-107a. The two prior convictions upon which the sentence was based were a prior conviction of a felony in federal court and the Labette County conviction above referred to.
In the year 1965 the petitioner filed a motion to vacate the Linn County judgment and sentence raising various questions, among which was one challenging the validity of the Labette County conviction on the ground that the district court of Labette County failed to find that the appointment of counsel (having been waived by the petitioner) would not be to the petitioner’s advantage. The district court of Linn County denied the motion, and on appeal this court affirmed in Chance v. State, 195 Kan. 711, 408 P. 2d 677. The district court of Linn County, in answer to the foregoing question asserted by the petitioner, said it “ 'should not in a collateral proceeding attempt to determine the validity of the action taken by the Labette County District Court. If petitioner is successful in his direct attack upon the judgment in Labette County District Court, the matter can again be raised in this court by a subsequent motion, and leave is granted to file such successive motion in the event of such determination.’ ” (p. 716.)
The Supreme Court in that opinion quoted in full the memorandum decision of the trial court which included findings of fact and conclusions of law, and held the contentions of the petitioner to have been correctly disposed of by the trial court through its decision, and therefore adopted the decision of the trial court upholding the judgment of conviction of the Linn County district court.
The instant proceeding is therefore designed as the petitioner’s direct attack upon the judgment of the Labette County district court. ' By this proceeding he challenges the validity of the judgment used by the Linn County district court as a prior conviction upon which to enhance the penalty under the habitual criminal act.
When the petitioner was brought to trial in the district corut of Labette County he waived his right to counsel and entered a plea of guilty. The record discloses, and the state concedes, the journal entry of conviction entered by the district court of Labette County contains no recital of a finding by the trial court that the appointment of counsel over the petitioner’s objection would not be to his advantage. It may also be said the journal entry contains no finding which would indicate that such finding was not made. The stenographic transcript of the criminal proceeding upon which the petitioner was convicted in the district court of Labette County does not disclose an express finding by the trial court that the appointment of counsel over the petitioner’s objection would not be to his advantage.
The question at hand was fully considered by this court in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, cert. den. 362 U. S. 970, 4 L. Ed. 2d 901, 80 S. Ct. 956, where the provisions of G. S. 1949 (now K. S. A.) 62-1304 were construed. The court there held where an accused waives his right to be represented by counsel pursuant to the provisions of 62-1304, supra, the finding of the trial court, that the appointment of counsel over the objection of the accused will not be to his advantage, need not be an express finding which the trial court state in the record of the trial proceedings. It was said such finding must, however, appear in the journal entry of the trial and judgment to show that such finding was in fact made.
In Ramsey, supra, the journal entry was corrected by a nunc pro tunc order to show that such finding was in fact made, and this court held the correction of the journal entry nunc pro tunc by the trial court was proper.
In the instant case the journal entry does not disclose that such finding was in fact made, and there is nothing in the record to show any correction of the journal entry by a nunc pro tunc order.
It is thus apparent the district court of Labette County failed to comply with the provisions of G. S. 1949 (now K. S. A.) 62-1304 in that the record required by the provisions of the statute, to prove that the trial court had jurisdiction to accept a plea of guilty, is insufficient. Under these circumstances the Labette County judgment of conviction is void.
The provisions of 60-1507, supra, state that a prisoner in custody under sentence of a court of general jurisdiction may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.
It is argued by the state that the district court of Labette County is not the court which imposed the sentence the petitioner is now serving. The state thus contends the petitioner is entitled to no relief under 60-1507, supra.
Technically, it would appear that the petitioner is entitled to no relief under 60-1507, supra. But on the facts in this case the petitioner was thwarted in his efforts to make a direct attack upon the Labette County conviction in State v. Chance, 187 Kan. 27, 353 P. 2d 516, because he was then incarcerated in Leavenworth County, Kansas, and did not then have a statute such as 60-1507, supra, which was enacted as a part of the new code of civil procedure and did not become effective until January 1, 1964. Furthermore, the petitioner s efforts to have the sentence of the Linn County district court corrected by a direct attack in the sentencing court were also thwarted on the ground that he was making a collateral attack upon the judgment of the Labette County district court.
Under these circumstances a denial of the petitioner’s right to attack the Labette County sentence in this proceeding would be nothing less than an arbitrary denial of the petitioner’s right to his day in court.
A situation almost identical to that in the instant case was presented in McCarty v. Hudspeth, 166 Kan. 476, 201 P. 2d 658, by an original habeas corpus proceeding. There the petitioner was sentenced by the Wyandotte County district court under the habitual criminal act based upon two prior felony convictions. One of these prior convictions was in the Wyandotte County district court when the petitioner was sixteen years of age. The record in that proceeding disclosed he had no counsel at the trial. Under our decisions he should have had counsel appointed to represent him. Various contentions were advanced by the state as to why the peitioner was entitled to no relief. Among these was an argument that the petitioner in a habeas corpus proceeding could not raise the question of the invalidity of his sentence, and that a collateral attack could not be made in a habeas corpus action. The court, however, took the case saying, “The law and the courts are not so impotent that such a result must follow,” (p. 480) and granted relief.
Under all of the facts, conditions and circumstances of this case we think there is a sufficient thread connecting the sentence of the Linn County district court, which the petitioner is presently serving, to the Labette County conviction to authorize this proceeding in the district court of Labette County. It cannot be denied that but for the Labette County conviction the sentence of the Linn County district court would have been different. (See, G. S. 1949 [now K. S. A.] 21-609; 21-631; and 21-107a.) We therefore hold the petitioner is entitled to relief under 60-1507, supra, in this proceeding in the Labette County district court.
The judgment of the district court of Labette County is reversed with directions to vacate the judgment of conviction.
|
[
-16,
-24,
-3,
95,
10,
-32,
59,
-104,
114,
-75,
38,
115,
-23,
-34,
5,
121,
26,
61,
21,
121,
-55,
-73,
50,
-63,
54,
-69,
-53,
-43,
57,
91,
-76,
-76,
74,
-80,
10,
117,
-58,
-120,
-123,
28,
-114,
5,
-120,
-46,
82,
66,
32,
107,
22,
-114,
-79,
62,
-13,
106,
30,
-64,
-23,
44,
75,
-81,
-48,
-47,
-5,
-105,
107,
22,
-77,
5,
-108,
5,
112,
-85,
-100,
57,
0,
120,
23,
-106,
-122,
-12,
15,
43,
12,
118,
98,
33,
28,
-113,
-88,
-39,
14,
55,
-99,
-89,
-109,
88,
96,
44,
-98,
-99,
101,
118,
39,
-4,
101,
38,
23,
108,
-127,
-50,
-12,
-111,
79,
124,
-122,
-7,
-61,
37,
-95,
33,
-51,
-26,
92,
119,
120,
27,
-22,
-75
] |
The opinion of the court was delivered by
Price, C. J.:
This was an action to recover for the loss of an arm and a leg when plaintiff was run over by a car of defendant railway company.
The trial court sustained defendant’s motion for summary judgment on the ground that at the time and place in question plaintiff was a trespasser on the tracks of defendant and that there was no evidence whatsoever of any willful or wanton act on the part of defendant’s employees which caused the injury.
Plaintiff has appealed from that ruling.
In rendering judgment the trial court filed a memorandum decision which states succinctly (1) rules applicable to consideration of a motion for summary judgment; (2) the facts as shown by affidavits, depositions, admissions and answers to interrogatories; (3) rules of law applicable to the facts shown, and (4) the reasons for the decision.
Because all issues are thoroughly analyzed and discussed in the trial court s memorandum — we quote it in full:
“memorandum decision
“This is an action brought by Brian Kent Morris, a minor now 18 years of age by his father and next friend against the Atchison, Topeka and Santa Fe Railway Company to recover damages for extremely serious personal injuries suffered by the plaintiff when he was run over by one of the defendant’s railroad cars.
“A motion was filed by the defendant for summary judgment pursuant to K. S. A. 60-256.' On November 12, 1965, the motion was argued and taken under advisement on written briefs to be submitted by counsel. Written briefs have now been received. In determining this motion the Court has considered the following affidavits and depositions which were introduced into evidence by the parties in connection with the motion:
“1. The affidavit of David W. Calwell with statements of plaintiff and the only two witnesses to plaintiff’s accident attached thereto.
“2. The affidavit of W. T. Richardson.
“3. The affidavit of C. A. Holcome with exhibit.
“4. The affidavit of David W. Calwell with attached photographs.
“5. The affidavit of David W. Calwell with copy of plat of the area.
“6. The affidavit of A. F. Ewart, Division Engineer of the defendant railway company with an engineer’s drawing of the Emporia railroad yard.
“7. The affidavit of E. Blaine Gregory, Engine Foreman of the Atchison, Topeka and Santa Fe Railway Company.
“All of the above affidavits are attached directly to the motion for summary judgment which was filed by the defendant.
“In addition to this the Court has considered the affidavit of Russ B. Anderson, two affidavits of Brian Kent Morris, and the affidavit of C. K. Sayler, all of which were furnished by counsel for plaintiff. In addition to this the Court has considered the deposition of Philip Holliday taken on behalf of the defendant for discovery purposes on September 9, 1965, and also the deposition of the plaintiff Brian Kent Morris taken on behalf of the defendant for discovery purposes on September 9, 1965. The Court has further considered the interrogatories to be answered by plaintiff together with the answers filed in response thereto and also the admissions of the defendant in response to plaintiff’s requests for admissions, and also the interrogatories submitted to the defendant and the defendant’s answers in response thereto. The matter is now ready for decision.
“decision of the court
“It is the order of this Court that the defendant’s motion for summary judgment be sustained and that summary judgment be entered in favor of defendant for its costs.
“rationale of the decision
“As the Court understands it, the purpose of a motion for summary judgment under K. S. A. 60-256 is to bring about an expeditious disposition of litigation without needless waste of time in trial formality where there is no bona fide issue of fact in dispute. The Court recognizes the following rules which should be applied in the consideration of a motion for summary judgment:
“1. On a motion for summary judgment the record including the evidentiary matter presented, must show beyond controversy that the allegations of the pleading, need not be taken as true; and all doubts are resolved against the movant. •
“2. If it appears from the pleadings and evidentiary matter presented that the Court would be compelled to direct a verdict for the defendant, a motion for summary judgment should be granted, not otherwise.
“3. On consideration of a motion for summary judgment the trial court may not consider credibility or weight of evidence and all doubts are resolved against the moving party.
“4. Summary judgment is an extreme remedy and should be granted only where the truth is not left in doubt. To justify such a judgment there must remain no bona fide issue of material fact.
“5. In considering a motion for summary judgment the court may not choose between conflicting possible inferences. It is not a substitute for the trial of issues of fact by court or jury.
“6. K. S. A. 60-256 relating to summary judgments should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them.
“With the above rules in mind and interpreting all of the evidentiary matters now before the Court in a manner most favorable to the plaintiff and against the defendant movant, the undisputed facts in this case are clearly as follows:
“On July 20, 1964, the plaintiff Brian Kent Morris was 17 years of age. He had recently graduated from Emporia High School in Emporia, Kansas. He had been employed about three weeks before this date by the Anderson Cattle Company to unload hay off of trucks into a hay bam and perform other miscellaneous work on the Anderson Cattle Company premises on property located just outside the city limits of Emporia, Kansas. The defendant Santa Fe owned a yellow colored hay barn which was located on a tract of land owned by the Santa Fe and which constitutes a part of the Emporia Yards of the Atchison, Topeka and Santa Fe Railway Company. The hay bam in question is painted the same color as the yard office of the Santa Fe. There was no fence dividing up any part of the premises and there is direct access from the hay bam to the siding tracks, stockyard, and the stockyard office. In 1961 the hay bam in question was leased by the Santa Fe to the Anderson Elevator Company. A copy of this lease is dated December 1, 1961, is attached to the affidavit of C. A. Holcombe. Attached to the lease is a scale drawing of the general area around the Santa Fe yards and shows with particularity the location of the leased premises. The lease provides that the lessee Anderson shall use the premises exclusively for storing hay which will be ultimately purchased by the lessor. Both before and after July 20, 1964, the Santa Fe.purchased hay out of the hay bam from Anderson for use in feeding cattle being shipped by the Santa Fe Railroad. The Anderson Cattle Company employees would periodically drive trucks to the barn and unload tire hay from the^ trucks and unload it into the barn. The Santa Fe employees, of course, were familiar with this arrangement.
“The testimony of the plaintiff Brian Kent Morris and the witness Philip Holliday shows that on the date of plaintiff’s injuries, July 20, 1964, they were employed by the Anderson Cattle Company to unload hay from the trucks into the Santa Fe bam. Several days before the date of plaintiff’s injury employees of the Santa Fe had come to the hay barn and one of them told the two boys to get away from the bam if they wanted to smoke. It is clear from the statements and from the evidence that the plaintiff and Philip Holliday had been at the barn unloading hay from the trucks into the bam for several days. On July 20, 1964, die day was extremely hot and apparendy the barn was practically loaded with hay. The plaintiff and two of his .co-workers, Philip Holliday and John Davis, were waiting for other trucks to bring more hay and they decided to get in the shade. The evidence is undisputed that they walked a distance of approximately 285 feet down a path to the tracks of the Santa Fe and proceeded to get underneath, one of the Santa Fe railroad cars. The two boys, Philip Holliday and John Davis, are about the same age as die plaintiff. The plaintiff Brian Kent Morris testified that prior to July 20, 1964, he had never left his place of work at the hay barn to go to any standing cars on the railroad track; he further testified in his deposition that' he had never crawled under a railroad car before nor had he ever seen anyone else crawl under a standing car before the afternoon of July 20, 1964. He further testified that he and the other two boys followed a path to the location of the railroad cars. The cars in question were flat cars used for the hauling of welded rails. The plaintiff Brian Kent Morris testified that when he crawled undernéath the car, he looked to see whether or not there was a locomotive attached to the cars but that he did not see any. In response to a question on page 24 of his deposition he stated that he did not know whether he could have seen a locomotive had there been one attached to tire cars, that there was a slight curve in the track which made it difficult for him to see a locomotive at the other end of the cars. He further testified that none of the three boys went to a point from which they could see the other end of the cars. He further testified in his deposition that he couldn’t remember whether anything was said about whether the cars might move while they were under them and he did not .know whether any of the three were keeping a lookout for the movement of the cars. Plaintiff crawled under the car and from there he could see the hay barn. The plaintiff lay underneath the car with his legs across the north rail and his head on the rail on the south. The plaintiff is a ■ tall boy, being six feet four inches in height. The other two boys also took positions underneath the car. Plaintiff testified that as he was lying underneath the car his body was about five feet from the nearest wheels of the car and could possibly have been less. While the boys were under the car a switch engine which was attached at the other end proceeded to move the cars. One of the boys rolled out from underneath the tracks and one of the boys lay down between the tracks. They were not injured. Plaintiff Brian Kent Morris was unable to get to a point of safety and his body was run over by the railroad car with the result that he lost an arm and a leg.
“In answers to interrogatories the plaintiff stated the facts to be in part as follows:
.“In answer to Interrogatory No. 5 plaintiff stated in substance that all of tlie duties of his employment consisted of unloading hay from trucks and stacking the same in the barn.
“In answer to Interrogatory No. 11 by which plaintiff was asked why did he go beneath the car on July 20, 1964, he answered, ‘For shade/
“In answer to Interrogatory No. 13 he stated that he had been beneath the car a period of 15 to 20 minutes at the time of his injury. During this period he had been, ‘Just lying there/ (Interrogatory No. 14.)
“In answer to Interrogatory No. 16 the plaintiff stated that his head was on one raff and his feet were on tlie other. In his deposition at Pages 20 to 22 the plaintiff testified that he crawled beneath the defendant’s railroad car where he assumed a reclining position with his arm over one rail and his legs over the other rail about five feet from the nearest wheel. The undisputed facts clearly show the defendant’s employees had no actual knowledge of the plaintiff’s presence beneath the car. In Interrogatory No. 28 plaintiff states that he did not see any employee of the railway company on or about the cars before he went under the car. In Interrogatory No. 29 plaintiff stated that he did not see any employee of the railway company on or about the cars while he was under the car. In Interrogatory No. 30 the plaintiff stated that he did not see any employee of the railway company about the cars after his injury and before he was removed from the place of his injury. On page 26 of tlie plaintifFs deposition he testified that he does not know of anyone who knew that the three boys were under the car before the injury. Philip Holliday in his deposition on page 18 testified that he didn’t see any person or anyone about anywhere along the cars before they crawled under the car or while they were under the car and that there wasn’t anybody who knew that the three boys were under the car before the car moved. The same fact is brought out by the affidavit of E. Blaine Gregory, engine foreman, which is attached to the motion for summary judgment.
“The undisputed facts in the case also show that the car which injured plaintiff was moved by the defendant on its tracks during a switching operation. See the affidavit of E. Blaine Gregory. The evidence is undisputed that 35 railroad cars were coupled to the switch engine at the time the cars were moved. The train car which injured plaintiff and the car to which it was attached had been sitting on the location where they were when plaintiff was injured a period of 12 days. In defendant’s answers to plaintiff’s interrogatories, the defendant admits that no employee of the defendant came to the rear of the cars before the switching movement and that the switch engine was connected to the cars a few minutes before the movement and further that the switch engine did not give any signal prior to moving the train and car which struck the plaintiff and further that no railroad employee made any type of inspection along or under the train cars attached to the car which injured plaintiff prior to said train cars being moved. From the evidentiary matter before the Court it is clear that the tracks upon which the plaintiff was injured was a railroad storage track and were a part of the Emporia yards of the Santa Fe. The distance from the hay barn to the car by which the plaintiff was injured was 285 feet. The answers of the defendant to plaintiffs interrogatories further show that the type of couplers between the cars consisted of type E couplers, top operated, with spacer blocks placed between horn and buffer block to minimize slack action between cars for the transportation of continuous welded rail; but they did not eliminate noise produced by moving cars. One of the boys testified that the train started off fast just like a car with an automatic transmission.
“In his deposition Philip Holliday testified that none of the boys had ever gone under any cars before but that they had leaned against some box cars which were located on the same spur track but right next to the barn. (Page 12 and 13.) In regard to these cars Holliday testified that they were not attached to any part of a string of cars. In regard to looking for a locomotive at the other end of the car on Page 16 of the transcript Holliday testified that he looked to see whether or not there was any locomotive attached to the cars and he looked as far as he could see but the tracks angled to the northwest and curved but as far as he could see there was nothing but cars. He saw no engine attached to them. He further testified that from his observations he could not tell whether or not there was a locomotive attached to the car. He further testified that there were some conversations as to whether there was a locomotive attached to the car, but then Davis and he had both seen the cars there previously and they said to each other they had been there the whole week and wasn’t much chance of one being there since they were parked there that long. He further testified that after they got under the cars they discussed that even if there were a locomotive, they would be able to move before it takes off because at the time you know, most freight trains, when they take off, when they start, by the time each of the cars pull tight, there’s a lot of noise, a lot of movement. (Page 17.) As pointed up above it is undisputed that a signal was not given by the train crew before moving the freight cars. According to the affidavit of W. T. Richardson, Rules Examiner, which is attached to the motion for summary judgment, Rule 84 of the Operating Department of the railroad declares:
“ ‘A train must not start until the proper signal is given. A train must not be backed until proper signal has been given from tire rear end.’
“He further states in his affidavit that under the rules of tire Operating Department yard engines with or without cars in yard service and within yards are not considered to be trains. And it is only when one or more engines with or without cars are equipped with markers and are authorized as trains that they become trains within the rules of the Operating Department. He further states that an engine moving cars from a storage track to be left upon another track all within the Emporia Yards constitutes a switching operation and not a train movement and that in such a situation no signal is required before a movement of cars from track to track within the yards by a yard engine.
“The above facts are not in dispute in this case and the court assumes that all of these facts will be proved or could be proved at a trial of this case on its merits before a jury.
“On this motion for summary judgment this Court is required to determine whether or not it can be held as a matter of law that the defendant is not liable to the plaintiff for his injuries. The defendant in substance argues that the status of the plaintiff at the time of the injury was a trespasser as ^ a matter of law and there being no evidence or contention that the plaintiff was willfully or wantonly injured by the defendant, then the defendant is entitled to judgment. In its motion for summary judgment defendant also -r contends that there is no genuine issue of fact existing whereby a Court or jury could not find the plaintiff guilty of contributory negligence barring his recovery.
‘There being no allegation or claim or evidence that the Santa Fe’s employees were guilty of willful or wanton negligence, the question of law to be determined is basically this:
“What was the status of the plaintiff at the time of his injury by the railroad car of the defendant which determines the extent of the duty owed by the defendant to the plaintiff?
“In the first instance it would seem important to consider the obligation owed by a landowner to persons upon the premises depending upon the status of the person who is injured.
“1. Business invitee. The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee’s safety. The duty to exercise ordinary care is active and positive and no element of willfulness or wantonness need be present. An inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in a reasonably safe and suitable condition so as to avoid injury to an invitee or and to warn an invitee of concealed perils the existence of which the owner or occupant knows or should know by the exercise of reasonable diligence. Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750. An invitee is a person who goes on the premises of another in answer to an express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage.
"2. Licensee. As a general rule a person is a licensee as that term is used in the law of negligence where his entry or use of the premises is permitted expressly or impliedly by the owner or person in control thereof or by operation of law. A license implies permission or authority and is more than mere sufferance but generally it does not imply an invitation. A licensee therefore occupies a position somewhere between that of a trespasser and that of an invitee. A licensee broadly' defined is a person who enters upon the property of another for his own convenience, pleasure or benefit. At common law a landowner is liable to a licensee only for injuries to the licensee which were the result of the landowner’s willful or wanton negligence. This rule is often expressed as “the only duty an owner or occupant of premises owes to a mere licensee is the duty to refrain from willfully, intentionally, or recklessly injuring him,” See Steinmeyer v. McPherson, 171 Kan. 275. The same rule is stated in Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748, and also in the very recent case of Graham v. Loper Electric Co., 192 Kan. 558. In the Graham case on Page 561 the statement is made:
“ ‘Negligent injury of a licensee will not create a cause of action unless it is equivalent to willfullness or wantonness.’
“There is an excellent case note on this subject in 12 Kansas Law Review 571. The more recent cases severely criticize the common law rule of liaTflity with respect to a licensee and the modem cases now generally recognize a distinction between cases involving injury from the active negligence of the landowner and cases of injury resulting from a physical condition of the premises. Under this view the landowner is liable for failure to exercise ordinary care to a licensee whose presence is known or reasonably could have been known when the injury results from active misconduct. In the case of Montague v. Burgerhoff, 150 Kan. 217, 92 P. 2d 98, the Supreme Court recognizes the more modern view and the active negligence theory and in that case followed a rule that if the owner is affirmatively and actively negligent causing injury to a licensee, the owner will be liable for injuries sustained as a result of such active and affirmative negligence. This case has apparently not been cited or applied since it was decided in 1939. In the more recent cases, Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432, Hogan v. Hess Construction Co., 187 Kan. 559, and Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750, the distinction between passive and active negligence is not made clear. In fact the language in the Graham case would seem to restrict the liability of the owner or occupant of premises to the duty only of not willfully or wantonly injuring a licensee.
“3. Trespassers. In the law of negligence a trespasser is a person who enters on the property of another without any right, lawful authority or an express or implied invitation or license. 65 CJS Negligence Section 23. The law also seems to be clear that a licensee or invitee who goes beyond the rights and privileges granted by the license becomes a trespasser. Thus, a person who is invited or permitted to enter a particular part of the land becomes a trespasser if he enters another part of the land. Where a person while lawfully on the property of another or on public property as an invitee leaves that portion of the property on which he has been invited, or uses the property on a venture in his own interests and not within the scope of his original invitation or purpose, he loses his status as an invitee and becomes a trespasser. 65 CJS Negligence Section 23 at Page 437. For example in Kansas the rule which requires the proprietor of a business which is open to public patronage to use ordinary care to make the premises reasonably safe for customers is generally limited to that part of the premises designed, adapted, and prepared for the accommodation of customers, or to which customers may reasonably be expected to go. It does not require the proprietor to render safe for use parts of the premises reserved for use only by the proprietor and his employees. Thompson v. Beard and Gabelman, Inc., 169 Kan. 75, 216 P. 2d 798. The Thompson case is certainly a recognition of the general rule cited in C. J. S. that a licensee or invitee who goes beyond the rights and privileges granted by the license or invitation becomes a trespasser.
“Throughout the Kansas reports the decisions of the Supreme Court have made it extremely difficult for a person struck or run over by a train to recover from the railroad company. An example is Wilson v. Railway Company, 66 Kan. 183, decided in 1903. The plaintiff a bright intelligent boy, twelve years of age, climbed upon a freight-train consisting of about twenty cars, belonging to the Atchison, Topeka & Santa Fe Railway Company, passed over the top of a car to the other side of the train and dropped off that car and undertook to mount another. When he missed connection the car ran over Iris foot and crushed it. As he was going across the car he saw a brakeman on top of the train who looked toward him $tnd smiled and said nothing and no one ordered him or his companions to leave the train. In the opinion the Supreme Court points out that the fact that plaintiff and other boys had previously jumped on and off the cars of the company without remonstrance from the employees of the company, did not amount to an invitation from the company to plaintiff to hop on and off its moving trains thereafter, or make the company liable. The Court recognizes the general rule that a railroad company owes no duty to trespassers who jump on and off its moving trains for the purpose of stealing rides, except not recklessly or wantonly to injure them after their peril is discovered.
“The case of Carey v. Railway Co., 84 Kan. 274, which was cited by the defendant in its brief is quite similar to the case at bar. In that ease it should be noted that a number of workmen were employed in uncovering rock in a quarry operated by the railroad company, their duties not involving loading or handling the cars; several loaded cars awaiting removal were standing upon a spur track near where they were at work; on account of a rain all but one of them entered the cars; he took shelter beneath a car, and was run over and killed when a freight train backed into the cars in the process of picking them up. The jury found that the railroad company was negligent in failing to give proper warning of the approach of the train. In the Carey case it appeared that the deceased was actually employed by the railroad company as a workman in the stone quarry. On appeal the Supreme Court set aside the jury verdict, held that the defendant owed no duty to the deceased to give a warning of the approach of the train and that his own conduct constituted negligence as a matter of law. On page 277 of the opinion it should be noted that the contention was made on behalf of the widow of the deceased workman that the evidence was sufficient to justify a finding that the company’s employees were guilty of misconduct amounting to wantonness in failing give a warning of the approach of ihe train, since two of them knew that men were in or about the cars to be picked up. The Supreme Court in this regard states:
“ ‘We do not think the fact that the trainmen saw a workman in one of the cars, and heard the voices of others, was sufficient to. suggest to them the probability of anyone being under the cars or in a similar position.’
“The case of Hayden v. Railway Co., 87 Kan. 488, is cited by the defendant in its brief. In the Hayden case plaintiff Hayden was an employee of contractors who were constructing a dike near the track of the railway company. It was raining and Hayden sought the shelter of a car and sat himself under it proceeding to eat his lunch. The track was one on which were placed cars that were to be cleaned, and quite a number of cars were already on the track. While he was in the position mentioned the switch crew, without any knowledge that he was in a place of danger, placed another car on that track, and the impact of the switched car against the others pushed the wheels of the car under which he was sitting upon his arm and he was pinned to the track for more than thirty minutes before he was released. The Supreme Court points out that being a trespasser and grossly negligent in sitting down on the railway track under a car, tire railway company certainly owed him no duty until they learned of his situation. Until that time they were not bound to take any precautions to avoid injuring him nor to make any provisions for possible trespassers should they happen to be injured. Another case cited by the defendant is Burgess v. The Atchison, Topeka & Santa Fe Railway Company, 83 Kan. 497. It appeared that the plaintiff boarded one of the defendant’s trains which did not stop at Raymond, Kansas. When about two miles from Raymond the conductor asked him for his ticket. He had none. When he told the conductor that he wanted to stop at Raymond and would pay cash fare he was informed that he could not stop the train at that place, and that he must get off. The train was stopped and he was ejected. The plaintiff was intoxicated to the extent of being stupefied and drowsy. He was left by tire side of the track, and he attempted to follow the train, afopt, on the track.' 'After walking a short distance he sat down on the end of a tie,:and was soon overcome with a stupor. While in this • condition a train passed .along and struck his side, severely injuring him. On page 499 of the opinion the Supreme Court states:
“ ‘It must be remembered that when a person is upon, a railroad track without leave, and has no business with the company, such pérson is a trespasser, and the company owes him no duty except not wantonly to injure him. It is not pretended here that the company was recklessly or wantonly negligent in this case. In the absence of such a degree of negligence the plaintiff has no cause of action, and should not recover a judgment.’
“The rule of the Kansas cases cited above is not unusual to Kansas. The general rule in regard to the obligation of railroads towards persons on their tracks is set forth in 44 American Jurisprudence, Railroads. For example in Section 430 we find the following statement of law:
“ ‘The general rule that a railroad company owes no duty of care toward trespassers and bare licensees applies fully to trespassers and mere licensees upon the cars of the company. The only duty a railroad company owes to such persons riding on its train is the negative duty not to injure them wantonly or willfully after discovering that they are on the train.’
“In Section 431 the general rule is stated covering situations where a person is injured while attempting to pass under or between standing cars in a railroad yard. The rule is stated as follows:
“ ‘Ordinarily, a person who is injured while attempting to pass under or between standing cars in a railroad yard is a trespasser for whose safety the trainmen owe no duty of care in the absence of knowledge of his presence, and in the absence of such knowledge, no liability is incurred by the railroad company for his injuries. There is generally no reason for the train crews to anticipate the presence of persons crossing the track between cars of a train. Thus, due care ordinarily does not require trainmen to look under stationary freight cars on a switch before moving them, to ascertain whether someone is sitting on the rails. Accordingly the railroad company is not guilty of negligence where persons are injured while under or between cars without knowledge of the train employees, even though the railroad company knew that persons frequently cross at such points. In any case, it is said that only express consent will serve to license a thoroughfare across a train. Where, however, the injured person was not a trespasser, as where the cars were standing on a track laid in a public highway, or where the injured person was using a gap between cars customarily placed so that openings were left for persons to pass through on the way to and from the station, the railroad company may be liable in the absence of due care.’
“In regard to the obligation of railroad companies to persons on its tracks, the general rule stated in Section 436 of 44 American Jurisprudence, Railroads:
“ ‘Railroad companies have the right to a clear track in the prosecution of their business, and hence the law does not sanction the use. of railroad tracks as a highway for pedestrians. In determining whether the railroad company has violated a duty owing toward a person injured on its tracks, it must be borne in mind that a railroad track is not. constructed for pedestrians; and when they use it, either as trespassers. or by invitation, they use it in its character of a railroad track, and not as a sidewalk or pavement made of asphalt or concrete, for the use of pedestrians. As in the case of the owner or proprietor or premises generally, the general rule is that one who is on a railroad company’s right of way and at a point other than on a highway or at any other authorized crossing, without authority and for no purpose connected with the interests of the railroad company, has the status of a trespasser and is entitled only to the protection accorded one of that status, namely, that the railroad company owes him no duty except to refrain from willful or wanton injury to him, or to take ordinary care not to injure him after he is discovered in a position of peril. If his injury results from ordinary negligence on the part of the railroad company before his peril is discovered he cannot recover, there being no duty of maintaining a lookout to discover his presence, but if those in charge of a train deliberately run down a trespasser in full view on the tracks the railroad company is liable, since the injury resulted not from negligence but from willful or wanton conduct.’
“Having stated the principles of law which are applicable to a decision in the instant case, let us turn to the facts of the present case to see where the plaintiff stands. It is clear from the undisputed evidence in this case that the plaintiff was not run over by the defendant’s train at any public crossing or at a point in the immediate vicinity of the hay bam where the plaintiff as an employee of the Andersons might be required to go for the purpose of unloading hay trucks. According to the answers of plaintiff to interrogatories submitted to him by the defendant, the only duty of plaintiff’s employment was to unload hay from the trucks and to stack the same in the barn. (Answer to Interrogatory No. 5.) The evidence is undisputed that the plaintiff and the other two boys walked down a path to a point 285 feet from the barn and completely outside of the area of the hay bam or the area adjacent thereto necessary for the purpose of unloading hay. Plaintiff by his own deposition and answers to interrogatories makes it clear that he went beneath the railroad car on July 20, 1964, for his own purpose, to wit: to obtain shade from the sun, and that his duties to his employer Anderson Cattle Company in no way required his presence in the vicinity of the railroad cars. In the opinion of this Court the acts of the plaintiff falls within the rule discussed above that a licensee who goes beyond the rights and privileges granted by the license becomes a trespasser. In the Carey case mentioned above which is found in 84 Kan. 274, the injured workman was an actual employee of the railroad company in a quarry. He took shelter beneath the railroad car for the purpose of getting out of the rain. In the instant case the plaintiff Brian Kent Morris was not even an employee of the railroad company and was clearly beyond the area of the hay bam which had been leased to the Anderson company. The duty owed to the plaintiff in the instant case certainly could not be greater than the duty owed to plaintiff in the Carey case. There is no evidence whatsoever in the instant case that there was any habitual or usual practice of persons to go in the vicinity of railroad cars on the Emporia Yards; there is no evidence in the case that the area where the plaintiff was injured constituted a place of travel or crossing for persons on the railroad yards and where persons might be expected to be found.
“In view of the entire record of this case this Court is compelled to hold that the plaintiff Brian Kent Morris was a trespasser on the tracks of the Santa Fe Railway Company and that the only duty owed to him by the railroad company was not to willfully or wantonly injure him. There is no contention in this case nor is there any evidence whatsoever of any willfulness or wanton act on the part of defendant’s employees which caused injury to the plaintiff. In view of this situation the defendant’s motion for summary judgment is good and judgment should be entered. in favor of the defendant. By reason of the questions of law determined in this case it is unnecessary for the Court to determine the issue of defendant’s negligence, plaintiff’s contributory' negligence or the application of tire doctrine of last clear chance. It can be stated that ordinarily the doctrine of last clear chance is applied only where the plaintiff is in a position of peril from which he cannot extricate himself. In the instant case the undisputed evidence is that neither the train crew nor any of the Santa Fe employees had any knowledge of the plaintiff’s presence underneath the train and it appears that at all times the plaintiff was in the position where he could have removed himself from his dangerous position under the railroad car. The motion of defendant for summary judgment has been sustained this daté and judgment has' been entered effective this date in favor of the defendant for its costs. Counsel for defendant is requested to prep'are an appropriate journal entry in accordance with the judgment of the Court.
• “Dated this 28th day of December, 1965.”
.In this appeal plaintiff makes four contentions — three of' which are argued together. They are that the trial court erred (1)' in holding that plaintiff was a trespasser on the tracks and that defendant’s only duty to him was to refrain from willfully or wantonly injuring him; (2) in failing to hold that plaintiff was an invitee on defendant’s premises because there was benefit to defendant in having plaintiff load hay into the barn that was to be used by defendant in feeding cattle shipped by it, and (3) in failing to find that the Anderson Cattle Company employees, of which plaintiff was one, had been on defendant’s property sufficiently in the past so that defendant knew or should have known the boys and plaintiff were in the area of the hay barn and on defendant’s premises sufficiently to become licensees and therefore entitled to due care.
It is argued the facts of record establish that plaintiff was on defendant’s tracks by virtue of an express or implied invitation— and thus occupied the status of a business invitee or licensee and, therefore, defendant was under the duty to exercise reasonable and ordinary care for his safety. In support of this argument he refers to K. S. A. 66-234, which provides—
“That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies.”
and to Kinney v. Atchison, Topeka & S. F. Rly. Co., 193 Kan. 223, 392 P. 2d 873, and Fleming v. Brown, 150 F. 2d 801 (cited in the Kinney case), both of which discuss the application of the statute.
The facts of those cases, however, clearly distinguish them from the instant case. In the Kinney case a woman was injured as a result of slipping and falling on a slick spot on the floor of the public waiting room in the depot of defendant railway. In the Fleming case a boy was in a vehicle which was parked in a depot parking area. He was killed when a train jumped the track at the depot. In neither case was the injured party found to be a trespasser, and it was held that under the facts and circumstances the applicable degree of care under the statute and law was that of reasonable and ordinary care on the part of the railway company.
Further discussion of the mentioned contentions is unnecessary. Under the undisputed evidence it is clear that at the time and place in question plaintiff was a trespasser on the tracks of defendant. That being the case, the applicable degree of care owed by defendant was to refrain from willfully and wantonly injuring him, and the trial court was correct in so concluding.
Finally, it is contended that even though plaintiff was a trespasser or licensee, the trial court erred in failing to find there was an issue of negligence to be tried — because defendant’s negligence was “active” after plaintiff was on tibe premises and therefore its duty to him was that of due care.
This contention likewise is covered and answered in the decision of the trial court — and correctly so. This is not a situation where the presence of a licensee is known or reasonably could have been known — and notwithstanding, the owner of the premises thereafter is affirmatively and actively guilty of negligence causing injury.
Under the undisputed facts of this case the trial court reached a correct decision. No error has been shown. The judgment is affirmed.
|
[
-80,
108,
-72,
-113,
10,
98,
42,
-102,
113,
-121,
-89,
83,
-81,
-55,
1,
63,
-10,
29,
-43,
43,
-10,
-93,
87,
-117,
-110,
-77,
-77,
69,
-77,
-5,
100,
-10,
77,
112,
-54,
-107,
38,
-56,
-59,
30,
-50,
32,
-85,
-32,
24,
8,
-80,
122,
4,
79,
49,
-97,
-30,
42,
24,
-29,
105,
44,
107,
-87,
-64,
57,
-126,
71,
61,
18,
-93,
36,
-98,
103,
120,
24,
-104,
-79,
1,
-4,
114,
-74,
-122,
-12,
105,
-103,
12,
102,
98,
33,
21,
-17,
-4,
-72,
47,
126,
13,
-26,
-70,
25,
105,
7,
-105,
-99,
115,
20,
14,
-6,
-2,
5,
25,
44,
7,
-117,
-76,
-111,
-1,
53,
30,
15,
-21,
-79,
16,
100,
-52,
-14,
92,
70,
58,
-101,
-49,
-78
] |
The opinion of the court was delivered by
Kaul, J.:
This is an action by a group of citizens of Sherman County (plaintiffs-appellants) seeking an injunction to prevent the Board of County Commissioners of that county and the Mayor and City Council of Goodland (defendants-appellees) from allegedly attempting to establish Central Standard Time in the respective county and city.
Sherman County is within the Mountain Standard Time zone, as established pursuant to the United States Standard Time Act of 1918 (15 U. S. C. A. §261, et seq.), and Mountain Standard Time was in common use throughout the county. The eastern boundary of the Mountain Standard Time zone is about 130 miles east of Good-land, the county seat of Sherman. It is conceded, railroads operating in the area excepted, that in most of the counties of northwest Kansas including Cheyenne, directly to the north of Sherman, and Thomas, directly to the east, although geographically located within the Mountain Standard Time zone, Central Standard Time has been observed for many years. Counsel could not explain the origin of this situation, and we are unable to supply it.
This appeal is from a summary judgment entered by the trial court in favor of defendants.
The facts are not in dispute. The minutes of the Board of County Commissioners for April 20, 1965, reflect the following:
“A resolution was made that the Sherman County Court House Employees and the County Highway Department go on Central Standard Time at 1:00 a. m. April 25, 1965. We recommend that tire City Council, all business and citizens of Sherman County do likewise.”
The resolution of the City Council of Goodland was adopted on April 21, 1965, as follows:
“Resolved that the Governing Body of the City of Goodland, Sherman County, Kansas, change to Central Standard Time at 1:00 a. m., April 25, 1965. Said time change to be for the employees at the City Building, Light Plant, Water, Street, Park and Sewer Departments; with a request that businesses and citizens switch to Central Standard Time. Motion carried, all voting yea.”
The gist of plaintiffs’ contentions are stated in paragraphs six and seven of their petition as follows:
“Plaintiffs further state and allege that said attempted action to adopt Central Standard Time for Sherman County, Kansas, by the defendants is an arbitrary, unreasonable, capricious and unlawful act for the reason that the Congress of the United States, by duly enacted legislation, has empowered the Interstate Commerce Commission to fix and adopt time zones, all of which was known to the defendants, and that the legally fixed and adopted time for Sherman County, Kansas, according to law, is Mountain Standard Time. That said defendants have no lawful authority to adopt any other time than Mountain Standard Time for Sherman County, Kansas.
“Defendants sic [Plaintiffs] further state that they have no adequate remedy at law and that the attempt by said defendants to arbitrarily adopt Central Standard Time for Sherman County, Kansas, has resulted in inconvenience, confusion, conflict, economic loss and disturbance of orderly procedure in business affairs. That if the County Commissioners of each county in Kansas were permitted to adopt as the official time such time as might be desired by said County Commissioners, that utter chaos would result.”
In their prayer for relief plaintiffs ask that the attempted acts of defendants be declared null and void and that defendants be perpetually enjoined from attempting to adopt Central Standard Time as legal time for Sherman County, Kansas.
In its answer the defendant Board of County Commissioners denied the allegations of paragraphs six and seven of plaintiffs’ petition and allege that the laws of the United States, with reference to time zones set out in plaintiffs’ petition, apply only to interstate commerce and that pursuant to K. S. A. 19-2601 it had the duty and obligation to establish the hours for county officers and county employees in Sherman County, and that the resolution alluded to in plaintiffs’ petition and admitted by the Board, was done within the scope of authority by defendant in its capacity as the Board of County Commissioners of Sherman County, Kansas.
The answer of the Mayor and City Councilmen of Goodland, with reference to city offices and employees, was substantially the same as that of the Board of County Commissioners, as related to county offices and employees.
Defendants and plaintiffs both filed motions for summary judgment. It appears to be conceded that the issue, as framed by the pleadings, could properly be disposed of in such manner.
The trial court held as follows:
“. . . under the opinion of this Court, the Federal Law does not apply. There is nothing in the acts of the Board of County Commissioners, or the Mayor, or the City Council of the City of Goodland, in enacting the resolution, or ordinance and proper resolution, that they are attempting to fully enforce such a resolution upon all the people in the County. They simply, in my opinion, acting lawfully in passing a resolution with respect to their own employees and to parties over whom they have jurisdiction, and the county offices. That there is nothing illegal or unlawful in their act, . . .”
The plaintiffs appeal and specify (1) the court erred in holding the Federal Time Law did not apply and (2) the court should have sustained plaintiffs’ motion for summary judgment and denied that of defendants.
On appeal the parties have stipulated the facts were never dis puted and there remained only a question of law to be decided.
There are essentially two basic disputes between the parties.
First, plaintiffs claim tire county and city officials were attempting to adopt Central Standard Time as the legal time for Sherman County. The county and city officials say “no” they were only establishing office hours for then respective officials and working hours for their employees.
Second, plaintiffs claim that the resolutions of both governmental bodies were prohibited by the United States Standard Time Act of 1918 at the time of the trial and if not; then such resolutions are now in violation of the Uniform Time Act of 1966. Defendants deny that their actions were inconsistent with either time act.
The establishment of office hours for county offices is provided for in K. S. A. 19-2601 which, in pertinent part, reads:
“. . . and they shall keep the same open during such days and hours as shall be fixed by tire board of county commissioners; . . .”
Plaintiffs concede that under this statute the Board of County Commissioners has the legal right to establish the days and hours to be complied with by county officials and employees. Neither do plaintiffs seriously question the power of the city council to establish hours for city offices and working hours for city employees under the provisions of K. S. A. 14-401. (Goodland is a city of the second class.) We note this statute was repealed by the Laws of 1965, Chapter 90, Section 1, as a result of the adoption of the Cities’' powers of home rule amendment, Article 12, Section 5 of the Constitution of Kansas at the general election in 1960 which became effective July 1,1961. With reference to the power of a city governing body to determine its own local affairs, as granted in 14-401, supra, such power would appear to be extended rather than reduced by the amendment.
Even though conceding the authority of both the county and city governing bodies to fix the operating hours of their respective offices and employees, plaintiffs insist that both bodies have unlawfully imposed a time system upon all the people of Sherman County. We are unable to give any such import to the respective resolutions of the two governing bodies. We agree with the trial court that the-two governing bodies were simply passing resolutions with respect to their own offices, employees, and the parties over whom they had jurisdiction. The recommendation of the Board of County Commis sioners and the request of the City Council were of no legal effect and unenforceable as to residents of the county generally.
The only question on this point within our power to determine in this appeal is whether or not the adoption of the resolutions was a lawful exercise of the power of the two governing bodies to establish operating hours for their respective offices and employees. The Board of County Commissioners is specifically directed to perform this function under the provisions of 19-2601, supra. We believe such authority is also within the scope of the broad powers delegated to cities to enact ordinances, not repugnant to the constitution and laws of the state, as deemed expedient for the health, good government and peace of the inhabitants. (City of Beloit v. Lamborn, 182 Kan. 288, 321 P. 2d 177.)
In Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101, it was stated:
“The question of the degree of self-government that shall be invested in local communities is older even than our government. Early in the history of this country the local unit was the town. At any rate, since the founding of our state the legislative policy has been to confer on the cities the right of self-government in such large measure that it amounts to the possession of police power where the safety, health and general welfare of its people are concerned. . . .” (p. 833.)
Many states have prescribed a standard system of time by statute (143 A. L. R., Anno., 1238,1240). The Kansas legislature, however, has not dealt with the subject, therefore it cannot be said the resolutions are in conflict with any state law.
If, as plaintiffs claim, the actions of the two governing bodies practically forced Central Standard Time on Sherman County some confusion may result. We have no grounds, however, for holding that the adoption of the resolutions, as we construed the import thereof, was not within the lawful authority of the respective governing bodies.
We shall consider next plaintiffs’ claim of a conflict with federal laws.
The United States Standard Time Act of 1918, as amended, (15 U. S. C. A. § 261, et seq.) was in effect at the time of the adoption of the resolutions. The scope of the 1918 Act was enunciated in Section 2 thereof. In substance the Act was declared to govern the movement of the common carriers between the states and the performance of any act of any officer or department of the United States.
The question of inconsistency between the 1918 Act and a Mas sachusetts Daylight-Saving Act was before the United States Supreme Court in Mass. State Grange v. Benton, 272 U. S. 575, 71 L. Ed. 387, 47 S. Ct. 189. In holding there was no inconsistency between the state and federal acts the Supreme Court affirmed the decision of the United States District Court (10 F. 2d 515 [D. C. 1925]) in which it was stated:
“An answer to this contention is that, assuming that Congress has constitutional power under the standard of measures clause, or the commerce clause, or under both clauses, to provide a standard time applicable to all persons subject to the jurisdiction of the United States, it has not yet seen fit to go further than to make such standard time applicable only (1) to the movement of common carriers engaged in the interstate and foreign commerce; (2) to its own officials and departments; and (3) to all acts done by any persons under federal statutes, orders, rules and regulations. So construed the federal Standard Time Act is not exclusive of state action on the same subject-matter; there is no conflict between the two acts; . . .” (pp. 516, 517.)
Other cases dealing with some phases of the subject may be found in an annotation in 143 A. L. R. 1238.
We believe the decision in Mass. State Grange v. Benton, supra, which has remained unaltered, is controlling authority with respect to any conflict with the 1918 Act.
The Uniform Time Act of 1966, Public Law 89-387; 80 Stat. 107, was not in effect at the time of the adoption of either resolution under consideration here. However, both plaintiffs and defendants have discussed the applicability thereof in their briefs, therefore we feel called upon to express our views with respect thereof.
For our purposes here we do not find it necessary to state the Act of 1966 in its entirety. We shall, therefore, relate in substance only those provisions which we believe to be pertinent to this discussion.
The Act of 1966 was enacted on April 13, 1966, and April 1, 1967, was fixed as the effective date. While many of the sections of the 1918 Act were amended the overall applicability of the 1966 Act relates, as in the 1918 Act, to the performance of any act of any officer or department of the United States. (Sec. 2.) There are several noteworthy amendments and additions to the provisions of the 1918 Act.
In subsection (a) of Section 3 of tire 1966 Act a uniform time (2 a. m. on the last Sunday of April) is established for advancing time one horn in each time zone and a uniform return to standard time is directed at 2 a. m. on the last Sunday of October of each year. It is further provided that any state may exempt itself by law if such law provides that the entire state, including all political subdivisions, shall observe the standard time otherwise applicable under the Act of 1918. It clearly appears the intention of Congress was to fix a uniform time for an advance to Daylight-Saving Time and a withdrawal therefrom, except in those states which exempted themselves by proper legislative enactment. This intent was expressly announced in subsection (b) of Section 3 in which the provisions of the Act were declared to supersede any acts of States or or political subdivisions insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified.
The provisions of subsection (b), supra, are aimed directly at the acts of States and political subdivisions. The language is not entirely clear as to whether or not the prohibition is limited to merely changeover dates for Daylight-Saving Time or includes a change from the standard time of one zone to another as was proposed in the resolutions under consideration here.
In any event, we do not give the Uniform Time Act of 1966 retroactive effect to nullify resolutions adopted several months before the passage of the Act, and more than a year prior to its effective date, even if such resolutions were to be considered in violation of the Act. We are not called upon to determine the validity of the resolutions with respect to the provisions of the Act after its effective date. In fact it appears a state court is not the proper forum to adjudicate a violation of the 1966 Act.
Unlike the Act of 1918 the 1966 Act contains an enforcement provision. The authority and direction to effect the provisions of the 1966 Act are delegated to the Interstate Commerce Commission. In subsection (c) of Section 3 provision is made that the commission or its duly authorized agent may apply to the district court of the United States, for the district in which a violation of Section 3 occurs, to enforce obedience by injunction or by other process.
In Section 5 the Administrative Procedure Act (5 U. S. C. 1001-1011) was made to apply to all proceedings under the Act.
In view of the specific designation of Federal District Courts, as the proper forum for the enforcement of the Act and the express declaration of the governing procedure in such proceedings, it appears that the state courts are excluded from any jurisdiction in connection therewith.
For the reasons heretofore stated we conclude the adoption of the resolutions, limited in application to matters over which the resective governing bodies had jurisdiction, was within the scope of the lawful authority of those bodies and not in conflict with any state or federal law.
The judgment is affirmed.
|
[
112,
-22,
-11,
76,
14,
32,
54,
-104,
120,
-79,
-27,
83,
-95,
-53,
21,
121,
-85,
41,
117,
105,
-28,
-78,
23,
-53,
-30,
-13,
99,
-41,
123,
121,
54,
-52,
73,
-48,
10,
-43,
70,
66,
-123,
28,
-114,
6,
-87,
-64,
-39,
9,
56,
104,
18,
11,
17,
-50,
-13,
40,
24,
99,
104,
45,
-53,
96,
8,
-15,
-69,
-121,
125,
6,
-80,
4,
-110,
-91,
72,
-69,
-100,
53,
-24,
104,
90,
-90,
-108,
-90,
33,
-7,
12,
40,
99,
33,
124,
-57,
-20,
-87,
14,
82,
-113,
-25,
-124,
24,
98,
-118,
-106,
-107,
102,
-112,
79,
-2,
-17,
5,
31,
116,
-125,
-50,
-48,
-109,
77,
-9,
-127,
-121,
-21,
32,
17,
97,
-21,
-26,
126,
86,
58,
-69,
-33,
-76
] |
The opinion of the court was delivered by
Price, C. J.:
Petitioner appeals from an order denying relief under K. S. A. 60-1507.
Petitioner was charged with burglary in the second degree. He was represented by counsel at his preliminary examination and was bound over to the district court. On April 16, 1965, he appeared in the district court. His former counsel being ill, new counsel was appointed at his request. A plea of guilty was entered and he was sentenced to confinement in the penitentiary.
While confined, petitioner bombarded the sentencing court with letters and voluminous motions attacking his sentence. A transcript of the proceedings was furnished to him free of charge. His motions — eight in number — were treated by the court as motions for relief under K. S. A. 60-1507.
On November 8, 1965, the court heard the matter. Petitioner was not returned from the penitentiary and no “evidentiary hearing” was held. From a detailed examination of the file the court found that petitioner’s contentions — which for the most part concerned the alleged inadequacy of counsel — raised no question of fact so as to require his presence, and that all contentions were without merit. Relief was denied — hence this appeal.
Among other things — it is contended the court erred in failing to appoint counsel and in not holding an evidentiary hearing on his motions to vacate sentence. It also is contended the court failed to make findings of fact and conclusions of law, and that as no re sponsive pleading was filed by the state — judgment on the pleadings should have been entered in his favor.
Petitioner’s contentions are completely without merit.
At the time petitioner entered his plea of guilty and before sentence was pronounced he was questioned in detail by the court— in fact, the proceedings cover eleven pages of the record, and they clearly establish that his rights were protected at every step and that he had a full understanding of the charge and the consequences, and that his plea of guilty was understandingly and voluntarily made. Under the record the presence of petitioner, appointment of counsel, and a formal evidentiary hearing were not required (State v. Burnett, 194 Kan. 645, 400 P. 2d 971; Chappell v. State, 197 Kan. 407, 409, 416 P. 2d 786; Van Dusen v. State, 197 Kan. 718, 726, 727, 421 P. 2d 197). Contrary to petitioner’s contention the court, in denying relief, made findings of fact and conclusions of law.
The judgment is affirmed.
|
[
16,
-24,
-67,
-65,
11,
96,
42,
24,
65,
-77,
54,
83,
109,
86,
1,
107,
26,
61,
85,
105,
-33,
-73,
119,
-63,
-78,
-5,
-103,
-44,
-77,
95,
-12,
-76,
72,
-128,
-126,
-43,
38,
-56,
7,
84,
-116,
3,
-120,
-43,
-16,
8,
48,
75,
60,
11,
-79,
-98,
-13,
42,
24,
-54,
-119,
40,
-37,
-81,
-63,
-71,
-101,
31,
-5,
4,
-77,
34,
-100,
-57,
80,
46,
-100,
57,
0,
-20,
113,
-122,
-122,
117,
101,
-117,
-84,
-26,
66,
33,
93,
-22,
96,
-87,
62,
23,
-83,
103,
-109,
88,
99,
37,
-106,
-99,
113,
118,
43,
124,
-27,
20,
93,
108,
-117,
-114,
-68,
-111,
79,
61,
22,
-69,
-21,
-127,
0,
113,
-49,
-30,
92,
-41,
123,
-97,
-114,
-80
] |
The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the landowners, Floyd Dotson and David W. Dotson, from a judgment entered in a condemnation action.
The over-all question presented is whether or not David W. Dotson is bound by the proceedings that culminated in the entry of judgment.
In order to fully understand the issue involved, a detailed factual statement is deemed appropriate. On May 25, 1965, the State Highway Commission filed a petition in the district court of Bourbon county against Floyd Dotson and the Phoenix Mutual Life Insurance Company (mortgagee) for condemnation of certain tracts of land for highway purposes. Appraisers were appointed, and their award in the amount of $35,296 was paid to Floyd Dotson and the mortgagee. Both the highway commission and Floyd Dotson filed separate appeals from the award, and the appeals were consolidated for trial. In answer to interrogatories posed by the highway commission it was disclosed that Floyd’s son, David W. Dotson, was the purchaser of the land under an unrecorded contract executed on September 28, 1958. At a pretrial conference held on October 29, 1965, it was stipulated the land was owned by David and Floyd; David was made a party to the action, and Floyd’s counsel, Mr. Paul L. Aylward, was to request David to enter an appearance.
On March 11, 1966, the highway commission filed a motion for summary judgment against Floyd and David, requesting that damages be fixed in an amount alleged to have been agreed on as a compromise settlement between the landowners and the highway commission. Mr. Aylward filed an affidavit in opposition to the motion in which he stated that the owner of the property, not having been joined as a party, was not bound by any prior proceedings. The motion was denied, and the case proceeded to trial before a jury on March 21 and 22,1966.
On the morning of trial the following written entry of appearance executed by David W. Dotson on November 15, 1963, and duly acknowledged in the state of North Carolina, was filed in the original condemnation proceeding and also the appeal action:
“Now comes, David W. Dotson, purchaser under contract of the property described herein, the record title to which is vested in the name of Floyd Dotson, and does hereby enter his appearance herein and consents to being made a party of the defendant in the above entitled actions.”
Thereupon, a lengthy colloquy ensued between the court and respective counsel. Mr. Aylward stated David was to be made a party, with the understanding that he “is not prejudiced in any way by anything that has occurred prior hereto and is being made a party so that he will have the opportunity to present his claim for just compensation at this hearing. . . .” Counsel concedes he did not want David to be bound by prior negotiations for settlement which formed the basis for the highway commissions motion for summary judgment. The colloquy continued:
“The Court: But as I understand Mr. Aylward’s statement, he is entering an appearance.
“Mr. Aylward: As of today.
“The Court: As of today, on the condition that he not be bound by prior proceedings.
“Mr. Aylward: That is correct.
“The Court: I think the matter with which the counsel is concerned was an exchange of correspondence between counsel. -
“Mr. Douglas G. Hudson: That is right.
“The Court: Which was intended by counsel for the highway commission to be an offer to settle the dispute between both David and Floyd Dotson and the highway commission. I don’t see that the appearance here affects that.
“Mr. Douglas G. Hudson: No. It is actually our position that David is not the owner. This is merely a device of collecting soil bank payments and is not a bona fide contract at all, and if he takes the stand we are going into that.
“Mr. Aylward: We are not entering our appearance to be denied just compensation. . . .”
It is admitted that David was not personally present, nor was his testimony presented by way of deposition, at the trial.
The caption of the court’s instructions to the jury listed both Floyd and David as being the plaintiffs and landowners. The jury, in its verdict, found “for the Plaintiffs and Landowners in the sum of $22,700.00.” The journal entry of trial recited that the plaintiffs and landowners were present by Charles M. Warren and Paul L. Aylward, their attorneys. It further referred to the “plaintiffs’” introducing evidence at the trial. The jury’s verdict being less than the original appraisers’ award, the court entered judgment for the highway commission and against the plantiffs and landowners in the sum of $12,596 with interest and costs.
Floyd filed a motion for new trial and, as one of his grounds, alleged the verdict and judgment should be set aside because David, being an owner of the land, had never been joined as a party to the action by appropriate pleadings and the highway commission x'efused David’s offer to enter his appearance. The trial court, in its memorandum opinion overruling the motion for new trial, stated as follows:
“. . . On pre-trial it was stipulated that he was one of the owners of the real property involved, and he was at that time made a party to the action. On the day of trial, counsel for the landowners filed a written entry of appearance of David W. Dotson. Mr. Aylward insisted that David W. Dotson not be bound by prior proceedings in the action, but that appears of no moment at this stage of the case; no question is now raised about the binding effect of the prior proceedings. Suffice it to say that he was made a party, entered his appearance, was represented by counsel, named as a landowner and as a party in the evidence, in the instructions, in the arguments and in the verdict. There is no question from the record that David W. Dotson was a party to the action, and was fully represented at all stages of the trial. This contention is without merit.” (Emphasis added.)
The notice of appeal to this court was filed by “Floyd Dotson and David W. Dotson, landowners and plaintiffs.”
Although several points are raised by the appellants, they may be resolved into the single contention that David should not be bound by the judgment of the district court. As a further corollary, appellants assert David, as the owner of the land, was entitled to a hearing on the question of just compensation and was denied his “day in court.” In face of the record which has been set forth in considerable detail, the appellants’ claim of error is completely unfounded.
Under the eminent domain procedure act adopted in 1963, proceedings are instituted by the condemnor’s filing a verified petition in the district court of the county in which the real estate is situated. (K. S. A. 26-501.) Among other allegations, the petition shall include the name of any owner and all lienholders of record, and the name of any party in possession. (K. S. A. 26-502.) Notice shall be given to each interested party as named in the petition in accordance with the provisions of K. S. A. 26-503 and 26-506 (a).
By the terms of the act, the condemnor’s duty in ascertaining the names of persons to be made parties to the proceedings extends only to those having an interest in the land as owners and lienholders of record (see K. S. A. 58-2221, -2222 and -2223), and those in possession. In the instant case David, being the purchaser of the land under an unrecorded contract, was not named in the petition. From the record before us we are unable to say that David’s possession under the contract was so open and notorious as to constitute constructive notice to the condemnor of David’s claimed interest. (Cf. Jackson v. O’Neill, 181 Kan. 930, 933, 317 P. 2d 440.) Under the circumstances, David was not a necessary party to the proceedings, inasmuch as he was neither an owner of record nor a party in possession (K. S. A. 26-502). The validity of the condemnation proceedings as to David’s interest, however, was unaffected by the fact he was not named as a party.
Cases from other jurisdictions arising under somewhat similar statutes lend support to our view that holders of unrecorded interests in land need not be made parties to an eminent domain proceeding. In State ex rel. Wirt v. Superior Court, 10 Wn. (2d) 362, 116 P. 2d 752, under a statute requiring the condemnor to set forth in his petition “the name of each and every owner, encumbrancer, or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records,” the court observed:
“Under the statute . . . prescribing the procedure for the exercise of the power of eminent domain, one is only required to make an examination of the record of titles before commencement of condemnation proceedings. One who has an interest in land, which is the subject of an eminent domain action, is required to make use of that record or hazard foreclosure of his rights. No duty was incumbent upon the condemnors, in the absence of a record of ownership, to make the relators parties defendant in the condemnation proceedings. . . .” (p.368.)
Also, see, Illinois Power Co. v. Miller, 11 Ill. App. 2d 296, 137 N. E. 2d 78, where under a statute requiring that all parties interested in the land as owners or otherwise, as appearing of record, be named in the petition, it was held that tenants under unrecorded leases need not be named and were not necessary parties to the proceedings.
The procedure prescribed by K. S. A. 26-508 permits the plaintiff, or any defendant, to take an appeal from the appraisers’ award, and an appeal by any party brings the issue of damages to all interests in the land before the court for trial de novo. The appeal is docketed and tiled as any other civil action, with the only issue being the determination of just compensation to be paid for the land or right therein taken, and for any other damages allowable by law. The statute in its present form is in harmony with the previous decisions of this court which arose under our prior appeal statute (G. S. 1949, 26-102, as amended) to the effect that any appeal by a landowner, lienholder or interested party brings to the district court for determination in a single action the sufficiency of the award for all interests in the tract or parcel of land under condemnation. (See State Highway Commission v. Hembrow, 190 Kan. 742, 378 P. 2d 62, and cases cited therein.) The trial of that issue in the district court is binding on all parties to the action, subject to appeal to the supreme court. (Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 347 P. 2d 276.)
In the instant case David’s interest in the land condemned came to light after the separate appeals from the appraisers’ award had been docketed. It was then agreed that Floyd and David were the owners of the land. David thereby became an interested and necessary party for the purpose of determining the sufficiency of the award for all interests in the land. By order of the court at the pretrial conference David was properly made a party to the appeal case. Seventeen days thereafter his written entry of appearance was executed. The instrument itself was without condition or qualification, and was filed in the original condemnation proceeding as well as in the appeal. Although, as we have pointed out, David was bound by the original proceedings, the filing of the instrument resolved any question of the validity of such proceedings as to his interest. The execution and filing of the written entry of appearance was equivalent to service of process (K. S. A. 60-203), and David thereby submitted himself to the court’s jurisdiction. The basis of counsel’s attempt to qualify David’s appearance as a party was solely for the purpose of preserving any objection to the motion for summary judgment in the event of an appeal from the denial thereof. The highway commission now makes no complaint of the district court’s ruling on said motion; hence, counsel’s purported qualification becomes immaterial.
It is apparent from Mr. Aylward’s statement to the trial court on the morning of trial that David was entering his appearance so that he would have the opportunity to present his claim for just compensation. During the trial David was represented by counsel; he was named as a landowner in the evidence and in the instruc tions, as well as in the jury’s verdict. David is not now in a position to object that he was denied his right to a hearing on the question of just compensation. The sufficiency of the award for all interests in the property was determined, and David is bound by the verdict and judgment. We regard the contention that David was not a party to the appeal action as a mere afterthought because of the jury’s verdict being substantially less than the award.
We have examined the appellant’s contentions and authorities cited in support thereof and find them to be inapplicable to the facts as disclosed by the record.
The judgment is affirmed.
|
[
-15,
124,
-15,
-100,
10,
-32,
122,
88,
75,
-96,
102,
91,
-21,
-58,
16,
43,
-25,
47,
-43,
106,
85,
-73,
19,
34,
83,
-13,
91,
-59,
49,
-35,
-26,
-41,
76,
32,
-54,
85,
-26,
104,
-57,
82,
-50,
1,
-102,
101,
-39,
96,
48,
43,
18,
79,
21,
-113,
-29,
38,
29,
-62,
105,
46,
91,
41,
88,
-72,
-103,
-113,
95,
0,
17,
38,
-104,
1,
104,
10,
-104,
49,
8,
-24,
119,
-90,
-106,
-12,
75,
25,
8,
46,
103,
1,
93,
-19,
104,
-104,
15,
126,
-115,
-122,
-110,
24,
11,
0,
-97,
-99,
120,
80,
-121,
-2,
-18,
-123,
29,
104,
7,
-49,
-106,
-79,
-49,
48,
-111,
1,
-62,
1,
22,
112,
-49,
-2,
93,
-26,
116,
27,
7,
-77
] |
The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over an alleged agreement to maintain equal ownership of the controlling stock of a corporation.
We shall state briefly the basic facts which are not in dispute.
The plaintiff and defendant are brothers. There are other nominal defendants but they may be ignored for the purpose of this opinion. In 1957 plaintiff and defendant were associated in the business of installing hydro heating equipment in Spokane, Washington. The plaintiff conceived the idea of a flexible metal hose coupling and fitting. The two brothers worked together in perfecting the idea and an application for a patent was made by the two as co-inventors.
The brothers returned from Spokane, Washington to their home in Topeka, Kansas and in July of 1958, embarked upon a joint adventure for the manufacture and sale of the patented items. It was understood that each would share equally in the venture. The plaintiff was primarily engaged in production while the defendant devoted his attention to sales and promotion. The operations were conducted under the name of M & R Development Company and the trademark “Hydro-Flex” was also used.
The business grew and additional financing became necessary. In the early part of 1960, the brothers organized a corporation known as Hydro-Flex Corporation, Inc. for the sole purpose of raising additional capital to promote the manufacture and sale of the articles covered by their jointly owned patent. The patent, which was the most valuable asset of the joint venture or partnership, was assigned to the corporation. The corporation was authorized to issue 500 shares of stock of which 127 shares were transferred to each of the two brothers. An additional 169 shares more or less had been issued and were outstanding at the time material to this controversy. Of this amount 25 shares were issued to a third brother in consideration of a mortgage on the homestead, the proceeds of which went into the business. This stock was later transferred to others.
The two brothers continued with equal salaries and bonuses and with the same duties and responsibilities in carrying on the business after the corporation was formed.
During the month of December, 1963, the defendant started buying the outstanding stock which had been issued to those other than the two brothers. His purpose was to gain control of the corporation. The defendant bought the stock secretly. He did not advise the plaintiff — “No, he would have stopped me if I had.”
On February 5, 1964, the plaintiff was told by others that the defendant was buying the stock. The plaintiff went to defendant and demanded one-half of the stock which he had purchased. The defendant refused to sell. The action from which this appeal stems followed.
We do not propose to indulge in a more detailed statement of the facts which are disclosed by 600 printed pages of conflicting evidence and documentary proof. It would be of no service to the two litigating brothers or their associates to spread on a permanent record the unfortunate facts which would best be forgotten.
We will proceed to consider the procedural questions which must determine this litigation.
The amended petition was in five counts but the gravamen of the charge was that a joint venture agreement has continued and a confidential or fiduciary relationship has existed at all times pertinent and still exists between Max L. Campbell and Ralph L. Campbell in the business and that—
“Sometime after December, 1963, the exact dates of which are unknown to the plaintiff but within the personal knowledge of the defendant, Ralph L. Campbell, and [1] in violation of the agreement between Max L. Campbell and Ralph L. Campbell, [2] Contrary to the By-Laws of the corporation, and as [3] a breach of the confidential or fiduciary relationship existing between Max L. Campbell and Ralph L. Campbell, the defendant, Ralph L. Campbell, acquired certain shares of stock from other stockholders, the exact number of which is unknown to the plaintiff but within the knowledge of the defendant, Ralph L. Campbell, and believed by this plaintiff to be 145 shares.” (Numbers and emphasis supplied.)
We note by emphasis the three charges of misconduct which will become material in connection with the master s findings.
The petition further alleged that since the acquisition of the additional stock by the defendant, plaintiff had been divested of all powers, rights, duties and responsibilities in connection with the management and control of the business. The Hydro-Flex Corporation, Inc. was made a nominal party by the petition.
The defending brother answered in some detail but the answer was in effect a general denial of the allegations of the petition. He also alleged:
“The defendant, Ralph L. Campbell, further states that he has not entered into any agreement with Max L. Campbell, either orally or in writing, to the effect that he and the plaintiff would continue to be equal owners forever." (Emphasis supplied.)
We emphasize the word “forever” as neither it nor a similar adverb is used in the petition and the word will also become material in connection with the masters findings.
At the pretrial conference a master was appointed by consent of the parties.
After an extended hearing the master filed his report. In the letter of transmittal he stated the issues on the agreement as to the joint adventure as follows:
“The burden of proof in this case was upon the plaintiff. In order for him to prevail it would have to be established that there was [1] an agreement between Max L. Campbell and Ralph L. Campbell that the partnership created with the formation of the M. and R. Development Company was perpetuated into the corporation. Or, [2] that there existed an agreement between Max L. Campbell and Ralph L. Campbell that their interest in Hydro-Flex Corporation, Inc. would always remain equal. . . .” (Numbers and emphasis supplied.)
The master made limited findings and a conclusion, which read:
“Findings of Fact
“1. Ralph L. Campbell, defendant herein, Max L. Campbell, plaintiff herein, and Dean Campbell were partners and doing business as M. and R. Development Company on a 45/45/10 basis prior and up to the incorporation of Hydro-Flex Corporation, Inc., on September 1, 1960.
“2. Ralph, Max and Dean Campbell transferred all assets of M. & R. Development Company, including a patent pending, to Hydro-Flex Corporation, Inc., in exchange for capital stock of said corporation in the amount of 127 shares/127 shares/25 shares, respectively.
“3. Articles of Incorporation were filed on September 1, 1960, and the incorporators, Ralph, Max and Dean Campbell, were the original directors and were duly elected President, Vice-President/Treasurer, and Secretary, respectively.
“4. The stock of Hydro-Flex Corporation issued to Ralph, Max and Dean Campbell was issued to them as individuals and not as partners, joint tenants or tenants in common.
“5. Ralph Campbell did, on or about February 17, 1964, purchase with his own personal credit and borrowings an additional 145 shares of stock in Hydro-Flex Corporation from existing stockholders.
“6. Max Campbell did attempt to purchase for himself die stock owned by Anderson Chandler and his family some time prior to February 17, 1964.
“7. [1] No joint venture or partnership agreement existed between the plaintiff and the defendant, Ralph L. Campbell, after September 1, 1960. [2] No agreement existed between the plaintiff and the defendant, Ralph L. Campbell, that the ownership of the plaintiff and the defendant in the Hydro-Flex Corporation would always remain equal. [Numbers and emphasis supplied.]
“Conclusion of Law
“The plaintiff has failed to establish any cause of action against any of the defendants and judgment should be rendered for the defendants”
The plaintiff filed objections to the masters report, a motion to require the master to make additional controlling facts and a motion to set aside the master s report.
The basis for the plaintiff’s somewhat lengthy objections and motions may be summarized:
1 The master failed to set forth the controlling facts on which his ultimate conclusion of fact must be based;
2 failed to make any findings or conclusions on the issue of confidential or fiduciary relationship;
3 failed to make any findings or conclusions on the validity of the stock purchases by the defendant under the articles of incorporation and by-laws, and
4 failed to make any finding as to an agreement to maintain equal ownership of the stock in the corporation as of the time pertinent to the controversy — the finding that there was no agreement that the stock ownership would “always” remain equal, being beyond the issue in the case.
The trial court considered plaintiffs’ objections and referred the motion for additional controlling findings of fact and conclusions to the master.
The master reported by letter in which he stated that his finding No. 7 was conclusive as to plaintiff’s right to recover and in his opinion other matters were irrelevant. The master concluded:
“For the foregoing reasons I have therefore come to the conclusion that the motions of the plaintiff for additional findings of fact should be and the same are denied.”
Plaintiff next filed a paper styled “Objections to Master’s report, motion for receiving further evidence, motion for entering of plaintiff’s requested findings of fact and conclusions of law and the rendering of judgment in accordance therewith.”
The trial court, after a hearing, reopened the case for the purpose of hearing the testimony of the attorney for the corporation. Following the hearing of the additional testimony and reviewing the proceedings the trial court found the master’s finding No. 7 to be clearly erroneous and found generally for the plaintiff. The court found that—
“The Master searched for words that would indicate that a partnership or joint venture between Ralph and Max continued after the incorporation of the business on September 1, I960, and an agreement that it would ‘always’’exist.”
The trial court ended with 48 findings of fact and wrote an extensive opinion. The issues before us do not require an extension of this opinion by an inclusion of the findings and opinion of the court below. His general conclusions may be gathered from excerpts from his opinion. We quote:
‘‘I construe the testimony of Max Campbell, Dean Campbell and James Grimes sufficient to show the existence of an agreement and an understanding that the two brothers, Ralph and Max, would continue with a partnership-like arrangement between them after the incorporation and that they would continue to participate and control the affairs of the corporation on an equal basis. I beheve their testimony. . . .
“I am satisfied that when these two brothers incorporated their business, it was only for the purpose of expanding and raising capital and that they had no intention of converting it into something that would be thereafter on an arms’ length basis or an every-man-for-himself relationship, and that any contrary idea came to Ralph after he and Max were unable to agree on how to expand the business late in 1963; that it was then that Ralph decided fo take over. . '
“On or about December 3, 1963, Ralph approached Max about the two of them buying up some outstanding shares from other shareholders. Ralph proposed buying it with additional capital and their borrowing the money personally. Max asked why it could not be bought out of corporation funds. They did not reach agreement. This conversation was further evidence of a continuing 50-50 relationship, even up to that date, at least it is consistent with it.
“Up untE December 5, 1963, an important date in this lawsuit, the relationship between the brothers, Max and Ralph, I find was still on a 50-50 basis in all respects. No conduct up to that time on the part of either was indicative of a contrary intention. The relationship of Ralph and Max was one of trust. Max was the inside man chiefly responsible for production; Ralph was the outside man promoting sales. The relationship was fiduciary, the land that one would expect between brothers who had gone along together through bad times and into good times. This was true before and after incorporation.
“There never was any change in their relationship until Max discovered in February, 1964, that Ralph was trying to gain control of the corporation by secret moves. Max then countered with moves to head this off. He tried to buy stock; he was too late. Ralph had enough shares tied up to gain control. He took control in early 1964 and voted his stock to bring about a change in the Board of Directors, a change in the officers, an increase in his own salary and ousted Max from active participation in the business. Max is still on the payroll protected by a restraining order from this court.
“Ralph never did announce his intention to his brother. He asked certain shareholders not to tell Max, and he testified in court that he did not want Max to find out about it because Max would stop him. Under all the facts and circumstances and the long history of their close and confidential relationship, this conduct on the part of Ralph was unconscionable. Surely there is a remedy for it.”
The trial court rendered judgment generally for the plaintiff and against the defendant. That part of the judgment affecting the nature of the relief will be discussed later.
The defendant has appealed. We will for clarity continue to refer to the parties as plaintiff and defendant.
Defendant first contends:
“The Court erred in denying the defendant’s Motion for Judgment on the Master’s Report since the findings and conclusion set forth therein are fully supported by substantial, competent evidence and 60-253 (e) (2) of the Kansas Statutes Annotated prescribes that Tn an action to be tried without a jury, the Court shall accept the Master’s Findings of Fact unless clearly erroneous.’ ”
The defendant suggests that “the proof that the finding of a master is ‘clearly erroneous’ should be no less than the ‘clear and convincing’ proof required to sustain an allegation of fraud.”
We would not understress the obligation of a trial court to accept the findings of a master unless it finds them clearly erroneous. However, where the district court in reviewing the master’s findings after a consideration of the record is left with the definite and firm conviction that a mistake has been committed, the findings may be set aside as clearly erroneous.
The general rule as announced in the federal cases construing a statute similar to that from which the Kansas statute is taken, reads:
“. . . A finding is ‘dearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (United States v. Gypsum Co., 333 U. S. 364, 68 S. Ct. 525, 92 L. ed. 746, 766. See, also, United States v. Oregon Med. Soc., 343 U. S. 326, 72 S. Ct. 690, 96 L. ed. 978; Local Union 984, Int. Bro. of Teamsters, Etc. v. Humko Co., 287 F. 2d 231; United States v. Tampa Bay Garden Apartments, Inc., 294 F. 2d 598; W. R. B. Corporation v. Geer, 313 F. 2d 750.)
Wo would also suggest, in answer to defendant’s complaint that the court had not read all of the testimony and all of the exhibits, it does appear to have read all of the evidence material to the issues before it. In United States v. Certain Lands in City of Statesboro, Etc., 341 F. 2d 742, 744, it is said:
“Under the ‘clearly erroneous’ concept, a finding is to be set aside ‘when although there is evidence to support it, the reviewing Court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ We do not interpret this to mean that it is incumbent upon the district judge in every case to read the transcript verbatim. Rather, we think the phrase ‘entire evidence’ as used means all evidence relevant to the particular finding under attack. . . .”
However, we do not believe that the propriety of the conclusion that finding No. 7 was clearly erroneous turns on the evidence but that it results largely as a matter of law. From the beginning of the action the defendant contended that before the plaintiff could recover he must prove that the agreement to remain equal in the patent and its resulting benefits must be “always or forever.” The plaintiff only contended that such an agreement existed for all times pertinent hereto — the latter part of 1963, and the early part of 1964, when the stock was purchased by the defendant.
The defendant was the only witness who testified positively on Iris own behalf. His testimony reads:
“Ralph Campbell stated that he did not remember any conversation with either or both of his brothers relative to a continuing equal ownership and by-laws to keep it that way. He stated that there was never any agreement that he and the plaintiff would always remain equal owners.” (Emphasis supplied.)
The following colloquy discloses the position of the parties:
“The Master: I understood you were pretty well in agreement the nature of the partnership agreement.
“Mr. Dickinson: Yes, but not that it was to continue forever. That part of the agreement is by no means agreed to.
“The Master: That’s in issue as to how long it was to continue.
“Mr. Ashworth: This business about it continuing forever is a conclusion drawn by Mr. Dickinson.”
The plaintiff has consistently contended that the agreement was to continue only for the duration of the business under the patent, or until cancelled by mutual consent or by one of the parties in writing but that it was in existence at the time the stock in controversy was purchased by defendant.
When the master found—
“No agreement existed between the plaintiff and the defendant, Ralph L. Campbell, that the ownership of the plaintiff and the defendant in the Hydro-Flex Corporation would always remain equal.” (Emphasis supplied.)
he overreached the material issue of time, and there were no supporting findings to justify any conclusion as to the agreement at the time pertinent to the controversy.
The trial court properly proceeded to make its own findings on the issues as to the time the agreement existed; the effect of the articles of incorporation on stock purchases, and the breach of confidential relationship. The master’s conclusory finding No. 7, without supporting findings, was insufficient to suggest the master’s reasoning in reaching his conclusion. The court was left without a basis for testing the propriety of the master’s conclusion except to review the record and make its controlling findings. In United States v. Merz, 376 U. S. 192, 84 S. Ct. 639, 11 L. ed. 2d 629, 634, it is stated:
“Conclusory findings are alone not sufficient, for the commissions findings shall be accepted by the court ‘unless clearly erroneous’; and conclusory findings as made in diese cases are normally not reviewable by that standard, even when the District Court reads the record, for it will have no way of knowing what path the commissioners took through the maze of conflicting evidence. See United States v. Lewis, 308 F2d 453, 458.”
The defendant also contends:
“It was error for the Court to reopen the above entitled cause and receive the affidavit and testimony of James L. Grimes, Jr., over defendant’s objection after said cause had been fully tried before Master,.......... including a further hearing on plaintiff’s motion and supplemental motion for additional findings and objections, especially since said witness was listed as a witness of the plaintiff at the very outset of the case and was not called even though he was available at all times during the trial before the Master.”
This procedural controversy arose out of a statement of the master in the letter transmiting his report. The statement reads:
“During all of the business activity of Max L. Campbell and Ralph L. Campbell they wisely associated themselves with competent accountants and lawyers. Most of the agreements into which they entered were reduced to writing. Such an agreement as is now asserted by Max would have been of the greatest importance to both Max and Ralph and had it existed I am sure their counsel would have advised them to reduce it to writing.”
The statement appears to be argumentative and of little weight as the original joint adventure or partnership agreement was not in writing. However, the trial court faced with the lack of supporting findings was no doubt justified in considering any pertinent evidence. Mr. Grimes had been attorney for the brothers during the partnership and the forming of the corporation, and the master had raised an issue which had not been covered by the evidence.
We are forced to conclude that the trial court had ample authority under the provisions of K. S. A. 60-253 (e) (2) to receive the new evidence. The statute reads in part:
“. . . The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
There is another matter that requires attention. Although the court held generally for the plaintiff and against the defendant the relief decreed was for the benefit of all stockholders. The defendant was directed to offer through the secretary of the corporation the 150 shares of stock which he had purchased subsequent to December 5,1963, to all stockholders existing at the time of each purchase in order that they have a chance to purchase the stock in accordance with the articles and by-laws of the corporation.
We are forced to disagree with the court’s interpretation of the corporation’s articles and by-laws. A method of controlling the sale of stock was provided in the original articles of incorporation and by-laws. The original by-laws (Article IX, Section 3) read:
“In case a stockholder desires to sell his share or shares of stock, he must first offer them for sale to the remaining stockholders, it being the intention hereof to give them a preference in the purchase of the same, and any attempted sale in violation of this provision is null and void. A stockholder desiring to sell his stock shall file notice in writing of his intention with the secretary of the corporation, stating the terms of sale, and unless his terms are accepted by any or all of the other stockholders within thirty days thereafter, they shall be deemed to have waived their privilege of purchasing and he be at liberty to' sell to anyone else. No certificate of stock shall be transferred to a person who is not a stockholder until it has first been offered for sale to the other stockholders at the book value of the stock as shown on the books of the corporation, but in case the offer to sell is not accepted within thirty- days, after such offer has been made, this condition shall no longer attach.”
The above quoted provision clearly applied to the sale of stock to any person including another stockholder. Some of the prospective purchasers of stock objected to the provision, particularly that-part Which required the sale to stockholders at book value. Oil'February 8,1961, the provision was amended to read as follows:
“In the event a stockholder desires to sell his stock in the corporation, or any part thereof, -to a nonstockholder of the Corporation, he must first offer the same for sale to the remaining stockholders of record, it being the intention hereof to give the stockholders of record of the Corporation a prior right to purchase any stock offered for sale to a non-stockholder, and any attempted salé in .violation of this provision is null and void. Any stockholder desiring to sell his stock, or any part thereof, shall notify the Secretary of the Corporation in writing of his desire to sell, the number of shares, and the price asked, and the Secretary, upon receipt of said notice, shall immediately notify by Registered Mail, addressed to the last-known address, or the address of record in the stock register, all stockholders of record, and any stockholder or stockholders desiring to purchase same may, by exercising such rights, purchase their pro rata share of same within thirty days of the date of notice given to the stockholders by the Secretary, and by depositing with the Secretary the amount of the price thereof, and upon failure of the stockholders, or any of them, to purchase same within said thirty days, said stockholder shall have the right to sell the same to any person.” (Emphasis supplied.)
We are forced to conclude from the clear and unambiguous language of the amended provision that it covered only stock sold to a non-stockholder and not sales by one stockholder to another. Any other construction would completely nullify the first sentence of the amended provision. The purchase of stock made by the defendant was not subject to the amended provision, contrary to the conclusion of the trial court.
There is ample evidence to support the trial court’s finding that at the time pertinent hereto the plaintiff and defendant had an agreement that they would share equally in the fruits of the patent which was represented by the stock in the corporation. We approve the court’s judgment which was generally for tibe plaintiff and against the defendant. However, as there was no restriction by the articles of incorporation or the by-laws on the sale of the stock to the defendant we are forced to conclude that the only relief to be granted should be in favor of the plaintiff and not the general stockholders.
The plaintiff should be decreed to be the owner of one-half of the shares of stock in the Hydro-Flex Corporation, Inc., purchased by the defendant, Ralph L. Campbell, subsequent to December 5, 1963, together with the voting rights and all other rights and benefits appurtenant thereto. The plaintiff’s title should be absolute subject only to the payment of one-half the purchase price and one-half the accrued interest which is to be applied on the note and mortgage held by the Fidelity State Bank.
The judgment of the trial court is affirmed in part and reversed in part, and remanded with instructions to reinstate the action and enter judgment in plaintiff’s favor in accordance with the views herein expressed.
APPROVED BY THE COURT.
|
[
112,
122,
-68,
-116,
26,
96,
42,
-102,
117,
-96,
103,
83,
-51,
-35,
5,
89,
119,
109,
80,
107,
-10,
-77,
7,
-95,
-33,
-13,
-7,
-115,
49,
110,
62,
69,
-52,
32,
-126,
85,
-30,
-128,
-35,
-44,
-26,
4,
56,
-22,
-39,
-60,
52,
91,
16,
75,
65,
-98,
-77,
33,
28,
-53,
13,
46,
-21,
61,
-47,
120,
-86,
5,
-33,
22,
50,
6,
-104,
-59,
-40,
110,
-104,
17,
40,
-24,
90,
-74,
-122,
-11,
9,
-85,
41,
34,
99,
0,
5,
-25,
-66,
-104,
46,
-53,
-99,
-92,
49,
24,
2,
105,
-66,
-100,
-14,
22,
-93,
126,
-22,
-99,
95,
-20,
7,
-113,
-74,
-125,
5,
98,
-116,
-125,
-5,
-77,
48,
112,
-49,
-96,
92,
71,
122,
-105,
-114,
-78
] |
The opinion of the court was delivered by
Harman, C.:
At issue here is the reasonableness of the action of the governing body of the city of Merriam in refusing to approve a proposed plat of a subdivision submitted to it pursuant to K. S. A. 12-705.
Appellant is a building corporation. It proposed to develop a residential subdivision in the form of a cul-de-sac approximately one thousand feet in length on property it owned between Sixty-fifth and Sixty-seventh streets at the eastern edge of the city of Merriam, a city of the second class. Appellant prepared and submitted to the city’s planning commission a plat of its proposed subdivision, to be known as Indian Gardens No. 2. The planning commission approved the plat and forwarded it to the city council The city council considered the plat at several meetings and eventually, on November 16, 1964, voted unanimously to disapprove it. This action was all taken pursuant to then existing law, K. S. A. 12-705 (now substantially amended by Laws, 1965, Chapter 131).
Appellant then filed this action in mandamus in the district court of Johnson county alleging in its petition that the city’s action was unreasonable and unlawful and asking that the city be directed to approve the plat. The city answered alleging its action was reasonable and lawful.
At the trial the parties stipulated that the minutes of the meetings of the city council at which the plat was considered should be admitted in evidence along with the plat and certain sketches, maps and photographs. One of these exhibits, a scale drawing of the preliminary plat and surrounding area, is appended. Also, appellant offered the testimony of one of the developers, the county engineer of Johnson county, and that of a consulting engineer employed by appellant for the purpose of preparing the plat in question.
At the conclusion of appellant’s presentation of evidence, the city moved to dismiss the action on the ground that upon the facts and the law appellant had shown no right to relief. The motion was sustained and judgment was rendered in favor of the city. This appeal followed.
Appellant’s numerous contentions that the city acted unreasonably and unlawfully may be summarized and discussed in three parts.
First, appellant points out that K. S. A. 12-705 provides that, before exercising its powers, a city planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. It appears that the city of Merriam had in its planning and zoning regulations only a single regulation pertaining to streets (Section 22) which, in addition to prescribing width of right-of-way and depth of paving, incorporated by reference minimum standards, plans and specifications recommended by the county engineer of Johnson county and filed in the office of the city clerk. The Johnson county engineer testified he had not adopted any minimum standards, plans and specifications which were on file in the city clerk’s office. Inasmuch as the plat complied with Section 22 as to width of street, and there was no other regulation to be complied with and particularly none regulating the length of culde-sac streets, appellant argues the city was without authority to disapprove the plat on the basis of the length of the proposed cul-de-sac street, this being the principal ground of objection.
We do not think such a result follows. K. S. A. 12-705 does direct a city planning commission to adopt regulations. It further provides:
“. . . Such regulations may provide for the proper area of streets in relation to other existing or planned streets and to the mapped plan for adequate and convenient open spaces for traffic, utilities, access of fire-fighting apparatus, recreation, light, and air, and for the avoidance of congestion of population, including minimum width and area of lots.” (Emphasis supplied.)
This statute is plainly directory. It declares broad policy but leaves details to administrative discretion. Certainly a planning commission could not be expected to prescribe regulations in advance to meet every conceivable situation which might be presented to it. It could not be expected to anticipate all the requests that could be made of it and to have regulations available covering all conditions precedent to approval (see Hudson Oil Co. v. City of Wichita, 195 Kan. 623, 396 P. 2d 271). Moreover, under K. S. A. 12-705 the function of the planning commission is advisory only, its authority being limited to a study of the facts and submission of its recommendations to the governing body wherein authority to take final action lies. Failure of the planning commission to have formal regulations as to the length of cul-de-sacs could not deprive the city council of its jurisdiction to take final action in the form of disapproval of the plat.
Next, appellant argues that the city of Merriam contains other cul-de-sac streets, and, more particularly, it recently approved a plat of a subdivision containing twenty-three building lots in cul-desac form called West Vernon Place Unit No. 2. From this appellant argues discrimination and arbitrary action in the disapproval of its plat. Reference to the map of the city received in evidence does disclose the existence of numerous cul-de-sac areas. Most if not all are much shorter in length than that in the proposed plat — with the exception of West Vernon Place Unit No. 2. This is comparable in length and design. The city points out, however, that as to the latter the situation is different, both as to contour of the terrain and as to possibility of access at the end of the cul-de-sac street. The record is silent as to terrain features of West Vernon Place but again, reference to the map discloses no streets are available for connection at the end of the cul-de-sac in West Vernon Place, the area being bounded by other subdivisions containing no interior streets. In the case at bar the evidence disclosed that appellant was in fact the owner of a lot seventy-four feet wide at the south end of the cul-de-sac, which lot was on Sixty-seventh street and could be used in connecting the subdivision with Sixty-seventh street. On the appended plat this lot is marked “P” lot. The possibility of extending Lowell Drive through this lot to connect with Sixty-seventh street was the subject of considerable discussion at the various hearings before the planning commission and the city counsel. At these hearings, as found by the trial court, the appellant represented it did not own this land although it appears it did so own the lot and could eliminate the cul-de-sac by extending Lowell Drive through to Sixty-seventh street. In any event there appears to be sufficient difference between the proposed plat ánd that of West Vernon Place Unit No. 2 to allay any charge of discrimination in the handling of the former.
Finally, appellant urges the record shows that the city council abdicated its responsibility to the neighbors in the area and. disapproved the plat solely because of certain neighbors’ objections. Some of the neighbors in the surrounding area did voice objections and one councilman did express his support of then- views in forceful terms. But we do not think the record supports appellant’s contention of delegation of authority by the council.
The council considered the plat at six different meetings. Some of the neighboring homeowners objected to its approval. They indicated they had sold a portion of the back part of their lots fronting on Craig Road for this development upon the representation that Lowell Drive would be extended through to Sixty-seventh street. They expressed concern over traffic and fire safety and pedestrian trespass on their property. The chief of the fire department filed a written report finding no objection to the plat; thereafter he stated orally he did not like a cul-de-sac in principle. The city engineer made a written report. In it he referred to standards set forth in the Mission Township Zoning Regulations which, although no longer in force, had served as a pattern for some problems. This document contained the following paragraph:
“Dead-End Streets: Except in unusual cases, no dead-end streets will be approved unless such dead-end streets are provided to connect with future streets in adjacent land, but cul-de-sacs may be permitted where the form or contour of the land makes it difficult to plat with connecting streets. Such cul-de-sacs shall provide proper access to all lots and shall generally not exceed four hundred feet in length, and a turnaround shall be provided at the closed end, with an outside radius of at least fifty feet. Except in unusual cases, cul-de-sacs will not be permitted where the turnaround is not clearly visible from the entrance to the street.”
The engineer’s report further stated that he concurred in the recommendation contained in the foregoing wherein cul-de-sacs are limited to 400 feet in length with a companion requirement of clear visibility of the turnaround from the entrance to the street, and that the “submitted plat on Indian Gardens No. 2 is not in agreement with this recommendation.” He also stated “the development would be vastly improved if a means of egress could be provided at its southern extremity.”
At the trial of the mandamus action before the district court there was in addition to that which has already been stated, evidence that some homeowners preferred cul-de-sacs and that the cost of extending Lowell Drive to Sixty-seventh street would be about $12,000; there was also evidence that the initial plan provided for such an extension, and that a prime motive for the cul-de-sac design was based on economy.
The trial court specifically ruled there was no evidence adduced indicating unreasonable or arbitrary action. We think that ruling is correct as shown by the record. The city was concerned, and properly so, with laying out its streets in accordance with other existing or planned streets in the interest of public safety and welfare. Reasonable limitation of length of a dead-end street in a residential area is within the regulatory power of a city. Appellee’s action here cannot be said to be unreasonable as a matter of law nor to infringe on any rights of appellant.
The judgment is affirmed.
APPROVED BY THE COURT.
APPENDIX
|
[
-11,
-22,
-79,
-36,
10,
-32,
48,
28,
88,
-77,
-11,
115,
-87,
-38,
4,
57,
-118,
29,
-47,
123,
-63,
-78,
87,
-61,
-112,
-13,
-45,
-35,
-79,
93,
-10,
-59,
72,
-111,
-62,
-75,
38,
74,
86,
28,
-114,
6,
9,
-63,
-40,
66,
54,
107,
50,
11,
21,
14,
-13,
40,
24,
-29,
-23,
44,
-37,
-84,
65,
-8,
-114,
-107,
91,
6,
48,
-128,
-104,
-125,
-52,
22,
-112,
57,
0,
-24,
21,
-90,
-106,
52,
7,
-37,
76,
-2,
98,
35,
45,
-49,
-32,
-103,
14,
-98,
13,
-90,
-106,
89,
104,
1,
-106,
-99,
117,
6,
71,
-4,
-25,
5,
95,
108,
-113,
-85,
-12,
-73,
-113,
-68,
-125,
19,
-5,
-63,
48,
113,
-50,
102,
95,
-27,
50,
27,
-98,
-72
] |
By the Court —
Williams, J.
The petition of the plaintiff in error was filed in this court on the 24th day of May, 1860, praying for the reversal of the judgment of the district court of Marshall county, in the second judicial district, as rendered in favor of James S. Rucker, the defendant in error here, at the April term of that court, I860. By default the judgment is rendered for the sum of two hundred and eight dollars snd severity cents, and also for thirty dollars and thirty-five cents interest, which had accrued up to the time of judgment. The reversal of the judgment of the district court is sought upon the following assignment of errors : 1st. That said plaintiff in error had no legal notice of the pendency of said suit. 2d. The suit is alleged, in the petition of the plaintiff below, to have been on a note alleged to have been lost or stolen, and said petition is not signed by the plaintiff below, nor by his attorney. od. In the jurat of said intended petition, it is alleged that the lost or stolen u written instrument sued upon, was then and there in the hands of the attorney of the said plaintiff below.” 4th. “A copy of said lost or stolen promissory note, alleged to have been, then and there, in the hands of said attorney, was not attached to nor made a part of said so-called petition, as provided by the code.” 5th. No petition, as provided in the code, was filed by the plaintiff’ below. 6th. The agreement and bond of indemnity, referred to in the petition, was not filed in the case. 7th. The judgment is for the plaintiff below, when it should hare been a judgment of non-suit. We will consider and dispose of the errors, here assigned, in view of the record of the case, and the provisions of the code, as applicable to them. The first error assigned is based on the fact (which appears of record), that the summons was served on the secretary of the Palmetto Town Company, and not on the president or other chief officer, if found in the county, as prescribed by the code. It is contended that the return of the officer, who served the summons, should have shown that the president, or other chief officer, could not be found in the county to render the service, as made on the secretary, legal. This position of practice, we consider, is the proper one, and should be observed, in order to a full compliance with the statute. In the absence of the president, or other chief officer, a service on the secretary would be, in law, good. It is, however, true that, in point of fact, the secretary, in the position he holds, and the business relation he occupies to the company, would be, perhaps, as certain to inform the company of the notice of the action, as the president or other chief officers, still it is our duty to give effect to the intent of the legislature, and, by the use of proper means, to enforce the observance of statutory provisions. The return of the officer should have set forth the fact, that the president, or other chief officer, “was absent from the county, or could not be found,” in order to render the service a perfect one, in strict compliance with the statute. However, we do not consider this in the light of no service, but merely as defective. We do not feel willing, in view of the record and circumstances therein, when the service was actually made upon the secretary of the company (who is recognized by the statute, as a proper person on whom to make the service, in the absence of “ the president, or other chief officer, from the county”), to conclude that there was no service at all, and, therefore, that the court below had no jurisdiction of the person of the defendant. The facts of a proper legal service, could, and should have been investigated, and fairly settled, in the district court, where, by the proper motion being made, that court possessed the power and means, by evidence, to ascertain the truth on the subject. If the return of the officer could have been so amended, consistently with the facts of the service, as they really existed, so as to make the notice effectual in law, that (the district) court was the proper forum for such proceeding. Having original jurisdiction, by the exercise of which, the facts necessary to a fair and full decision, could be adduced in evidence, the parties could there be fully heard, and justice done. Among other provisions of the code, to guard against irregularities of procedure in the district courts of the territory, and advance substantial justice between parties litigant, under the head of “procedings to reverse, vacate or modify judgments and orders, in the courts in which the-y are rendered,” is the following power vested in the court: “ That the probate court or district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made.” The third subdivision thereof is as follows: “For mistakes, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.” Code of Civil Procedure, section 546, page 172. We find, also, that the code affords the most ample opportunity, as to time, for the correction of such irregularity of procedure, before the same tribunal, as follows : “ Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions three and six (of section 046), must be commenced in three years.” Code of Civil Procedure, section 543, page 174. Section 550-551 and 552, taken in connection with those above cited, clearly indicate the intention of the legislature to require a party seeking to vacate or modify the judgment or order of the probate court or district court, to apply for such purposes directly to the court by which the judgment was rendered or the order made, and thereby have the action of that court on the question presented, before a resort should be had by appeal to a higher tribunal. For the action of these courts, exercising original jurisdiction, in matters of irregularity which will not prejudice the substantial justice of the case, special rules and conditions thereof are prescribed, which can not be enforced in this court, and, without which, the right of parties would have to be disposed of upon mere legal requirements of form, in practice, of the many specified in the code. We will refer to one of these as contained in section 550, page 173 : “ A judgment shall not be vacated, on motion or petition, until it is adjudged that there is valid defense to the action on which judgment is ren dered, or, if the plaintiff seeks its vacation, that there is a valid cause of action.” After a careful consideration of the obvious design of the legislature in the enactment of the “ Act to establish a code of civil procedure,” we must conclude that it was to abolish the old and rigid rules and practice of the common law. They have expressly enacted that “ its provisions, and all proceedings under it, shall be liberally construed with a view to promote its object, and assist the parties in obtaining justice.” We have arrived at the conclusion, that for irregularities of procedure, such as we deem this to be, and matters of form, which are subject to amendment, and susceptible of legal adjustment in practice, so as to promote the claims of substantial justice of the case, we can not entertain appeals of error in this court. Parties must, before a resort is had to the appellate jurisdiction of this court in such matters, procure the action of the proper court thereon, and, if aggrieved by the decision thereof, a party may, by the usual proceeding of law, have resort to the appellate jurisdiction of this tribunal, and have the judgment thereof in affirmance or reversal of the ruling and adjudication of the court of original jurisdiction. This view of the case, we are satisfied, will carry out the manifest intention of the legislature, prevent.delay by frivolous proceedings of error in this court, and promote the attainment of justice. This being a judgment by default, it can not, therefore, be successfully urged that the plaintiff' in error was precluded from a resort to action, as to the matters here complained of in the court below. The statute gives the party three years’ time to move to vacate or modify the judgment there. When such motion is made, and the party shall feel aggrieved by the decision of that court, time enough is given them to invoke the power of this tribunal for a review of the rulings of the district court in the matters of complaint here presented in this case. It will be unnecessary to say any thing in reference to the other assignments of error filed here, as they are all of such a nature, as to have been amendable or otherwise properly disposed of by the court below. What we have above said of the first, is equally applicable to them.
Okder. — It is, therefore, ordered by this court, that the petition in error of the plaintiff, and summons of this court, be, and is dismissed, and the cause remanded to the district court of Marshall county for further proceedings, in accordance with law. The costs of the proceedings in this court to be paid by the plaintiff in error, judgment to be entered accord ingly.
|
[
-80,
-28,
-40,
-34,
-86,
-96,
0,
-114,
-61,
1,
-9,
83,
-19,
70,
28,
123,
-29,
41,
117,
123,
-25,
-89,
19,
99,
-30,
-77,
-57,
85,
-76,
109,
-10,
-42,
76,
32,
-54,
-57,
70,
64,
-59,
-36,
-62,
11,
41,
-27,
-39,
73,
48,
120,
16,
11,
113,
-114,
-14,
46,
53,
67,
-21,
40,
-55,
-71,
72,
-80,
-106,
5,
126,
4,
-79,
7,
-110,
7,
74,
42,
-86,
53,
2,
-8,
122,
-74,
-126,
85,
41,
-69,
9,
102,
102,
0,
-115,
79,
-103,
-100,
38,
-2,
-99,
-90,
-77,
40,
-85,
13,
-74,
-99,
62,
84,
7,
-12,
108,
-107,
29,
40,
67,
-49,
-108,
-77,
-81,
32,
-114,
11,
-17,
50,
-80,
115,
-57,
-15,
93,
103,
49,
-101,
-33,
-101
] |
Knudson, J.:
Brad Hershberger raises numerous issues on appeal following his conviction for driving while license suspended, contrary to K.S.A. 1997 Supp. 8-262, including: (a) whether failure to conduct a probable cause hearing within 48 hours after arrest requires dismissal with prejudice, and (b) whether state law requiring Hershberger to have a valid driver’s license violates his constitutional right to travel.
We affirm. An illegal detention should not void a subsequent conviction absent a showing of prejudice to the defendant’s substantive rights, the constitutional right to travel is not impaired by the State’s licensing of motorists, and none of the other issues raised by Hershberger have legal merit.
On Wednesday, January 7, 1998, Hershberger had appeared in municipal court in Augusta and was convicted of driving while suspended and attempting to elude a police officer. Later that same day, the officer who testified at the municipal court trial saw Hershberger driving a vehicle in Augusta. Knowing Hershberger’s license was suspended, the officer contacted the police department and pointed out Hershberger’s vehicle to another officer. This other officer stopped the car. After Hershberger was arrested, he refused to reveal his name.
On the afternoon of his arrest, a video first appearance hearing was held. Hershberger refused to tell the judge his name, claiming it would be incriminating. The prosecutor did not have the police reports, so the matter was continued until Friday at 1:30 p.m. The judge ordered Hershberger to submit to fingerprinting and other booking procedures.
At the hearing 2 days later, charges still had not been filed; the prosecutor had not received Hershberger’s driving record from the Kansas Department of Revenue (KDR). The State agreed Hershberger should be released and that a summons or warrant would be issued when the State determined and filed the proper charge. The court agreed but told Hershberger he would not be released from jail until he complied with a prior order to complete the booking procedures. Hershberger apparently continued to refuse to comply and remained in jail until January 13, 1998, at which time the jail officials were ordered to release him.
On January 23, 1998, an information was filed charging Hershberger with felony driving while suspended in violation of K.S.A. 1997 Supp. 8-262(a)(l)(C). The State also filed an affidavit setting forth the factual basis for the charge. The State issued a summons and alias summons to Hershberger ordering him to appear on February 23, 1998, for a hearing. Hershberger received die latter summons and returned it to the district court by letter claiming he had received it “inadvertently.” He later argued he had not accepted service of process, and, therefore, the court lacked jurisdiction.
Hershberger did not appear at the February 23 hearing, and the court issued a warrant for his arrest. On March 12, 1998, Hershberger was released from the Sedgwick County jail and arrested on the Butler County bench warrant. He had his first appearance in Butler County the next day, at which time a preliminary hearing was set for April. Shortly thereafter, Hershberger filed a petition for habeas corpus with the Supreme Court contending his detention was unlawful. The petition was summarily denied. Hershberger v. Butler County, Case No. 80,841, decided April 28, 1998.
Hershberger appeared pro se at a preliminaiy hearing on April 24, 1998. Various law enforcement officers testified. After Hershberger continued to deny his identity, the State called Lloyd Hershberger, the defendant’s father, who identified the defendant as his son, Brad. During the hearing, Hershberger challenged the court’s bench warrant and asserted numerous other legal issues included in his later motions.
Certified copies of the KDR’s records were admitted at the preliminaiy hearing. The KDR mailed a notice of suspension to Hershberger at a Wichita post office box on July 8, 1996, suspending his license effective in 30 days. This notice also indicated Hershberger had a prior conviction for driving while suspended. Prior to his arrest in this case, Hershberger had been cited for driving with a suspended license at least twice.
Hershberger was bound over for trial and arraigned. After Hershberger refused to respond appropriately, the court entered a not guilty plea on his behalf and scheduled the matter for a jury trial. Hershberger remained in custody until April 25, 1998, at which time bond was posted.
Sometime after Hershberger was bound over to stand trial, an attorney entered an appearance on his behalf. Counsel moved to dismiss the charge, contending the KDR’s notice of the suspension was not sent to Hershberger’s last known address. After a hearing, this motion was denied. Hershberger’s motion challenging his detention also was argued, but the matter was taken under advisement so the court could obtain transcripts from the prior hearings. Subsequently, the trial court found that the State’s detention of Hershberger was not unlawful.
The case proceeded to bench trial on stipulated facts. Hershberger was found guilty of misdemeanor driving while suspended, sentenced to 1 year’s confinement, and then placed on probation for 1 year. Hershberger filed a timely notice of appeal.
Hershberger filed two motions to arrest judgment, with one of the grounds being newly discovered evidence. Hershberger presented the court with a letter from KDR indicating he had a 90-day suspension remaining for driving while suspended. Hershberger asked the court to arrest the judgment based on the theory he was eligible to reinstate his license. Hershberger’s motions were denied, and he has not filed a notice of appeal from any of the trial court’s post-trial rulings.
Unlawful Detention Claims
Hershberger claims the trial court erred in not dismissing the charges against him because he was unlawfully detained by Butler County authorities. Hershberger argues the State failed to hold a probable cause hearing within 48 hours as required by County of Riverside v. McLaughlin, 500 U.S. 44, 47, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991), and, consequently, the charges should have been dismissed.
McLaughlin was a class action civil suit filed against Riverside County, challenging its practice of holding combined probable cause hearings and arraignments for persons arrested without a warrant. Under the County’s procedures, arraignments were to be held within 2 days of arrest; this 2-day requirement, however, excluded weekends and holidays. The plaintiff sought declaratory and injunctive relief requiring the County to provide quicker probable cause determinations.
In McLaughlin, the issue was whether the County’s procedures comported with the Fourth Amendment’s requirement for a “prompt” judicial determination of probable cause following a warrantless arrest as mandated by Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). 500 U.S. at 47. In balancing the interests of the parties, the Court recognized that some delays were inevitable. 500 U.S. at 55. To provide more certainty in defining “prompt,” however, the Court created a bright fine rule that probable cause determinations had to occur within 48 hours of arrest in order to comply with Gerstein. Once the detention exceeded 48 hours, the government was required to show a bona fide emergency or justification for continuing the detention; the mere fact that a weekend intervened was not sufficient. 500 U.S. at 56-57.
Hershberger first argues a McLaughlin violation occurred between January 7 and January 13,1998. We will assume for purposes of analysis that he is correct.
In Powell v. Nevada, 511 U.S. 79, 84-85, 128 L. Ed. 2d 1, 114 S. Ct. 1280 (1994), the Supreme Court held that the McLaughlin standard applied and the defendant’s detention of 4 days prior to a hearing was presumptively unreasonable. In dicta, however, the Supreme Court held that even though the detention was unreasonable, this did not require that the defendant be released; nor was the defendant necessarily entitled to other relief such as suppression of evidence. Instead, the Court remanded the case to the Nevada Supreme Court to consider the appropriate remedy.
On remand, the Nevada Supreme Court found that the unreasonable delay was not grounds for voiding the defendant’s conviction. Powell v. State, 113 Nev. 41, 44, 930 P.2d 1123, cert. denied 522 U.S. 954 (1997), citing Gerstein v. Pugh, 420 U.S. at 119 (noting the rule that an illegal arrest or detention does not void a sub sequent conviction). The court also found the Fourth Amendment’s exclusionary rule would not automatically apply to otherwise voluntary statements made during a prolonged detention. 113 Nev. at 45-46. The Nevada court concluded that even if the trial court should have suppressed Powell’s statements made after the detention became unreasonable, the failure to do so was harmless error in light of pre-arrest statements Powell had made to police. 113 Nev. at 46-47.
Other courts addressing the appropriate remedies for McLaughlin violations also tend to focus on suppressing evidence obtained during the prolonged detention rather than dismissing the charges as a sanction. See, e.g., U.S. v. Fullerton, 187 F.3d 587, 590 (6th Cir. 1999), cert. denied 120 S. Ct. 961 (2000) (refusing to invalidate arrest and evidence seized at time of arrest because of subsequent McLaughlin violation). The Wisconsin Court of Appeals has held that reversal of a conviction and the granting of a new trial is not the appropriate remedy for a McLaughlin violation absent a showing of both deliberateness of the violation and prejudice in the ability to prepare a defense. State v. Evans, 187 Wis. 2d 66, 92-93 n.7, 522 N.W.2d 554, rev. denied 189 Wis. 2d cxii (Ct. App. 1994); State v. Golden, 185 Wis. 2d 763, 769, 519 N.W.2d 659, rev. denied 186 Wis. 2d cxvi (Ct. App. 1994).
Instead of dismissing charges or excluding evidence, many courts have found that the most appropriate remedy was for the detainee to file a civil rights action against the detaining authority. See U. S. v. Fullerton, 187 F.3d at 592; Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999); Hallstrom v. City of Garden City, 991 F.2d 1473, 1480 (9th Cir. 1993).
Although Kansas courts have not addressed the question of the appropriate remedy for a McLaughlin violation, they have discussed sanctions when a detention violates statutory requirements. In State v. Wakefield, 267 Kan. 116, 123-25, 977 P.2d 941 (1999), the defendant sought to suppress statements he made to the police when he was not given a prompt first appearance as required by statute, which provides that an arrestee “shall be taken without unnecessary delay” before the nearest magistrate. See K.S.A. 1999 Supp. 22-2901(1).
In Wakefield, the defendant was detained for more than 48 hours before appearing before a magistrate. The Supreme Court held, however, that “an unwarranted delay in taking the accused before a magistrate after he or she has been arrested is not in itself a denial of due process unless that delay has in some way prejudiced the right of the accused to a fair trial.” 267 Kan. at 125. The Wakefield holding that due process was not violated is contrary to McLaughlin. As discussed above, however, the Wakefield court was correct in assessing whether the delay caused the defendant prejudice before determining whether relief should be granted.
Ten years before McLaughlin, the Kansas Supreme Court held that unnecessary delay in taking a person before a judicial officer warranted dismissal of criminal charges “only under extremely compelling circumstances” in cases where no other remedy would protect against abuse. State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982) (defendants detained 11 days before taken to magistrate). Where the delay has prejudiced the right to a fair trial, the trial court, in its discretion, may suppress a confession or physical evidence obtained as a result of wrongful conduct. In determining a form of remedy, a trial court should consider the length of the delay, the reason for the delay, the defendant’s assertion of his rights, prejudice resulting to the defendant, and the severity of the crime charged. 230 Kan. at 788. See also State v. Davis, 266 Kan. 638, 646, 972 P.2d 1099 (1999) (criminal charges should be dismissed only if a lesser sanction would not accomplish court’s objective when prosecutor refused to comply with discovery order).
We conclude Hershberger has failed to prove his detention prejudiced his ability to prepare his defense to the charge. Consequently, dismissal of the case is not an appropriate remedy.
Hershberger also complains his subsequent detention in March and April 1998 violated McLaughlin because the preliminary hearing was not held until April 24, 1998. However, McLaughlin only applies to detentions which follow warrantless arrests. 500 U.S. at 56-57.
The detention during March and April was based on a warrant issued after Hershberger failed to appear in response to a sum mons. Warrants are issued once the magistrate finds from the charging documents and/or affidavits that there is probable cause to believe a crime has been committed and the defendant committed that crime. See K.S.A. 22-2302(1). At the time the warrant was issued, the court had the information as well as an affidavit detailing the officers’ knowledge at the time of Hershberger’s arrest. These documents provided sufficient probable cause to issue the warrant. Accordingly, the trial court did not err in denying Hershberger’s motion to dismiss under McLaughlin.
The Requirement of a Drivers License
Hershberger argues that the State had no authority to charge him with driving on a suspended license because he was using his car for personal and not commercial purposes. Hershberger’s argument seems to be that because he has a constitutional right to travel, he can drive on all public streets and highways without complying with any regulation when he uses his vehicle only for personal purposes.
K.S.A. 1999 Supp. 8-235 prohibits any person from driving a motor vehicle upon a highway in Kansas unless the person has a valid driver’s license or is exempted from the same. Hershberger has cited no statute which exempts him from the requirement of having a driver’s license if he operates a motor vehicle on the public roadways. See K.S.A. 8-236. Instead, he essentially contends these statutes violate his constitutional right to travel.
The federal Constitution recognizes a fundamental right to interstate travel. However, this right has been recognized in cases where a statute or ordinance is designed to deter interstate travel or penalizes someone who exercises fhat right and the law does not serve a compelling state interest. See, e.g., Attorney General of N. Y. v. Soto-Lopez, 476 U.S. 898, 903, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986) (limiting preference to veterans who were residents was unconstitutional); Memorial Hospital v. Maricopa County, 415 U.S. 250, 254, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974) (statute requiring 12 months’ residency before person was entitled to county-funded medical assistance not supported by compelling state interest); Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972) (invalidating 12-month residency requirement for voter registration); Edwards v. California, 314 U.S 160, 177, 86 L. Ed. 119, 62 S. Ct. 164 (1941) (welfare law penalizing anyone bringing an indigent person into the state held unconstitutional).
Kansas has enacted a uniform act regulating traffic and establishing rules of the road. See K.S.A. 8-1501 et seq. These laws were not designed to deter interstate or intrastate migration, nor do they penalize someone for exercising the right to travel. States have a compelling interest in ensuring that motor vehicles are operated in a safe fashion on public roads and highways. Therefore, States may adopt “[a]ny appropriate means ... to insure competence and care on the part of its licensees and to protect others using the highway” without violating due process. Reitz v. Mealey, 314 U.S. 33, 36, 86 L. Ed. 21, 62 S. Ct. 24 (1941), overruled on other grounds Perez v. Campbell, 402 U.S. 637, 653-54, 29 L. Ed. 2d 233, 91 S. Ct. 1704 (1971).
So also, the issue of whether driving is a natural right was laid to rest in Popp v. Motor Vehicle Department, 211 Kan. 763, 766, 508 P.2d 991 (1973), when the court stated:
“It is elementary that the right to operate a motor vehicle upon a public street or highway is not a natural or unrestrained right but a privilege which is subject to reasonable regulations under the police power of the state in the interest of the public’s safety and welfare. (Lee v. State, 187 Kan. 566, 358 P.2d 765 [1961].) The driver’s license is not a contract or a property right in the constitutional sense, and therefore its revocation does not constitute the taking of property. The privilege is granted to those who are qualified, who comply with reasonable police power requirements in the interest of public safety and welfare, and is withheld from those who do not.”
See also State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000) (citing with approval the above holding from Popp).
Appellate courts across the countiy have rejected the type of argument Hershberger raises. The reasoning in these cases is twofold. First, regulations pertaining to licensing and registration of vehicles do not deter one’s right to travel because operating a car is only one of many ways to travel. Second, these courts recognize the purpose of such regulations is to advance the public interest in ensuring the competency of drivers operating on the roadway and that drivers have adequate financial security to compensate potential injured parties. For these reasons, these regulatory schemes have consistently been held constitutional. See, e.g., Heninger v. Charnes, 200 Colo. 194, 198, 613 P.2d 884 (1980) (revocation of driver’s license does not burden constitutional right to travel); State v. Cuypers, 559 N.W.2d 435, 436-37 (Minn. App. 1997) (State’s mandatory automobile insurance laws do not violate constitutional right to travel or to due process); City of Bismarck v. Stuart, 546 N.W.2d 366, 367 (N.D. 1996) (statutes requiring drivers’ licenses and registration of vehicles constitutional); State v. Booher, 978 S.W.2d 953, 955-56 (Tenn. Crim. App. 1997) (same); Carter v. State, 702 S.W.2d 774, 778 (Tex. App. 1986) (same).
The Supreme Court of Rhode Island in Berberian v. Petit, 118 R.I. 448, 454-55, 374 A.2d 791 (1977), summed it up this way:
“The plaintiff s argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel, [citation omitted], is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right.”
There is uniform consensus that state statutes requiring drivers’ licenses and vehicle registrations do not impermissibly impair a person’s constitutional right to travel. Hershberger’s argument that he was not required to have a driver’s license is without legal merit.
Fifth Amendment Claims
Hershberger contends police officials and the trial court violated his Fifth Amendment right against self-incrimination by penalizing him for failing to reveal his name upon arrest and in court. An officer’s attempt to elicit the name and address of a person legitimately detained does not seek evidence of a testimonial nature bearing on the commission of a crime and, therefore, does not implicate the privilege against self-incrimination. State v. Taylor, 231 Kan. 171, 174, 642 P.2d 989 (1982). See also California v. Byers, 402 U.S. 424, 431-32, 29 L. Ed. 2d 9, 91 S. Ct. 1535 (1971) (statute requiring California drivers to stop and identify themselves after being involved in an accident does not implicate the Fifth Amendment).
Hershberger also complains he was forced to be fingerprinted and photographed at jail. However, it does not violate the Fifth Amendment to compel a lawfully detained person to submit to fingerprinting and photographs as these actions are not testimonial in nature. Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966).
For these reasons, Hershberger’s complaints that his Fifth Amendment rights against self-incrimination were violated are not persuasive.
Improper Mailing of Suspension Notice
Hershberger also argues the trial court should have dismissed the charge because the State failed to prove the KDR’s suspension notice had been properly mailed to him. Hershberger argues that the notice was not sent to the street address set forth on his driver’s license, and, therefore, the KDR did not send it to his last known address.
We note K.S.A. 1999 Supp. 8-255(d) provides that upon suspending driving privileges, “die division shall immediately notify the person in writing” and does not explicitly state where the notice should be sent.
The notice of suspension in this case was sent to a post office box in Wichita, Kansas, in July 1996. According to the State, the KDR’s records had two addresses for Hershberger; one was the post office box to which the notice was sent. Although his driver’s license bore a street address, Hershberger sent correspondence to KDR officials as early as March 1995 — challenging their regulatory authority over him — using the post office box as a return address. Although the record does not clearly establish how the post office box became part of KDR’s records, it is reasonable to assume it was due to Hershberger’s own correspondence with the agency.
Proof of notice of mailing simply triggers a presumption of receipt of the notice. However, this court has held that the State is not required to prove a proper notice was sent in cases where a defendant has actual knowledge that his or her license has been suspended. State v. Campbell, 24 Kan. App. 2d 553, 556, 948 P.2d 684, rev. denied 263 Kan. 887 (1997).
In this case, Hershberger clearly received the notice of suspension. He sent a letter complaining of the notice to the KDR within 10 days of its mailing. Moreover, he was convicted of driving while suspended in municipal court the morning of his arrest in this case. Hershberger clearly knew of his suspended status and continued to operate his automobile. Under Campbell, the question of the propriety of the notice is irrelevant under the uncontroverted facts of this case.
Other Issues
We have carefully considered each and every other issue raised by Hershberger and conclude neither reversal nor modification of the trial court’s decision is required under the law and evidence.
Affirmed.
|
[
-16,
-23,
-7,
-84,
31,
65,
51,
-106,
81,
-109,
-26,
83,
-89,
-39,
7,
57,
-15,
127,
117,
75,
-49,
-73,
102,
-127,
114,
-13,
-38,
84,
-13,
79,
-28,
-91,
14,
-16,
-118,
-43,
6,
-53,
-91,
88,
-116,
4,
-103,
112,
-48,
-119,
36,
107,
-46,
15,
-79,
-113,
-61,
78,
26,
-41,
-119,
40,
15,
-19,
-63,
-47,
-83,
21,
-39,
82,
34,
4,
60,
7,
-48,
45,
-104,
-102,
1,
-24,
115,
-122,
-128,
-12,
75,
-103,
-128,
-90,
98,
33,
25,
-123,
-27,
-87,
44,
56,
47,
-90,
-104,
72,
67,
37,
-42,
-3,
119,
54,
97,
-8,
108,
13,
85,
-20,
14,
-50,
-72,
-111,
79,
53,
-122,
80,
-13,
33,
53,
96,
-114,
-42,
92,
87,
113,
-37,
-2,
-10
] |
Brazil, C.J.:
Haskell County, Kansas, and the Haskell County Commissioners (together as the County) filed this action against David K. Sullivan seeking reimbursement for the cost of medical care Sullivan received while incarcerated. The County appeals from the decision of the trial court denying its request for reimbursement.
We affirm.
The County’s claim for reimbursement was submitted to the trial court on stipulated facts.
After experiencing chest pains and difficulty breathing, Sullivan was diagnosed with pneumonia. He underwent surgery and was hospitalized for 18 days. Sullivan was unable to pay for his medical treatment, having no source of income. It was agreed he was indigent. The County paid a total of $46,780.59 for the medical serv ices. Because of the high cost of Sullivan’s medical bills and maintenance, the County obtained his early release from jail. Sullivan served less than 4 months of his sentence.
The trial court ruled the County was not entitled to seek reimbursement from Sullivan. In doing so it stated: “Without a contractual relationship existing between the parties, without a statute authorizing the reimbursement of medical expenses, the Plaintiff in this case simply has no basis for its cause of action against this Defendant.”
We have de novo review of cases decided on the basis of stipulated facts. See Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987).
K.S.A. 19-1910(a) states: “When a prisoner is committed to a county jail in a criminal action, the board of county commissioners shall allow the sheriff reasonable charges for maintaining such prisoner.” Under K.S.A. 19-4444, costs incurred by a county law enforcement agency or department for medical care and treatment of prisoners held within the county “shall be paid from the county general fund when a determination has been made that the prisoner has no other resources.”
Kansas courts have consistently held that a prisoner’s rights include entitlement to medical care at the expense of the appropriate governmental agency if the prisoner is indigent and no other source of funds is available. Wesley Med. Center v. City of Wichita, 237 Kan. 807, 809, 703 P.2d 818 (1985); Allen Memorial Hosp. v. Board of Butler County Comm’rs, 12 Kan. App. 2d 680, 681-82, 753 P.2d 1302 (1988). The legislature has expressed a policy that the liability for care and maintenance of a prisoner, including medical expenses, should be the responsibility of the governmental entity whose criminal statutes the prisoner allegedly violated. Wesley Med. Center, 237 Kan. at 814-15 (citing K.S.A. 19-1916, K.S.A. 19-1917, and K.S.A. 19-1930).
In Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 634 P.2d 163 (1981), Russell Lopez was shot by a Gray County deputy sheriff while committing a burglary and was subsequently hospitalized. The trial court found Lopez was in the custody of the sheriff while hospitalized, that he was indigent, and that there was no other source of funds available for his treatment. Gray County was charged with the costs of Lopez’ medical care. On appeal, Gray County conceded Lopez was indigent but contested the finding of custody and the unavailability of other funds. It argued the medical center that had provided the medical services was required to show no other source of funds was available and to seek payment from the Secretary of Social and Rehabilitation Services (SRS). This court rejected Gray County’s claim:
“We think resort to SRS was not required. Lopez was concededly indigent. An indigent may, however, have other resources available. Children, for example, may be indigent and yet have parents with both an obligation and the ability to defray medical expenses. Or the indigent, child or adult, may have medical insurance or a claim against a tortfeasor. Lopez apparently has a right to medical treatment from the Veterans Administration, lost only because his injuries were caused by gunshot. It was this type of source diis court had in mind when it limited the county’s obligation to those cases where no other source of funds was available. The thought was, taxpayers of the county should not pay where the patient, with primary responsibility, has other resources.
. . The first public body with an obligation to pay for Lopez’s care was the county, which requested it and which had the obligation to see that it was furnished." 6 Kan. App. 2d at 733-34.
The ruling in Dodge City Med. Center indicates a county has an obligation to pay for an indigent prisoner’s medical expenses where the indigent has no other source of funds available to pay for the care. The ruling does not indicate a county has a right to seek reimbursement from the prisoner when the prisoner is no longer indigent or subsequently acquires other financial resources.
In Weinlood v. Simmons, 262 Kan. 259, 266, 936 P.2d 238 (1997), the Supreme Court held a regulation allowing the Secretary of Corrections to charge an inmate $1 a month for administering the inmate’s trust account did not violate the inmate’s due process rights. In doing so, it cited cases from several jurisdictions where courts have upheld a state’s right to require inmates to reimburse the state for their keep and maintenance. 262 Kan. at 265. Weinlood, however, did not address whether a governmental agency had the right to seek reimbursement from a prisoner for maintenance or medical expenses without statutory authority.
The Attorney General of Kansas has concluded that, absent statutory authority, neither a district magistrate judge nor a municipal court judge may assess costs to a defendant for ’’room and board" associated with the defendant’s confinement in city or county jail. The attorney general noted the State could initiate proceedings against a prisoner for reimbursement of expenses attributable to incarceration only where the legislature enacts a statute providing for such reimbursement. See Att’y Gen. Op. No. 84-25.
The Supreme Court has addressed a similar issue of whether a person committed to a state facility for the insane or the “feeble minded” is required to reimburse the State for his or her maintenance. See State Department of Social Welfare v. Richards, Conservator, 209 Kan. 403, 496 P.2d 1287 (1972); In re Estate of Dotson, 154 Kan. 562, 119 P.2d 518 (1941); State v. Moore, Adm’r., 90 Kan. 751, 136 Pac. 233 (1913); Kaiser v. State, 80 Kan. 364, 102 Pac. 454 (1909). In each case, the court examined the legislative intent to permit the State or governmental agency to seek reimbursement from a patient for the cost of the care received in the state institution. In Moore, the State filed a claim against the estate of a decedent who had spent most of her fife in a state youth home and a state insane asylum. The court stated:
“There is a conflict of judicial opinion as to whether the estate of an insane person, in the absence of a statute, is chargeable with the expense of his maintenance at a public institution. (Kaiser v. The State, 80 Kan. 364, 371, 102 Pac. 454, 24 L.R.A., n.s., 295; Note, Ann. Cas. 1913 A, 577.) In the Kansas case cited it was held in substance that whether a charge was to be exacted for the maintenance of an inmate of a public institution is a matter of policy, resting in the discretion of the legislature. . . .
“. . . The question before us is not whether the inmates of this institution ought to be required to pay for their maintenance, but whether the legislature intended that they should.” 90 Kan. at 752-54.
The legislature has adopted a policy that the liability for care and maintenance of a prisoner, including medical expenses, is the responsibility of the governmental entity whose laws have been violated and under whose authority the person is actually being held as a prisoner. See Wesley Med. Center, 237 Kan. at 814-15. The legislature has ‘not indicated a general policy that allows a county to seek reimbursement from prisoners for their care and maintenance. Rather, the legislature has limited recovery of care and maintenance costs to particular circumstances.
For example, K.S.A. 19-1930(d) contains a provision to help counties defray the cost of maintaining inmates in their jails. Under the statute, a county may adopt a resolution that any inmate who participates in a work release or job training program for which the inmate receives compensation or a subsistence allowance shall be required to pay to the county an amount not exceeding $10 per day. If expenses for the care and custody of a juvenile offender have been paid out of a county’s general fund, the county may seek reimbursement of all or part of the expenses from a person who by law is liable to support the juvenile. K.S.A. 1999 Supp. 38-1616(b). A county holding a fugitive from another state may seek compensation for support and custody from the officer demanding custody of the fugitive. K.S.A. 19-1917. A county that receives a prisoner in its custody by the authority of the United States or any city located within the county is entitled to compensation for maintenance from the United States or the city. K.S.A. 19-1930(a).
Further, if a county believes the medical expenses furnished by the medical provider are unreasonable, it may challenge the reasonableness of the charges. See Wesley Med. Center, 237 Kan. at 816.
The County asserts Sullivan has returned to work and it should be entitled to seek reimbursement since Sullivan may now have “other sources of income.” Absent a statute relating to reimbursement, a governmental agency is not entitled to seek reimbursement from a prisoner for the cost of medical treatment received by the prisoner while in the agency’s custody. When a determination has been made that the prisoner has no other resources, the prisoner’s medical expenses must be paid from the county’s general fund. K.S.A. 19-4444. In the event the prisoner has medical insurance or other benefits or resources at the time of treatment, the cost of the medical care may be defrayed by the applicable benefits. See Dodge City Med. Center, 6 Kan. App. 2d at 733-34.
Based on the stipulated facts, the County was properly charged as the agency responsible for Sullivan’s medical expenses. The trial court properly denied the County’s claim for reimbursement.
Affirmed.
|
[
-112,
-21,
-11,
-2,
24,
-31,
42,
2,
67,
-85,
112,
87,
-19,
-28,
1,
47,
-29,
125,
101,
113,
65,
-73,
119,
67,
-6,
-5,
-21,
-57,
-77,
-49,
-28,
-44,
77,
112,
10,
85,
38,
66,
-59,
-48,
-114,
4,
-120,
-47,
80,
3,
32,
110,
-38,
7,
49,
12,
-17,
42,
48,
107,
-115,
12,
91,
15,
-109,
-31,
-23,
23,
127,
20,
-128,
4,
28,
75,
80,
58,
-104,
57,
2,
-24,
90,
-122,
-126,
53,
7,
-83,
-83,
102,
98,
33,
21,
-3,
-32,
-84,
30,
-105,
-113,
-89,
-101,
88,
114,
13,
-106,
29,
85,
86,
7,
120,
-12,
100,
125,
46,
-126,
-34,
-36,
-109,
95,
100,
6,
-25,
-9,
21,
-24,
65,
-58,
-30,
80,
-57,
48,
-101,
-86,
-78
] |
PlERRON, J.:
Edward Ice, Jr., appeals his conviction for rape. On the night of June 8, 1996, 17-year-old R.D.B. and Ice were together in the residence of Steve Rist, who was on a trip. R.D.B. claimed Ice threatened her with a gun, forced her to drink alcohol at gunpoint, and forced her to have sex with him. R.D.B. testified she repeatedly told Ice to stop touching her privates during the alleged encounter and refused to drink the alcohol until he pointed a gun at her head.
The physical evidence was inconclusive. An investigation revealed no evidence of vaginal trauma indicative of involuntary pen etration, no fresh bruising, and no semen deposits from the vaginal, oral, or rectal swabs. As a result, the chief evidence at trial consisted of R.D.B.’s account, Ice’s testimony in which he denied having sex with R.D.B., the testimony of psychiatrist Dr. Reedy, the officer’s testimony that Ice admitted to having sex with R.D.B., and Ice’s written statement in which he acknowledged he agreed to have sex with R.D.B.
The State pursued two theories at trial: first, that R.D.B. was forced to have sex against her will, and second, that R.D.B. was incapable of consenting due to a mental deficiency. R.D.B. is educable mentally handicapped. Her condition arises from her premature birth with very low birth weight, hydrocephalus, and a series of brain infections occurring over the first few months of her life. Her IQ is approximately 65.
Both the State and defense counsel extensively examined R.D.B. concerning her depth of understanding about sex. She testified that when someone says “no” to sex, “they mean no.” R.D.B. testified she had taken a sex education class and knew she should use protection during sex and that condoms protected you from AIDS. She testified she knew that sex was when a man put his penis into a woman’s vagina and that married people had sex if they wanted to have a child. R.D.B. stated: “When you don’t want that person to put their penis in your vagina, you should tell them no and if they keep doing it, that’s more or less a rape.” She was able to identify certain ways Ice had touched her, such as touching her vagina, fondling her breasts, and engaging in intercourse. It was clear she knew the touchings were sexual in nature and knew the penis, vagina, and breasts had sexual functions. She distinguished sex between married people for the purpose of having children and the encounter between herself and Ice, saying, “There shouldn’t be no purpose for him to do that to me.” On continued cross-examination, she said, “I told him to stop doing it. He won’t stop. He kept on going and I was — and it really did hurt me and I did cry. I didn’t like it.”
The State presented testimony from Dr. Reedy, a psychiatrist who had examined R.D.B. at the request of the defense. Dr. Reedy had reviewed school records, medical records, another examiner’s psychiatric report, police reports, and had interviewed R.D.B. personally. He placed her mental age at around 8 or 9 years old, with a commensurate ability to understand social situations and make judgments based upon her understanding. He noted that in a person with brain damage and impulsive disorders, alcohol would be far more detrimental to that person’s judgment than to other people. He testified, over the defense’s objection, that
"[R.D.B.’s] intellectual abilities, which are very much below par — not just tire numbers, but also her social functioning, which is very commensurate with her low level of intellect — makes her unable to understand the extent of the behaviors, consequences regarding many situations, including sexual activity.”
Reedy added that R.D.B.’s ability to understand the consequences of sexual acts was impaired significantly.
Other witnesses included lab technicians, the arresting officer, and R.D.B.’s teachers and counselors. Their testimony was collateral to the main issue raised in this appeal — R.D.B.’s capacity to consent.
Regarding rape, the court gave the following instruction to the jury, following K.S.A. 21-3502 and PIK Crim. 3d 57.01:
“The defendant is charged with the crime of rape. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had sexual intercourse with [R.D.B];
“2. That the act of sexual intercourse was committed without the consent of [R.D.B] under circumstances when:
(a) she was overcome by force or fear; or
(b) she was physically powerless; or
(c) she was incapable of giving a valid consent because of mental deficiency or disease, which condition was known by the defendant or was reasonably apparent to the defendant; or
(d) she was incapable of giving a valid consent because of the effect of any alcoholic liquor, which condition was known by the defendant or was reasonably apparent to the defendant; and
“3. That this act occurred on or about the 9th day of June, 1996, in Chautauqua County, Kansas.”
The jury convicted Ice of rape, but acquitted him of furnishing alcohol to a minor and intimidation of a witness. Ice appeals, mainly raising issues related to R.D.B.’s capacity or lack thereof to consent to sex. After receiving two extensions, the State did not file a brief.
Ice challenges the expert testimony, the juiy instructions, and the evidence supporting the State’s claim that R.D.B. was unable to consent. These arguments are intertwined and illustrate a single basic problem — under any sensible definition of ability to consent, R.D.B.’s testimony conclusively established she was capable of consenting to the sexual act despite her mental infirmities. This is despite Dr. Reedy’s expert testimony.
Section (2) of the instruction lists the alternative means by which Ice could have performed a sexual act without R.D.B.’s consent. The jury could have found him guilty based on any or all of the elements listed in the section. In an alternative means case, unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.
Ice points to R.D.B.’s testimony in which she emphatically denied she had given consent, indicating she understood what was going on. R.D.B.’s testimony is conclusive evidence that she had an understanding about what sex is and that she could agree or refuse to participate. The question central to the appeal is whether her level of comprehension precludes a finding she was unable to legally consent to a sexual act.
K.S.A. 21-3502(a)(l)(C) provides:
“(a) Rape is: (1) Sexual intercourse with a person who does not consent to the sexual intercourse, . . .
(C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.”
The test for consent under that provision is whether the individual understands the nature and consequences of the proposed act. See State v. Juarez, 19 Kan. App. 2d 37, 40, 861 P.2d 1382 (1993), rev. denied 254 Kan. 1009 (1994). Therefore, in order to preserve the constitutionality of the provision, the definition of “nature and consequences” must be sufficiently clear to permit the person pro posing sex, and the jury, to discern whether the individual can give legal consent. If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. Anything more open-ended would become impermissibly vague.
As noted, R.D.B. testified she had told Ice repeatedly she did not want to have sex, she understood she was being forced to have sex, and she knew of the risk of pregnancy and AIDS, and she identified specific sexual activities. Her testimony was lucid throughout direct and cross-examination, her account was specific, and she repeatedly affirmed she resisted and was overcome. Whether the jury believed or disbelieved R.D.B.’s claim that Ice forced her to have sex, her testimony shows she understood what was going on quite well. It is difficult to see what else the “nature and consequences” test would require.
Dr. Reedy determined that R.D.B. was able to understand the immediate consequence of her behaviors, but then stated in his report:
“[R.D.B.] clearly maintains that she had not given any consent and was opposed to such activity. However, it should be kept in mind that [R.D.B.] is 17 years old and is subject to such natural urges like any other 17 year old female. . . . She has difficulty comprehending the consequences of her behaviors in a broader sense beyond the concrete sense.”
Dr. Reedy does not explain why the test for legal capacity to consent would require any understanding of consequences beyond the concrete. Dr. Reedy testified that R.D.B.’s inability to understand consequences of specific acts “impairs significantly ” her ability to consent to sexual acts. This is simply too vague to support a finding beyond a reasonable doubt that she was incapable of consent. The test is not whether the individual is impaired, but whether the individual is incapable of knowingly consenting. There is no evidence in the record that R.D.B. lacked the volitional capability to refuse or to give consent to sex. At best, she was suggestible under certain circumstances. In this case, she testified she did not consent — she resisted.
The jury instruction for rape presented a number of alternative means by which the jury could have determined lack of consent. At least one means, that of mental deficiency, was not proven by sufficient evidence. As a result, one or more jurors may have convicted Ice on legally insufficient evidence. The question is whether this possibility requires a remand for a new trial.
“Where a single offense may be committed in more than one way, there must be jury unanimity as to the crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1998) (citing State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 [1994]); see also, e.g., State v. Higgenbotham, 264 Kan. 593, 609, 957 P.2d 416 (1998) (test is whether rational factfinder could have found each means beyond a reasonable doubt).
The court used more emphatic language in State v. Garcia, 243 Kan. 662, Syl. ¶ 6, 763 P.2d 585 (1988): “A general verdict of guilty must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient.”
However, in State v. Grissom, 251 Kan. 851, 892, 840 P.2d 1142 (1992), the court disapproved Garcia, relying on Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991). In Griffin, the defendant was charged with a single count of conspiracy, with dual aims of hindering the IRS and the Drug Enforcement Agency in their official duties. At trial, the Government failed to produce any evidence to prove interference with the Drug Enforcement Agency. The jury returned a general guilty verdict against Griffin and her two codefendants. 502 U.S. at 47-48.
The Court affirmed the conviction, concluding that where one of the possible bases of conviction was neither unconstitutional nor illegal, but “merely” unsupported by sufficient evidence, there is no constitutional problem. See Griffin, 502 U.S. at 60. The Court concluded there is a commonsense reason to distinguish between a jury instruction which misstates the law and one which presents a theory of conviction not supported by the evidence. 502 U.S. at 59. While the jury would not discern a mistake in the law as charged to them, a court may be more confident the jury would reject a legal theoiy not supported by the facts. 502 U.S. at 59-60. Grissom followed Griffin’s reasoning and concluded that where the State charged the defendant with murder, alleging alternative means of felony or premeditation, evidence of premeditation alone was enough to preserve the verdict. Grissom, 251 Kan. at 893. The Tenth Circuit has relied upon Griffin as well. See, e.g., U.S. v. Hanzlicek, 187 F.3d 1228, 1236 (10th Cir. 1999) (error permissible if harmless beyond a reasonable doubt).
In the instant case, we have no idea whether the jury found Ice guilty of rape due to force and fear being used, or due to a lack of capacity of the victim to consent, or a combination of the two. This case differs from those where there was strong evidence supporting one theory and none on another, such as in Griffin. In a Griffin situation, one can reasonably assume the jury did not behave capriciously and convict on a theory in which there was no evidence, when there was strong evidence supporting another theoiy.
With so much testimony and prosecutorial effort invested in the “no capacity” theoiy, we cannot say there is no real possibility that the verdict here was based only on the force and fear theoiy. We must therefore reverse and remand for a new trial.
In State v. Davis, 247 Kan. 566, 573-74, 802 P.2d 541 (1990), the court implied that even if insufficient evidence exists to support an alternative means, the court may preserve the verdict if it finds no real possibility the juiy would have reached a different verdict. That is not the case here.
Ice also claims the interviewing police officer forced him to give a confession and that he could not read the Miranda card he was given. Ice signed his confession, signed the back of the Miranda rights card, and provided a tape-recorded statement. Ice admitted he never told the officer he could not read. Ice’s claim that he went along with the officer out of fear was minimally credible, and as factfinder, the jury was free to reject his testimony.
The defense also presented two trial witnesses who claimed the officer had threatened them. Without going into great detail, both witnesses, who were married to each other, testified to long-running conflicts with the officer, and both obviously felt considerable animosity towards him. Further, one of the witnesses, Steve Rist, agreed that his taped statement, allegedly dictated by the officer, was substantively correct.
Reversed and remanded for a new trial.
|
[
112,
-18,
-115,
-66,
59,
97,
-86,
114,
70,
-125,
113,
-13,
-81,
-6,
72,
105,
-121,
-1,
92,
41,
-45,
51,
31,
-63,
-10,
59,
-6,
-37,
-105,
-49,
-20,
-12,
8,
112,
-125,
81,
98,
-54,
-11,
80,
-124,
-107,
-103,
-56,
19,
-125,
102,
111,
-56,
46,
113,
-100,
-45,
44,
-102,
-57,
9,
108,
83,
-68,
120,
-15,
-103,
23,
-23,
114,
-93,
54,
-65,
-88,
-8,
60,
-104,
-79,
0,
104,
59,
-28,
-128,
118,
79,
-120,
-92,
98,
-30,
5,
13,
-36,
-83,
-87,
-73,
127,
-68,
-91,
-38,
105,
0,
101,
-65,
-35,
-90,
84,
40,
122,
99,
-54,
55,
96,
-118,
-39,
-92,
-111,
-51,
-84,
86,
113,
-21,
-71,
18,
117,
-33,
-64,
84,
84,
120,
-109,
-50,
-78
] |
Pierron, J.:
The appellants, Joe Auten and Paul McMahon, appeal a decision of the district court, affirming the Kansas Corporation Commission’s (KCC) dismissal of their claim against Southwestern Bell Telephone Company (Bell). The appellants ar gue the KCC and the district court erred in finding that Bell was not in violation of K.S.A. 66-109 when Bell’s pay telephones would not make change for amounts received in excess of 350 for a local phone call.
The facts in this case are straightforward and undisputed. The appellants filed a two-count class action in Wyandotte County District Court arguing that Bell had violated 66-109 by charging, demanding, collecting, or receiving an amount greater than the 350 charge for pay telephone calls authorized by the KCC. The court dismissed the case for lack of jurisdiction.
The appellants then filed a petition with the KCC alleging the same complaint. Bell filed a motion to dismiss. In granting the motion, the KCC held that Bell did not knowingly or willfully charge, demand, collect, or receive compensation for calls at its pay telephones in excess of the authorized 350. The KCC found that the cards affixed to the pay telephones advised the user that no change would be given. Therefore, Bell did not knowingly or willfully charge or demand a greater amount than authorized by the KCC. The KCC also found Bell did not collect or receive a greater amount than the lawful 350 amount because 66-109 was not intended to regulate the activity of collecting the coins from a pay telephone or of receiving a greater amount than the lawful rate which was placed into the coin telephone voluntarily by a consumer. The KCC stated Bell has no control over how much change a consumer has in his or her pocket or how much of that change above 350 is put into a pay telephone.
The appellants appealed to the Shawnee County District Court. The court agreed with Bell for the same reasons stated by the KCC and affirmed the dismissal of the case. The court found the KCC’s interpretation of 66-109 was entirely reasonable and the court would not usurp the power of the KCC. The court stated that any amounts in excess of the lawful rate in 66-109 were due to the voluntary actions of the consumer based on the evidence that the warnings of no change were affixed to the pay telephones and that no one forced a consumer to put more than 350 in the pay telephone to make a call.
The scope of appellate review of an administrative agency’s order is to determine whether the district court reviewed the order in accordance with its statutory responsibility. Mobil Exploration & Producing U. S. Inc. v. Kansas Corporation Comm'n, 258 Kan. 796, 808, 908 P.2d 1276 (1995). This court exercises the same review of the agency’s action as does the district court and under K.S.A. 77-621(c)(4) of the Act for Judicial Review and Civil Enforcement of Agency Actions, we examine whether the KCC has erroneously interpreted or applied the law. Farmland Industries, Inc. v. Kansas Corp. Comm’n, 25 Kan. App. 2d 849, 851, 971 P.2d 1213 (1999).
The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference and is called the doctrine of operative construction. In re Appeal of Topeka SMSA Ltd. Partnership, 260 Kan. 154, 162, 917 P.2d 827 (1996). Deference to an agency’s interpretation is particularly appropriate when the agency is one of special competence and experience. Such interpretation may, in fact, be entitled to a controlling significance in judicial proceedings. If there is a rational basis for the agency’s interpretation, it should generally be upheld on judicial review. See In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996).
Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies with the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. Topeka SMSA, 260 Kan. at 162.
The issue presented is whether the KCC’s interpretation of 66-109 is reasonable and should be upheld on appeal. K.S.A. 66-109 provides in relevant part:
“No common carrier or public utility governed by the provisions of this act shall, knowingly or willfully, charge, demand, collect or receive a greater or less compensation for the same class of service performed by it within the state, or for any service in connection therewith, than is specified in the printed schedules or classifications. . . .”
K.S.A. 66-109 prohibits public utilities from charging customers amounts different than published rates. See Sunflower Pipeline Co. v. Kansas Corporation Comm’n, 5 Kan. App. 2d 715, 718, 624 P.2d 466, rev. denied 229 Kan. 671 (1981). Bell has clearly not charged or demanded an excessive rate. Bell’s pay telephones indicate the legal rate of 350 for a local call and have warnings that no change will be given for amounts in excess of 350.
The question of whether Bell has knowingly and willfully collected or received a rate greater than authorized by the KCC is not as easily resolved. We have examined the case law cited by the appellants in support of their argument. Two of those cases are worthy of comment. Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 56-57, 941 P.2d 390 (1997), is presented for authority that it is irrelevant whether Bell had active or passive intent in receiving amounts greater than the legal rate. However, Kansas Pipeline involved a utility’s collection of an unfinalized rate that was determined to be illegal by the appellate courts. The court stated that until the rate had become final, “a utility charges the rate with an inherent risk of refund if it is reversed.” 24 Kan. App. 2d at 57. Here, Bell has not charged an unfinalized rate.
The appellants also rely on Sunflower Pipeline Co., 5 Kan. App. 2d 715, for authority that the courts have rejected arguments that voluntary overpayments in violation of a legal rate are permitted. In Sunflower, a pipeline utility contracted with its customers for gas at a rate of 400 per mcf higher than the legal rate of 250 per mcf established by the KCC. The pipeline utility argued that since the customers voluntarily entered into the contract and paid the rate, no refund should be given. The court disagreed and held the KCC had the power to order refunds regardless of whether the customers could bring an action in their own right. 5 Kan. App. 2d at 722. In the present case, we do not have the act of charging and collecting of an excessive rate.
When a customer puts two quarters in a Bell pay telephone to make a local call, Bell has collected and received money in excess of the 350 legal rate since no change is given. However, the acceptance of that money does not violate K.S.A. 66-109. We agree with tire KCC’s interpretation of 66-109:
“The Commission has regulatory authority over telecommunications public utilities (K.S.A. 66-1,188), not over tire consumers that use their services. It is clear that the Legislature intended to prohibit the affirmative action of a telecommunications public utility from charging, and receiving because of that charge, an amount greater than authorized by the Commission, not the passive activity of collecting tire coins from a pay telephone or receiving a greater amount than the lawful rate placed into the coin telephone voluntarily by a consumer. SWBT has no control over what change a consumer may have in her pocket or how much of drat change above the 350 charge that she may choose to place into the coin telephone. Complainants’ construction of K.S.A. 66-109 would lead to the absurd result that SWBT violates the law because of dre voluntary actions of anodrer party. The Commission concludes, therefore, drat SWBT does not violate K.S.A. 66-109 by the mere fact of collecting or receiving the coins placed into its coin telephones by users who choose to place change into those telephones in excess of 350.”
The issues involved here are the kinds traditionally left to bodies such as the KCC. Inherent in the decision were questions concerning the significance of the “windfall” on the public and the cost (which would eventually be borne by the public) of converting telephones to make change. We note there is little or nothing in the record developed by the appellants dealing with these underlying issues which could help determine a reasonable interpretation of the statute involved. Absent a showing that the KCC acted inappropriately in arriving at the interpretation it did, the court will defer to its presumed expertise.
Affirmed.
|
[
-48,
120,
-96,
-35,
12,
-32,
50,
50,
99,
-79,
-10,
83,
73,
-46,
-115,
127,
-10,
29,
-112,
96,
-63,
-93,
15,
64,
-34,
-69,
-39,
-59,
-71,
79,
-28,
-11,
73,
48,
-54,
85,
38,
66,
-51,
92,
-114,
2,
-120,
65,
-7,
-124,
36,
105,
18,
-61,
113,
-115,
115,
44,
28,
-61,
73,
14,
27,
-83,
-127,
-15,
-21,
5,
93,
22,
1,
4,
-104,
5,
88,
62,
-112,
49,
42,
-120,
114,
-74,
-126,
116,
101,
-83,
-91,
-20,
98,
35,
4,
-17,
-76,
-84,
46,
-41,
21,
100,
-110,
88,
67,
47,
-106,
-100,
100,
22,
7,
-2,
-9,
4,
18,
-20,
-109,
-50,
-46,
-77,
45,
118,
-98,
-53,
-1,
-73,
-124,
97,
-50,
-30,
94,
-57,
58,
-69,
-50,
-67
] |
Walker, J.:
The Kansas Department of Revenue (KDR) appeals the decision by the Kansas Board of Tax Appeals (BOTA) that part of its assessment for Larry N. Trickett’s income taxes was untimely under K.S.A. 1999 Supp. 79-3230(f).
The facts and procedural path followed by this case are complex and are as follows:
During the years of 1988 through 1991, Trickett resided in Kansas and received income from his employment in excess of $10,000 for each of those years. The KDR did not receive any income tax returns from Trickett for those years.
The Internal Revenue Service (IRS) and Kansas have an agreement under which the IRS provides a Revenue Agent’s Report (RAR) to KDR about Kansas taxpayers whose income has been adjusted based on a completed IRS audit. The taxpayer receives a copy of the RAR. Upon receipt of the RAR, a taxpayer is required to file an amended state income tax return; if not, KDR assesses taxes based on the RAR. On December 13, 1994, KDR received an RAR from the IRS dated September 15, 1994, regarding its audit of Trickett’s income from 1988 through 1991.
Nearly two years later, KDR had not received Trickett’s amended Kansas income tax for 1988-1991 and assessed income taxes against him for that period based upon the RAR. Trickett appealed this assessment of the Secretary of Revenue (Secretary). Trickett alleged he had filed Kansas income tax returns, but failed to provide documentation with his appeal. Trickett contended he was not liable because the RAR was not a final decision. No documentation was attached to show an appeal was pending. Trickett paid the 1990 and 1991 assessments, and that portion of his appeal was dismissed. The Secretary found KDR’s assessments for 1988 and 1989 were timely under K.S.A. 1999 Supp. 79-3230.
Trickett appealed the Secretary’s ruling to BOTA, alleging the Secretary failed to consider whether the RAR adjustment was final as required under K.S.A. 1999 Supp. 79-3230(f). Trickett showed the dates he had filed his federal income tax returns for 1988 and 1989, and the 3-year federal statute of limitations had expired to assess taxes on those returns. Because the RAR was completed after the federal statute of limitations to assess taxes had expired, Kansas could not assess taxes under K.S.A. 1999 Supp. 79-3230(f) based on the RAR. Again, Trickett did not show any documentation to BOTA to prove he had appealed the RAR assessments in the federal system.
KDR argued the provision for tolling the statutes of limitations, K.S.A. 1999 Supp. 79-3230(g), applied. Trickett had not filed an income tax return under K.S.A. 1999 Supp. 79-3230(a), and Trickett had not filed an amended income tax return and RAR under K.S.A. 1999 Supp. 79-3230(f). Trickett’s failure to file the tax returns made KDR’s assessment of income taxes for 1988 and 1989 timely under subsection (g). KDR argued the federal statutes of limitations to complete a RAR were not applicable.
BOTA found Trickett had not filed Kansas income tax returns for 1988 and 1989. BOTA concluded “the statute of limitations for tax years 1988 and 1989 had been tolled [under K.S.A. 79-3230(g)] because [Trickett] had not filed income tax returns for those two years. Therefore, [KDR] could make adjustments to [Trickett’s] income.” It then stated: “However, that all assumes that [KDR] made its adjustments from information other than a RAR.”
BOTA found K.S.A. 1999 Supp. 79-3230 placed a duty upon KDR to assess taxes within 180 days from the date it received the RAR. Unquestionably, KDR assessed the taxes more than 180 days after its receipt of the RAR. Therefore, BOTA held the assessments made by KDR for tax years 1988 and 1989 were invalid. BOTA rejected KDR’s argument that K.S.A. 1999 Supp. 79-3230(g) tolled the statute of limitations when Trickett did not file an amended return within 180 days of the RAR.
BOTA granted KDR’s petition for reconsideration on one issue only, the interpretation of K.S.A. 1999 Supp. 79-3230(f) and (g). After reconsideration, BOTA again held KDR had failed to comply with K.S.A. 1999 Supp. 79-3230(f) by not assessing taxes within 180 days after receipt of the RAR; therefore, the statute of limitations was not tolled under K.S.A. 1999 Supp. 79-3230(g).
All of the issues raised by KDR involve BOTA’s application or interpretation of a statute. The interpretation and application of a statute to undisputed facts is a question of law and appellate review is unlimited. In re Tax Appeal of Boeing Co., 261 Kan. 508, 514, 930 P.2d 1366 (1997); In re Burrell, 22 Kan. App. 2d 109, 112, 912 P.2d 187, rev. denied 260 Kan. 993 (1996). BOTA’s decisions should be given great credence and deference when it is acting in its area of expertise. But, if BOTA’s interpretation is erroneous as a matter of law, the court shall grant relief. K.S.A. 77-621(c)(4) and Boeing, 261 Kan. at 515. Similarly, BOTA owes deference to KDR’s decisions. Burrell, 22 Kan. App. 2d at 112.
The applicable portions of K.S.A. 1999 Supp. 79-3230 are as follows:
“(f) Any taxpayer whose income has been adjusted by the [IRS] is required to report such adjustments to [KDR] by mail within 180 days of the date the [IRS] adjustments are paid, agreed to or become final, whichever is earlier. Such adjustments shall be reported by filing an amended return for the applicable taxable year and a copy of the federal or state revenue agent’s report detailing such adjustments. . . .
“Notwithstanding the provisions of subsection (a) or (c) of this section, additional income taxes may be assessed and proceedings in court for collection of such taxes may be commenced and any refund or credit may be allowed by [KDR] within 180 days following receipt of any such report of adjustments by the [KDR]. No assessment shall be made nor any refund or credit shall be allowable under the provisions of this paragraph except to the extent the same is attributable to changes in the taxpayer’s income due to adjustments indicated by such report.
“(g) In the event of failure to comply with the provisions of this section, the statute of limitations shall be tolled.”
KDR’s first point on appeal is that BOTA improperly raised and ruled on the statute of limitations issue on its own motion.
During KDR’s arguments, a BOTA member stated she interpreted K.S.A. 1999 Supp. 79-3230(a) to mean KDR’s assessment of state income taxes based on the RAR must be done within 180 days from KDR’s receipt of that RAR. KDR argued such an interpretation was not presented by Trickett and BOTA lacked authority to raise it. In its order granting limited reconsideration, BOTA found it was not prohibited by statute or case law from raising its own issues at a hearing; thus, BOTA could raise and decide issues on its own.
KDR challenges BOTA’s statutory authority to raise issues on its own initiative. Contrary to BOTA’s holding, its authority is determined by express statutory language, not statutoiy silence. As a state agency, BOTA’s powers are limited to those the legislature expressly grants to it by statute. Any exercise of authority claimed by BOTA must come from within the statutes. BOTA cannot exercise general or common-law power. Sage v. Williams, 23 Kan App. 2d 624, 628-29, 933 P.2d 775, rev. denied 262 Kan. 962 (1997).
KDR further argues K.S.A. 1999 Supp. 79-3230(f) is a statute of limitations, and a defense based upon a statute of limitations is an affirmative defense which a party must assert, not a court. As such, the issue becomes, does a statute allow BOTA to raise a statute of limitations defense?
Under K.S.A. 1999 Supp. 74-2438, BOTA must conduct a hearing according to the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq. That act provides all parties must be given the opportunity to respond, present evidence and argument, unless restricted by the prehearing order. K.S.A. 77-523(b). Further, the Administrative Procedure Act states it “creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.” K.S.A. 77-503(b).
Under the Kansas Code of Civil Procedure, a party must affirmatively plead a defense based upon statute of limitations. K.S.A. 1999 Supp. 60-208(c). Although a court may raise jurisdiction issues on its own motion, the affirmative defense of statute of limitations must be raised by a party. Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985).
When BOTA conducts a hearing under K.S.A. 1999 Supp. 74-2438, it is performing a quasi-judicial function. Quasi-judicial is defined as an action by an administrative agency which is required to ascertain certain facts, hold hearings, weigh evidence, make con elusions from the facts as a basis for their official action, and exercises discretion of a judicial nature. Brown v. U.S.D. No. 333, 261 Kan. 134, 149, 928 P.2d 57 (1996). When performing a judicial function such as holding a contested hearing, BOTA is analogous to a district court, and Frontier Ditch Co. controls.
We conclude BOTA does not have statutory authority to raise an affirmative defense on its own.
Next, KDR argues that BOTA exceeded its authority during the de novo hearing, claiming K.S.A. 1999 Supp. 74-2438 does not allow a new hearing on issues not raised previously.
Under K.S.A. 1999 Supp. 74-2438, a hearing before BOTA “shall be a de novo hearing unless the parties agree to submit the case on the record made before the secretary of revenue or the secretary’s designee.” A de novo review may mean a complete retrial with new evidence, or a trial upon the record made before the lower tribunal to review questions of fact and question of law. Nurge v. University of Kansas Med. Center, 234 Kan. 309, 316-17, 674 P.2d 459 (1983). This argument is not pertinent to the issue.
Under either scope of de novo review, the question is BOTA’s authority to raise its own issues. Assuming for the sake of argument that BOTA’s de novo review encompassed a complete retrial with new evidence, it would not resolve the issue of whether BOTA can raise issues on its own motion. This court need not determine which scope of de novo review applies. Appellate courts do not give advisory opinions or declare principles which cannot affect the matters in issue before the court. In re Adoption of A.P., 26 Kan. App. 2d 210, 220, 982 P.2d 985 (1999).
KDR next contends BOTA improperly placed the burden of proof upon KDR to prove its interpretation of K.S.A. 1999 Supp. 79-3230(1) was correct because Trickett did not challenge it. K.S.A. 77-621(a)(l) provides that the party who asserts the invalidity of an agency action bears the burden of proof. This statute is under the Act for Judicial Review and Civil Enforcement of Agency Actions. As noted above, under K.S.A. 1999 Supp. 74-2438, BOTA hearings are conducted according to the Kansas Administrative Procedure Act. The Act does not establish which party carries the burden of proof. Nevertheless, case law does so provide.
An interpretation of a statute by an agency charged with the responsibility of enforcing that statute is entitled to great judicial deference. The party challenging the validity of the agency’s action has the burden of proving the invalidity of the action. In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996).
After BOTA raised the statute of limitations issue at the hearing, and KDR explained its interpretation, Trickett did not argue how K.S.A. 1999 Supp. 79-3230 should be interpreted. At the hearing on reconsideration after KDR gave further explanation for its interpretation, Trickett argued again the RAR was not final, and, under K.S.A. 1999 Supp. 79-3230(f), that KDR’s actions were untimely and tolled by the 180-day provision. Trickett’s interpretation is inconsistent.
If Trickett’s contention that the RAR was not final was correct, then KDR’s time to assess the taxes had not begun to run, and KDR’s assessment was premature, not late. KDR is not yet tolled from assessing the taxes — contrary to Trickett’s interpretation. Trickett’s allegation did not demonstrate KDR’s interpretation was incorrect. Arguably, BOTA did not give appropriate deference to KDR’s interpretation as noted in the standard of review above.
The next question is whether the RAR was final when KDR made its assessments on Trickett for 1988 and 1989.
At the hearing, a BOTA member requested KDR to provide proof that the RAR was a final determination because Trickett testified he was disputing the IRS adjustment. KDR responded it was Trickett’s burden of proof to show the RAR was still being disputed.
BOTA’s initial order stated this issue did not have to be decided because under its interpretation of K.S.A. 1999 Supp. 79-3230(f), KDR did not timely assess the taxes. But, a concurring opinion stated that KDR did not present sufficient evidence to support its assessments because the RAR had been destroyed. However, when the order for reconsideration was filed, BOTA found KDR had not proven the IRS adjustment was final. Consequently, Trickett was not required under K.S.A. 1999 Supp. 79-3230(f) to file an amended return. As such, Trickett had complied and subsection (g) was not applicable.
KDR argues (1) it does not have the burden of proof to show the RAR was final, rather, Trickett had the burden of proof to show it was not final, and (2) Trickett did not carry his burden of proof. Because Trickett challenged KDR’s action to assess taxes, he bears the burden of proof to show the invalidity of its action or that the RAR was not a final determination. BOTA erred by placing the burden of proof on KDR to prove the RAR was final. However, we need not remand to BOTA for a determination of whether Trickett carried his burden of proof.
As a matter of law, this court reviews the evidence presented to BOTA to decide if Trickett carried his burden of proof. BOTA did not mislead Trickett into believing he did not carry the burden of proof when he had the opportunity to present evidence regarding the finality of the RAR. BOTA’s remarks occurred during KDR’s closing argument. Trickett’s response was that he had met his burden of proof by providing evidence from the IRS which showed he had filed his federal income tax returns and the federal statute of limitations had expired when the RAR was completed. Trickett did not believe he had to provide additional documents.
The failing of Trickett’s argument is that BOTA could, and did, find that even though the federal statute of limitations had expired when the RAR was completed, Kansas could still utilize the RAR to assess Kansas income taxes. As such, Trickett still had the burden of proof to show the RAR was not final. The only proof Trickett provided was his assertion that the RAR was disputed. If an appeal was pending in the federal system regarding the RAR’s assessment, documentation would have easily been available to carry Trickett’s burden of proof.
Before us, Trickett’s arguments are similar to those raised before BOTA. Trickett does not consider the RAR final because of his own beliefs regarding the IRS and the United States Tax Court. The finality he argues has nothing to do with a timely and appropriate appeal being filed in the federal system to contest the RAR. Trickett did not carry his burden of proof to show the RAR was not final.
Finally, KDR contends BOTA misinterpreted and misapplied K.S.A. 1999 Supp. 79-3230(f) and (g).
The fundamental rule of statutory construction is that the intent of the legislature governs. A plain and unambiguous statute must be given effect to the expressed statutory language, rather than determining what the law should or should not be. The entire act is considered, and the court has a duty, as far as practicable, to reconcile the different provisions to make them consistent, harmonious, and sensible. In re Tax Appeal of Boeing, 261 Kan. at 515.
KDR argues the interpretation of this statute in In re Morgan, 209 Bankr. 531 (Bankr. D. Kan. 1997), motion to alter order denied 211 Bankr. 56 (Bankr. D. Kan. 1997), is correct.
At issue is the second paragraph of subsection (f) in K.S.A. 1999 Supp. 79-3230, which BOTA determined meant KDR must assess taxes within 180 days of its receipt of the RAR; if not, KDR was barred from doing so later whether or not the taxpayer filed an amended return and RAR. Morgan rejected this interpretation.
In Morgan, KDR assessed taxes about 1 year after it received the RAR from the IRS for the Morgan’s income and after the Morgans filed bankruptcy. The Morgan court concluded the Morgans breached their duty to file amended returns under the first paragraph of subsection (f). Thus, the second paragraph of that subsection, which provided KDR may assess additional taxes within 180 days when taxpayers file an amended return and RAR, had not been triggered. Rather, subsection (g) had been triggered because the Morgans did not file an amended tax return and RAR. Subsection (g) tolls the statute of limitations when a taxpayer does not comply with the provisions of the statute. 209 Bankr. at 532. The Morgan court stated such an interpretation is consistent with the Kansas tax system which is based on taxpayer self-assessment. Under such a system, the taxpayer has the burden to initiate the assessment process. 209 Bankr. at 533.
Although not expressly stated in Morgan, the court concluded the phrase found in the second paragraph of subsection (f), “within 180 days following receipt of any such report of adjustments by [KDR],” refers to the taxpayer’s report, i.e., the amended income tax return and a copy of the RAR as required in the first paragraph of subsection (f). The Morgan court rejected the interpretation of that phrase as referring to IRS’s report when it sends the RAR. 209 Bankr. at 532-33.
Morgan’s interpretation is consistent with the legislative intent for taxpayer self-assessment. The legislature clearly contemplated instances when the taxpayer would not file an amended return and RAR. A taxpayer who fails to comply under subsection (f) should not reap greater rewards than a taxpayer who fails to comply under subsections (a) and (c).
In rejecting the Morgan case, BOTA stated:
“The statute does not indicate that the 180 day rule only applies if a taxpayer files an amended return. The statute provides that [KDR] may make any adjustments within 180 days after receiving a RAR. It appears that [KDR], if it intends to make any adjustments, must do so within 180 days of receiving the RAR.”
Under BOTA’s interpretation, subsection (g) would have no effect on subsection (f). If the taxpayer does not file an amended return within 180 days under subsection (f), nothing is tolled because KDR must assess taxes within 180 days as well. A presumption exists that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Roger Assoc., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
When the entirety of the statute is read together, as must be under our standard of review, the tolling of the statute of limitations in subsection (g) additionally applies to the taxpayer’s duty to file an amended return and RAR in subsection (f). If so, the statute’s effect carries out the Kansas system of taxpayer self-assessments as recognized in Morgan.
BOTA’s interpretation ignores the Kansas tax system. According to BOTA, “[i]f the Board were to accept [KDR’s] assertions, [KDR] could wait years, as it did in this application, to assess additional taxes. The Board can find no statutory justification to allow [KDR] to assess taxes years after it has received the RAR.” And, “[i]t is unlikely that the Legislature intended to afford [KDR] an opportunity to do nothing although [KDR] had the necessary information to act.”
Additionally, BOTA found KDR had not presented sufficient evidence to carry its burden regarding tolling the statute under subsection (g) as required under Slayden v. Sixta, 250 Kan. 23, Syl. ¶ 1, 825 P.2d 119 (1992). To support this finding, BOTA referred to KDR’s destruction of its copy of the RAR and its finding that the RAR was not final. The RAR is not evidence which supports the tolling of the statute of limitations; the filing of an amended tax return and RAR, or lack thereof, is evidence to support tolling the statute of limitations. KDR presented evidence that Trickett’s amended return was not filed with KDR. Further, Trickett’s defense that he did not have to file an amended return because the RAR was not final is tantamount to an admission that the amended return was not filed. BOTA incorrectly applied the facts to subsection (g).
Finally, we conclude BOTA’s interpretation of K.S.A. 1999 Supp. 79-3230(f) and (g) is incorrect, and the. interpretation announced in Morgan is applicable to the facts of this case.
The decision of the Kansas Board of Tax Appeals is reversed. The ruling of the Secretary of the Kansas Department of Revenue finding Trickett’s tax assessments for 1988 and 1989 were timely is ordered reinstated.
|
[
-48,
-29,
-4,
94,
44,
-32,
58,
42,
99,
-105,
35,
91,
-17,
-126,
5,
59,
-45,
61,
85,
106,
-57,
-73,
119,
-120,
102,
-69,
-39,
-33,
61,
94,
100,
20,
8,
48,
-86,
-11,
102,
-62,
13,
88,
-82,
6,
-118,
-36,
-39,
0,
58,
111,
-94,
11,
49,
-84,
-2,
42,
28,
-63,
-56,
62,
25,
-113,
65,
-15,
-14,
21,
126,
-107,
-95,
21,
56,
5,
80,
-65,
-98,
57,
-64,
-20,
123,
38,
-110,
116,
15,
-119,
5,
106,
98,
33,
53,
-27,
-68,
40,
6,
91,
-97,
-25,
-110,
88,
99,
109,
-106,
-99,
127,
22,
65,
-4,
-28,
68,
-99,
44,
-122,
-50,
-64,
-109,
15,
69,
2,
11,
-1,
5,
48,
113,
-113,
-29,
92,
71,
50,
-101,
-110,
-76
] |
Pierron, J.:
After failing a blood-alcohol test on June 18,1998, Jeffrey Gee was charged in municipal court with driving under the influence of alcohol (DUI) pursuant to a city ordinance mirroring K.S.A. 1999 Supp. 8-1567. While the municipal charge was pending, the Kansas Department of Revenue (KDR) suspended Gee’s driver’s license for 1 year following an administrative hearing. The KDR suspended Gee’s license because of the June 18 failure of the blood-alcohol test.
On January 21, 1999, while the municipal charge was still pending, Gee was arrested and charged in district court with DUI, driving while suspended (DWS), failure to maintain a single lane of traffic, and making an improper right turn.
Gee subsequently entered pleas of no contest in the district court to both DUI charges and the DWS charge. He was sentenced in both cases on June 21, 1999. On the DWS charge, Gee was sentenced to 90 days’ imprisonment.
At sentencing, the parties argued whether K.S.A. 1999 Supp. 8-262(a)(4) required a mandatory 90-day imprisonment under the particular circumstances. After hearing argument on both sides and reviewing the statutory language, the district court determined that 8-262(a)(4) did mandate 90 days’ imprisonment in the present case and so sentenced Gee.
The central issue of this appeal is whether an administrative driver’s license suspension pursuant to K.S.A. 1999 Supp. 8-1014 constitutes a suspension for a violation of 8-1567 for sentencing purposes under 8-262(a)(4.
This issue is one of statutory interpretation, a question of law, and appellate review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
The starting point for analysis is with K.S.A. 1999 Supp. 8-262(a)(4):
“If a person (A) is convicted of a violation of this section, committed while the person’s privilege to drive was suspended or revoked for a violation of K.S.A. 8-1567, and amendments thereto, or any ordinance of any city or a law of another state, which ordinance or law prohibits the acts prohibited by that statute, and (B) is or has been also convicted of a violation of K.S.A. 8-1567, and amendments thereto, or of a municipal ordinance or law of another state, which ordinance or law prohibits tire acts prohibited by that statute, committed while the person’s privilege to drive was so suspended or revoked, the person shall not be eligible for suspension of sentence, probation or parole until the person has served at least 90 days’ imprisonment, and any fine imposed on such person shall be in addition to such a term of imprisonment.”
We note that the DUIs occurred in June 1998 and January 1999, and 8-262 was amended in 1999, but the changes are not relevant to the issue here.
Where criminal statutes are concerned, the rule of strict construction applies, and any ambiguities must be resolved in favor of the accused. State v. Kelly, 14 Kan. App. 2d 182, 186, 786 P.2d 623 (1990). K.S.A. 1999 Supp. 8-262 is a criminal statute, and it must be strictly construed against the State. State v. Evans, 10 Kan. App. 2d 171, 173, 694 P.2d 912 (1985).
Breaking down the statute, the following elements are required to trigger the mandatory 90-day sentence: (1) a driver’s license suspension resulting from a violation of 8-1567; (2) a conviction for driving while the driver’s license is so suspended; (3) a conviction for violating 8-1567 (DUI) during the suspension period.
The State argues that an administrative suspension for failure of a blood alcohol test is a violation of 8-1567 for purposes of 8- 262(a)(4). The State’s argument is twofold. First, while Gee’s license was administratively suspended pursuant to 8-1014 prior to his conviction for violating 8-1567, the State argues that the administrative suspension would not have taken place but for Gee’s violation of 8-1567. Second, the State takes the position that 8-262(a)(4) does not require that a person first be convicted of the violation of 8-1567, for which the license was originally suspended, to trigger the 90-day mandatory sentence.
The first prong of the State’s argument is that the administrative suspension is simply the mechanism by which a person’s license is suspended for violating 8-1567. The second prong of the State’s argument hinges on the use in 8-262(a)(4) of the word “violation” rather than “conviction” of 8-1567 in defining the elements triggering the 90-day mandatory sentence. As the State correctly points out, the statute does not say that the suspension must be due to a conviction of 8-1567, only a violation of the statute. It is the State’s position that the term “violation” does not equate to conviction.
Gee, on the other hand, argues that his license was not suspended for a violation of 8-1567, but was suspended as a result of administrative proceedings for a breath test failure pursuant to K.S.A. 8-1001 et seq. Gee argues that such administrative suspensions do not trigger the 90-day mandatory sentence of 8-262(a)(4). He contends that the statute clearly and unambiguously requires a suspension caused by a violation of 8-1567 and an administrative suspension for a breath test failure is not the same as a suspension for a violation of 8-1567. Gee correctly points out that there are considerable legal and procedural differences between a criminal prosecution under 8-1567 and an administrative suspension hearing. Significantly, he points out that an administrative hearing does not result in an acquittal or conviction.
K.S.A. 1999 Supp. 8-262(a)(4) specifically states that to trigger the 90-day mandatory sentence, the suspension must have been “for a violation of K.S.A. 8-1567, and amendments thereto, or any ordinance of any city or a law of another state, which ordinance or law prohibits the acts prohibited by that statute.” It makes no reference to other statutory provisions or other types of license suspensions.
Under the K.S.A. 1999 Supp. 8-1567 provisions, it is unlawful for a person to operate a motor vehicle with an alcohol concentration of .08 or more grams of alcohol per 210 liters of breath or per 100 milliliters of blood. The penalties for violating the statute are contained within it. Among these is subsection (1), which states:
“Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person’s driving privileges as provided by K.S.A. 8-1014 and amendments thereto.” K.S.A. 1999 Supp. 8-1567(1).
K.S.A. 1999 Supp. 8-1567 does not provide for the suspension of driving privileges prior to conviction. There is no reference to administrative proceedings prior to conviction.
The starting point for examining the administrative proceedings is K.S.A. 1999 Supp. 8-1001, the “Implied Consent” law. Under subsection (f) of this statute, if a person operating a motor vehicle submits to a breath test and “the test results show a blood or breath alcohol concentration of .08 or greater, the person’s driving privileges shall be subject to suspension, or suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.” K.S.A. 1999 Supp. 8-1001(f).
The next step in the analysis is K.S.A. 1999 Supp. 8-1002, which outlines the administrative procedure for a driver’s license suspension following a BAC test refusal or failure. K.S.A. 1999 Supp. 8-1002(c) states that when a person has either refused or failed such a test, the administering officer “shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto.” K.S.A. 1999 Supp. 8-1014 details the time period of a driver’s license suspension depending on whether it results from a BAC test refusal, test failure, or conviction of an alcohol- or drug-related crime. K.S.A. 1999 Supp. 8-1014(e) states that if a person is subject to suspension for a test refusal, a test failure, or an alcohol- or drug-related conviction arising from the same arrest, the suspension period shall not exceed the longest applicable period authorized by subsection (a), (b), or (c).
Upon receiving notice of a suspension pursuant to 8-1002, a person has the option to challenge the suspension in an adminis trative hearing. While many of the issues are the same, the administrative hearing is significantly different from a criminal DUI prosecution. As the Kansas Supreme Court has noted, many of the formalities required in a criminal prosecution are not required in an administrative hearing, the burden of proof is different, and a judgment of acquittal or conviction is not entered in an administrative hearing. State v. Mertz, 258 Kan. 745, 750, 907 P.2d 847 (1995).
A logical, step-by-step analysis of this statutory framework reveals an initial flaw in the State’s reasoning. The State argues that Gee’s administrative suspension would not have occurred but for his violation of 8-1567. However, under the statutory scheme, it is not the violation of 8-1567 that gives rise to the administrative suspension, but rather it is a BAC test failure or refusal that gives rise to both an alleged 8-1567 violation and an administrative suspension. Podrebarac v. Kansas Dept. of Revenue, 15 Kan. App. 2d 383, 386, 807 P.2d 1327 (1991). The BAC test failure is the starting point for a parallel set of procedures, one criminal and one civil, that are independent of one another.
Both the criminal and statutory schemes define, independently, what constitutes a test failure. While both define a failure as a BAC of .08 or greater, one statutory scheme does not stem from the other. Moreover, there is a significant difference in how the criminal and civil actions are triggered. To be charged under 8-1567, the test failure must occur within 2 hours of operating or attempting to operate a vehicle. K.S.A. 1999 Supp. 8-1567(a)(2). To trigger an administrative suspension under 8-1001 et seq., there is no 2-hour limit. The only limitation is that the officer administering the test must have “reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence.” K.S.A. 1999 Supp. 8-1001(b).
In Podrebarac, the court recognized that “[t]he use of the term ‘reasonable grounds’ . . . indicates the legislature’s intent to allow administrative suspensions for driving while intoxicated on less strict standards of proof than a criminal conviction.” 15 Kan. App. 2d at 386. Thus, it is possible for a BAC test failure to trigger an administrative suspension but not trigger a charge of violating 8- 1567 (e.g., if the test failure occurred 2Vz hours after the person operated a vehicle). Therefore, one' cannot categorically say that administrative suspensions for a BAC test failure would not occur but for a violation of 8-1567.
It is also significant that K.S.A. 1999 Supp. 8-1014(e) distinguishes among a test refusal, a test failure, and an alcohol- or drug-related conviction. It does not treat them interchangeably. One does not necessarily lead to another, and a person’s driver’s license can be suspended for any of the three.
Looking again at the language of K.S.A. 1999 Supp. 8-262(a)(4), it specifically states that for the 90-day mandatory sentence to be triggered, the original license suspension must have been for a violation of 8-1567. This raises two questions: (1) what constitutes a violation of 8-1567, and (2) how does a person’s license get suspended for such a violation?
The answer to the first question really hinges on whether the term “violation” equates to conviction. The State contends that it does not. The State points to the fact that 8-262(a)(4) uses the phrase “convicted of a violation” in two places, but in the part referring to the initial suspension, it uses only the phrase “violation of K.S.A. 8-1567.” The State contends that the legislature purposely used the word violation in order to include administrative suspensions. However, the language is simply not that clear. The legislature could have included language specifically referring to administrative suspensions, but did not. The language chosen by the legislature is ambiguous.
The answer to the second question may shed some light on the first question. When analyzing the statutory scheme, it is apparent that there is only one way for a driver’s license to be suspended for a violation of K.S.A. 1999 Supp. 8-1567. That way is pursuant to 8-1567(1), which states that a person’s driving privileges shall be suspended, restricted, or both as provided by 8-1014, upon conviction of a violation of 8-1567. Thus, “violation of K.S.A. 8-1567” as used in K.S.A. 8-262(a)(4), can only mean conviction because that is the only way a person’s license can be suspended under 8-1567.
Gee’s driver’s license was suspended pursuant to the administrative scheme of 8-1001, 8-1002, and 8-1014, not pursuant to the criminal framework of 8-1567. Because he had not been convicted of violating 8-1567 at the time of his second DUI arrest, his license suspension at that time cannot be considered to have been “for a violation of K.S.A. 8-1567,” triggering the 90-day mandatory sentence under 8-262(a)(4). The phrase “violation of K.S.A. 8-1567,” as used in the statute, is not sufficiently clear and unambiguous to lead one to the conclusion that the legislature intended to include administrative suspensions. Reasonable minds can come to different conclusions, and because this is a criminal statute, it must be strictly construed against the State. Evans, 10 Kan. App. 2d at 173.
If the legislature wishes to extend this provision to administrative proceedings, it may do so, but it has not.
We therefore vacate the sentence for driving while suspended and remand for resentencing.
Vacated and remanded for resentencing.
|
[
-112,
-54,
-35,
-34,
47,
-63,
3,
20,
81,
-33,
-26,
83,
-25,
-54,
5,
121,
-71,
125,
116,
105,
-59,
-74,
103,
-127,
-10,
-5,
-118,
86,
-77,
79,
-4,
-12,
14,
-80,
11,
-107,
70,
-55,
-75,
-40,
-114,
-126,
-119,
-16,
80,
-101,
36,
106,
83,
14,
49,
15,
-16,
62,
58,
-101,
-87,
100,
91,
-127,
-55,
-16,
-39,
21,
122,
84,
-94,
84,
28,
13,
80,
-73,
-102,
59,
56,
-24,
115,
-106,
-62,
-12,
109,
-103,
-92,
38,
98,
-95,
17,
-57,
-20,
-84,
-116,
82,
-115,
-125,
-103,
89,
107,
-113,
-106,
-3,
126,
54,
44,
-4,
111,
84,
83,
120,
3,
-49,
-80,
-111,
79,
-79,
-62,
-39,
-17,
101,
48,
65,
-57,
-10,
94,
-121,
115,
27,
-37,
-108
] |
Lewis, J.:
Plaintiff Dale E. Ferguson and defendant Debra J. Winston (Lindsay) were once husband and wife. They were divorced in 1988. They lived together for a period of 2 or 3 years prior to their marriage. While they were living together but before they were married, a child was conceived and born on May 16, 1980. The child, now an adult, was named Michael. For many years, it seemed without dispute that Michael was the child of Dale and Debra. However, at the time of the parties’ divorce, Debra declared that Michael was not Dale’s child but was the child of defendant Lynn Felts. Dale filed this paternity action pursuant to the Kansas Parentage Act, K.S.A. 38-1110 et seq. The trial court ordered a blood test without holding a Ross hearing and determined on the basis of the blood test alone that Dale was not the biological father of Michael. The trial court then dismissed Dale’s petition, which leaves Michael’s paternal parentage unknown. Dale appeals.
We reverse and remand.
The facts which underlie this action give it a somewhat bizarre tilt and certainly create questions as to the relevance of the entire proceedings. To begin with, there is an obvious question as to just why this is being litigated. Michael became an adult during the litigation, and it is apparent there were and are no issues of child custody or child support being litigated. The relevance, in a legal sense, of who is Michael’s biological father is questionable. We question the advocacy of determining the parent of a child who becomes an adult during the course of the litigation, who is not a party of the action, and who is not represented by a guardian ad litem. In this case, decisions were made concerning Michael’s parentage without Michael, an adult, having been given an opportunity to be heard on the subject.
We are unable to answer all of the questions which arise. However, from a procedural and a legal point of view, we conclude the trial court erred in several respects, and its decision must be reversed.
The trial court summarily determined that Dale was not Michael’s biological father and dismissed the action solely on the basis of the DNA evidence. This was erroneous for a number of reasons.
First, the DNA test, relied on by the trial court, was ordered without holding a Ross hearing as required by the Supreme Court in In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1989). In Ross, the facts are similar in many respects to those in this action. The trial court in Ross ordered that the parties submit to blood tests and determined paternity on the basis of those tests without determining whether it was in the child’s best interests to determine his parentage. The Supreme Court reversed the trial court’s decision and said:
“Under the facts of this case, the district judge abused his discretion. The mere filing of a paternity action does not automatically imply that the action is in tire child’s best interests. A court must reach this conclusion independently based on die facts in the record. McDaniels v. Carlson, 108 Wash. 2d at 313. We realize, of course, diat Charles’ paternity has been determined and cannot be undone; however, our decision in this case will have meaningful application to similar cases in the future.
“The district court’s order requiring die parties to submit to blood tests is reversed. The district court’s determination that Charles is the biological fadier of R.A.R. is also reversed. While we realize that blood tests have already been performed in this case, the court shall not consider the result of the tests until such consideration is determined to be in R.A.R.’s best interests.” 245 Kan. at 602.
We cannot distinguish this case from Ross. A Ross hearing must be held prior to ordering the blood tests to determine if the presumed father is the biological father.
“Prior to ordering a blood test to determine whether the presumed parent is tire biological parent, the district court must consider the best interests of the child, including physical, mental, and emotional needs. The shifting of paternity from the presumed father to the biological father could easily be detrimental to die emotional and physical well-being of any child.” In re Marriage of Ross, 245 Kan. 591, Syl. ¶ 5.
“The mere filing of a paternity action does not automatically imply diat die action is in the child’s best interests. A court must reach this conclusion independently based on die facts in die record.” In re Marriage of Ross, 245 Kan. 591, Syl. ¶ 6.
Dale is Michael’s presumed father for a number of reasons:
(1) Dale and Debra were living together when Michael was conceived and born, and after the child’s birth, they were married. See K.S.A. 1998 Supp. 38-1114(3).
(2) Dale has acknowledged paternity in writing on several occasions. For instance, Dale procured an order nunc pro tunc in the parties’ divorce action, finding him to be Michael’s father. This order was later set aside, but that action does not eliminate the fact that the filing of the motion for the order nunc pro tunc was a written acknowledgement of paternity.
(3) The filing of the current action is a written acknowledgment of paternity.
(4) Michael’s social security card shows that Dale is his father.
(5) Michael’s enrollment into kindergarten shows Dale as his father.
(6) In 1998, Dale procured a journal entry, signed by Judge Larry McClain, stating that Dale was Michael’s father. This journal entry was later set aside as void, but the proceedings leading up to it are certainly an acknowledgement by Dale of his paternity of Michael.
(7) Michael was named after Dale and, for a period of 14 years, Debra recognized Dale as Michael’s father.
(8) For at least 1 year, Dale made payments of $150 per month as child support for Michael.
We hold that under the circumstances, Dale was the presumed father of Michael and that it was error for the trial court to consider DNA evidence obtained without the benefit of a Ross hearing. As a result, and consistent with the decision in Ross, we reverse the trial court’s order requiring the parties to submit to blood tests. We reverse the trial court’s determination that Dale is not Michael’s biological father. That determination was made on the basis of a DNA test conducted in the absence of a Ross hearing. Under Ross, the trial court erred in the consideration of that evidence. On remand, a Ross hearing must be held prior to the consideration of any DNA tests on the question of parentage.
In addition, even had there been a Ross test, the trial court treated the DNA evidence as conclusive on the issue of paternity. That was erroneous. While DNA evidence is very strong, we find no evidence to deem it conclusive. It is only one bit of evidence listed by the legislature under K.S.A. 1998 Supp. 38-1119. There are five other evidentiary items listed under that statute. At the veiy least, despite the DNA evidence, the trial court is required to consider the evidence offered by the plaintiff, which may be in contradiction of the DNA evidence before deciding the issue of paternity.
If DNA evidence is conclusive on the issue of paternity, we could simply do away with the judicial process in paternity cases. If the DNA test is conclusive, the paternity of children will be left for resolution by the scientists, and judges will become superfluous in that regard. We do not perceive the law to require or to recommend that result, and we hold the DNA evidence is not conclusive on the issue of paternity. On remand, if the trial court decides the DNA evidence is in Michael’s best interests, it must still consider any other evidence offered before making a final decision.
Finally, we are convinced that Michael’s constitutional due process rights were violated by the procedure followed in this case. We believe it to be clear that Michael’s rights to parentage are due process rights. The Fourteenth Amendment of the United States Constitution prohibits a state from depriving “any person of life, liberty, or property, without due process of law.” In a general sense, the term “due process” has come to mean that one cannot be deprived of an important property interest without notice and an opportunity to be heard. See, e.g., In re C.H.W., 26 Kan. App. 2d 413, 419, 988 P.2d 276 (1999).
It is inconceivable to us that a child would not have a due process right in the determination of his or her parentage. In In re Marriage of Ross, 13 Kan. App. 2d 402, 407, 772 P.2d 278, aff'd in part and rev'd in part 245 Kan. 591, 783 P.2d 331 (1989), we said (a comment not nullified by the Supreme Court’s reversal): “The child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his parentage, which justifies the decision of the trial court allowing and ordering the parentage determination to proceed.” The rights and interests of a child in his or her parentage are due process rights which cannot be terminated or affected without notice and an opportunity to be heard. We also note that the cases have been unanimous in concluding that a parent has a fundamental liberty interest in maintaining a familial relationship with a child. See In re J.L.D., 14 Kan. App. 2d 487, Syl. ¶ 1, 794 P.2d 319 (1990). By the same token, we hold that a child has that same fundamental interest in his or her parentage.
In this case, Michael’s due process rights were left unprotected. Dale purported to bring this action as Michael’s next friend. However, under the circumstances, it should have become immediately apparent that Michael’s due process rights would not be protected without his having independent counsel or, at the very least, a guardian ad litem. Michael had neither.
As we view the action, Michael was not a true party, and no guardian ad litem was appointed to represent him. Dale advises that he asked the court to appoint a guardian ad litem and that the court refused to do so. We find no such motion in the record.
K.S.A. 1998 Supp. 38-1125(b) provides that the court shall appoint a guardian ad litem if it finds that the interests of the child and the interests of the petitioner differ. No such inquiry was made by the court in this case. In the absence of such an inquiry and in the absence of a resolution of that question, it is error to proceed with the matter and to order DNA testing and to determine the parentage of a child where that child is not represented or even present in person. The failure of the trial court to make the determination required by 38-1125(b) requires that its orders in this case be reversed.
Michael is now an adult. It is beyond our conception that we would allow his parentage to be determined on remand without his being a party to this action. Accordingly, on remand, we order that Michael be joined as a party to this action before any further steps are taken in the process. In the event Michael is unable to financially obtain counsel, one should be appointed for him under K.S.A. 1998 Supp. 38-1125(c). Only when this is accomplished may the process begin anew on remand. We do not, by this order, mean to infer that a child must always have an independent attorney and must always be independently made a party to a parentage action. We do hold, however, that when that child is an adult, he or she must be made a party to the action and must be represented by counsel before his or her parentage is determined. In the event the child is not an adult, the trial court must consider the issues set out in 38-1125, and we strongly urge that in every such case a guardian ad litem be appointed.
We reverse and remand this matter for further proceedings consistent with this opinion. If necessary, the trial court must determine the issues raised by Dale's petition within the guidelines set forth in this opinion. By the same token, we encourage the parties to consider whether there is any value in continuing this litigation. We specifically suggest that the trial court and the parties to this action give special attention to the wishes of Michael, whose paternity is to be resolved in this action.
Reversed and remanded.
|
[
-80,
-20,
-19,
124,
24,
-27,
-86,
26,
83,
-117,
101,
-13,
-19,
-54,
20,
105,
-54,
109,
65,
121,
-61,
-73,
31,
-64,
-12,
-13,
-16,
83,
-77,
-53,
54,
-59,
88,
112,
-126,
-107,
66,
0,
-123,
20,
-122,
2,
-71,
-20,
81,
-126,
52,
-95,
78,
15,
53,
-98,
-78,
40,
61,
-61,
72,
46,
-101,
-68,
-112,
-16,
-55,
23,
-33,
18,
-77,
-108,
-80,
4,
88,
47,
-104,
-72,
32,
-20,
-78,
-106,
-122,
116,
78,
-99,
9,
99,
99,
36,
8,
-19,
-8,
-120,
47,
-85,
31,
-89,
-101,
105,
105,
79,
-66,
-67,
116,
84,
11,
120,
110,
12,
31,
-4,
2,
-81,
-62,
-103,
13,
28,
12,
19,
-9,
-91,
0,
113,
-41,
112,
92,
71,
56,
-37,
-124,
-66
] |
Elliott, J.:
Robert Hannigan, et al. (the State) appeal the trial court’s granting of Martin Muldrow’s K.S.A. 1999 Supp. 60-1501 petition, in which his conditional release date was reinstated as April 25, 1999.
We affirm as modified.
The facts are not materially disputed. Muldrow was serving sentences on six cases; his controlling sentence was 5 to 17 years, with a present sentence beginning date of September 17, 1989. He was paroled on July 1, 1998. Muldrow apparently tested positive for cocaine soon thereafter. The Kansas Parole Board officially revoked parole on August 25, 1998, and he was ordered to serve to his conditional release date of April 25, 1999.
In Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227, cert. denied 142 L. Ed. 2d 567 (1998), and Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998), our Supreme Court ruled the retrospective application of K.A.R. 44-6-124(g)(6) violated ex post facto principles. As a result, Muldrow’s good time credit was restored and his conditional release date was changed to March 17, 1998.
The Parole Board rescinded its August 1998 order and issued a new order revoking his conditional release, rather than his parole, and passed his case for reconsideration to May 1999. Muldrow complained he had never been granted conditional release and, therefore, it could not be revoked.
The Department of Corrections (DOC) policy underlying this action was set forth in a November 17, 1998, e-mail to the Hutchinson Correctional Facility:
“If the CR date with restored good time is subsequent to the inmates [sic] most recent Revocation [sic] hearing date, the inmate should be released. If however, tlie restoration Of [sic] good time moves die CR date to a date earlier than the most recent revocation Hearing [sic] date, the inmate becomes a CR violator rather than a parole violator and Should [sic] not be released.”
The trial court granted Muldrow’s habeas corpus petition, ruling Muldrow’s conditional release date was not abrogated by restoration of good time credit and holding he was entitled to conditional release as of April 25, 1999. This appeal follows.
The State first argues Muldrow’s petition should have been dismissed for failure to state a constitutional claim. See Ramirez v. State, 23 Kan. App. 2d 445, 448, 931 P.2d 1265, rev. denied 262 Kan. 962 (1997).
Good time credits already earned are a protected liberty interest because the State has vested a statutory right to those credits. Frazee v. Maschner, 12 Kan. App. 2d 525, 528, 750 P.2d 418, rev. denied 243 Kan. 778 (1988). And since the DOC is a state agency, its regulations fall within the coverage of ex post facto principles. See Stansbury, 265 Kan. at 413.
Muldrow’s petition alleged he was disadvantaged by the unlawful, retrospective application of state regulations; that presents a colorable constitutional claim. See Garner v. Nelson, 25 Kan. App. 2d 394, 397, 963 P.2d 1242 (1998).
The trial court did not err in refusing to summarily dismiss the petition.
The State also argues the trial court erred in concluding Muldrow’s original conditional release date was not abrogated. The State acknowledges, however, that when Muldrow’s parole was revoked, he was ordered to serve to his conditional release date under K.A.R. 45-9-3(a), which states:
“The board may require an inmate whose parole has been revoked to serve all or any part of the remaining time on the sentence up to die original conditional release date, plus all good time forfeited by the board. The board may require an inmate whose conditional release has been revoked to serve all or any part of die remaining time on the sentence.” (Emphasis added.)
The State argues parolees and conditional releases are subject to the same supervision and method for revocation. While this may be true, the parties acknowledged at oral argument that the punishment for a parole violation versus a conditional release violation is not the same.
Further, the State’s reliance on Adams v. Kansas Tarole Board, 24 Kan. App. 2d 388, 947 P.2d 448, rev. denied 263 Kan. 885 (1997), is misplaced. Adams is factually distinguishable in many respects — most important is the fact that Adams’ conditional release date remained constant. Here, Muldrow’s conditional release date was moved subsequent to his parole revocation to a date prior to his release on parole. Muldrow’s situation is factually and legally unique.
At the time of his parole, Muldrow signed a certificate stating he was being released on parole and the conditions of parole would continue if and when he reached his conditional release date. He was entitled to rely on K.A.R. 45-9-3(a), providing that a parole violation would subject him only to further incarceration up to the original conditional release date, plus all good time forfeited. On the other hand, conditional release is not discretionary; it is required by law. Beck v. Kansas Adult Authority, 241 Kan. 13, 29, 735 P.2d 222 (1987).
In the present case, the Parole Board rescinded the parole revocation and converted it to a conditional release revocation, authorizing the Parole Board to order Muldrow to serve all or any part of the time remaining on his indeterminate sentences up to March 28, 2006. Muldrow was clearly disadvantaged by the Parole Board’s actions.
While Muldrow played an active role in his return to prison, he did not cause the problem solely by his own misconduct, as argued by the State. The “problem” arose due to the unlawful withholding of good time credits as set forth in Stansbury, depriving Muldrow of what should have been his correct conditional release date. The disadvantage to Muldrow was created by the retrospective application of the regulation at issue in Stansbury.
After Stansbury, the State restored Muldrow’s good time credit, and his conditional release date was changed to March 17, 1998. The trial court should have reinstated Muldrow’s conditional release date to March 17, 1998, instead of April 25, 1999. By hindsight, since Muldrow’s conditional release date was never properly revoked, he should have been conditionally released on March 17, 1998.
The trial court’s interpretation of the law was correct, up to a point. The judgment is affirmed as modified. On remand, the trial court shall show the conditional release date is March 17, 1998.
|
[
16,
-55,
-35,
94,
11,
-31,
31,
-68,
99,
-33,
38,
81,
-91,
-22,
21,
121,
-50,
103,
125,
113,
-51,
-73,
103,
1,
102,
-13,
-55,
-41,
-5,
76,
110,
84,
28,
112,
-126,
113,
-26,
-56,
-127,
28,
-114,
7,
-71,
-19,
-45,
8,
48,
43,
-104,
-113,
33,
-98,
-86,
47,
26,
78,
104,
41,
11,
47,
88,
-15,
-69,
13,
-17,
20,
-125,
20,
-76,
7,
112,
47,
-100,
56,
17,
-24,
114,
22,
-58,
-12,
5,
-55,
-92,
100,
98,
-127,
92,
-1,
-68,
-116,
62,
18,
-115,
-90,
-39,
89,
105,
100,
-106,
-36,
102,
20,
47,
124,
103,
-124,
29,
-84,
0,
-34,
-80,
-109,
77,
60,
-114,
-117,
-21,
49,
-80,
32,
-121,
-26,
92,
118,
120,
27,
-102,
-42
] |
Buchele, S.J.:
This appeal arises out of a district court decision denying a motion to transfer a Kansas child support order to the home state of the child support obligee. This issue involves subject matter jurisdiction, which is a question of law over which we have unlimited review. State v. Patterson, 25 Kan. App. 245, 247, 963 P.2d 436, rev. denied, 265 Kan. 888 (1998).
Lisa and Terry L. Abplanalp were divorced in 1996 in Pratt County, Kansas. Lisa was given primary residential custody of their children, and the final journal entry included an order for Terry to pay child support. With Terry’s consent, Lisa and the children moved to Nebraska in December 1995 and have resided there since that time. In November 1998, Terry moved to Oklahoma and has resided there since that time. Terry has paid all of the child support ordered by the court.
In April 1999, Terry filed a motion in the Pratt District Court to modify his child support obligation to reflect a decrease in his pay. Prior to the hearing, Lisa filed a motion to continue the hearing and also moved the Kansas court for an order to register the child support order with the district court of Kimball County, Nebraska, pursuant to the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq. After a hearing, the Kansas court denied Lisa’s motions and granted Terry’s motion to decrease the child support amount. A timely appeal was filed.
This case calls for an interpretation of certain provisions of UIFSA. Specifically, does Kansas as the issuing state have continuing exclusive jurisdiction to modify the child support provision of its divorce decree once both parents and all their minor children have left the state? We conclude it does not, without written consent of all parties.
K.S.A. 1999 Supp. 23-9,205(a)(1) and (2) provide:
“A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:
(1) As long as this state remains the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued; or
(2) until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.” (Emphasis added.)
Since written consents have not been filed by all parties to hear the motion for modification in Kansas, the Kansas court no longer maintains continuing, exclusive jurisdiction. “The term‘continuing, exclusive jurisdiction’ is used in [UIFSA] to indicate that only one tribunal has jurisdiction to modify a child support order at a time.” Linn v. Child Support Enforcement, 736 A.2d 954, 959 (Del. Supr. 1999) (citing Gentzel v. Williams, 25 Kan. App. 2d 552, 965 P.2d 855 [1998]).
In Gentzel, this court held that once the issuing state has lost continuing, exclusive jurisdiction, the obligee may seek modification of the child support order in the obligor’s state of residence or the obligor may seek a modification in the obligee’s state of residence. 25 Kan. App. at 588; K.S.A. 1999 Supp. 23-9,611(a)(1).
The purpose of UIFSA is to prevent a party from obtaining a local advantage by requiring that the moving party must be a nonresident of the state where the motion is filed. Also, the state where the action is brought must have personal jurisdiction over the non-moving party. Once Kansas has lost continuing, exclusive jurisdiction and a motion to modify child support is filed, upon proper motion, the order for child support should be forwarded to an appropriate tribunal, e.g. to a state: (1) where the movant is a nonresident and (2) that has jurisdiction over the nonmoving party. K.S.A. 1999 Supp. 23-9,301(c). If the parties and child no longer reside in Kansas, except for modification by agreement, the party petitioning to modify an existing child support order must submit himself or herself to the jurisdiction of the state where the non-moving party resides. See Sampson, Uniform Interstate Family Support Act (1996) with More Unofficial Annotations, 32 Fam. L. Q. 390, 406 (1998).
Under the facts of this case, Lisa filed a petition to have the Kansas child support order transferred to Nebraska in compliance with K.S.A. 1999 Supp. 23-9,301(c). At that point, the Kansas court is required to forward three copies of the petition to the responding tribunal, the Nebraska court, under K.S.A. 1999 Supp. 23-9,304(a)(1). The Kansas court did not comply with the statute but denied the motion to register the order in the Nebraska court and granted Terry’s motion to decrease child support.
The purpose of UIFSA is to establish “a one-order system whereby all states adopting UIFSA are required to recognize and enforce the same obligation consistently.” 25 Kan. App. 2d at 556. It would be contrary to the policy of UIFSA to allow the Kansas court in this case to deny Lisa’s petition to register the support order in the Nebraska court when the Kansas court no longer has continuing, exclusive jurisdiction. K.S.A. 1999 Supp. 23-9,301(c) provides that Lisa could also have filed a petition to register the support order in the Nebraska court. If the Nebraska court concludes it has jurisdiction over the order and the Kansas court refuses to forward the order, a new child support order might be issued. Controversy between the states and the parties would arise with multiple support orders, which is clearly contrary to the uniform policy of UIFSA.
The Kansas court erred in denying Lisa’s motion to register the support order in the Nebraska court because it did not have the discretion to deny the motion. Further, the Kansas court lacked jurisdiction to modify the child support order.
Reversed and remanded.
|
[
-48,
-32,
-12,
92,
74,
-96,
61,
48,
48,
-77,
36,
83,
107,
-24,
21,
121,
2,
47,
67,
105,
-61,
-73,
22,
73,
114,
-13,
-79,
95,
-65,
91,
109,
-98,
8,
48,
10,
-43,
70,
-61,
-125,
28,
-2,
2,
-120,
81,
81,
-122,
32,
97,
18,
31,
117,
-81,
-77,
40,
25,
-55,
-24,
14,
88,
-19,
-56,
-48,
-37,
23,
126,
74,
-79,
4,
-112,
37,
80,
47,
-112,
57,
34,
-24,
51,
38,
-78,
116,
87,
25,
-79,
116,
103,
65,
-72,
-52,
-68,
24,
78,
31,
13,
-26,
-102,
89,
98,
14,
-74,
-97,
116,
-108,
15,
-12,
-21,
13,
31,
-52,
-126,
-81,
-112,
-87,
-114,
89,
8,
-105,
-9,
-27,
0,
33,
-62,
-14,
94,
86,
58,
-101,
-2,
-6
] |
Gernon, J.:
The Ottawa Housing Association, L.P. (Ottawa Housing) appeals the district court’s decision approving the Board of Tax Appeals’ (BOTA) valuation of Ottawa Housing’s low-income housing apartment complex.
Ottawa Housing owns a 72-unit apartment complex in Ottawa, Kansas. This complex was built under a contract with the federal government to provide low-income housing. The contract provides Ottawa Housing with tax credits, and, in return, Ottawa Housing is required to rent the apartments at a reduced rate to persons who earn less than 60% of the median income for Franklin County. This restriction limits the available pool of tenants to those who earn less than $15,372, with an hourly rate not to exceed $7.39. The contract requires the property to maintain the rent restrictions for 16 years. Ottawa Housing subsequently sold these tax credits and reduced its mortgage on the property. Although the property could be withdrawn from the government program, it would require the recapture of the tax credits.
For the 1997 tax year, Franklin County valued the apartment complex for ad valorem taxes at $1,538,000, using the income approach. The valuation was affirmed by a hearing officer, and Ottawa Housing appealed to BOTA, claiming that the valuation should be reduced because of the rent restrictions required by the low-income housing contract with the government. BOTA disagreed with Ottawa Housing’s valuation because it failed to consider both the benefits and the burdens of the low-income housing contract.
Ottawa Housing then appealed BOTA’s decision to the district court. The district court upheld BOTA’s decision, and Ottawa Housing appeals.
■When reviewing an agency’s action, an appellate court’s scope of review is limited to determining whether the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. Board of Douglas County Comm’rs v. Cashatt, 23 Kan. App. 2d 532, 538, 933 P.2d 167 (1997).
K.S.A. 77-621(c) allows the court to grant relief from the agency action under certain circumstances, including when the agency erroneously interpreted or applied the law, when the agency’s decision is not supported by substantial competent evidence in the record, or when the agency’s action is unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(4),(7), and (8). The party who asserts that the agency’s decision is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(l).
On appeal, Ottawa Housing limited its arguments to the interpretation and application of K.S.A. 79-503a, arguing that BOTA should have considered the governmental restrictions that accompany its status as a low-income housing complex. This court has de novo review over the interpretation of a statute. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
K.S.A. 79-503a provides:
“ ‘Fair market value’ means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that both parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1.
“Sales in and of themselves shall not he the sole criteria of fair market value but shall be used in connection with cost, income and other factors including but not by way of exclusion:
(a) The proper classification of lands and improvements;
(b) the size thereof;
(c) die effect of location on value;
(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
(e) cost of reproduction of improvements;
(f) productivity;
(g) earning capacity as indicated by lease price, by capitalization of net income or by absorption or sell-out period;
(h) rental or reasonable rental values;
(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values;
(j) restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions; and
(k) comparison with values of other property of known or recognized value. The assessment-sales ratio study shall not be used as an appraisal for appraisal purposes.
“The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures which are adaptable to mass appraisal and consistent with the definition of fair market value unless otherwise specified by law.” (Emphasis added.)
The county’s appraiser admitted that he did not consider the rental restrictions on the Ottawa Housing property in his appraisal. Ottawa Housing argues that this admission clearly establishes that the appraisal was not in conformance with K.S.A. 79-503a(d) and (j)-
Kansas has never determined whether the valuation of a low-income housing complex should include the effects of the governmental contract establishing it as low-income housing. Several other states, however, have addressed this issue. With the exception of cases from Ohio, all of the cases support the proposition that the taxing authority should consider the effects of the low-income housing contract when valuing the property for ad valorem taxes.
Accord:
• Greenfield Village Apts. v. Ada County, 130 Idaho 207, 210-11, 938 P.2d 1245 (1997) (holding that the property valuation should consider the restricted use of the land as low-income and rent restricted; a concurring opinion notes that the valuation should consider the benefits of the tax credits as well);
• Kankakee Co. Board of Review v. PTAB, 131 Ill. 2d 1, 17, 544 N.E.2d 762 (1989) (holding that the taxing authority must weigh both the positive and negative aspects of a subsidy agreement and adjust the income figure to accurately reflect the true earning capacity of the property);
• Pedcor Investments v. State Bd., 715 N.E.2d 432, 437 (Ind. Tax 1999) (concluding that deed restrictions may constitute economic obsolescence depending on the effect of the tax incentives);
• Glenridge Development v. City of Augusta, 662 A.2d 928, 931 (Me. 1995) (concluding that the taxing authority should consider the effect of the regulations governing the housing complex but refusing to find error because the valuation was based on the cost approach rather than the income approach);
• Meadowlanes v. Holland, 437 Mich. 473, 495, 473 N.W.2d 636 (1991) (holding that the interest subsidy payments made by the government in return for the rent restrictions affect the selling price of the property and should be considered in the property’s valuation);
• Rebelwood, Ltd. v. Hinds County, 544 So. 2d 1356, 1364 (Miss. 1989) (holding that because the benefits of participating in a federal low-income housing program affect the value of the property in the open market, they must sensibly be considered in assessing the value);
• Steele v. Town of Allenstown, 124 N.H. 487, 491-92, 471 A.2d 1179 (1984) (holding that federally subsidized housing should be valued as such and not as non-subsidized housing);
• Penns Grove Gardens v. Penns Grove, 18 N. J. Tax 253, 264-65 (1999) (holding that the governmental contract rent and the actual management fee should be used in determining valuation);
• Bay-ridge Assoc. Ltd. Partnership v. Dept. of Rev., 321 Or. 21, 31, 36, 892 P.2d 1002 (1995) (holding that participation in a § 42 housing program is a governmental restriction as to use and must be considered in valuing property, but a dissenting judge found the contract to be “nothing more than a financial arrangement, voluntarily chosen by the owner, for its own financial benefit”);
• Parkside Townhomes v. Board of Assess., 711 A.2d 607, 611 (Pa. Commw. 1998) (holding that the fair market value of property is a function of the economic reality which includes the effects of tax credits for low-income housing);
• Alta Pacific v. Utah State Tax Com'n, 931 P.2d 103, 115-16 (1997) (concluding that the commission should have considered the effects of the low-income housing contract but refusing to reverse because the taxpayer failed to show substantial prejudice);
• Metro. Holding v. Milwaukee Review Bd., 173 Wis. 2d 626, 634, 495 N.W.2d 314 (1993) (holding that the property assessment for low-income housing should be based on actual rents and expenses).
But cf.:
• Alliance Towers v. Bd. of Revision, 37 Ohio St. 3d 16, 24, 523 N.E.2d 826 (1988) (holding that market rental rates should be used in valuing low-income housing and stating that the artificial effects of government housing assistance programs are not indicative of the valuation of real estate);
• Canton Towers, Ltd. v. Bd. of Revision, 3 Ohio St. 3d 4, 7, 9, 444 N.E.2d 1027 (1983) (holding that it was proper to use market rental rates in determining the value of a low-income housing complex, but two dissenting justices found that the effects of the low-income housing contract should have been considered).
These cases apply the general theory that a low-income housing contract is an investment tool for maximizing an investment in real estate. See Penns Grove Gardens, 18 N.J. Tax at 261-62; Bayridge Assoc. Ltd. Partnership, 321 Or. at 31; Parkside Townhomes, 711 A.2d at 611. Buyers and sellers of real estate consider these tools in determining the market value of real estate. See Pedcor Investments, 715 N.E.2d at 437; Rebelwood, Ltd., 544 So. 2d at 1364. This principle corresponds with the Kansas definition of “fair market value” as “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” K.S.A. 79-503a.
The district court’s decision is reversed, and this matter is remanded to BOTA for a determination of valuation consistent with this opinion.
We note that a recent ruling of BOTA supports our conclusion. See In re Equalization Appeals of Prairie Commons Lawrence, LP, Docket No. 1998-5876-EQ and 1999-6807-EQ.
Reversed and remanded.
|
[
-47,
-6,
-11,
108,
12,
-64,
90,
-104,
123,
-87,
39,
95,
111,
-54,
1,
105,
-89,
125,
-31,
73,
-63,
55,
55,
75,
-10,
-5,
-77,
-43,
-71,
125,
-11,
5,
91,
113,
-38,
-99,
-122,
-64,
-51,
88,
-114,
-125,
-102,
88,
-43,
66,
52,
47,
58,
11,
53,
-124,
-1,
44,
24,
98,
-63,
46,
89,
33,
80,
-8,
-30,
23,
-33,
23,
-96,
20,
-98,
69,
120,
-126,
-112,
49,
0,
-20,
-13,
-90,
-122,
60,
7,
-101,
12,
37,
98,
0,
49,
-33,
-80,
76,
14,
-37,
-113,
39,
-109,
24,
123,
43,
-106,
-98,
92,
22,
101,
-6,
-26,
-123,
31,
104,
-121,
-18,
-18,
-77,
13,
96,
-125,
-125,
-1,
-124,
-79,
97,
-49,
-26,
94,
-57,
58,
-70,
-114,
-72
] |
Gernon, J.:
William B. Maybin appeals his conviction for one count of aggravated robbery.
Maybin was identified as a passenger in an automobile and the perpetrator of a robbery in which he placed his hand over the victim’s face, placed a gun to the victim’s head, and demanded money. The victim, Marvin Grayson, positively identified the driver, Lamont Anderson, Maybin, and the automobile. Maybin was charged, tried, and convicted of aggravated robbery.
At trial, Grayson and Anderson testified against Maybin. A clerk from a convenience store near the location of the robbery also testified that an individual in a car like Anderson’s purchased food items and a beer using a $20 bill at 10:27 p.m. on the night of the robbery. This testimony corroborated the presence of the items seized when Anderson’s car was searched.
In his defense, Maybin asserted that Grayson was mistaken because he was high on drugs and alcohol at the time of the incident. Maybin also argued that Anderson was induced to testify against him because of a favorable plea bargain. A jury convicted Maybin as charged, and he appeals his conviction.
LEG IRONS
Maybin first argues that his right to a fair trial was compromised because he was forced to appear before the jury with a leg restraint.
The trial court is ultimately responsible for assuring a fair trial to the accused. State v. Ninci, 262 Kan. 21, 54, 936 P.2d 1364 (1997). In reviewing a trial court’s decision to require the accused to be tried while wearing a leg restraint, an appellate court must determine whether the trial court abused its discretion. Ninci, 262 Kan. at 54. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. State v. Rucker, 267 Kan. 816, 823, 987 P.2d 1080 (1999).
Maybin bears the burden of estabfishing a record that affirmatively shows that a prejudicial error occurred in his trial. Without such a record, this court must assume the trial court’s action was proper. Ninci, 262 Kan. at 53.
In Ninci, the Kansas Supreme Court held that the trial court did not abuse its discretion by permitting the defendant to wear a leg restraint during the trial. The Ninci court noted that the trial court had independently determined that the leg restraint was unobtrusive. The holding focused on the defendant’s failure to provide any evidence in the record that the jury knew he was wearing a leg brace or that the leg brace was a restraint. Ninci, 262 Kan. at 53-54.
Here, Maybin presented no evidence that any of the jurors noticed the leg brace or knew it was a restraint. Maybin, however, relies on the holding in State v. Davidson, 264 Kan. 44, 954 P.2d 702 (1998). Davidson can be distinguished. In Davidson, the court held that the defendant was improperly prejudiced by the trial judge’s commentary on the purpose of the defendant’s leg brace. 264 Kan. at 52. The trial court had stated that the defendant was wearing a leg brace to prevent his escape. The Davidson court did not address the issue of whether the defendant had shown prejudice by the mere act of wearing the brace. Rather, that decision centered on the judge’s improper comment about the brace.
MAYBIN’S STATEMENTS
The admission of evidence is subject to the trial court’s discretion and will not be overturned unless the trial court abuses its discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). The defendant must show substantial prejudice before an appellate court will find an abuse of discretion. State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992).
At the preliminary hearing, Anderson testified that he did not see a gun during the robbery and that Grayson did not get in the car. At Maybin’s trial, however, Anderson’s testimony corroborated Grayson’s version of the robbery, including the use of a gun. The State questioned Anderson about his motive for providing conflicting testimony. Anderson testified, “Yes, he told me that I should take the CCW [carrying a concealed weapon] — two CCWs and he agreed to the strong-arm robbery. . . . And we would be able to— we should work together and get out of it like that.”
Maybin argues that the trial court improperly admitted Anderson’s testimony that Maybin had told him to fie about the involvement of a gun in the robbery. Maybin asserts two points of error for the admission of these statements. First, Maybin asserts that the statements were inadmissible hearsay. Second, Maybin claims that the State failed to disclose his statements to him in accordance with the discovery statute.
Hearsay
Maybin argues that his statements to Anderson were hearsay and did not fall within K.S.A. 60-460(f) or (j) because there is no independent indicia of reliability. This argument fails for two reasons.
First, Maybin’s statement to Anderson is not hearsay. It was not offered to prove the truth of the matter asserted. The State was not trying to prove that Maybin would plead to strong-arm robbery if Anderson would plead to the charges for carrying a concealed weapon. Instead, the State was attempting to show Anderson’s motive for lying at the preliminary hearing.
Second, even if Anderson’s testimony is considered to be hearsay, Maybin’s argument confuses the applicable law. K.S.A. 60-460(f) and (j) do not require an independent indicia of reliability as a prerequisite for admission.
K.S.A. 60-460 provides in pertinent part:
“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 die accused, a previous statement by the accused relative to the offense charged, but only if die judge finds that die 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 direats 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 direats or promises concerning action to be taken by a public official with reference to the crime, likely to cause die accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have die power or audiority to execute die same.
“(j) Declarations against interest. Subject to die limitations of exception (f), a statement which die judge finds was at the time of the assertion ... so far subjected the declarant to civil or criminal liability . . . that a reasonable person in die declarant’s position would not have made die statement unless the person believed it to be true.”
K.S.A. 60-460(f) requires a voluntariness analysis, not a trustworthiness analysis. Maybin did not raise the issue of whether his statement was voluntary. The trial court does not have a duty to raise the issue of voluntariness on its own initiative. State v. Bornholdt, 261 Kan. 644, 652-53, 932 P.2d 964 (1997). Thus, the issue of voluntariness is not preserved for appeal. The issue of voluntariness is also abandoned because it was not raised in Maybin’s brief. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
Even though the trial court did not state the basis for admitting Maybin’s statement to Anderson, it was not error to admit it. The decision of the trial court is to be upheld if correct even though it may have relied upon the wrong reason. State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).
Discovery Orders
Upon request of a defendant, K.S.A. 22-3212(a)(l) requires the State to permit the defendant to inspect and copy all of his or her written or recorded statements or confessions known to exist by the State.
The State is also required to provide access to memoranda of the defendant’s oral confessions, including a list of the witnesses to the confession. K.S.A. 22-3212(a)(4). This duty to disclose continues throughout the course of the prosecution. K.S.A. 22-3212(g). If the court finds that a party has failed to comply with the requirements of K.S.A. 22-3212, the court may prohibit a party from introducing the evidence, or it may enter other orders as it deems just under the circumstances. K.S.A. 22-3212(g).
A trial court’s decision to exclude evidence based on the State’s failure to disclose is reviewed to determine whether the trial court abused its discretion. State v. Wanttaja, 236 Kan. 323, 324, 691 P.2d 8 (1984). The party asserting an abuse of discretion bears the burden of estabhshing that abuse. State v. Harris, 262 Kan. 778, 785, 942 P.2d 31 (1997).
We conclude that Maybin’s statement to Anderson does not fall within the parameters of K.S.A. 22-3212(a)(l) because the statement was not a written or recorded statement. The statement was made orally. Oral statements fall under K.S.A. 22-3212(a)(4).
Likewise, Maybin’s statement does not fall within the parameters of K.S.A. 22-3212(a)(4), which only applies to confessions made through third parties and does not include other types of state- merits. Given our reading of Kansas law, Maybin’s statement is not a confession. See State v. Green, 254 Kan. 669, 683, 867 P.2d 366 (1994).
Maybin did not say that he committed strong-arm robbery. Instead, he bargained with a codefendant to plead to charges for strong-arm robbery. The statement is merely a circumstance that implies guilt. It is not a confession of guilt.
Maybin’s motion for discovery requested copies of “any and all statements he is alleged to have made to law enforcement or any of the State’s endorsed witnesses” pursuant to K.S.A. 22-3212. Maybin argues that the State violated the court’s discovery order. This argument is without merit. K.S.A. 22-3212 does not apply to Maybin’s statement to Anderson. Thus, the State did not violate the discovery order.
Maybin has failed to establish any abuse of the trial court’s discretion. Accordingly, the trial court did not err by admitting the statement Maybin made to Anderson.
MISTRIAL MOTION
Maybin moved for a mistrial when Anderson testified that May-bin had been to the penitentiary before. The trial court conducted a hearing outside the jury’s presence to determine whether the State had violated the motion in limine excluding any reference to Maybin’s previous criminal history. The trial court determined that the order had been violated but denied Maybin’s motion, finding that the statement was relevant and not overly prejudicial.
K.S.A. 22-3423(b) and (c) permit the trial court to declare a mistrial when a legal defect in the proceedings would make the judgment reversible as a matter of law and the defendant requests or consents to the declaration, or when prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.
The decision to declare a mistrial is within the trial court’s sound discretion and will not be disturbed on appeal unless there is a clear showing that such discretion was abused. Judicial discretion is abused when no reasonable person would adopt the view taken by the trial court. State v. Rinck, 256 Kan. 848, 853, 888 P.2d 845 (1995).
In Rinck, a witness testified that he met the defendant after the defendant had gotten out of prison. The defendant moved for a mistrial, but the trial court denied the motion. The Kansas Supreme Court determined that the statement was unsolicited and upheld the trial court’s refusal to grant a mistrial. In making its decision, the Rinck court noted that the defendant’s record was not mentioned any further during the trial and the trial court offered to give a hmiting instruction, but the offer was declined. 256 Kan. at 853-54.
The facts in this case parallel those in Rinck. The prosecution did not expect Anderson to testify about Maybin’s previous imprisonment and did not solicit that testimony. The court offered to give a hmiting instruction, but Maybin chose not to request the instruction. Finally, there was no further mention of Maybin’s prior criminal record.
Based on Rinck, we conclude that the trial court did not abuse its discretion in denying Maybin’s request for a mistrial.
PROSECUTORIAL MISCONDUCT
Maybin argues that the prosecutor improperly referred to him as a “predator,” thus prejudicing the jury against him and denying him his right to a fair trial.
When reviewing statements made by the prosecutor during closing argument, an appellate court applies a two-step analysis. State v. White, 263 Kan. 283, 306, 950 P.2d 1316 (1997). First, the appellate court determines whether the remarks were beyond the permitted scope of closing argument. Under this analysis, the prosecution is given a wide latitude in presenting its theory of the case to the jury. 263 Kan. at 306. Closing argument, however, must be confined to the evidence admitted. State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998). Second, if the court determines that the remarks were improper, it must determine whether the remarks, when viewed in light of the record as a whole, were so prejudicial as to amount to reversible error.
Improper remarks by the prosecutor during closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny defendant his or her right to a fair trial. White, 263 Kan. at 306. Scrutinizing the facts of each case, an appellate court must determine whether the improper comments were harmless error. The improper remarks may be considered harmless if the appellate court finds that they had little, if any, likelihood of changing the result of the trial.
Maybin argues that the prosecutor s comments were not based on the evidence. The prosecutor stated: “The defendant goes out with a guy from his neighborhood, Lamont Anderson. Doesn’t have a job, doesn’t have any money, but he wants some money, and he’s got a gun.” All of these statements are supported by evidence in the record.
Maybin also argues that the term “predator” prejudiced the jury against him because of the animalistic connotations, the characterization of him as sinister, and the inference that he routinely committed robberies.
We have studied the cases cited by Maybin in support of his prosecutor misconduct issue and conclude that they can be distinguished, either in the words used or in the context of the case. We acknowledge the cases cited: State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993); State v. Zamora, 247 Kan. 684, 803 P.2d 568 (1990); State v. Eastridge, 20 Kan. App. 2d 973, 894 P.2d 243 (1995).
Several other states have refused to find prosecutorial misconduct when the prosecutor refers to the defendant as a predator. See, e.g., Williams v. State, 627 So. 2d 994, 996 (Ala. Crim. App. 1992) (referring to the defendant as a predator was a legitimate comment on the evidence); People v. Hines, 15 Cal. 4th 997, 1062, 64 Cal. Rptr. 2d 594, 938 P.2d 388 (1997) (referring to defendant as a predator was fair comment on the evidence presented); People v. Alvarez, 14 Cal. 4th 155, 241-42, 58 Cal. Rptr. 2d 385, 926 P.2d 365 (1996) (calling the defendant a “creep” worse than a “predator” was not prosecutorial misconduct; although it was unnecessarily colorful, the comments were consistent with the evidence); State v. Link, 916 S.W.2d 385, 388 (Mo. App. 1996) (calling the defendant a predator was not prosecutorial misconduct; although the court did not condone the use of denuncitory epithets towards defendants, the characterization had no decisive effect on the jury); People v. Chapin, 265 App. Div. 2d 738, 697 N.Y.S.2d 713 (1999) (finding no misconduct for referring to defendant as a predator; although comments were inappropriate, they were not so egregious to warrant reversal in light of the totality of the evidence and the trial court’s curative instructions); People v. Brown, 252 App. Div. 2d 835, 836, 675 N.Y.S.2d 461 (1998) (calling defendant a predator was not prosecutorial misconduct because any prejudice was ameliorated by the trial court’s limiting instructions and the overwhelming proof of guilt); State v. Trull, 349 N.C. 428, 454, 509 S.E.2d 178 (1998) (referring to defendant as a predator was not so grossly improper as to require the trial court to intervene ex mero motu [voluntarily without an objection]); Payne v. Commonwealth, 257 Va. 216, 226, 509 S.E.2d 293 (1999) (calling the defendant a predator was fair comment on properly admitted evidence in a sentencing hearing before a jury to determine whether the defendant would receive the death penalty); Tennant v. State, 786 P.2d 339, 346 (Wyo. 1990) (calling defendant a predator was not prosecutorial misconduct in light of the record as a whole).
The Washington Court of Appeals, however, recently held that referring to a defendant as a predator was prosecutorial misconduct because such tactics were clearly intended to inflame the passion and prejudice of the jury. State v. Rivers, 96 Wash. App. 672, 675-76, 981 P.2d 16 (1999).
We agree with the reasoning of the Washington Court of Appeals. For the most part, the use of the word predator is designed to inflame the passion and prejudice of the factfinder. The message the prosecutor often wants to convey, by implication, is: Get this predator off the streets, or you or your family might be next.
Our conclusion concerning the use of the word “predator” in this context does not resolve the issue of whether the use constitutes reversible error under these facts.
Improper remarks may be considered harmless if the appellate court finds that they had little, if any, likelihood of changing the result of the trial. White, 263 Kan. at 306.
The State presented a significant amount of evidence against Maybin, including the victim’s testimony and certain identification, the codefendant’s testimony, and the physical evidence found in the car that connected Maybin to the $20 bill. Given the amount and weight of the evidence, we conclude the “predator” remark was harmless and not enough to require reversal.
CUMULATIVE ERRORS
Maybin argues that the cumulative errors in this case require reversal of his conviction and remand for a new trial. Cumulative errors require reversal when the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. White, 263 Kan. at 308. Maybin has demonstrated no such minimum error to this court so as to require reversal. As a result, there are no errors that can be aggregated into cumulative error.
MOTION TO SUPPRESS
Maybin argues that the evidence found in the car should have been suppressed because the initial stop of the car was made without reasonable suspicion. Although generally a passenger has no standing to challenge the search of a car that does not belong to him, Kansas has determined that a passenger can challenge the search of a car if the search results from an illegal stop. State v. Epperson, 237 Kan. 707, 717-18, 703 P.2d 761 (1985). The passenger’s right to challenge the search is a consequence of the illegal seizure of the passenger’s person. 237 Kan. at 718.
In reviewing a trial court’s decision about whether to suppress evidence, an appellate court looks for substantial competent evidence to support the trial court’s decision. State v. Ninci, 262 Kan. at 29. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. State v. Wonders, 263 Kan. 582, 589, 952 P.2d 1351 (1998).
K.S.A. 22-2402(1) permits a law enforcement officer to stop a person in a public place without making an arrest if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
In cases involving a Terry stop, whether an officer has a reasonable and articulable suspicion to justify a stop will depend on the facts of the case. Kansas courts have recognized that the location, time of day, previous reports of crime in the area, and furtive actions of suspects may well justify a stop. See State v. Holthaus, 222 Kan. 361, 364, 564 P.2d 542 (1977); City of Garden City v. Mesa, 215 Kan. 674, 681, 527 P.2d 1036 (1974); State v. Hazelwood, 209 Kan. 649, 655, 498 P.2d 607 (1972); State v. Kirby, 12 Kan. App. 2d 346, 353, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988).
It is equally clear, however, that the time of day and reports of crime in the area will not in and of themselves justify a Terry stop. See Epperson, 237 Kan. at 713-14; State v. Jackson, 213 Kan. 219, 223, 515 P.2d 1108 (1973).
The trial court found that the officers had a reasonable suspicion to stop Anderson’s car. The evidence presented by the State supports the trial court’s decision.
We conclude that the stop was not illegal. Maybin lacks standing to contest the search and seizure of items in the vehicle. See Epperson, 237 Kan. at 717-18.
ONE-PERSON SHOW-UP IDENTIFICATION
The admission of identification testimony is an evidentiary question. When reviewing questions regarding the admission of evidence, the appellate court will give deference to the factual findings of the trial court, but the ultimate determination of whether evidence should be suppressed is a question of law that requires de novo review. State v. Lawson, 25 Kan. App. 2d 138, 141, 959 P.2d 923 (1998).
Kansas applies a two-step test for determining whether eyewitness identifications should be excluded. First, the trial court must determine whether the procedure used in making the identification was unnecessarily suggestive. If the procedure was unnecessarily suggestive, the court must evaluate whether the procedure would lead to a substantial likelihood of misidentification. When analyzing the second prong of the test, the court must look at the totality of the circumstances. State v. Holloman, 17 Kan. App. 2d 279, 282, 837 P.2d 826, rev. denied 251 Kan. 940 (1992). Kansas uses the five factors set out in Neil v. Biggers, 409 U.S. 188, 199, 34 L.Ed. 2d 401, 93 S. Ct. 375 (1972), to determine whether there is a substantial likelihood of misidentification. 17 Kan. App. 2d at 282. The Biggers factors include
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of die witness’ prior description of die criminal, the level of certainty demonstrated by die witness at the confrontation, and die length of time between the crime and die confrontation.” Biggers, 409 U.S. at 199-200.
Maybin argues that the one-person show-up identification was unnecessarily suggestive. He relies on Holloman for the proposition that one-person show-up identifications have been condemned in Kansas. 17 Kan. App. 2d at 284. In Holloman, a store clerk notified security that she had been robbed and provided a description of the robber including his clothing, smell, and voice. She also informed them of the direction the robber headed when he left. The security officers followed a set of footprints in the snow to the defendant’s mother’s house. Upon searching the house, the officers found wet clothing that matched the description given by the store clerk and a bank bag containing cash. An hour after the robbery, the police showed the clerk the items seized from the house and allowed her to smell the clothing. The police also showed the suspect to the clerk on a television monitor and allowed her to hear him speak. Based on these observations, the clerk identified the suspect as the robber. The Holloman court determined that the one-person identification was unnecessarily suggestive but upheld its admission, finding that the clerk’s identification was reliable based on the Biggers factors. 17 Kan. App. 2d at 284-87.
Maybin’s reliance on Holloman, however, fails to consider State v. Alires, 246 Kan. 635, 792 P.2d 1019 (1990). In Alires, the police drove the victim of a robbery by two individuals, who were handcuffed and in police custody. The victim positively identified them as the individuals who had robbed the convenience store where she worked. The Kansas Supreme Court held that the one-person show-up identification was not unnecessarily suggestive or substantially likely to lead to misidentification. 246 Kan. at 640-41. The court’s decision focused on the victim’s “ample opportunity to view the male robber in the well-lighted convenience store,” her attention to detail in describing the defendant’s mustache, the female robber’s tatto, the color of the car, the short amount of time between the robbery and the identification, and her unwavering certainty of the identification. 246 Kan. at 640. The Alires court also noted that Kansas has “approved one-on-one confrontations shortly after the commission of an offense, recognizing that time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation.” 246 Kan. at 640.
In State v. Lawson, 25 Kan. App. 2d at 140, a robbery victim called 911 immediately after the robbery and provided a description of the robber as a black male in his thirties, about 5 ’ 11” tall, weighing 180 pounds, and wearing a green and blue plaid shirt. Shortly thereafter, police spotted a suspect matching the victim’s description near the area of the robbery. After arresting the suspect, the police returned him to the scene of the robbery for identification by the victim. This court determined that the one-person show-up identification was unnecessarily suggestive but upheld the admission of the identification based on the Biggers factors. 25 Kan. App. 2d at 142-44. The Lawson court relied on Holloman but did not consider Alires.
While we might conclude that the identification procedure used here was unduly suggestive, it survives, in our view, the tests required in Biggers.
The opportunity of the witness to view the criminal at the time of the crime.
Grayson testified that he could see the robber “through the peek of [his] hand.” Moreover, the robber’s hand was not over Grayson’s face during the entire robbery. Grayson testified that the robber frisked him looking for his money.
Grayson also had an opportunity to observe the occupants of the car before the robbery. He testified that the driver had called him over to the car and conversed with him briefly before the robbery occurred. This testimony is contradicted by the testimony of a police officer and Anderson, who stated that Grayson spoke with the passenger rather than the driver. In either case, Grayson had an opportunity to observe the robber before the stress of the robbery occurred.
Maybin argues that Grayson’s perception was adversely affected by the danger and stress of the crime itself but points to no evidence in the record that would establish that Grayson was unable to see the robber.
Although Grayson did not describe the clothing worn by the robber, he accurately described his skin color, hair, and age.
Grayson also provided a fairly detailed description of the car. He told the police officer that the car was a dark-colored, eighties-model, four-door sedan that was clean and well-kept. The car was actually a brown, eighties-model Buick. Although Grayson mistakenly described the car as being a maroon, eighties-model, Cadillac Seville, the color and body style of Anderson’s car were not significantly different than the car Grayson described. In addition, he accurately described the car as being clean and well-kept.
The level of certainty demonstrated by the witness at the confrontation
When Grayson initially identified Maybin as the robber during the one-person show-up identification, Grayson merely stated that he looked like the person that had held a gun to his head in the car. Grayson also identified the car as the one that he had been robbed in and separately identified Anderson as the driver. Gray-son identified Maybin and Anderson after looking at them for only a minute or two each. Grayson did not state that he was 100 percent certain, and the officer did not specifically ask Grayson about his level of confidence. There is no testimony, however, indicating that Grayson was unsure of his identification.
The length of time between the crime and the confrontation
Grayson contacted the Olathe police officer to report the robbery at approximately 10:10 p.m. Officers stopped Anderson’s car at approximately 10:30 p.m. Although there is no testimony regarding the time of Grayson’s identification, the time of the arrest would indicate that it occurred approximately 1 hour after the robbery occurred.
Reliability is the key for determining whether identification testimony is admissible. Holloman, 17 Kan. App. 2d at 286. Reviewing all of the factors from Biggers leads to the conclusion that the identification was reliable. As a result, the trial court did not err by admitting Grayson’s identification of Maybin into evidence.
As an alternative argument, Maybin urges this court to find that all one-person show-up identifications are excluded per se. A per se exclusionary rule, however, does not follow existing Kansas Supreme Court precedent. See Alires, 246 Kan. at 640-41. This court is duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Allen, 21 Kan. App. 2d 811, 816, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). There is no indication that the Supreme Court has reconsidered its position in Alires.
Affirmed.
|
[
-16,
-29,
-32,
63,
27,
96,
35,
60,
3,
-73,
101,
18,
-19,
-60,
69,
41,
-65,
93,
117,
97,
-50,
-121,
71,
-45,
-78,
-101,
75,
71,
-77,
75,
39,
-107,
13,
112,
2,
93,
102,
64,
-27,
-108,
-114,
4,
-71,
-62,
-61,
1,
32,
106,
0,
31,
-79,
-97,
-29,
42,
26,
70,
73,
60,
11,
-87,
-112,
-13,
-78,
13,
-19,
18,
-93,
4,
-98,
15,
120,
61,
-104,
57,
32,
-7,
114,
-90,
-126,
53,
105,
-85,
-116,
98,
115,
36,
25,
-50,
-83,
-88,
47,
123,
-113,
-121,
-102,
64,
75,
45,
-73,
-97,
115,
55,
14,
-8,
-4,
93,
93,
100,
-121,
-33,
-76,
-111,
-115,
116,
94,
-37,
-21,
7,
-80,
97,
-116,
-30,
92,
4,
88,
-109,
-22,
-76
] |
Davis, J.
David D. Lewis appeals his convictions of aggravated robbery, aggravated burglary, and kidnapping. He appeals raising three issues: (1) The court erred in determining that the defendant put his character in issue, thus allowing the State to introduce his prior convictions; (2) the court erred by allowing the State to elicit comments on his post-Miranda silence; and (3) the evidence was insufficient to support the charge of aggravated kidnapping. We reverse and remand for further proceedings based upon the defendant’s first contention.
At approximately 9 p.m. on October 25,1997, the defendant and another man forced their way into the garage apartment of Marcell Eads, where Charles Sparks, a temporary resident, was there watching TV. Sparks heard a noise on the stairway and went to the apartment door. He was speaking with the defendant and his accomplice when the defendant reached through the door and pushed Sparks in the face, forcing him back into the apartment. Sparks grabbed the defendant’s hand and struggled to get away. However, Sparks stopped struggling when the second man shoved something into Sparks’ ribs and indicated it was a gun. Sparks was then led to a couch in the front room and was seated.
The defendant put his hands over Sparks’ eyes and plotted with the other man to take some items. The other man indicated that he wanted to shoot Sparks. For the next few minutes, Sparks pleaded for his life and said he would not call the police. The assailents eventually put a sock into Sparks’ mouth and a pillowcase over his head. The defendant ordered Sparks to hand over his wallet and his watch. The defendant then took Sparks’ identification card and threatened that he now knew where to find Sparks if he called the police. The defendant remained by Sparks while the other man ransacked the apartment. Several items belonging to Eads, as well as a black bag belonging to Sparks, were taken.
When the men were ready to leave the apartment, the defendant again threatened to shoot Sparks. Sparks again insisted he would not tell the police and that he would not get up. The defendant told Sparks he would be watching to see if Sparks left. Sparks heard the door open and shut but he did not move. After a few minutes, Sparks heard the defendant say, “You’re doing good, Charles. If you’d moved I’d blowed your fucking head off.”
Sparks never heard the defendant leave, so he sat there for approximately 10 to 15 minutes. Sparks decided to take the pillowcase off his head. He determined no one was in the apartment and ran to the landlord’s house to call the police.
Soon after the incident, police officers observed a truck leaving a pool hall without its headlights on. Unaware of the burglary, they followed the truck and observed the truck run a stop sign. After the officers activated their emergency equipment, the truck sped up as if to elude them. The truck proceeded approximately four blocks before stopping. However, at one point, it slowed to a near stop and a passenger jumped out and ran away between the houses. The officers continued pursuing the truck. A half a block later, the truck slid into the curb while attempting to negotiate a turn, and the driver jumped out and ran. After a short foot chase, the officers apprehended die defendant.
The police took the defendant to the location of the truck, and Sparks identified the defendant and the items taken from the apartment. He later told the police that his black watch had been taken. The police remembered taking a black watch from the defendant upon his arrest. Upon seeing the watch, Sparks immediately identified it as his.
The defendant testified at trial that he had been at a pool hall earlier that evening when he was approached in the parking lot by a man named T.J. T.J. asked the defendant to help move some belongings from his wife’s house because they had recently separated. The defendant agreed to use his truck to help T.J. for $10. The defendant went back into the pool hall briefly, at which time another man had climbed into the bed of the truck. T.J. indicated the other man was going to help also.
The defendant testified that T.J. directed him to an area near Eads’ apartment but had the defendant remain in the truck while the other two went to retrieve the belongings. A while later, T.J. returned for the defendant and directed him to an alley where the other man was waiting with a bundle of belongings wrapped in a blanket. The bundle was loaded into the back of the defendant’s truck, and the second man returned to the apartment. T.J. and the defendant returned to the pool hall.
According to the defendant, T.J. revealed he did not have $10 for the use of the truck but instead gave the defendant $5 and a watch. They left the pool hall and were followed by police. When the police activated their fights and siren, T.J. confessed to the defendant that the items in the truck were stolen and jumped out of the truck. The defendant said he panicked and attempted to elude officers but was caught when he drove over a curb.
The defendant was interviewed by a detective. He was given Miranda rights. However, when the officers asked to record an interview with him, he indicated he did not want to talk further without a lawyer. The prosecution made a point of the defendant’s silence during its recross examination.
Prior to commencing cross-examination, the State asked for a ruling as to whether the defendant had put his character at issue and whether prior convictions for burglary could be admitted into evidence. The court agreed that the defendant had put his character at issue. Upon cross-examination, the prosecutor elicited an admission from the defendant that he had prior convictions for burglary, theft, and worthless checks. The court said a limiting instruction would be given to the jury. However, at the instructions conference, after recognizing that both he and the State had been confusing the applicable statutes, the judge decided not to give an instruction on die prior crimes evidence. The jury returned verdicts of guilty on charges of aggravated robbery, aggravated burglary, and kidnapping.
(1) Character evidence
On direct examination, the defendant stated that he was a plant manager for an acetylene plant and that he worked long hours. On the day in question, he stated that he had taken an infrequent day off and had run errands with his fiance. He mentioned that his son was going to ROTC training that day and that he was going to be married at a church. The defendant further stated that after his fiance went to work, he proceeded to drink and “tie one on,” which he very seldom did because of his job responsibilities. Relating to the night’s events, he stated he was drinking at a bar when T.J. asked him for help moving. Upon going to a location specified by T.J., Lewis said T.J. and another man put the stolen items in the back of his truck. When defense counsel asked whether he had looked at the items, the defendant unresponsively stated, “Well, not right off I didn’t because that was that man’s property. I didn’t have no business going through his property. That would have been disrespectful to him.”
Before beginning cross-examination of the defendant, the State argued that the defense had put character at issue; the court agreed, noting the defense objection. The trial court found that the defendant had on a number of occasions been warned to answer the defense counsel’s questions without offering unsolicited information. The court also found that the defendant continued to be unresponsive because he was trying to bolster his credibility.
The facts are not in dispute. Our review of the defendant’s direct examination does not reveal an attempt by the defendant to put his character in evidence. The only response that would come close to suggesting this was the defendant’s response to the question whether he had looked at the bundled up items: ‘Well, not right off I didn’t because that was that man’s property. I didn’t have no business going through his property. That would have been disrespectful to him.” It was essentially this statement which formed the basis of the court’s ruling that the defendant opened the door to the admission by the State of his prior convictions for burglary, theft, and worthless checks.
The standard of review on the admissibility of character evidence under K.S.A. 60-447 is abuse of discretion. State v. Blackburn, 251 Kan. 787, 792, 840 P.2d 497 (1992). Judicial discretion is only abused when no reasonable person would take the view adopted by the trial court. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997).
K.S.A. 60-447(b)(ii) provides that in a criminal case, the State may introduce evidence of an accused’s bad character only after the accused has introduced evidence of his or her good character. In State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974), the Kansas Supreme Court stated:
“The purpose of the statute, in combination with K.S.A. 60-421, is to permit a defendant to testify in his own behalf without having his history of past misconduct paraded before the jury. [Citations omitted.] He is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of events brought out at the trial. Of course, when the testimony of either the defendant or any other witness for the defense goes beyond those bounds and attempts to characterize the defendant’s past life as blemish-free, or makes reference to specific prior incidents, he forgoes to that extent the protection of the statute.”
There is no evidence to support a conclusion that the defendant tried to characterize his past life as blemish free or make other assertions of his good character. While it is true that the defendant’s answers were very expansive and not always responsive, they do not as a matter of law put the defendant’s good character at issue. As a result, the trial court committed reversible error in admitting the evidence of his prior convictions. See State v. Quick, 229 Kan. 117, 122, 621 P.2d 997 (1981) (reversing conviction where trial court allowed the introduction of evidence of prior convictions even though defendant had not put his character at issue).
(2) Post -Miranda silence
The defendant testified that he was paid $5 and a black watch for using his truck to help a man named T.J. move belongings of T.J.’s wife. On cross-examination, the State asked the defendant about his recollection of the night of the robbery. When the defendant admitted that he did not tell an officer about receiving the $5 and the black watch as payment, he explained by stating, “I told Detective Wise that I chose not to say nothing further until I had a lawyer present. That is why it’s not in his report.” In the course of explaining the omission, the defendant stated he had signed the Miranda rights form “under duress” because he was intoxicated and did not want to talk without a lawyer present, but the detective had told him he could not have a lawyer until he signed the form. The black watch had been identified by the victim as a watch taken by the defendant and found to be in the defendant’s possession by police.
During recross, the State actively elicited testimony about the defendant’s post-Miranda silence. In addition to the defendant’s testimony, the State called the detective and elicited testimony that the defendant had not allowed him to record a statement and had refused to talk further.
The defendant contends the State impermissibly elicited testimony about the defendant’s silence following Miranda warnings in violation of Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Doyle holds that a prosecutor may not use a defendant’s silence after receiving Miranda warnings to impeach his or her exculpatoiy story at trial. Kansas adopted Doyle in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
We note that the defendant’s claim is barred by his failure to object at trial. Defense counsel did not object to the questioning of either witness on Doyle grounds. The Kansas Supreme Court requires a timely and specific objection to preserve a Doyle issue for appeal. State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 (1995). The defendant did not object to either witness’ testimony, so the issue is not properly preserved for appeal.
Even if we were to consider defendant’s claim, no Doyle violation occurred. The evidence was elicited in response to the defendant’s testimony implying the officer forced him to sign the Miranda waiver. The defense attempted to use the defendant’s claim that he was “under duress” to impeach the testimony of the detective. As such, the State’s questions on recross did not constitute a violation of the Doyle rule. See State v. Brinkley, 256 Kan. 808, 820-21, 888 P.2d 819 (1995).
(3) Sufficiency of evidence on kidnapping charge
While we reverse and remand this case based upon trial court error regarding the admission of bad character evidence, we must also address the defendant’s sufficiency of evidence argument. If the defendant were to prevail upon this claim of error, the defendant would be entitled to an acquittal on the charge of kidnapping.
When Sparks first encountered the defendant and another man who was the defendant’s accomplice, Sparks was standing in an apartment entranceway. The defendant and the other man were at the top of the stairs leading to the apartment. A conversation took place during which the defendant reached through the door, pushed Sparks in the face, and forced him back into the apartment. Sparks grabbed the defendant’s hand and struggled to get away. Sparks stopped struggling, however, when the accomplice shoved something into Sparks’ ribs and indicated it was a gun. Sparks was then led to a couch in the front room and was seated. A sock was placed into Sparks’ mouth and a pillowcase over his head. On at least two occasions, Sparks was threatened with being shot if he got up.
At the close of the State’s evidence, the defendant renewed a previously filed and denied motion to dismiss and also moved for judgment of acquittal. The trial court denied both motions. The thrust of the motions was that the confinement alleged and set forth at trial was not of such a nature as to constitute kidnapping. The defendant argues that the State failed to provide evidence that the movement or confinement of the victim substantially facilitated the commission of the robbery or lessened the risk of detection. We disagree with the defendant.
The standard of review for questions involving sufficiency of the evidence and for a motion for judgment of acquittal is the same. State v. Torrance, 22 Kan. App. 2d 721, 727, 922 P.2d 1109 (1996). The test is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Torrance, 22 Kan. App. 2d at 727. In applying this test, an appellate court does not reweigh conflicting evidence, pass on the credibility of witnesses, or redetermine factual questions. State v. Knetzer, 3 Kan. App. 2d 673, 674, 600 P.2d 160 (1979).
In State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), the Kansas Supreme Court held:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
Buggs has been applied to literally hundreds of fact scenarios, and the courts repeatedly return for guidance to the examples originally given:
“A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of die rapist is not a kidnapping; die removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is. The list is not meant to be exhaustive, and may be subject to some qualification when actual cases arise; it neverdieless is illustrative of our holding.” 219 Kan. at 216.
The key to the instant case is that the forced movement of the victim from the open doorway of the apartment back into the living room, a place of seclusion, and the holding there by force, substantially made the crime of aggravated rohbery easier and substantially lessened the risk of detection. The facts of the instant case are substantially the same as Buggs. In Buggs, a mother and son were approached by two men as they were leaving work for the night at a Dairy Queen. The victims were forced back inside the building and the mother was asked where the money was. After the mother handed the store receipts to the defendants she was raped. The Supreme Court found sufficient evidence to uphold the kidnapping conviction. 219 Kan. at 216-17. In addition, in State v. Zimmerman, 251 Kan. 54, 59, 833 P.2d 925 (1992), the victim was hit on the head and dragged from the living room through a sliding glass door and into the laundry room. The Supreme Court found that a rational factfinder could have found beyond a reasonable doubt that the defendant moved the victim to a place of seclusion, thereby substantially lessening his risk of detection. The kidnapping conviction was upheld.
In the present case, Sparks was first encountered in the entranceway to the apartment and forced back inside the apartment to a place of seclusion. Once there, he was gagged and a pillowcase was placed over his head. He was warned that any movement would result in his death. Under such circumstances, a rational factfinder could find that Sparks was moved or confined and that such activity substantially aided in the commission of the crime and lessened the risk of detection. Thus, there was sufficient evidence from which a rational factfinder could have found the defendant guilty of kidnapping.
Reversed and remanded to the trial court for further proceedings.
|
[
-80,
-32,
-23,
63,
27,
33,
42,
-96,
-30,
115,
114,
-45,
41,
-63,
1,
41,
-36,
103,
85,
121,
25,
55,
71,
103,
-10,
-45,
27,
-43,
-77,
-49,
-11,
93,
12,
96,
-62,
93,
66,
8,
-25,
80,
-50,
1,
-80,
66,
-79,
18,
41,
40,
58,
14,
49,
28,
-77,
46,
16,
-40,
73,
45,
75,
-67,
-48,
57,
-55,
29,
-51,
52,
-93,
-89,
-97,
47,
88,
60,
-99,
-67,
0,
-24,
115,
-92,
-128,
117,
101,
11,
-84,
96,
98,
8,
73,
85,
-95,
-87,
46,
30,
-65,
-121,
-44,
97,
8,
101,
-98,
-33,
123,
21,
38,
-4,
125,
78,
84,
108,
-122,
-34,
-112,
-79,
13,
112,
-105,
-5,
-45,
45,
116,
113,
-49,
-30,
92,
85,
123,
-1,
-114,
-13
] |
Elliott, J.:
Asif Ameen appeals his convictions of one count of securities fraud and four counts of theft.
We affirm in part and reverse in part.
Ameen was employed by Primeline Securities, an investment firm which initiated the purchase of stocks and bonds on behalf of clients. All accounts at Primeline were nondiscretionary accounts, meaning action on a client’s account could not be taken without the client’s prior consent. Rauscher Pierce Refsnes (RPR), a clearing firm, made the purchases on behalf of Primeline clients and also transferred money on Primeline’s request.
Nedal Alagha was a client of Ameen. On four occasions in the spring of 1997, Ameen instructed another Primeline employee to instruct RPR to transfer monies from Alagha’s Primeline account to an independent bank account supposedly owned by Cambras Communications Corporation (CCC). In this manner, Ameen caused some $67,000 to be transferred to the CCC account actually owned by Ameen. Ameen then depleted the CCC account; Alagha never gave permission to Ameen to engage in these transactions.
Ameen was charged with securities fraud under K.S.A. 1999 Supp. 17-1253(a)(3), which provides it is unlawful for any person, in connection with the offer, sale, or purchase of any security, to engage in fraudulent or deceitful activities.
Ameen contends he cannot be guilty under this statute because Alagha’s account was not a security. We agree.
“Security” is defined broadly and includes investment contracts. K.S.A. 1999 Supp. 17-1252(j). Here, the testimony indicates the account from which funds were transferred contained cash only. There is no testimony that Ameen ordered the sale of Alagha’s stocks with the proceeds to go to Ameen’s CCC account.
An investment contract has been defined as “an investment of money in a common enterprise with profits to come from the efforts of others.” State ex rel. Owens v. Colby, 231 Kan. 498, 504, 646 P.2d 1071 (1982). While we have found no Kansas case directly on point, we believe that a case from the Eleventh Circuit is instructive.
In Gordon v. Terry, 684 F.2d 736 (11th Cir. 1982), cert. denied 459 U.S. 1203 (1983), the court dealt with whether real estate syndicates were securities. The court determined the central question was whether the alleged investment contract was discretionary or nondiscretionary. 684 F.2d at 740-41.
The Gordon court concluded a nondiscretionary contract cannot be an investment contract and, therefore, not a security because “[a]n investor who [pursuant to the contract] has the ability to control the profitability of his investment ... by his own efforts ... is not dependent upon the managerial skills of others. Thus, . . . arrangements which grant the investors control over the significant decisions of the enterprise are not securities.” 684 F.2d at 741.
We conclude Alagha’s account from which the funds were diverted was nondiscretionaiy and thus, not a security. Based on that conclusion, Ameen’s conviction of securities fraud must be reversed. Because of our holding on this issue, we need not address Ameen’s other contentions concerning the securities fraud conviction.
Ameen also appeals his convictions of four counts of felony theft under K.S.A. 21-3701, for the unauthorized transfers of funds from Alagha’s Primeline account. He contends the trial court erred in failing to instruct on the single larceny theory or doctrine. Ameen did not request such an instruction, so our review is limited to whether the failure to give the instruction was clearly erroneous. See State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
We have determined the single larceny doctrine has been limited to cases allowing the State to charge a series of misdemeanor thefts as one felony theft where it appears the thefts resulted from a single incriminating impulse. See State v. McClanahan, 251 Kan. 533, 535-36, 836 P.2d 1164 (1992); State v. Fox, 242 Kan. 457, 460-63, 749 P.2d 16 (1988). We hold the doctrine to be inapplicable here where the defendant committed four separate felony thefts.
Further, there is no real possibility the jury would have returned a verdict other than guilty on all four separate counts of thefts. The failure to give the instruction was not clearly erroneous.
Ameen also contends his convictions should be reversed because the State failed to advise him of his rights under the Vienna Convention on Consular Relations. This treaty at Article 36(l)(b) states:
“[I]f lie so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by die person arrested, in prison, custody or detention shall also be forwarded by die said audiorities widiout delay. The said authorities shall inform the person concerned widiout delay of his rights under this sub-paragraph.” Vienna Convention on Consular Relations, 21 U.S.T. 77, 101, T.I.A.S. No. 6820 (April 24, 1963).
Ameen claims he was not informed of his rights under the treaty. Ameen failed to raise this issue at the trial court and, therefore, no evidentiary basis for the claim was properly established as part of the record on appeal.
Courts dealing with this question have concluded a violation of Article 36(l)(b) will not result in a reversal unless the defendant has shown prejudice. See, e.g., Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied 519 U.S. 995 (1996); Martinez v. State, 984 P.2d 813, 818-19 (Okla. Crim. 1999).
In the present case, Ameen merely argues that if he had been informed of his rights, the Bangladesh counsel might have been able to retain private counsel to represent him, rather than a public defender. However, Ameen makes no claim the representation afforded him through his appointed counsel was deficient. Ameen’s claim is purely speculative and thus fails. Courts should not roam the unfenced fields of speculation. In re Estate of Wernet, 226 Kan. 97, 106, 596 P.2d 137 (1979) (quoting In re Estate of Graves, 203 Kan. 762, 769, 457 P.2d 71 [1969]).
We do, however, urge state prosecutors to become familiar with the treaty and specifically Article 36. The Vienna Convention on Consular Relations was adopted by 92 nations, including the United States. See Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int’l Law 565, 568 (1997). State prosecutors should become aware of the treaty’s provisions and adhere to them.
Ameen’s conviction of securities fraud is reversed; his four convictions of felony theft are affirmed.
|
[
16,
112,
-8,
-67,
24,
-96,
58,
58,
89,
-21,
39,
83,
-23,
70,
-128,
123,
-111,
117,
96,
97,
84,
-77,
95,
-55,
-46,
-109,
-8,
-59,
-80,
79,
-26,
-35,
72,
48,
-54,
85,
98,
10,
-37,
92,
10,
4,
-118,
64,
-3,
-63,
36,
-81,
16,
75,
97,
12,
-13,
40,
30,
110,
105,
46,
42,
-1,
-64,
-40,
-85,
-123,
127,
21,
-93,
4,
-70,
5,
-40,
46,
24,
56,
1,
-55,
114,
-90,
-122,
116,
79,
75,
45,
34,
98,
-128,
1,
-73,
52,
-124,
63,
-33,
31,
-89,
-46,
72,
1,
45,
-73,
-100,
102,
21,
38,
-12,
-22,
28,
27,
108,
7,
-49,
-42,
-125,
13,
118,
30,
-101,
-1,
-107,
1,
96,
-50,
-94,
78,
55,
122,
-109,
46,
-57
] |
Rulon, J.:
Respondents Charles Simmons, et ah, appeal from the judgment of the district court which in effect reduced the amount of restitution costs assessed against the petitioners Joseph Tonge and Bradley Holmes. The petitioners appeal the judgment of the district court and claim the amount of the reduction of restitution was insufficient. We affirm.
The facts distilled to their essence are as follows:
On July 15, 1998, Sergeant Woodmansee of the Ellsworth Correctional Facility noted that petitioners were unaccounted for. The petitioners were not located within the facility but were eventually apprehended and returned to custody.
The Department of Corrections (DOC) charged the petitioners with a disciplinary violation for committing aggravated escape from custody under K.A.R. 44-12-1001. Eventually, the petitioners entered guilty pleas, and the disciplinary board ordered the petitioners to repay the costs expended by the State in regaining their custody, as restitution for the violation. The restitution amounted to $1,956.75 per petitioner.
The petitioners, separately, filed complaints against the DOC, alleging the amount of restitution was unreasonable. The unit team denied the petitioners relief, finding their appeals of the restitution amount were untimely. Upon the petitioners’ appeals, the principal administrators, Ray Roberts and Robert Hannigan, and the Secretary of Corrections deified relief for each of the respective grievances. Later, the petitioners each filed a petition for habeas corpus relief under K.S.A. 1999 Supp. 60-1501. After separate hearings, the district court reduced the amount of restitution to $1,104.68 for each petitioner. These appeals followed.
The respondents, in essence, claim this court lacks jurisdiction to entertain the petitioners’ appeals.
First, the respondents contend the habeas corpus petitions were not filed within the 30-day limitations period. Although the respondents raised this issue before the district court, that court did not address the issue.
K.S.A. 1999 Supp. 60-1501(b) provides that a prisoner must file his or her habeas corpus petition within 30 days of the date of unlawful action taken by prison authorities, except such time limitation shall be tolled while the prisoner seeks administrative relief within the DOC.
Although the disciplinary penalty including the assessment of restitution was imposed on July 29, 1998, the petitioners’ grievances did not contest their guilt in violating K.A.R. 44-12-1001 or the imposition of the penalties associated with that disciplinary violation. Rather, the petitioners challenge only the resulting conditions of their confinement caused by the allegedly unreasonable execution of the penalty depriving them of the capacity to maintain personal hygiene. As such, so long as the DOC’s garnishment of the petitioners’ accounts leaves the petitioners with insufficient funds to obtain products necessary to maintain personal hygiene and health, the conditions of their confinement are unlawful and a habeas corpus action is appropriate.
Even if the petitions were untimely, the respondents cannot be prejudiced by a complaint of allegedly unlawful prison conditions continuing to exist. As a result, the district court properly did not refuse to consider the petitioners’ habeas corpus actions on the grounds they had been filed out of time.
Next, respondents contend the petitioners failed to exhaust their administrative remedies. The record on appeal contains a grievance with the DOC for each petitioner. The petitioners then appealed the denials of relief to their respective principal administrators, and finally to the Secretary of Corrections. Such action by the petitioners complies with the requirements for an administrative appeal promulgated in K.A.R. 44-13-701(a). The decision of the Secretary of Corrections is the final review in the administrative process. K.A.R. 44-13-702. Clearly, the petitioners exhausted their administrative remedies.
Next, the respondents argue that, because the petitioners pled guilty to the disciplinary violation under K.A.R. 44-12-1001, the petitioners cannot now appeal the disciplinary hearing officer’s adjudication of guilt. K.A.R. 44-13-701(d). Respondents further argue the hearing officer possessed sufficient evidence to convict the petitioners of the disciplinary violation charged. Both arguments fail to address the issue raised by the petitioners on appeal. The petitioners contest neither the hearing officer s determination of their guilt nor the imposition of a penalty for the disciplinary violation. Petitioners appeal the conditions of their confinement as a result of the application of the penalty. The petitioners’ appeals revolve around the argument that the enforcement of the restitution requirement deprives them of constitutional rights to maintain their personal hygiene.
Finally, the respondents claim the petitioners were not denied due process during the administrative hearings. As we understand, the petitioners did not raise this issue during the administrative hearing. Likewise, this issue has not been raised before us.
Simply said, we have jurisdiction to hear this appeal.
The first contention raised by the petitioners in this appeal challenges the DOC’s ability to impose, as restitution, the costs incurred by law enforcement personnel in returning the petitioners to custody after their escape. Petitioners argue the ability to impose the costs of recapture is specifically authorized by K.S.A. 1999 Supp. 21-4603d(a)(8). The authority to impose such costs, however, is limited to the courts. According to K.S.A. 21-4602(a), the petitioners claim that “court” does not encompass administrative hearings conducted by the DOC.
Whether the DOC falls within the definition of “court” for the purposes of K.S.A. 1999 Supp. 21-4603d need not be decided in this case. The DOC, under the authority of the Secretary of Corrections, has broad powers to determine the necessary disciplinary rules and regulations, specifically including payment of restitution, needed for the orderly administration of the correctional institutions. K.S.A. 75-5210(f).
Several of the regulations promulgated by the DOC authorize the DOC to impose reasonable restitution upon prisoners who violate disciplinary rules. See K.A.R. 44-12-1303(b)(7); K.A.R. 44-12-1306. So long as the DOC conforms to its own regulations and those regulations are not in contravention of controlling law, the courts generally extend considerable deference to the application of those regulations. See Murphy v. Nelson, 260 Kan. 589, 594-95, 921 P.2d 1225 (1996) (citing Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 100, 697 P.2d 1279 [1985]).
Restitution is designed to deter future misconduct, to rehabilitate the offender by imposing responsibility to society for wrongful conduct, and to compensate the victims of the wrongful conduct. As a result, a sentencing judge has broad discretion in settling the amount of restitution charged to an offender, so long as the amount is related to the offense for which the offender had been convicted. See State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999). There is no valid reason to grant less discretion to a disciplinary hearing officer in the case of a discipline violation.
The only limitation on the disciplinary hearing officer’s ability to order restitution is that the imposition of restitution must be reasonable. K.A.R. 44-12-1306(a)(4). “Reasonable” restitution is an amount that is “[f]air, proper, just, moderate, [and] suitable under the circumstances.” Black’s Law Dictionary 1265 (6th ed. 1990).
During the habeas corpus proceedings, the district court determined that requiring the petitioners to pay for all of the officers’ time expended in the recapture efforts was unreasonable because some of those officers would have been working at that time, regardless of the petitioners’ escape. Consequently, the court reduced the restitution to nearly half of the amount designated for the employment of officers in regaining custody of the petitioners.
The petitioners argue the district court should have ordered that the restitution payment not exceed half of each of the petitioners’ accounts. Each petitioner, according to his brief, earns $20 per month. The district court’s reduction of the restitution amount provides each petitioner nearly half of their earnings.
Because the original calculation of restitution is within the broad discretion of a sentencing court, see Applegate, 266 Kan. at 1075, there is no reason the same discretion should not be afforded a district court in recalculating restitution on a habeas corpus petition. A district court abuses its discretion only when no reasonable person would take the view adopted by the court. See State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998).
As we understand, the district court found that some of the costs included in the DOC’s calculation of the restitution were dupli cative of normal state law enforcement costs. Furthermore, because the reduced restitution amount was nearly the amount requested by the petitioners, we are convinced a reasonable person could have easily adopted the view taken by the district court. We firmly conclude the district court did not abuse its discretion in reducing the restitution to $2,209.36 (or $1,104.68 per petitioner).
Affirmed.
|
[
80,
-12,
-15,
-33,
11,
-91,
51,
28,
67,
-93,
102,
83,
-87,
-34,
65,
122,
-13,
33,
85,
105,
75,
-73,
119,
-63,
-66,
-5,
-15,
81,
-77,
79,
-28,
-44,
72,
20,
-94,
21,
102,
-54,
-9,
-36,
-50,
7,
-120,
-45,
-13,
2,
43,
106,
22,
15,
49,
-115,
-69,
46,
16,
115,
73,
41,
15,
-83,
-108,
-39,
-113,
5,
95,
22,
-96,
-123,
20,
98,
82,
-65,
-104,
61,
3,
-24,
-79,
-90,
-126,
116,
75,
-85,
-91,
38,
98,
48,
29,
-50,
53,
-116,
46,
-98,
-115,
39,
-111,
80,
67,
68,
-106,
-99,
124,
22,
7,
116,
-10,
4,
125,
108,
-122,
-50,
-100,
-111,
29,
48,
-114,
-5,
-5,
5,
-32,
113,
-116,
-30,
94,
-41,
122,
-101,
14,
-6
] |
Green J.:
Cheryl M. Emmons and LeMaster, Inc., through its president, Charles A. LeMaster, entered into a written agreement giving LeMaster an exclusive option to purchase Emmons’ airplane if she defaulted on repayment of a loan from LeMaster. The trial court originally found that this transaction was not a secured transaction governed by K.S.A. 84-9-201 el seq. The Court of Appeals disagreed, determining that the agreement between the. parties was a security agreement and satisfied the requirement of a writing. The Court of Appeals remanded for a new trial on the issue of whether the parties intended to create a security interest. On remand, the trial court determined that the parties’ security agreement contained a security interest to secure repayment of a loan. The trial court also found that Emmons failed to object to LeMaster’s purchase proposal within 15 days of receiving notice and, as a result, she waived her right of redemption. We disagree and remand with directions for a determination of Emmons’ damages.
Emmons owned a Piper PA 28-140 airplane that she hangered at the Coffey County Airport. She failed to pay the hanger fees, and the airport authority obtained a judgment against her. In order to satisfy that judgment, her airplane was to be sold at a sheriff s sale on March 13, 1995.
LeMaster offered to help Emmons avoid the loss of her airplane by loaning her the money to pay her debt to the airport authority in exchange for an “exclusive option to purchase” the airplane. The agreement was executed on March 13, 1995. LeMaster advanced Emmons $1,294.18 under the agreement. If Emmons paid back the advance in full by June 13, 1995, she was to retain all rights to the airplane. If she did not, LeMaster was to purchase the airplane for $13,000. A signed bill of sale was placed in escrow at Citizen’s State Bank in New Strawn, Kansas.
On June 13, 1995, Emmons paid LeMaster $425 in partial repayment. No further payments were made until later. On June 13, 1995, LeMaster exercised its option to purchase the airplane. Le-master paid $11,705.82 to Citizen’s State Bank in exchange for the executed bill of sale. On the same day, Citizen’s State Bank mailed $11,705.82 to Emmons to pay for the plane. The cashier’s check noted that payment was from Charles LeMaster and LeMaster, Inc. The payment was accompanied with a note written on the Citizen’s State Bank letterhead, which simply stated: “Enclosed is payment in full on LeMaster-Emmons escrow for purchase of Piper PA28-140.” Emmons refused to accept the payment. On July 5, 1995, Emmons mailed two checks to LeMaster that totaled the amount advanced and paid to the escrow agent by LeMaster. LeMaster did not cash these checks. LeMaster had taken posses sion of the airplane on June 13,1995, registered it with the Federal Aviation Administration, and made repairs on the plane in preparation for resale. On August 4, 1995, LeMaster sold the plane to Ralph and Latricia Mathews for $23,000 plus tax after incurring $5,906 in expenses in preparing the airplane for resale.
Notice of Strict Foreclosure under KS. A. 84-9-505(2)
Emmons appeals from the trial court’s decision on remand that she had proper notice of LeMaster’s intention to satisfy the debt by retaining the collateral under K.S.A. 84-9-505(2) and that she waived her right to redemption because she did not object within 15 days of receiving notice. It is first necessary to address whether the check and letter sent to Emmons constitutes sufficient notice of LeMaster’s intention to satisfy the debt by retaining the airplane. K.S.A. 84-9-505(2) provides in pertinent part:
“[A] secured party in possession may, after default, propose to retain die collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to die debtor if he has not signed after default a statement renouncing or modifying his rights under diis subsection. ... If the secured party receives objection in writing from a person entitled to receive notification within fifteen (15) days after die notice was sent, the secured party must dispose of the collateral under section 84-9-504. In the absence of such written objection the secured party may retain the collateral in satisfaction of die debtor’s obligation.”
This section requires notice to the debtor of the creditor’s proposal to retain the collateral as full satisfaction of the debt. “The notice must be of strict foreclosure in particular, and not simply of an intent to foreclose.” Fletcher v. Cobuzzi, 499 F. Supp. 694, 699 (W.D. Penn. 1980) (holding that letters sent by the creditor to the debtor did not constitute notice under Uniform Commercial Code § 9-505 [2] because the letters made no reference to the creditor’s intention to retain the collateral rather than dispose of it by sale or otherwise); see 10 Anderson on the Uniform Commercial Code § 9-505:84 (3d ed. 1999) (“[I]n the case of nonconsumer collateral, all that the creditor is required to do is to manifest the intent to retain the collateral in satisfaction of the debt. Such declaration gives the creditor the rights to ownership of the collateral.”).
Here, the letter sent by Citizen’s State Bank to Emmons merely stated LeMaster’s intent to exercise the option contract and pur chase the airplane. The letter makes no reference of LeMaster’s intent to retain the airplane in full satisfaction of the debt. Moreover, LeMaster has produced no other evidence indicating that he gave notice of strict foreclosure to Emmons or that she renounced after default her right to receive notice. Not only was LeMaster required to notify Emmons of his intent to retain the airplane in full satisfaction of the debt, but it would have been good business practice to have also informed her that she had 15 days to object under K.S.A. 84-9-505(2). As a result, LeMaster’s alleged strict foreclosure of the collateral was invalid for failure to comply with the notice provisions of K.S.A. 84-9-505(2). See Fletcher, 499 F. Supp. at 699; In re Sports Autos, Inc., 6 U.C.C. Rep. Serv. 991, 993-94 (W.D. Pa. 1969).
Right of Redemption under K S.A. 84-9-506
Because LeMaster failed to notify Emmons of his intent to retain the airplane in full satisfaction of the debt, Emmons may have had the right under K.S.A. 84-9-506 to redeem the collateral. The statute provides:
“At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 84-9-504 or before the obligation has been discharged under section 84-9-505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.”
Here, Emmons tendered full payment of the loan by mailing three money orders to LeMaster. The first money order in the amount of $425 was sent to LeMaster on June 13, 1995. Emmons enclosed a note with the payment which stated that she would “pay the balance (July 1, 1995) and any other costs incurred.” The second and third payments were sent together on July 6, 1995. Along with these payments, Emmons sent a note which read: “Enclosed are two (2) money orders in total amount of $869.18 — the balance due of the $1294.18. Let me know the ground insurance and I have (if correct) June and July ‘95 hangar to pay.” Despite Em mons’ requests for the amount of expenses she owed, there is no evidence in the record that LeMaster provided her with a written payoff balance.
Significantly, Emmons’s right to redeem the collateral under K.S.A. 84-9-506 had not lapsed when she tendered the payments. “The right of redemption exists until the secured party has disposed or contracted to dispose of the collateral under 84-9-504 or 84-9-505(2).” K.S.A. 84-9-506, Kansas Comment, 1996. Emmons’ right to redeem existed when she tendered the payments because LeMaster could not have contracted to dispose of the collateral under 84-9-504 since he failed to comply with the notice provisions in subsection (3). In addition, the right of redemption had not lapsed because, as previously discussed, LeMaster did not complete the strict foreclosure of the collateral since he failed to notify Emmons of his intent to retain the airplane in full satisfaction of his debt. As a result, the time limitation placed upon Emmons’ right to redeem the collateral had not expired when she tendered the payments to LeMaster.
Moreover, we find that LeMaster waived tender of the expenses allowed under K.S.A. 84-9-506 by his failure to notify Emmons as to the amount of these fees. A creditor may waive tender where the creditor takes any position which would render a tender, so long as the position taken by the creditor is maintained, “ ‘a vain and [idle] ceremony.’ ” Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26, 31 (Mo. App. 1976) (quoting Miran Investment Co. v. Medical West Building Corp., 414 S.W.2d 297, 303-04 [Mo. 1967]); see 10 Anderson on the Uniform Commercial Code § 9-506:53 (“When a creditor improperly refuses to permit a debtor to redeem collateral . . . the creditor waives the requirement of a tender of the proper amount and is also guilty of a conversion of the collateral.”).
In addition, despite Emmons’ written request for the amount of insurance and hangar fees she owed LeMaster, he failed to provide her with a payoff balance. K.S.A. 84-9-208(1) provides:
“A debtor may sign a statement indicating what he believes to be the aggregate amount of unpaid indebtedness as of a specified date and may send it to the secured party with a request that the statement be approved or corrected and returned to the debtor.”
This section of the Uniform Commercial Code is “one of the most important, and from the caselaw, one of the most neglected provisions in the UCC.” K.S.A. 84-9-208, Kansas Comment, 1996. Not only has the section been neglected in. Kansas, but it has seen little application nationwide. In fact, one of the only cases to address section 9-208 of the UCC is Rainey v. Ford Motor Credit Company, 294 Ala. 139, 313 So. 2d 179 (1975). Rainey held that “[w]hile the creditor may in some cases be required to furnish [the payoff balance], plaintiff s [telephone request] was not sufficient. No written request was ever made.” 294 Ala. at 143. See Clark, The Law of Secured Transactions under the Uniform Commercial Code ¶ 4.11[4] (rev. ed. 1993) (“Must the secured party furnish the debtor with a payoff balance so that the redemption amount can be accurately determined? This duty seems obvious.”).
In the present case, LeMaster’s failure to comply with Emmons’ written request for a statement of accounting prohibited Emmons from determining the redemption amount. As a result, LeMaster’s failure to notify Emmons as to the amount of fees and expenses prohibited Emmons from redeeming her airplane as provided in K.S.A. 84-9-506 and effectively excused or waived any obligation on Emmons’ part to tender in the strict legal sense the amount of those fees and expenses. See Owens, 544 S.W.2d at 32. Because LeMaster improperly refused to allow Emmons to redeem the collateral, we find that LeMaster waived the requirement of tender and is guilty of conversion of the aiiplane.
Because LeMaster retained the collateral without complying with K.S.A. 84-9-505, Emmons is entitled to elect either damages for conversion of the collateral or for the damages prescribed by K.S.A. 84-9-507(1). See 10 Anderson on the Uniform Commercial Code §§ 9-507:38 (citing Chen v. Profit Sharing Plan of Dr. Donald H. Bohne, 216 Ga. App. 878, 456 S.E.2d 237 [1995]); 9-507:58. On remand, the trial court is instructed to determine the amount of Emmons’ damages under the remedy she elects.
Reversed and remanded with directions.
|
[
112,
120,
96,
93,
24,
96,
56,
-102,
81,
-3,
100,
83,
-23,
-20,
5,
105,
-91,
111,
96,
105,
-25,
-77,
103,
-14,
-42,
-77,
-15,
-35,
-80,
79,
-4,
-42,
12,
-96,
-54,
21,
-94,
3,
5,
24,
-98,
4,
-101,
64,
-35,
3,
52,
58,
20,
76,
81,
-81,
-15,
41,
21,
75,
-23,
14,
107,
-83,
-47,
-7,
-69,
5,
-1,
23,
-126,
4,
-76,
45,
88,
46,
-112,
-72,
56,
-23,
120,
54,
-58,
-12,
11,
-53,
-124,
34,
115,
34,
-60,
-19,
-44,
-68,
38,
122,
-113,
-93,
-42,
88,
34,
45,
-65,
29,
89,
23,
28,
-4,
-94,
5,
30,
-24,
31,
-54,
-44,
-109,
47,
118,
-97,
23,
-17,
-121,
34,
80,
-52,
-90,
94,
82,
121,
-109,
-125,
-112
] |
Marquardt, J.:
Kongthakhounk Thidsom appeals the trial court’s granting of summaiy judgment to Excel Corporation (Excel).
While employed at Excel, Thidsom sought treatment and compensation for work-related injuries. Excel’s collective bargaining agreement with the union provided that an employee who has a workers compensation injury is allowed one opportunity to bump a junior employee for a permanent job that is within the injured employee’s permanent medical restrictions. Thidsom’s treating physician said that the job Thidsorn selected may accommodate his permanent medical restrictions. An Excel representative informed Thidsorn that if he were unable or refused to perform the selected job, Excel would terminate him.
Thidsorn bumped a junior employee for a job that fit within his medical restrictions. Approximately 1 week after starting the new job, Thidsorn began experiencing physical problems. Thidsorn’s attorney demanded that Excel provide additional accommodation or a vocational referral. Thidsorn’s physician stated that the physical requirements of Thidsorn’s new job subjected him to further injury.
Although he argues otherwise, there is uncontroverted evidence that Thidsom admitted telling a physician and an Excel representative that he did not feel he could continue performing the new job. Excel terminated Thidsorn because of his inability to do the job. The trial court granted Excel’s motion for summary judgment and found that Excel was justified in terminating Thidsorn because he could not perform the permanent post-injury position he had chosen. Thidsorn appeals.
Thidsorn argues that the trial court erred in granting summary judgment because there were genuine issues of material fact regarding his termination from Excel. Thidsorn claims that his termination was in retaliation for filing his workers compensation claim and that summary judgment should not have been granted. To successfully defeat summary judgment, Thidsom must come forward with something of evidentiary value establishing Excel’s retaliatory motive. See Ortega v. IBP, Inc., 255 Kan. 513, 521, 874 P.2d 1188 (1994); Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990); Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987). The standard of review is de novo. Dominguez v. Davidson, 266 Kan. 926, 929, 974 P.2d 112 (1999).
Firing an employee for filing a workers compensation claim is improper; however, an employer is not required to look for alternative work or create a position before terminating an injured employee who clearly cannot return to his or her prior position. Coleman v. Safeway Stores, Inc., 242 Kan. 804, 807, 752 P.2d 645 (1988); Murphy v. City of Topeka, 6 Kan. App. 2d 488, 495-96, 630 P.2d 186 (1981); see Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 148-49, 927 P.2d 958 (1996), rev. denied 261 Kan. 1084 (1997). According to Griffin, if a duty to accommodate is incorporated into the public policy behind retali atory discharge, the policies behind the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (1994), and the Kansas Act against Discrimination, K.S.A. 44-1001 et seq., would be frustrated. If an employee seeks to pursue a claim for failure to accommodate, he or she should pursue that claim under these laws. 23 Kan. App. 2d at 149.
The trial court relied on the Griffin rationale in granting summary judgment because Thidsom’s termination was based on his physical inability to perform his post-injury job duties. According to the trial court, Excel was justified in terminating Thidsorn in accord with the collective bargaining agreement and based on the representations of Thidsorn’s physician and attorney.
Griffin was diagnosed with degenerative disc disease and was assigned permanent medical restrictions. Griffin filed a retaliatory discharge action because his employer did not return him to work. He argued that his employer was estopped from asserting his inability to perform work because the employer took a contrary position during the pendency of his workers compensation case. This court held that an employer cannot be sued for retaliatory discharge simply because it failed to consider another position or to modify a job to accommodate an injured employee. 23 Kan. App. 2d at 149.
Thidsorn argues that Griffin is not applicable because the issue here is not a failure to accommodate. Thidsorn contends that Excel fired him under the guise of the collective bargaining agreement after he demanded an additional accommodation or a vocational referral under K.S.A. 44-510g. He further argues that Excel’s bumping process was designed to avoid liability for work disability benefits and to systematically fire injured employees who returned to work.
Excel was justified in terminating Thidsorn under the collective bargaining agreement and Griffin. Griffin is not applicable where evidence of retaliatory motive is also presented. See Sanjuan v. IBP, Inc., 90 F. Supp. 2d 1208 (D. Kan. 2000); Dale v. J. G. Bowers, Inc., 709 N.E. 2d 366 (Ind. App. 1999).
Unlike Sanjuan, Thidsorn was rated and medically released with permanent physical restrictions. Excel placed him in the post-in jury job he selected pursuant to the procedures outlined in their collective bargaining agreement. Thidsorn’s attorney sent a letter, supported by medical documentation, indicating that Thidsorn could no longer perform the job. When asked about the letter, Thidsorn admitted that he could no longer perform the job, and the collective bargaining agreement did not provide for an additional accommodation. The trial court did not err in granting summary judgment.
Affirmed.
|
[
-112,
-8,
-39,
-99,
10,
-31,
50,
18,
68,
-89,
7,
83,
-49,
-40,
5,
127,
-27,
127,
80,
107,
-1,
-77,
86,
73,
-30,
-109,
-126,
-51,
-5,
111,
-10,
93,
79,
48,
10,
-59,
-26,
-128,
-56,
0,
-52,
4,
-88,
-22,
89,
-127,
48,
126,
72,
67,
49,
-58,
-101,
46,
26,
-113,
8,
108,
107,
-84,
-15,
-16,
-63,
5,
-1,
16,
-93,
4,
62,
111,
-40,
46,
-101,
56,
1,
-56,
18,
-74,
-62,
116,
35,
-103,
12,
99,
98,
50,
25,
-3,
112,
-72,
47,
62,
15,
-123,
-111,
57,
26,
15,
-106,
-67,
82,
21,
6,
124,
-18,
-115,
18,
44,
27,
-97,
22,
-77,
13,
-60,
-114,
-85,
-17,
-102,
17,
113,
-34,
-94,
92,
-121,
51,
-105,
114,
-112
] |
The opinion of the court was delivered by
MASON, J.:
A tract of land was sold under a decree foreclosing a first mortgage in favor of W. J. Anderson. A controversy arose between Mrs. Minerva A. Catlin and F. B. Chapin, trustee, as to which of them was entitled to the right of redemption. The trial court decided in favor of Chapin, and Mrs. Catlin appeals.
Mrs. Catlin was at one time the owner of the land and executed to the Peoples State Bank of Medicine Lodge a mortgage upon it, subject to the one already mentioned. The second mortgage was foreclosed in 1913 without making the first mortgagee a party, and under the resulting decree the land (subject to the first mortgage) was sold to “F. B. Chapin, Trustee,” and a sheriff’s deed was executed to him under that designation. The sale purported to be made, not only by virtue of the decree referred to, but also under an execution on a personal judgment against Mrs. Catlin in favor of William Deering & Company, a corporation. On December 29, 1915, Mrs. Catlin brought an action to set aside the sheriff’s deed on the ground that the execution was a nullity, and that the Deering company’s judgment was not a lien on the land, because of its being occupied by her as a homestead. She was denied relief, and the decision was affirmed for the reason that, regardless of whether or not the execution was valid, or the personal judgment a lien, the title to the land had passed by the deed because it was based on a sale made under the decree in the foreclosure case, and the questions referred to affected only the disposition of the proceeds in excess of the mortgage debt. (Catlin v. Deering & Co., 102 Kan. 256, 170 Pac. 396.)
bn that case, although the sale was made and the deed executed to “F. B. Chapin, Trustee,” nothing was shown as to the character of the trust, or its beneficiaries. In this case it was developed that Chapin was acting as trustee for the bank and for the Deering company. This fact is mentioned here for whatever light it may throw on the contentions made, but it is not regarded as affecting the rights of the parties to this appeal in any way.
In the present case Mrs. Catlin filed an answer which in- eluded matter styled a cross petition, alleging that on August 17, 1915, she had contracted with Chapin for the purchase of the land for the amount of the bank’s mortgage, had made payment thereon, stood ready to pay the balance, and was in possession of the property; and that the Deering company had no interest in it, because of the nullity of the execution and of its judgment not being a lien. The dates already given show that the contract alleged by Mrs. Catlin was said to have been entered into several months before she brought her action to set aside the sheriff’s deed. In that action she pleaded the same contract. So that her effort seems to be to relitigate the matters involved in that case. The appeal now under consideration, however, is from the decision of the district court that Chapin, as trustee, and not Mrs. Catlin, is entitled to redeem from the sale under the decree in the present case. The sheriff’s deed, which was held to be valid on the former appeal, was sufficient to sustain that ruling in the absence of proof of a subsequent change of title. The judgment recites that evidence was introduced at the hearing upon the question as to who had the right of redemption, but the abstract contains none, and no transcript thereof appears to have been made. The presumption must be that the evidence supported the judgment.
No formal denial was filed to the pleading of Mrs. Catlin, but in his own answer Chapin had alleged that as trustee for the bank and the Deering company he was the owner in fee simple of the land, subject only to the plaintiff’s mortgage. Whether or not good practice required a further pleading by him, it is obvious that the decision was not based upon its absence. The hearing was upon motions of the parties who áre here contesting, to be allowed to redeem from the sale on the first mortgage. The suggestion is made that Mrs. Catlin’s answer was to be taken as true because not denied under oath. That would not be the case except as to the allegation it contained that Chapin had signed a receipt for $510 on an “agreement on land foreclosure” the terms of which were not stated in the receipt nor (so far as the pleadings showed) in any other writing.
The appellant’s real contention seems to be that the judg ment of the Deering company was not a lien on the land. As was suggested in the opinion on the former appeal, her remedy in that event lay in claiming the proceeds of the sheriff’s sale-over and above the bank’s mortgage, and not in attacking the title that had passed by the deed. That suggestion still holds good, and applies as well to the situation now presented.
Objections have been made to the counter abstract, which are technically good, but do not affect the decision of the case on its merits.
The judgment is affirmed.
|
[
113,
124,
-8,
44,
26,
-32,
-86,
-102,
72,
-92,
-91,
87,
-85,
-38,
1,
45,
-16,
57,
113,
121,
-43,
-73,
23,
-120,
-46,
-13,
-47,
-51,
-79,
92,
116,
87,
12,
48,
10,
-43,
-26,
-125,
-59,
84,
-50,
-121,
58,
103,
-35,
64,
48,
107,
82,
74,
113,
-113,
-13,
44,
25,
67,
72,
46,
-21,
61,
-80,
-72,
-69,
-124,
127,
6,
17,
37,
-104,
-93,
104,
-86,
-112,
53,
3,
-24,
83,
-90,
-122,
84,
73,
-101,
40,
34,
102,
1,
109,
-17,
-32,
-104,
46,
-9,
-115,
-122,
-110,
88,
11,
32,
-74,
-35,
72,
80,
71,
118,
-18,
-123,
28,
108,
13,
-50,
-106,
-95,
-113,
62,
-104,
-125,
-33,
3,
48,
112,
-52,
98,
93,
102,
121,
27,
-113,
-68
] |
The opinion of the court was delivered by
Mason, J.:
The controversy is over the interpretation of a will, the question at issue being whether in the event of the remarriage of his widow the testator intended that she should thereupon cease to have any interest whatever in his property, or (as found by the trial court) she should then take a half interest, the other half being shared equally among their children.
Isaiah Salmon died January 30, 1917, survived by his wife, five children, and Birdie. Cromer, the daughter of a deceased child. His will, which was duly probated, and under which the widow elected to take, read as follows, omitting the introductory and concluding portions:
“First. It is my will wish and wish, and I hereby direct that the executor of this my last will and testament, shall as soon after my demise as convenient, and out of any money or personal property of which I may die seized and possessed, pay all of my just debts, last sickness and funeral expenses, and the costs of administration.
“Second. I hereby give, devise and bequeath to my beloved wife, Caroline B. Salmon, all of the real estate and personal property of which I may die seized, and to which I may be entitled at the time of my death, and wherever the same may be located, for her use during the rest of her life, provided, she does not remarry. It is my will and wish that she be allowed the income from the said property only and at her remarriage or death; then the same shall .be divided according to the laws of Kansas.
“Third. To each of my children who are as follows: I leave the sum of one ($1.00) dollar each. Ira M.; Hugh; J. A.; G. A.; and Emma A. Kitch and to my granddaughter, Birdie Cromer, one ($1.00) dollar.”
The widow remarried in September, 1918. For several years before the death of her first husband she had been weak mentally. On November 7, 1918, she was adjudged feeble-minded, and a guardian was appointed. On July 1, 1919, the guardian, four children joining with him, brought an action against the other child and the granddaughter, asking the partition of real estate left by the testator, and a declaration that the widow was entitled to one-half of it, and the descendants to one-twelfth each. The granddaughter filed an answer claiming that the widow had no longer any interest in the property, and that she and the children owned one-sixth each. The case was submitted upon these facts, the court deciding in favor of the contention of the plaintiffs. The granddaughter appeals.
In behalf of the appellant it is argued that the application of the accepted rule that the court should give effect to the real purpose of the testator, as gathered from all parts of the will, considered in the light of the attendant circumstances, gives the following as the most reasonable interpretation: The husband and father, having in mind his wife’s mental weakness, and realizing that because of that condition if she remarried no part of any property he might leave to her outright would ever be likely to return to any of their family, undertook to give her nothing more in any event than the income of the property, and to deprive her of that if it should be rendered unnecessary for her support by her remarriage.
The argument is not without plausibility. On the other hand, however, the language of the will is quite explicit that upon either her death or remarriage the property should be divided according to the laws of Kansas — the obvious meaning being that it should be divided according to the law of descents as applied to property owned by him at the time of his death. Where the disposition indicated should be occasioned by her death the whole would of course go to their children; but where the distribution should be occasioned by her remarriage one-half of it would as obviously go to the widow. It can hardly be assumed against the natural meaning of the language of the will that because the wife was weak mentally the husband intended to deprive her absolutely of any interest in his property the moment she was in a position to look elsewhere for support. Such an intention, if entertained, might so readily have been expressed that we do not think it should be read into the will by interpretation.
It is also urged in behalf of the appellant that the will created a life estate in the widow, with a remainder to the children, vesting at once and convertible into a full title either by her death or her remarriage. This, however, seems to be prac tically a restatement of the same proposition, its correctness depending upon what interpretation is placed upon the testator’s expression of his purpose. The rule that in a doubtful case a construction should be preferred favoring an early vesting of a title — a vested rather than a contingent remainder— does not appear to us to be adapted to aid in the situation here presented. The appellant cites Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682. There a devise was made to the widow for life or until her remarriage, specific disposition being made of the property upon her death, but nothing being expressly stated as to what should become of it in the event of her remarriage. It was held that, in the absence of anything to indicate a contrary intention, it should be disposed of in the same way as though she had died. Here, however, the express provision is that if the widow remarries the property shall be divided according to the statute of descents.
The judgment is affirmed.
|
[
-13,
120,
-4,
13,
58,
96,
-54,
-104,
113,
-127,
37,
83,
107,
90,
20,
111,
113,
29,
81,
99,
-12,
-73,
22,
0,
-110,
-13,
-79,
-41,
-80,
92,
-27,
95,
76,
32,
10,
-43,
-26,
-54,
65,
-44,
-114,
-123,
-88,
-31,
-39,
112,
48,
125,
18,
76,
-59,
-102,
-13,
42,
29,
-30,
44,
46,
-38,
-72,
80,
-72,
-113,
-122,
111,
26,
19,
34,
-100,
-121,
72,
44,
-40,
49,
-119,
-32,
113,
-74,
-106,
116,
79,
-119,
40,
126,
103,
80,
13,
-25,
-72,
-104,
15,
-78,
-115,
-25,
52,
17,
9,
100,
-74,
-37,
121,
64,
11,
116,
-18,
20,
28,
-96,
24,
-101,
-42,
-79,
-113,
60,
-100,
-122,
-6,
-59,
32,
113,
-119,
34,
77,
-61,
120,
-79,
-105,
-78
] |
The opinion of the court was delivered by
West, J.:
The plaintiff appealed from the amount allowed by commissioners appointed by the judge of the district court to condemn a railroad right of way through a ten-acre piece of land owned by him. The right of way was so laid out that it left a little less than five acres north of it and a little over four acres south of it. The tract was partly timber and partly farming land and had some drilling extending to over eighty feet. The commissioners allowed $75 for the land taken and $25 damages, making $100. The jury allowed $250 for the land taken and $600 for damages to the rest, making $850.
The defendant appeals and assigns as error the overruling of the motion for a new trial, abuse of discretion in refusing to send the jury to view the premises, and instructing the jury to allow such sum as would fully compensate the plaintiff for all damages to the land sustained without limiting such damages to the market value.
Counsel in his brief says the verdict was given through passion and prejudice, and was wholly, contrary to the evidence. As these grounds were set forth in the motion for a new trial, they are proper to be considered now.
The plaintiff and ten other witnesses were examined, the former testifying that the ten acres were worth $2,000 before the road was built, and about $500 afterwards. One of his witnesses thought it was worth $250 an acre before, and nothing afterwards. Another estimated that it was worth $200 an acre before condemnation, having regarded only its mineral value. Another put it at $2,000 before condemnation, and $1,500 afterwards. Another thought the mining and farming value before condemnation “would be somewhere in the neighborhood of $150” an acre. He thought it was worth $75 an acre for farming purposes. Another put the figures at $2,000 and $1,000, respectively.
For the defendant, one witness, who had been one of the appraisers, thought the land was worth about $100 an acre both before and after building the road, but that the plaintiff-should have $100 damages for land taken on account of the mineral character. Another thought the tract was worth about the same after building the road as before. Another, who had bought considerable land in the vicinity, deemed the speculative value of the land about $100 an acre.
It will be seen from the foregoing that the jury had abundant room and justification for the verdict returned by them.
Special questions were answered to the effect that outside of the roadbed about three and one-half acres of the tract was in cultivation; that the cultivated land was fertile, but the remainder fit only for pasture or mining; that items going to make up the damages were:
“The railroad running- through the land from one side to the other, makes it very inconvenient to use for any purpose. The plaintiff has almost entirely lost the use of land south of the railroad. For mining purposes, it is almost ruined.”
Complaint is made that the court refused to send the jury to view the premises. The record contains no evidence or hint of any such request having been made, but as opposing counsel seems to concede that it was made, it may be observed that there is nothing in the record indicating that any prejudice arose from this refusal.
An instruction complained of was that if the jury should find any damages due the plaintiff they were to allow him such an amount as would fully compensate him for all damages to the land sustained, without telling them to take into consideration any benefits that might arise from the building of the road. This is said to be too favorable to the plaintiff, because of the failure to advise the jury that only an easement was taken, not the title in fee simple. But the jury were told in another instruction that the appropriation of the right of way created an easement in the railroad company to use the surface of the land, the real fee still belonging to the plaintiff, subject to the rights of the railroad to use the surface. The defendant offered no different instruction, and those given, taken together, correctly stated the law.
No reason appears why a new trial should have been granted, and the three assignments of error are deemed to.be insufficient to work a reversal.
The judgment is affirmed.
|
[
-14,
106,
-67,
-100,
10,
96,
42,
-104,
73,
-31,
-74,
115,
-113,
-54,
20,
33,
-94,
-103,
-44,
106,
86,
-77,
7,
-29,
-102,
-13,
51,
-51,
-71,
-52,
-26,
87,
77,
48,
-54,
-107,
102,
-56,
69,
80,
-114,
14,
-87,
-49,
-63,
96,
60,
59,
16,
75,
49,
-98,
-13,
44,
24,
-61,
41,
44,
107,
57,
16,
-8,
-78,
-113,
31,
4,
1,
34,
-100,
3,
-56,
42,
-104,
53,
1,
-24,
127,
-90,
-106,
116,
67,
-101,
12,
38,
103,
17,
85,
-49,
120,
-120,
14,
-2,
-115,
-89,
0,
24,
11,
96,
-98,
-99,
116,
20,
7,
126,
-19,
77,
89,
108,
5,
-125,
-106,
-93,
-113,
60,
-100,
66,
-53,
-117,
19,
96,
-49,
-94,
76,
103,
112,
-101,
15,
-97
] |
The opinion of the court was delivered by
Mason, J.:
John W. Pearson, who died in 1911, left a will which was duly probated and the provisions of which his widow accepted, giving to her at least a life interest in all his property (consisting of an eighty-acre farm and the personal property thereon) coupled with a power of disposition, the extent of which is the question in controversy. On August 13, 1918, about two months before her death, at the age of 84 years, she executed to Raymond Oreutt, a grandson, a deed to the farm, then worth nine or ten thousand dollars. Three children of John W. and Nancy M. Pearson brought the present aetion against Raymond Oreutt (joining as defendants the two other children,- one of them being Oreutt’s mother) asking that the deed be held ineffective and that each of the plaintiffs be decreed to be the owner of a one-fifth interest in the land. They were denied relief, and now appeal.
The plaintiffs asked that the deed be set aside because of want of capacity, fraud, and undue influence. The decision of the trial court, however, must be regarded as finally disposing of that issue. The case turns upon the interpretation of the will with respect to the character of the interest and power of disposition it vested in the widow. The defendants assert that she acquired an absolute fee, or if not, then a life estate coupled with an unlimited power of disposition. The plaintiffs say that she took only a life estate with a power of disposition so limited as not to authorize the conveyance made to her grandson. The will, omitting the formal parts, reads:
“Reposing full faith and confidence in my beloved wife, Nancy M. Pearson, I do hereby devise and bequeath unto her all property, real, personal and mixed, which I may own at the time of my death, provided my beloved wife shall survive me; and I hereby direct that no executor shall be appointed of my said estate and that no administration thereof shall be hád. 'And I especially direct that immediately upon the probate of this will that my said wife shall enter upon the possession and ownership of each, every and all of the above devised property, with power to sell and dispose of the same in any way that she may desire without the intervention of any court during her natural life. But I further direct that in case that she shall not have sold or disposed of all of my said property prior to her death, or if she shall not survive me, then out of such of my estate as shall remain, the sum of $50 shall be paid to my beloved grandson, Raymond Orcutt, and that the remainder thereof shall be divided among my five children, if living, namely: Sarah J. Pruitt, wife of William Pruitt; Rebecca Orcutt, wife of Jacob Orcutt; Celia R. Combs, wife of Isaac Combs; James W. Pearson and Susan O. Lue, wife of Prank Lue, share and share alike, if all of said children be living; but if any of said children shall be dead, then that the heirs of the body of such deceased child, or children, shall have the share of such deceased parent.”
The defendants place much reliance upon McNutt v. McComb, 61 Kan. 25, 58 Pac. 965. There a fee simple was held to vest in the widow under a will reading as follows:
“Item first: I hereby devise and bequeath unto my beloved wife, Lucinda Burke, subject to the payment of my debts, funeral expenses, and other expenses, all my estate, real and personal and mixed.
“Item second: At the death of my said wife, I direct that whatever may then remain of my said estate be divided between my three children, Margaret J. McNutt, Alonzo Burke, and Sophia Whitmore, and my grandson James Whitmore, as follows: One-third to Margaret J. McNutt, one third to Alonzo Burke, and the other third to be equally divided between Sophia Whitmore and James Whitmore above mentioned.
“I hereby direct that no inventory or appraisement of my property, real or personal, be required, and that no bond shall be required of my executrix.
“I hereby constitute and appoint my wife, Lucinda Burke, executrix of this my last will, and authorize and empower her to sell in such manner and upon such terms as she deem proper, at public or private sale, any or all of my personal property, and also in like manner to sell as much of my real estate as may be necessary for the payment of my debts, and convey the same in fee simple, without an order of court, as fully as I in my lifetime could do.”
The similarity of that will to the one here involved, with respect to the estate conveyed, is obvious. But several considerations serve to impair the force of the decision as a controlling precedent here. It was influenced largely by the application of the ancient and artificial rule that where the language of a will on its face imports the vesting of an absolute fee, that effect shall not be denied by reason of a subsequent clause attempting a limitation thereon. This rule is one of a number of somewhat similar character made use of in solving problems arising from conflicting provisions by giving preference to one or the other according to some hard and fast formula, instead of attempting to reconcile them — to ascertain and carry out the actual wishes of the testator as derivable from his language and the attending circumstances. The primary rule of construction now followed by this court, in that situation as in all others, is to give effect to the testator’s real intention as gathered from the entire document, without regard to the place in which it occurs, except so far as that circumstance may logically throw light on his meaning. (Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.) Moreover, in the McNutt-McComb case great weight was attached to the fact that the devise and the attempted limitation thereon were stated in separate items, expressly designated as such. Here they are contained within the same paragraph. There are also details peculiar to the will here involved which have some bearing on the matter, to which later reference will be made.
The words “I do hereby devise and bequeath unto her all property, real, personal and mixed, which I may own at the time of my death” were of course sufficient in themselves to pass an absolute fee. The rule of the common law that only a life estate would be created by a general devise unless reference were made to the heirs of the devisee (40 Cyc. 1525, 1526) or a purpose to pass a fee were otherwise affirmatively shown (2 Underhill on the Law of Wills, § 684) is abrogated by the statute to the effect that a devise shall be construed to convey all the testator’s estate unless an intention to the contrary shall clearly appear (Gen. Stat. 1915, § 11810), which corresponds to the similar provision dispensing with the mention of the heirs of the grantee in a deed. (Gen. Stat. 1915, § 2049.) If, however, the testator actually intended a devise in fee simple there could have been no occasion for the subsequent direction that his widow should immediately enter upon the possession and ownership of the property, with power to sell and dispose of it during her life. This provision following so closely upon the devising clause was plainly intended to be construed in connection with it and is quite persuasive that the actual purpose in his mind was that she should take only a life estate, coupled, however, with a power (either limited or absolute) to dispose of the fee. This view is strengthened by the use of the words “during her life,” which may reasonably be interpreted as qualifying the ownership referred to in the same sentence, and at all events by the clearest implication amounts to a negation of a right in the widow to dispose of the property by will, since that would be the only disposition which might naturally be spoken of as taking place after her death. That the testator intended her estate to terminate with her life is further confirmed by the provision that any of the property not sold or disposed of in her lifetime should upon her death go, not to the persons who would necessarily constitute her heirs, or whom she might designate by will, but (subject to the one specific bequest to the grandson) to his three surviving children. “A gift over of what remains frequently indicates that the particular estate was only a life estate with remainder over.” (40 Cyc. 1587.) We regard these considerations as requiring the conclusion that the testator intended his wife to take only a life estate, with a power of disposition the extent of which is to be determined very much as though the title granted had been expressly so limited.
By the weight of authority even the addition of an unlimited power of disposition will not convert a life estate into a fee. (2 Alexander on Wills, § 972; Notes, 6 L. R. A., n. s., 1186; 39 L. R. A., n. s., 805. See, also, note, 1 L. R. A., n. s., 782.)
The language employed — “with full power to sell and dispose of the same in any way that she may desire” — is very broad and if a literal construction is adopted goes far to indicate an absolute power of disposition. It is true, however, as suggested by the plaintiffs, that taken literally the phrase “sell and dispose” is narrower than “sell or dispose,” and might be given the force of such an expression as “sell and deliver.” The apparent sweeping effect of the provision may perhaps be accounted for as the testator’s expression of the thought that was obviously present in his mind, that in no event whatever was the intervention of a court to be necessary to her conveying the property. The fact that he withheld from her the power to dispose of the property by will shows that it was not his wish that the fee should be absolutely within her control, and justifies a restrictive reading of the words “sell and dispose” so far as the language and context leave room for such an interpretation. His primary purpose was clearly to make provision for her maintenance, in the broadest sense of that term — for the use and disposition of the property for her interest and according to her judgment. She was at liberty to use it or its proceeds to meet the expenses of such manner of living as she might see fit to adopt, but this would not imply that she might give it away. (Blair v. Blair, 82 Kan. 464, 108 Pac. 827; Griffin v. Kitchen, 225 Mass. 331; Bevans v. Murray, 251 Ill. 603.) Doubtless she might have sold it in order to make an investment or embark in some other business than farming — matters said in the Kansas case just cited to be beyond the scope of mere maintenance. But if the testator’s purpose had been to empower her to dispose of it to the impoverishment of the estate and without benefit to herself— to give it away outright — an express reference to a power so out of harmony with his general plan, as exhibited by the will as a whole, might naturally have been expected. It is quite needless to speculate upon just what action on the part of the widow with respect to the property would have been permissible. If her husband intended any restraint at all upon her action in that regard — and we are constrained to believe that he did — he plainly did not wish to leave her at liberty to turn the farm over to their grandson to the exclusion of all their children. Such, a course was not only violative of the spirit of the will, but as we think of its wording, as interpreted through the consideration of all its provisions in an effort to arrive at the meaning it was formulated to express. That the children of the testator and his wife should share the property between them on her death, so far as it had not been used up either in providing for her maintenance or in following plans devised by her consistent with the reasonable conservation of the estate — at all events not destructive of it — was an intention as readily to be gathered from reading the will as though it had been expressly stated. It would surely have been a matter of surprise to the father of the five children if it had been suggested to him that the language he had chosen permitted them to be deprived of all benefit of the will by a gratuitous conveyance to his grandson made by his wife just before her death.
Many cases are cited in the briefs having more or less bearing upon the question discussed. It does not seem advisable, however, to undertake to review them, for each case must to a large extent be determined upon the exact language involved and so offers but little help in the decision of others. As was said by Chief Justice Marshall, in words that have been often quoted:
“The construction put upon words in one will, has been supposed to furnish a rule for construing the same words in other wills; and thereby to furnish some settled and fixed rules of construction which ought to be respected. We cannot say that this principle ought to be totally disregarded; but it should never be carried so far as to defeat the plain intent; if that intent may be carried into execution without violating the rules of law. It has been said truly, 3 Wils. 141, ‘that cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.’ ” (Smith v. Bell, 31 U. S. 68, 80.)
The judgment is reversed, and the cause is remanded with directions to render judgment in accordance herewith.
|
[
-13,
110,
-44,
-84,
58,
96,
10,
-40,
81,
-31,
37,
87,
-69,
-46,
16,
41,
51,
13,
69,
107,
87,
-77,
23,
-96,
-46,
-13,
-111,
-51,
-80,
-52,
-10,
86,
76,
32,
-62,
85,
-30,
-125,
-63,
16,
14,
-44,
8,
105,
-39,
112,
56,
43,
20,
13,
81,
-38,
-77,
46,
29,
70,
104,
42,
107,
-71,
88,
-72,
-82,
-122,
123,
18,
18,
70,
-100,
-61,
-56,
44,
-104,
49,
-120,
-32,
51,
54,
-106,
-12,
107,
-103,
8,
102,
103,
-112,
109,
-17,
-80,
-102,
46,
122,
13,
-91,
18,
24,
-125,
32,
-67,
-99,
117,
-64,
-86,
126,
-18,
29,
28,
-23,
4,
-113,
-42,
-95,
-127,
62,
-104,
-126,
-1,
-81,
48,
113,
-53,
106,
77,
99,
119,
-101,
-113,
-66
] |
The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment in an action to recover the value of certain personal property alleged to have been converted. The petition set up a contract between the parties by which the defendant leased the building to the plaintiff to be remodeled by the former and used by the latter for a picture show for a period of ten years at $200 a month for the first three years and $225 a month thereafter, secured by mortgage on the business and equipment. It was alleged that the remodeling was done at a cost of $3,852, and that the defendant had converted plaintiff’s property, valued at $2,463.50.
The defendant answered by general denial and the further allegation that by the plaintiff’s failure to carry out the terms of the lease he had lost over $5,000, and having been advised by his counsel that he could not procure title under his mortgage lien without foreclosure or voluntary surrender the owner did voluntarily surrender to him all the property involved, waiving foreclosure, in consideration of which the defendant agreed to release the plaintiff from any further obligation under his lease, and that the plaintiff agreed to execute an instrument in writing to such effect, but neglected to do so. Further, that all the property was in possession of the defendant in the same building equipped as formerly, all of which he tendered to the plaintiff to reinstate the lease, the parties to assume former relations to each other.
The jury found that when the defendant took possession the plaintiff had decided to cease operation under the lease; that it was then the intention and understanding of the parties that the picture business would be continued by the defendant or other persons, and it was not understood that the plaintiff was to receive anything under such conditions; and that after such possession the plaintiff did not demand repossession or that it be sold under the mortgage clause in the lease. They also found there was no understanding that the plaintiff was to be released from liability under the lease and the defendant to be the owner of the property turned over, and that the defendant did not understand and have a right to under ^ stand that the plaintiff surrendered all his right in the property to him. The verdict, was for the plaintiff in the sum of $2,524.88.
Numerous affidavits were used in support of a motion for a new trial which was overruled on condition that the pla'ntiff remit all in excess of $2,000, which remittur was thereupon made.
The principal errors claimed are denial of the motion for a new trial, and the required remittitur. It is also complained that the findings are’inconsistent and contrary to the evidence, and that the court erred in its instructions touching the alleged conversion of the’ property.
Taking up the latter first, the jury were charged:
“But if there was no agreement or understanding between the parties, that the personal property of the plaintiff on the premises should become the property of the defendant, then the defendant would simply be a mortgagee in possession of said property, and liable to account to the plaintiff therefor, and if defendant converted the property to his own use, he would be liable to plaintiff in damages for the fair and reasonable market value of the same at the time of conversion. The denial by defendant of plaintiff’s right to the property, or his denial that the plaintiff had any interest therein after the property was turned over, as he has done by his answer in this case, amounts to a legal conversion of the property and renders him liable in damages for its fair and reasonable market value less any amount plaintiff owed him for rent up to the time of the surrender of possession, unless there was some understanding or agreement between the parties by which the personal property was to belong to the defendant.”
Counsel suggests in his brief that the court concluded the defendant must establish his answer or be guilty of conversion.
Plaintiff’s counsel contend that—
“Even if there had been an agreement that he should operate the property, his unqualified claim of ownership .under his answer and his pleading would have constituted a conversion of the property.”
The entire instruction quoted shows on its face that the court meánt that in the absence of an understanding that the property should become the defendant’s, his claim of ownership in his answer would amount to a declaration of ownership, and that this would be equivalent to an admission that he had converted it. Of course, if the parties agreed that the property was to be his, it was his, and as he could not convert what was his own, the answer in that case would be an admission that he had converted the plaintiff’s property.
While a different interpretation might have been put upon the evidence of the plaintiff, the jury were not without justification in concluding that there was no understanding or agreement that the property turned over was to be Jacobson’s, hence it cannot be held that the answers to the special questions were contradictory or unsupported.
There was no error in refusing an instruction that the plaintiff could, under the terms of the lease, only remove the fixtures and appliances, the removal of which would not injure or damage the building, for no claim or proof of any substantial damage was made or proved. The nominal change in the walls shown to have resulted from taking out the equipment was so.nearly negligible as to render the refusal of the instruction nonprejudicial.
As to the remittitur, we find nothing in the record or in the authorities to render this requirement or option fatal. The plaintiff claimed $8,463.50. The court instructed that $175 for rent due must be deducted. By reason of counsel’s admirable arrangement of the evidence on this point by itself we are readily able to see that according to the plaintiff’s testimony the value was $3,821.00. A witness testified that taking out the $800 heating plant would cost about $40. Another placed the value of the electric sign at $125, instead of $90— the plaintiff’s figure — but said the fixtures, worth somewhat over $300, would not be worth over $150 after being taken out. Still another raised the plaintiff’s values on some of the articles, but indicated that a general depreciation of ten per cent on account of being secondhand should be observed, and one regarded twenty-five per cent as proper depreciation. A witness for the defendant, experienced in handling such property, thought it worth about fifty cents on the dollar. Taking the alleged sum of $3,463.50, plaintiff’s estimate of $3,821, and the proper depreciation, with the deduction for rent due, and the difference of opinions as to value, it is not difficult to find that $2,000 is about all that could be fairly said to be justified by the evidence.
On the motion for a new trial affidavits were read to the effect that the removed heating plant was worth $323.50, instead of $800, that the canopy, taken down, would be worth practically nothing after counting the cost of removal, instead of $300 as claimed by the plaintiff. The court, having heard all this conflicting array of estimates, concluded that the plaintiff had been awarded too large a verdict, but that the evidence warranted one for $2,000, and gave the plaintiff the option of taking this or trying the case over.
The secrets of the jury room were attempted to be disclosed by affidavits asserting and denying that certain derogatory remarks were made about one of the parties, and likewise stating and denying that a certain per cent of plaintiff’s claim was agreed on in advance by some sort of mathematical computation. This practice, which the writer still regards as vicious, failed in this instance, as usual, to do aught but breed disrespect for the jury system, the remarkable thing once more occurring that twelve men locked in a room under oath of secrecy can swear in exact contradiction of one another as to what was said and done.
As to the power and propriety of the option, the record presents this situation: An able and painstaking trial judge feels that all the issues have been properly decided, but that the jury have not allowed sufficient deduction from the value figures submitted by the plaintiff, and that only $2,000 worth of the $2,524.88 verdict is well supported by the proof. There is no finding, and no indication of passion of prejudice — simply an erroneous use of the entire array of value figures produced by the various witnesses. What is more sensible and practical than to permit the plaintiff to have what the trial court feels the evidence requires, and save both parties the expense and delay of another trial the record of which presents no other ground for change or modification? To the extent of $2,000, the court, the twelve jurors, and the evidence all speak one voice, and there is no rule of law or practice which under the circumstances requires a retrial in case the successful party is willing to take what he is shown to have coming to him. ' No authority cited compels any different conclusion. The cases on this subject are numerous, but reference to them here is unnecessary.
The judgment is affirmed.
|
[
80,
104,
-36,
60,
26,
96,
10,
-104,
104,
-91,
-90,
87,
37,
-62,
20,
107,
-12,
127,
64,
107,
95,
-77,
6,
43,
-46,
-78,
-109,
-43,
-71,
-52,
-12,
87,
76,
49,
-62,
-107,
102,
-126,
-59,
116,
10,
7,
25,
76,
-23,
64,
52,
25,
32,
11,
81,
-99,
-77,
45,
29,
-53,
73,
40,
123,
57,
80,
-72,
-93,
-115,
75,
23,
1,
53,
-36,
67,
-8,
56,
-104,
61,
0,
-31,
115,
-74,
-122,
116,
75,
-101,
41,
102,
99,
16,
65,
-21,
-8,
-104,
47,
29,
-99,
-89,
-47,
24,
9,
101,
-65,
-97,
108,
20,
5,
126,
-18,
20,
29,
108,
7,
-18,
-42,
-77,
-113,
120,
-100,
-37,
-17,
-125,
48,
112,
-51,
-96,
92,
115,
123,
-69,
-114,
-103
] |
The opinion of the court was delivered by
Mabshall, J.:
C. J. Anderson appeals from a judgment approving a survey of section 27, township 12, range 22 west, in Trego county. The case has been in this court before. (Anderson v. Roberts, 86 Kan. 175, 119 Pac. 354; id., 87 Kan. 305, 124 Pac. 167.)
1. Anderson contends that the county surveyor followed an erroneous theory in making the survey. The surveyor considered the corners established by a previous survey as conclusive on him in making the survey from which this appeal is taken. He testified in part as follows:
“When I started out with my survey of section 27 I recognized the previous survey of C. J. Ferris as nearly as I could; in other words I deemed those corners which he had established as conclusive upon me, and I merely sought to fix the corners in the same place that Mr. Ferris did.
“I took the corners that I believed to be undoubted government Corners — the northwest corner of 33, the northwest corner of 27 and the northeast corner of 27, but if I hadn’t felt bound by the Ferris survey I would not have located the south comer of 27 between 27 and 34 exactly where I did locate them. In other words if I hadn’t felt bound by the Ferris survey I would have divided the shortage between sections 27 and 34; I would have made the two equal in length; that would have put the northwest corner of 34 some two chains and a fraction north of where I have it.”
The court found—
“That the southwest corner of section 27, township 12, range 22 as located by the survey of Hudson Harlan according to the survey in controversy herein, is located upon the site of the government corner stone as established by the government surveyor in his survey of said premises, and the court finds that said survey in controversy herein is in all respects a true and correct survey of said premisies and the same is hereby approved by the court.”
That finding was supported by evidence, but as a recital of that evidence will not be of any substantial benefit, it is omitted. The controversy largely revolved around the location of the southwest corner of section 27. If the point at which the county surveyor located that corner was the government cprner, the fact that he felt bound by the previous survey is immaterial. If that was the- government corner, it controls and is conclusive. (Gen. Stat. 1915, § 2712.)
2. Anderson’s abstract of the evidence contains the following :
“Prior to the submission of any testimony the appellant requested the court to state its finding’s of fact and conclusions of law separately, to which the court responded:
“In order to do so, it will be necessary for counsel to submit what they want along that line, what they hope for.
“At the conclusion of the testimony the colloquy between court and counsel concerning' findings of fact was. resumed as follows :
“By the Court: Counsel know what they want found, probably, and the court hasn’t any idea what they want.
“By Mr. Long: The findings that we want would be purely negative.
“By the Court: The court, as announced in the beginning, hasn’t any wish or purpose to make a finding except a general one unless there is something submitted as to what is desired. The court doesn’t believe that it ought to go over the matter of findings unless counsel indicate what they think might be significant.
“By Mr. Ritchie: I think, your Honor, we made the request and if your Honor thinks findings are unnecessary your Honor can overrule the request.
“By the Court: The court is not overruling the request. The court simply says that if you want any findings you can prepare them so that the court can know what you want to regard as important.
“By Mr. Ritchie: We have specific questions then that we would ask, but it seems to me that in this situation it would be impossible for attorneys to make a finding of fact on any question unless they knew what the court’s view was, so we would not get anywhere. Of course, we cannot go into your Honor’s mind and delve out what you think. We might believe one person told the truth and your Honor might think he didn’t. How can we draw a finding on that for your Honor? It is utterly impossible. We would ask your Honor .the question, whether the government corner- was located nineteen rods north and ten rods west of where Harlan put his corner, and then you could say yes or no, but that would not he the purpose of the statute. The only purpose of getting special findings is to get the issues down so that we can measure the findings by the law as you might by talcing up the whole record. It is impossible for counsel to do it in a case that is tried by the court.
“By the Court: Unless counsel submits something, the court will just simply make a general finding. Unless counsel submit what they think the court ought to find, and the facts in which they are interested, or what they think are essential in this case, the court doesn’t care to go into the matter in detail to make any such findings.
“By Mr. Ritchie: It is up to the court.
“By the Court: The court then will announce its findings generally for the defendants and in support of the survey appealed from, for the appellee.”
Section 297 of the code of civil procedure reads:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally, for the plaintiff or defendant, unless one of the parties request it, in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law.” (Gen. Stat. 1915, § 7197.)
Under this statute it has been repeatedly held error for the court to refuse to make special findings of fact and conclusions of law on a seasonable request therefor. (Briggs . Eggan, 17 Kan. 589; Garner, County Clerk, v. The State, ex. rel., 28 Kan. 790, 794; Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264; Vickers v. Buck, 70 Kan. 584, 79 Pac. 160.)
It was said in Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486, that—
“The fact that in a trial without a jury the court refused to state in writing the conclusions of fact found separately from the conclusions of law, upon seasonable request, is not a ground for the reversal of the judgment, where it is not shown' that the refusal resulted in any' substantial prejudice to the losing party.” (Syl. ¶ 2.)
In A. T. & S. F. Rld. Co. v. Ferry, 28 Kan. 686, this court said:
“Where a case was tried before the court without a jury, and, before any evidence was introduced, the defendant in open court requested the court to state in writing its conclusions of law separately from its conclusions of fact, and also at the conclusion of the evidence renewed such, request; ‘to which request the court responded that it would pass and find upon any findings of fact which the counsel for the defendant might prepare and submit to it, but that it would not take the time from the business of the court to perform the clerical labor of drawing up questions to be answered. Thereupon the counsel for the defendant state" that they would not prepare or submit any findings of fact to the court for it to pass or find upon, but that they demanded of the court that it should state in writing its conclusions of fact separately from its conclusions of law, which request the court refused to comply with’; and the court found generally in favor of the plaintiff and against the defendant, and rendered judgment accordingly. Held, That the court erred in refusing the defendant’s request to state in writing its conclusions of law separately from its conclusions of fact.” (Syl.)
And again:
“It would often, of course, be very convenient to have the desired or anticipated conclusions of fact prepared for the court and submitted to it; but the statute does not seem to contemplate the necessity for any such thing. Besides, the facts upon which the court is to decide are always presented to the court in writing by the pleadings in the case, and it may generally be presumed that the facts are as well stated in the pleadings as they could be stated anywhere else; and, if so, it would hardly seem necessary to require the-parties, or either of them, to restate the facts of their case when the case is finally submitted to the court for its final conclusions upon the pleadings and the evidence. Every pleading which states new matter should contain ‘a statement of the facts constituting the cause of action [or defense] in ordinary and concise language, and without repetition.’ Every other pleading amounts to nothing more than a mere denial of the facts previously set forth in the pleadings alleging new matter. The facts set forth and alleged in-one pleading and denied by another, or considered denied (as is the case with reference to facts set forth and alleged in the reply), are the facts with reference to which the court should make its findings or conclusions of fact. These facts are often called the issuable facts, and the court should make special findings or conclusions with reference to them whenever either party so requests, and without either party béing under the necessity of restating the facts, or stating them again in any other* paper than in the pleadings. The fact that all the issuable facts — the facts upon which it is desired that the court shall make findings or conclusions — are once stated in the pleadings renders it wholly unnecessary that such facts should be, restated by the parties in some other paper.” (p. 688.)
In the present case there does not appear to have been any pleadings; the only papers required to be filed in the district court were a certified copy of the report appealed from and any affidavits that had been filed by the surveyor. (Gen. Stat. 1915, § 2716.) Although the court announced that he would not make special findings of fact, but would make a general finding in favor of the survey appealed from, yet a special finding of fact is found in the judgment. The finding on that fact compelled the court to render judgment approving the survey. It was error to refuse to make special findings of fact, but on account of the special finding found in the judgment, that error cannot be said to have been prejudicial.
Further argument is made by Anderson, but the propositions presented are embraced in his contention that the county surveyor erroneously proceeded on the theory that the previous survey was conclusive. While that theory may have been erroneous (In re Martin’s Appeal, 86 Kan. 336, 120 Pac. 545), yet if in following it the surveyor located the disputed corner on the government corner, the theory followed becomes immaterial.
The judgment is affirmed.
|
[
-31,
-22,
-8,
-68,
58,
-32,
34,
-104,
105,
-95,
-73,
83,
-81,
-38,
30,
115,
-70,
29,
-48,
42,
-59,
-78,
19,
-23,
-110,
-13,
-13,
77,
-13,
93,
118,
84,
76,
96,
10,
-75,
70,
64,
-57,
94,
-50,
15,
-88,
79,
-48,
96,
52,
107,
16,
79,
53,
-113,
-45,
44,
28,
-61,
-87,
44,
-53,
-83,
16,
-80,
-66,
-97,
79,
13,
48,
39,
-102,
-121,
120,
58,
-112,
48,
-126,
-8,
23,
-90,
-106,
116,
11,
-69,
40,
120,
-25,
73,
124,
-17,
-20,
-103,
6,
-34,
61,
-89,
-106,
72,
-31,
101,
-98,
-99,
117,
82,
71,
126,
-25,
69,
95,
124,
13,
-113,
-126,
1,
-49,
60,
-128,
7,
-45,
1,
18,
112,
-49,
-22,
78,
68,
19,
27,
-86,
-112
] |
The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to compel specific performance of a written contract between himself and G. S. Finch, for the exchange of real property. Judgment was rendered in favor of the defendants, and the plaintiff appeals.. The trial court made special findings of fact as follows:
“1. The defendants, G. S. Finch and Mrs. G. S. Finch are and were at all the times mentioned in the pleadings here, husband and wife, residents of Coffey County, Kansas.
“2. That the lands which plaintiff seeks to compel the defendants to convey is and was at all times mentioned in the pleadings in these actions, the homestead of the defendants and their family.
“3. At the time of entering into the contract sued on in this case for the exchange of lands, the plaintiff knew that the land of the defendants was occupied by them as a home.
“4. In the latter part of January, 1918, the defendants, G. S. Finch and wife, executed a deed to the homestead to the plaintiff herein.
“5. That the deed so executed was executed by the defendant, Mrs. G. S. Finch, under duress of her husband and was not her free voluntary act and her consent was never given to the execution of said deed.
“6. That on or about February 28, 1918, the defendant, Mrs. G. S. Finch, obtained possession of the deed executed by herself and husband for the transfer of the homestead hereinbefore mentioned and destroyed the same and refused to join in a conveyance of the said homestead.
“7. That by the terms of the contract entered into between plaintiff and defendant, G. S. Finch, plaintiff was to furnish an abstract of title showing a merchantable title to plaintiff’s property in Ottawa, Kansas, prior to March 1, 1918, but failed to furnish said abstract.
“8. Plaintiff failed to execute and deposit a deed to his property in Ottawa, Kansas, to G. S. Finch as required by the contract sued on in this case.
“9. That the contract in question was never signed by Mrs. G. S. Finch, but was executed by defendant, G. S. Finch, her husband, without her knowledge or consent and she never approved, ratified or consented thereto.
“10. Said contract was entered into on the 27th day of September, 1917.
“11. The defendant, G. S. Finch, recommended to plaintiff Tucker, one Garrett, as tenant and later, at the request of Garrett, wrote a letter of recommendation to Tucker for Garrett, recommending him for tenant for the defendant’s homestead. The defendant, Mrs. G. S. Finch, wife of G. S. Finch, had no knowledge of her husband’s recommendations of Garrett as a tenant.
“12. The plaintiff Tucker entered into a lease with said Garrett for the property or homestead of defendant Finch.
“13. Plaintiff Tucker entered into a contract with G. S. Finch, to seed to wheat certain of. said land, agreeing to pay said Finch for the labor and to furnish the seed; that thereafter plaintiff Tucker paid defendant, G. S. Finch, $62 for labor in putting in the wheat on the homestead of defendants.
“14. The defendant, Mrs. G. S. Finch, had no knowledge of the transaction mentioned in the preceding finding and never endorsed or ratified or consented to said acts.
“15. Defendant, G. S. Finch, tendered to plaintiff a return of the money expended for putting in the wheat, which was refused by plaintiff Tucker.”
On these findings of fact, the court made the following conclusions of law:
“1. The contract entered into on the 27th day of September, 1917, being for the exchange of the homestead of defendants, G. S. Finch, and Mrs. G. S. Finch, is void for the reason that the wife, Mrs. G. S. Finch, did not sign same nor consent thereto nor ratify the actions of her said husband in signing the same.
“2. That the lease executed by the plaintiff Tucker to said Garrett for said homestead is null and void; that plaintiff is entitled to recover from; the defendant, G. S. Finch, the $62, the amount paid for putting in wheat on the land in controversy. That defendants should have judgment in both cases numbers 7435 and 7443 for their costs.”
1. The first proposition argued is that Mrs. Finch,, when she signed the deed, ratified the contract, and thereby became bound by its terms. The proposition thus argued is directly opposed to the 5th and 9th findings of fact. These findings of fact were supported by evidence.
During the cross-examination of Mrs. Finch, the following occurred:
“Q. Now I want to ask you more particularly about that quarrel that you had there that morning.
“The Court: Just a moment. We are spending a good deal of time on something here that I think I can solve pretty soon. Mrs. Finch, did you execute this deed in question voluntarily and of your own volition? A. Did I of my own accord?
“The Court: Yes; and of your own consent and free will? A. I did not, Mr. Judge.
“The Court: I will not consider that evidence of what took place there now as being between husband and wife.”
Mrs. Finch had testified on direct examination that Mr. Finch had insisted on her signing a deed to convey their homestead, and on her refusal to do so, had told her that their home would be broken up; that he would take their boy and leave her, and would not live with her any more. She had also testified that she, did not sign the contract and did not know anything about it. The evidence also tended to prove that she obtained possession of the deed after it had been signed, and that she destroyed it. Leaving out the evidence of the threats by the husband to the wife, there remained the evidence of the wife that she did not sign the deed volun tarily and of her own consent and free will. That was sufficient to justify the court in finding that the deed was not the free and voluntary act of Mrs. Finch, and that her consent was never given to the execution of the deed. There was evidence which justified the court in finding the facts set out in finding numbered 9.
2. It is argued that the court committed error in admitting that evidence of Mrs. Finch which tended to show that she was under duress from her husband at the time she signed the deed. This contention is based on the third subdivision of section 321 of the code of civil procedure (Gen. Stat. 1915, § 7223), which declares that a husband and wife are incompetent to testify for or against each other concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterward. Part of the evidence, that in which Mrs. Finch testified to what her husband had said to her, may have been admitted in violation of the statute (Anderson v. Anderson, 9 Kan. 112), but that part of her evidence, not objected to by the plaintiff, in which Mrs. Finch testified in response to questions by the court that she did not sign the deed voluntarily and of her own consent and free will was not in violation of the statute. She was a competent witness in her own behalf and could testify to her own acts and conduct. If the plaintiff desired to exclude that evidence on the ground that it was a conclusion of the witness, he should have objected thereto. (Grandstaff v. Brown, 23 Kan. 176; Holman v. Raynesford, 3 Kan. App. 676, 44 Pac. 910.)
3. On the trial the plaintiff asked for damages against G. S. Finch, if specific performance could not be compelled. No damages were given, although there was evidence which tended to prove that damages were sustained. Standing in the way of the collection of damages by the plaintiff is section 4699 of the General Statutes of 1915, which reads: .
“That no action for the specific performance of a contract for the sale or exchange of real estate in the state of Kansas or for damages by reason of the violation of any contract to sell or exchange lands within the state of Kansas, occupied as a homestead by the owner and his family, shall be maintained unless the contract of sale is signed by both husband and wife, or by an agent or broker duly authorized in writing by both the husband and wife to make such sale or exchange.”
The contract was not' signed by Mrs. Finch, and she did not know that it had been signed by Mr. Finch. She did not ratify the contract by signing the deed after the contract was made. Instead, she. obtained possession of the deed and destroyed it, thereby affirmatively expressing hér disapproval of the contract and her determination not to be bound by it. The plaintiff cannot recover damages from.G. S. Finch, for the failure of the defendants to perform the contract for the exchange of real property. (Martin v. Hush, 91 Kan. 833, 139 Pac. 401.)
The plaintiff argues several other propositions, none of which are of any benefit to him on account of the conclusions reached on the three propositions that have been discussed.
The judgment is affirmed.
|
[
112,
110,
-16,
-115,
-118,
96,
-88,
-102,
113,
-13,
36,
87,
-23,
66,
4,
107,
107,
13,
48,
105,
-43,
-78,
86,
-62,
-46,
-13,
91,
-35,
-67,
93,
-76,
86,
76,
32,
-62,
21,
-58,
-54,
69,
28,
-114,
-123,
-87,
112,
-39,
64,
48,
59,
114,
73,
80,
-114,
-13,
47,
29,
-61,
105,
44,
123,
57,
-48,
-8,
-85,
71,
95,
19,
18,
4,
-104,
7,
88,
46,
-110,
21,
9,
-24,
115,
-74,
-106,
116,
109,
-101,
9,
38,
102,
33,
-108,
-17,
-8,
-100,
46,
-1,
15,
-25,
-74,
88,
-62,
8,
-74,
-100,
125,
80,
43,
-14,
-21,
-99,
29,
-20,
11,
-49,
-106,
-127,
15,
-66,
-110,
27,
-5,
-93,
49,
97,
-55,
-94,
92,
71,
121,
-69,
-114,
-67
] |
The opinion of the court was delivered by
Valentine, J.:
The defendant in error, Joshua Garside, sued the Atchison & Nebraska Railroad Company for constructing and operating its railroad over, along and across a certain piece of ground in the city of Atchison known as the “Levee,” or Levee street, and alleged by him to be a “public highway.” The railroad' company demurred to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action, and also moved the court to strike out a portion of said petition on the ground that it was irrelevant and redundant. The court overruled both the demurrer and the motion, and then the defendant, the railroad'company, answered. The answer contained two defenses. The plaintiff then demurred to the second defense on the ground that it did not state facts sufficient to constitute a defense to the plaintiff’s action. The court sustained the demurrer, and it is this decision that is complained of here. The defendant below alleged in its second defense among other things that the said levee was dedicated as a levee to the public by the proprietors of the city of Atchison by filing in the register’s office their map and plat of said city, showing the streets and grounds reserved for public purposes, properly executed and acknowledged, as provided by law; that the railroad company obtained the right to construct and operate its road over said levee from the city of Atchison; that it did "so construct and operate its road in a careful and proper manner; that it did not obstruct the said levee," but left* a sufficient space for passage and travel; that it conformed the grade of the railroad to that of the levee, etc. And the company does not anywhere seem to admit that the levee is a street or highway. The court below probably ruled correctly upon the demurrer to the petition, and the motion, but certainly incorrectly and erroneously upon the demurrer to the second defense stated in the answer. In this state'the fee of all real estate when dedicated to public use by the pro-J r . pnetors of any town or city vests absolutely m the county wherein such real estate lies, and the county forever afterwards holds the property in trust for such use: (Laws 1855, page 735, §6; Laws of 1859, page 81, §6; Comp. Laws of 1862, 120, § 6; Gen. Stat., 619, ch. 78, § 6; Comm’rs of Franklin Co. v. Lathrop, 9 Kas., 453.) -The county however, being only a political subdivision of the state, a mere agent of the public, and at most only a quasi corporation, is so far under the control of the legislature as to be subject to all the laws which the legislature may pass for the government of property held by the county in trust for the public use. Therefore, while the fee of such property may be vested in the county, the control thereof may be placed somewhere else. Such in fact is the case in this state. While the fee of all streets and other public grounds situated in a city is in the county, as we have already seen, yet the control of such property is almost entirely and absolutely in the city: Gen. Stat., 160 to 165, ch. 19, §30, subdivisions 2, 25, 36; Laws of 1871, page 144, ch. 62, §§16, 37, 47; Laws of 1872, ch. 100, §§32, 54, 64. The county holds the property as a mere agent of, the public, and in trust for the public use. But the city has the control over it as another agent of the public. The city has power “to provide for and regulate the pas-ii -, it sage of railways through the streets and public grounds of the city;” (Gen. Stat., ch. 19, §30, subdiv. 25; Laws of 1871, ch. 62, § 47; Laws of 1872, ch. 100, § 64;) and the city of Atchison has exercised such power in the present case. In this case the city of Atchison has given complete and ample power for the time being to the railroad company to construct and operate its road over said levee, and that is all that is necessary. As to what the extent of that power is, it is not necessary to be determined in this case. So far as this case is concerned it makes no difference whether the right of the railroad company to the land over which its road is located is an interest in fee, or only an easement, or merely a license or privilege for the time being from said city.
There is another question: Is the plaintiff below, under the circumstances of this case, entitled to recover damages of any kind? Judge Dillon in his work on Municipal Corporations uses the following language:
“Sec. 555. It has often been decided and is settled that the legislature has the power to authorize the building of a railroad on a street or highway, and may directly exercise this power or devolve it upon the local municipal authorities.
“Sec. 556. If thefee in the streets or highways is in the public, or in the municipality in trust for public use, and is not in the abutter, the doctrine seems to be settled that the legislature may authorize them to be used by a railroad company in the construction of its road without compensation to adjoining owners, or to the municipality, and without the consent and even against the wishes of either.
“Sec. 557. But where the public have only an easement in the street or highway it has been generally but not always held that against the proprietor of the soil the use of the street or highway for the purposes of a steam railroad is an additional burden, which, under the constitution of the different states, cannot be imposed by the legislature without compensation to such proprietor for the new servitude.”
And to the same point see also Cooley’s Constitutional Limitations, 552, 553, and the cases there cited; also, brief for plaintiff in error in this case, and authorities there cited. The damages that the plaintiff claims in this action may be divided into three kinds. First, damages as compensation for the use of th,e ground over which the railroad is located, or for the additional burden imposed thereon by the railroad company, the plaintiff, as abutting proprietor, claiming to be the owner of the fee in such ground. Second, consequential damages arising from noise, smoke, offensive vapors, sparks, fires, shaking of the ground, and other inconvenience and annoyances arising from the construction and operation of the railroad where the same is constructed and operated in a legal and proper manner. Third, damages for illegal blocking up and obstructing said levee, and for other acts done illegally, or in an improper manner. The plaintiff cannot of course recover for the first kind of damages, for he does not own the fee in any part of the levee where the railroad is located; and the railroad company has under the authority of the city an undoubted legal right 'to construct and operate its road on said levee if it does so in a legal and proper manner. Neither can the plaintiff recover for the second kind of damages. And this is so, for the same reasons that he cannot recover for the first kind of damages, and for the additional reason that such damages are too remote. They are the consequential results of the exercise of a lawful business, and however annoying or injurious they may be to the plain tiff they form no foundation for a cause of action. They are in fact damnum absque injuria. In Ohio, where a railroad company under authority of a city constructs and operates a railroad along a street near the plaintiff’s lot and dwelling-house, and “runs steam engines, locomotives and cars along such street and railroad, thereby making noises and shaking, disjointing, and disturbing such dwelling-house, and where such company under the authority aforesaid, and for the purpose of propelling such engines, locomotives, and cars, keeps dangerous fires, thereby generating noxious vapor, smoke, and filth near to and diffusing the same in and about such lot and dwelling-house so as to render the air unwholesome, and to discommode the occupants and owners of such lot and dwelling-house,” it is held “that in respect to the noise, smoke, or other discomforts arising from the ordinary use of the railroad by the company, the plaintiff has no more right to recover than any citizen who resides or may have occasion to pass so near the street as to be subject to like discomforts.” Parrott v. C. H. & D. Rld. Co., 10 Ohio St., 624, 630. In Missouri it has been held that any damage resulting to property abutting on a street from the ordinary use of a railroad on the street is damnum absque injwia. Porter v. North Mo. Rld. Co., 33 Mo., 128, 138. See also Lackland v. Rld. Co., 34 Mo., 259, 274; Moses v. P. Ft. W. & C. Railroad Co., 21 Ill., 516; Slatten v. Des Moines Valley Rld. Co., 29 Iowa, 148, 153. And indeed it must be true as a general rule, that the rightful and bona fide exercise of a lawful power or authority cannot afford a basis for an action. Therefore, in a case like the one at bar, where the railroad company has a legal right to construct and operate its road over certain grounds, we do not think that the company can by so doing be held liable for any damages of any kind where it constructs and operates its road in a legal and proper manner. It can be held liable only where it constructs or operates its road in an illegal, improper, or wrongful manner. The plaintiff may we think recover for the third kind of damages. But before he can do so he must show among other things that the levee is a street or highway, as he has alleged; that the railroad company wrongfully and unnecessarily blocked up and obstructed the said street or highway, and that the plaintiff received actual injury from such obstruction. And the injury must be special as to him, and not such as affects the public in general. Of course the railroad company can have no legal right to permanently block up a street. And it can have no legal right to temporarily block up or obstruct a street except where it necessarily does so in the lawful and proper use of its road. It can psss and repass with its engines and cars the same as individuals may with their vehicles, and for such passing and repassing it cannot of course be liable to any one; but it has no more right to obstruct the streets than any individual has, and it may make itself liable for obstructing a street the same as an individual may. The plaintiff’s petition when attacked by a demurrer or motion, such as was interposed in this case, is perhaps sufficient as stating a cause of action for this kind of damages, but for no other kind of damages. But if such petition were attacked by a motion to have it made moire definite and certain with regard to the said obstructions, and the special injuries supposed to have resulted therefrom, the petition would not be held sufficient as stating a cause of action for even this kind of damages.
The judgment of the court below must be reversed, and the cause remanded with the order that the demurrer to the second defense set forth in the answer be overruled, and for further proceedings.
All the Justices concurring.
|
[
-16,
110,
-4,
-65,
-6,
96,
34,
-120,
69,
-78,
-25,
115,
-19,
-53,
0,
51,
-2,
63,
-12,
123,
-26,
-109,
7,
-94,
-46,
-45,
-13,
-59,
51,
78,
-26,
-42,
77,
48,
74,
-43,
102,
74,
69,
92,
-114,
36,
-88,
-55,
-39,
72,
52,
122,
102,
78,
49,
-114,
-13,
42,
28,
-29,
-87,
44,
-37,
57,
-47,
-7,
-98,
-57,
94,
6,
49,
52,
-108,
3,
-52,
58,
-104,
49,
1,
-8,
99,
-90,
-122,
-10,
37,
-103,
12,
-26,
99,
1,
117,
-17,
-68,
-104,
14,
-34,
-119,
-90,
-110,
25,
107,
77,
-105,
-35,
116,
20,
-121,
126,
-26,
5,
89,
124,
1,
-113,
-78,
-109,
-1,
52,
-110,
69,
-53,
-77,
48,
96,
-60,
-94,
92,
71,
20,
-109,
-113,
-4
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Hoffman as plaintiff for the recovery of $100, and interest, and for the cancellation of a certain promissory note. William Nix, the defendant below, demurred to the petition of the plaintiff on the ground that it did not state facts sufficient to constitute a cause of action. The court below overruled the demurrer; and Nix now brings the case to this court. The petition contains but one count, and a prayer for judgment and relief. The petition alleges that Nix, on July 2d 1869 executed a bond to Hoffman for the conveyance of certain real estate. The condition of said bond reads as follows: “The condition of this obligation is such that if the said William Nix, upon the payment of one hundred and twenty-five dollars and interest by the said John Hoffman within two .years from this date, agreeably to his note of even date herewith, shall convey to the said John Hoffman and his heirs forever a certain tract of land described as followed, to-wit,” etc., “then thti obligation shall be void,” etc. The petition also alleges that Hoffman in consideration of said bond paid Nix $100 down, and agreed to pay $125 more at the end of two years, with interest, and executed a promissory note therefor. But the petition does not allege that Hoffman ever paid or offered to pay said. $125, or any part thereof. Nor does the petition allege that Nix, by any word or act, ever released Hoffman from the payment of said $125, except that the petition infer.entially alleges that Nix did not have any title to said land. The manner in which the petition alleges said fact is as follows: It alleges that on November 26th 1869, Ezra C. Tracy commenced an action against Hoffman, Nix, and others, and that on August 14th 1871 it was determined in said action that one Pe-an-ish owned said land. This on demurrer will be considered as a good allegation that Nix did not have any title to said land. But still there is another essential fact necessary to be stated in the petition in order to render this allegation available which the petition does not allege. Although Nix had no title to said land yet he may have been able, ready, and willing to' procure the title and convey it to Hoffman whenever Hoffman should offer to pay the $125. It was no more necessary that Nix should be in the actual possession of the title in order to be able, ready and willing to procure and convey the title than it was that Hoffman should have been in the actual possession of the $125 in order to be able, r.eady, and willing to pay the same to Nix. And there is not a single .allegation in the petition, stated positively or inferentially, that Nix was not amply able and ready 'and willing to procure the title to said land and convey it to Hoffman whenever he had the least intimation that Hoffman would be able, ready and willing to perform on his part. Pe-an-ish may have been holding the title to said land solely and entirely for the benefit and at the disposal of Nix. There is nothing in the whole petition that would negative this idea. Men often sell land who at the time have no title, but only a bond for title, and in such cases the vendor seldom procures the title to be vested in himself until the vendee offers to perform on ins part, and often then by consent of parties the title is passed directly from the vendor’s obligor to the vendee. In this oase Nix never agreed to convey title to Hoffman except “upon the payment of the one hundred and twenty-five dollars, and interest;” hence, whether Nix had title or not he had a right to refuse to convey title until Hoffman tendered to him the $125. For this reason any allegation in the petition that Nix neglected or refused to convey, without also ■alleging that Hoffman, tendered performance oji his .part, .amounts to nothing. Nix never agreed to convey except upon said payment, and as the payment was never made nor •offered to be made, Nix, according to the petition, was never in default. If Hoffman was ever ready and willing to perform on his part why did he not let Nix know it, and thereby put Nix in default? But as Hoffman merely alleges that he was ready and willing to perform on his part, without alleging that Nix ever knew it, he should also have alleged that Nix was not ready and willing to perform on his part, and that he could not have been able to perform even if Hoffman had tendered performance. We hold that where the vendee of real estate sues his vendor upon a supposed breach of the condition of the bond given for title, and asks judgment for a certain sum of money which had previously been paid on the land by the vendee to the vendor, and also asks judgment for the cancellation of a certain promissory note given for said land by the vendee to the vendor, and where the agreement of the vendor as expressed in the bond is merely that the'vendor will convey title “upon the payment” by the vendee to the vendor of a certain other and additional sum of money, the petition which merely states as a breach of the condition of the bond that the vendor had no title to the land, without alleging that he was unable to procure the title, without alleging that the vendee ever paid or offered to pay said other and additional sum of money or any part thereof, and without alleging that the vendor by any word or act of his except that he had no title, ever released the vendee from tendering performance on his part, does not state facts sufficient to constitute a cause of action. Clarke v. Locke, 11 Humphrey, 300; Green v. Green, 9 Cowen, 46; Robb v. Montgomery, 20 Johns., 135. The judgment of the court below must be reversed.
All tire Justices concurring.
|
[
-14,
126,
-112,
-65,
74,
96,
42,
-80,
-55,
-95,
-89,
115,
-23,
90,
0,
33,
-11,
41,
117,
123,
87,
-10,
7,
34,
-14,
-13,
-47,
-35,
-79,
-51,
-10,
86,
76,
36,
-54,
29,
-26,
104,
-27,
82,
78,
5,
42,
-49,
-39,
64,
48,
127,
82,
79,
97,
10,
-13,
44,
29,
67,
45,
46,
107,
53,
-16,
-8,
-65,
15,
-33,
18,
-110,
69,
-100,
-59,
-22,
-118,
-112,
21,
1,
-24,
113,
-74,
-122,
84,
65,
-117,
8,
98,
103,
48,
-51,
-25,
-16,
-120,
38,
-10,
-115,
-90,
-11,
80,
11,
32,
-76,
-99,
56,
16,
-89,
118,
-18,
-107,
24,
109,
6,
-53,
-42,
-127,
31,
62,
-106,
67,
-33,
27,
40,
116,
-49,
-92,
92,
97,
24,
-101,
-113,
-9
] |
The opinion of the court was delivered by
~Sf alentine, J.:
This action was brought to restrain the collection of certain taxes, claimed to be illegal and void because levied upon property claimed to be used for educational purposes. The action was tried in the court below on an agreed statement of facts. This statement shows that the property was used more or less mediately or remotely for educational purposes. But none of it was used exclusively, directly, and immediately for such purposes. Under the laws of this state all property not expressly exempted is subjected to taxation. (Gen. Stat., 1019, ch. 107, § 1.) And no property is exempt because it is used for educational purposes unless it is exclusively so used. (Const., art. 11, §1.) Property used partially for educational purposes, and partially for some other purpose, is not exempt. Even property used mainly for educational purposes, but not exclusively, is not exempt. In the present case we shall not discuss separately the taxability of each article or piece of property claimed to be exempt, but shall discuss more especially the taxability of the inclosed arable and cultivated land; for if any portion of the plaintiff’s property is exempt from taxation it is certainly that portion. This property was used for at least three purposes: 1st, It was used for the purpose of teaching certain Indians agriculture. 2d, It was used for the purpose of raising food for a large amount of live stock kept on the farm, and food for said Indians, their tutors, etc. 3d, It was used for the purpose of raising produce to sell. The proceeds of the sales, however, were used to feed and clothe the Indians, to feed and clothe “the employees in their training,” and to feed and clothe “the missionaries among them.” We suppose it will be conceded that if the property were used exclusively for the purpose of teaching the Indians agriculture it would be exempt. But even this may not be certain, for agriculture was hardly considered a branch of education when our constitution was framed. Eor the purposes of this case it may also be conceded that if the property were used exclusively for teaching the Indians agriculture, and for raising food for them and the professors, and the necessary stock kept on the farm, it would still be exempt. But when it is used to raise food for stock not necessary to be kept on the farm, and to raise produce to sell, no further concessions in favor of its exemption can be made. Such use goes at least one step" beyond where concessions can be made in favor of its exemption. It is solely the use of the property which determines whether the property is exempt or not; Washburn College v. Shawnee County, 8 Kas., 344. It makes no difference who owns the property, nor who uses it. Property used exclusively for educational purposes is exempt, whoever may own it, or whoever ,may use it. Property not used exclusively for educational purposes, (if otherwise taxable,) is not exempt, whoever may own it, or whoever may use it. And this use must be direct and immediate, and not indirect or remote: Cincinnati College v. State, 19 Ohio, 110. If a farm be used for the purpose of raising produce to sell and get money to carry on a school, it will not be exempt. The use for educational purposes is in such a case too remote. The immediate or primary object for cultivating the farm in such a case is, to obtain the produce; the secondary object is to obtain the money that the produce will bring; and'the remote object is to aid and foster the school. The farm itself, in such a case, is not used in teaching anything or in illustrating or explaining anything, as books, charts, apparatus, etc., are. It is not used as a necessary shelter and protection for the students, their books, apparatus, etc., as a school-house always is. And it is not used as a necessary site for a schoolhouse, as school-house grounds always are. In fact, it answers no direct or immediate educational purpose or necessity. It is no part or portion of the school, and is not used as such. It therefore does not come within the constitutional exemption. But the farm of the plaintiffs is used directly as well as remotely for educational purposes. It is used directly for the purpose of teaching and illustrating agriculture, and it is used remotely for the purpose of aiding and fostering them school. The former use is covered by the constitutional provision, but the latter use is not. The constitution does not exempt a farm used to raise produce to sell to other persons to obtain means whereby to purchase articles of food and clothing to feed and clothe the students, professors, and missionaries connected with a school. And therefore, as the latter use, above" mentioned, is not covered by the constitution, the plaintiff’s farm cannot be held to be exempt. For all property, in order to be exempt, must be devoted exclusively to the use covered by the constitution. When the people of this state framed their constitution it was probably thought that to tax property used exclusively for educational purposes would virtually be to tax education itself. Every tax paid on such property must come from the students themselves, or from their friends, as the property itself can in no other way bring in any income. But when property is used for some other purpose, as well as for the purpose of education, then this other purpose is supposed to bring in an income adequate to pay the taxes on the property, and then a tax on said property is not a tax on education, but it is a tax on the other purpose. If it were possible to apportion the taxes so as to make the property pay taxes in proportion to its two uses it would probably be well. For instance, if one-half of the use of a certain piece of property were for educational purposes, and the other half for some other purpose, then such property ought to be subject to just half as much tax as property used exclusively for some other purpose. But it is impossible to make any such apportionment. All property may be used to some extent, mediately or immediately, for educational purposes. But the extent to which it is so used cannot well be measured. Its use for educational purposes, as compared with its other- use, may be infinitely greater or infinitely smaller than this other use. The use for educational purposes may be nearly the whole of the use, or it may be only a very small proportion thereof. And whatever it maybe, it cannot be accurately defined, measured, or known. Hence we see the wisdom of the constitutional provision requiring that property shall be used exclusively for educational purposes in order to be exempt. For, if property used only partially for educational purposes should be exempt, it would not be long until an exemption would be claimed for nearly all property, as being used in some slight or remote degree for educational purposes, and all rules of equity and equality in taxation would be obliterated and destroyed. It has often been laid down as an equitable rule of taxation, that all property should be taxed in proportion to its value. And this rule seems to be eminently fair. A certain amount of revenue must be raised every year to defray the current expenses of the government. And it seems to be eminently fair that every kind, of property protected by the law should contribute its proportionate share. For if any portion of the property of the state should be exempt from taxation it would necessarily throw an additional burden on the rest of the property. If the rule of taxation contended for by counsel for plaintiffs were adopted, and followed to its legitimate results, it would naturally lead to the most disastrous consequences to this commonwealth. If the employment of Indians on a farm, and teaching them how to cultivate it, would exempt all the cultivated land of such farm from taxation — if it would also exempt all the wild, uncultivated and uninclosed prairie land used for grazing or for cutting hay from taxation- — -if it would exempt all the wood-land from which wood was taken from taxation — if it would exempt all the horses, neat cattle, and other stock kept on said farm, the pleasure carriages, farming implements, etc., then every farmer in the state might obtain an Indian (or indeed he might obtain any other person,) and commence teaching him agirculture, and thereby exempt all his property from the burdens of taxation. And also, by analogy, every blacksmith, or other mechanic, might obtain an apprentice and teach him his trade, and thereby exempt his shop and tools from a like burden. And also, every householder might teach his own children their alphabet, etc., and thereby relieve his homestead from the burdens of taxation, for his homestead would then of course be used partially for purposes of education.
The judgment of the court below must be affirmed.
All the Justices concurring.
|
[
-12,
120,
-36,
-68,
58,
-64,
106,
-102,
81,
-81,
-94,
-45,
109,
-46,
20,
109,
-11,
125,
80,
-22,
-52,
-73,
23,
-125,
-76,
-5,
-47,
-35,
49,
76,
-26,
118,
12,
53,
-54,
-107,
-26,
107,
-23,
-44,
-114,
5,
-117,
-49,
-11,
-32,
52,
75,
-6,
75,
-79,
-117,
-29,
46,
28,
-61,
33,
46,
75,
-91,
33,
-8,
62,
-124,
107,
22,
49,
35,
-120,
-121,
-56,
72,
-104,
25,
-128,
-24,
123,
-74,
19,
-36,
3,
-119,
-87,
96,
102,
3,
125,
-3,
-40,
-56,
46,
91,
61,
-28,
16,
88,
98,
-59,
-97,
29,
52,
-44,
47,
122,
-26,
-123,
95,
108,
21,
-33,
-42,
-77,
-115,
60,
-102,
2,
-21,
-93,
48,
97,
-49,
-102,
92,
97,
59,
-101,
-114,
-42
] |
The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for grand larceny, on an information filed by the county attorney for Neosho county. The defendants moved in the court below to quash the information “for the reason that said information was not preferred or filed at the first term of said court after their arrest, and at which they personally appeared as required by law.” The court sustained the motion, and quashed the information; and the state now by the county attorney appeals to this court.
Said reason was not a sufficient reason for quashing said information; nor would the facts therein stated be any defense to the action if pleaded in abatement, or in bar. The court therefore clearly erred in sustaining said motion. The order of the district court quashing said information is reversed, and the cause remanded for further proceedings.
All the Justices concurring.
|
[
-80,
-18,
-4,
61,
14,
-32,
50,
60,
-63,
-105,
-14,
115,
109,
-56,
20,
123,
58,
93,
116,
121,
-62,
-78,
63,
3,
-10,
-13,
-13,
-43,
-13,
95,
-28,
-27,
77,
-80,
11,
-107,
70,
-56,
-121,
84,
-50,
4,
8,
-51,
80,
72,
36,
43,
-14,
14,
113,
14,
-29,
42,
30,
-61,
41,
44,
-53,
-71,
112,
-7,
-80,
15,
13,
6,
-125,
36,
-128,
-126,
-56,
38,
-104,
17,
1,
-24,
115,
-106,
-122,
116,
79,
-101,
-87,
-22,
-22,
1,
92,
-17,
-92,
-116,
31,
126,
-99,
-89,
-40,
88,
-21,
-115,
-106,
-99,
101,
18,
39,
110,
-29,
20,
89,
-20,
1,
-50,
-16,
-109,
13,
124,
-120,
59,
-17,
-121,
16,
112,
-59,
98,
92,
70,
17,
-69,
-50,
-76
] |
The opinion of the court was delivered by
Brewer, J.:
The only error complained of is the giving of an instruction which it was claimed was inapplicable to the case, and usurped the province of the jury. So far as the testimony of the plaintiff is presented in the record, the instruction given was plainly applicable. So far as that portion of the defendants’ which appears in the record is concerned, it may be questionable. But the record not only fails to show that all the evidence is preserved, but plainly indicates that there was more received on the trial. More than than that, it fails to show that all the instructions are preserved. Hence it is impossible for this court to say that the instruction was not applicable to the whole case as presented, or ought not to have been given, or to say that if inapplicable it was not so far modified by other instructions as to have wrought no prejudice to the plaintiffs in error. Town of Leroy v. McCornell, 8 Kas., 273; Hynes v. Jungren, 8 Kas., 391. The judgment must be affirmed.
All the Justices concurring.
|
[
-16,
124,
-51,
-65,
8,
98,
43,
-104,
0,
-123,
38,
83,
-19,
-109,
21,
47,
-73,
41,
84,
66,
84,
-73,
55,
83,
-10,
-13,
-38,
-44,
-75,
77,
-26,
-1,
77,
48,
-62,
-43,
103,
-54,
-59,
84,
-114,
-122,
56,
76,
81,
54,
48,
62,
76,
15,
49,
-98,
-29,
46,
26,
-61,
105,
44,
73,
53,
72,
-80,
-118,
-115,
73,
4,
-77,
55,
-98,
7,
-40,
36,
-126,
49,
-127,
-8,
112,
-76,
-57,
116,
109,
27,
-116,
98,
98,
-95,
73,
-18,
-68,
-71,
38,
127,
13,
-90,
16,
8,
-55,
37,
-74,
-67,
116,
48,
38,
-2,
-30,
85,
93,
116,
1,
-121,
-112,
-73,
-49,
124,
-78,
-126,
-21,
-125,
-112,
113,
-51,
-22,
85,
-57,
16,
-37,
-122,
-74
] |
The opinion of the court was delivered by
Valentine, J.:
The main question in this case, and the only one which we think it is necessary to consider, is, whether a county, when the commissioners thereof vacate a county road, is liable in damages to any person who may sustain some loss in consequence thereof. We think a county is not so liable. There is no statute that makes it liable, and we know of no principle of the common law that would create such liability. The county through its officers has an undoubted legal right to vacate county roads. (Ch. 89, Gen. Stat., 897, et seq.) And neither the county nor its officers commit any wrong by so doing; nor do they take any person’s property; and therefore, if any consequential loss .results to any individual it must be damnum absque injuria. Nor can it make any difference that the party claiming damages has some interest in the road different from that of the public in general. It requires more than a peculiar interest in a thing to entitle a party to maintain an action. It requires that the party against whom the action is prosecuted should have committed, or is about to commit some wrong. This, neither the county nor its officers have done. ■ Of course it is not claimed in this action that any of the claimant’s private property has been taken. The vacation of a road does not take any person’s private property. It leaves the property of individuals just as though no road had ever been established. If a party owns the land over which the road runs, his rights and privileges are increased by the vacation of the road, instead of being diminished. If he does not own the land over which it runs then of course no property of his can be taken from him. Nor can it be claimed that the claimant in this case, or any other person, has any vested right or interest in the road as a road. Because it has once been to the interest of the public to open up and travel on a particular road is no reason that the public should forever afterward be compelled to travel on such. road, and pay the expenses of keeping it in repair, or else pay all damages that might result to individuals by reason of its vacation. The public are not bound to keep up unnecessary roads. A county road differs very much from a public park, or other public grounds in a city, which have been dedicated to the public by the original proprietors of the city. But even with respect to a public park, or public grounds in a city, it is not supposed that the public is bound to occupy and use them as intended by the original proprietors, or else pay damages to • individuals for not using them. It is supposed that the public may wholly abandon their use, where it is not for the interest of the public to use them, and without creating any liability on the part of the public. But turning our attention to this particular case we think the claimant might search in vain through all the books for a precedent to sustain his action. The judgment of the court below is reversed and cause remanded for further proceedings.
All the Justices concurring.
|
[
-16,
106,
-44,
-68,
122,
96,
2,
-128,
65,
-95,
-89,
91,
-87,
-61,
16,
115,
-9,
-1,
-44,
58,
-57,
-78,
39,
-94,
-76,
-77,
-45,
92,
-77,
77,
-18,
-9,
12,
33,
-54,
85,
102,
11,
69,
82,
78,
-113,
-102,
77,
-39,
64,
48,
107,
82,
79,
-47,
-113,
-29,
46,
24,
67,
41,
40,
89,
33,
-111,
-80,
-116,
-115,
122,
4,
-80,
39,
-68,
-61,
-24,
10,
-104,
57,
8,
-8,
115,
-90,
-122,
-12,
77,
-69,
-120,
-30,
99,
1,
69,
-1,
-4,
-103,
14,
-14,
-83,
-90,
4,
24,
43,
1,
-105,
-97,
120,
20,
-59,
126,
-26,
85,
95,
44,
3,
-117,
-14,
-77,
-49,
-20,
-110,
-64,
-49,
43,
49,
113,
-58,
-2,
92,
97,
48,
-101,
15,
-48
] |
The opinion of the court was delivered by
Brewer, J.:
On the 24th of July 1872 the judge of the 14th district sitting at chambers dissolved a temporary injunction theretofore granted by him, and on application gave thirty days in which to make a case for this court. A paper purporting to be a case made was prepared and filed in the district clerk’s office within the thirty days. This so-called case was never signed or settled by the judge, but in lieu thereof this stipulation appears at the close:
“This case and exceptions is agreed to be correct.
“S. Atwood, Attorney for Defendants.
“Theodore Sternberg, Attorney for Plaintiffs.”
This paper is not authenticated as required by the statute to constitute it a case made. The signature of the judge is as essential to a case as to a bill of exceptions. • Without such statutory authentication we cannot examine into it. The agreements of counsel cannot make a case, or a bill of exceptions. That can be done only in the manner provided by the code. As was said by the court in Leonard v. Warriner, 20 Wis., 42, “We cannot permit the stipulation of the attorneys to take the place of or do away with the necessity of such signing by the judge. If this practice were allowed attorneys might send up to this court for decision questions never raised in the court below, and even cases to which the attention of the circuit court was never called.” See also The People v. Ferguson, 34 Cal., 310; Cohen v. Trowbridge, 6 Kas., 388, The case will be dismissed.
All the Justices concurring.
|
[
-80,
-24,
-4,
-1,
-86,
33,
34,
-104,
-47,
-87,
103,
83,
-83,
83,
17,
117,
123,
13,
85,
91,
76,
-74,
23,
67,
-78,
-45,
-37,
-35,
-79,
109,
-12,
-33,
76,
-96,
-62,
-43,
71,
-64,
-39,
84,
-50,
37,
25,
-52,
-47,
-24,
48,
125,
82,
79,
117,
-18,
-13,
42,
24,
71,
-23,
44,
-53,
61,
-8,
-96,
-100,
-49,
77,
2,
-77,
38,
-104,
7,
120,
44,
-112,
49,
3,
-24,
115,
-74,
6,
-11,
111,
-71,
8,
98,
98,
1,
57,
-17,
-120,
-68,
39,
126,
-97,
-90,
-44,
120,
-22,
-119,
-74,
-67,
117,
16,
-89,
122,
-26,
5,
63,
36,
12,
-114,
-58,
-77,
-113,
122,
-106,
45,
-21,
-93,
0,
117,
-49,
-42,
92,
99,
57,
-47,
-114,
-74
] |
The opinion of the court was delivered by
Valentine, J.:
An order of attachment was issued in this case in favor of the plaintiff in error as plaintiff below, and against the defendants in error. The attachment was dissolved, first, on motion of Joseph M. Wiggins and others who were judgment-creditors of the defendants, and not parties to the suit, and second, on motion of the defendants themselves. It will not be necessary for us in this case to examine the question whether an attachment can be dissolved on the motion of a judgment-creditor who is not a party to the suit; for upon the motion of the defendants themselves, who have an undoubted right to make such a motion, it will be necessary for us to examine the merits of the attachment and to examine and decide every question which was raised by the motion made by the judgment-creditors, except the question as to the right of the judgment-creditors to make the motion. The two motions are in every other respect identical. Indeed, we could not in this case properly examine or decide the question of the right of the judgment-creditors to make the motion, for they have not been made parties in this court by the petition in error, (Ferguson v. Smith, just decided, cmte, p. 394,) and we are not asked in this case to decide any such question.
I. It is claimed that the order of attachment and other papers in this case omit the Christian names of the parties. This is in one sense true. Said papers do not give the full christian names of all the parties, but give the initial letters thereof only. This we think is sufficient. The reason upon which a different rule was once founded in England has never existed in this state. And when the reason for the rule has ceased the rule itself should cease. Cessante rations legis, eessat ipsa lex. The full Christian name is now seldom written anywhere. Search the records of our courts, our statutes, the lists of members of the legislature, election returns, written contracts, and other written instruments, newspapers, etc., and everywhere it will be found that as a rule the initials only of the Christian name are 'used. Of course, the court might for good cause shown require that the Christian name be written in full. But still, in consideration of the almost universal custom of using the initial letters only of the Christian name, it is our opinion that no written instrument can at the present time be regarded as a nullity simply because the Christian name of some person mentioned therein has not been written in full. And in any case, before a court can set aside a proceeding had in the court, or make-any order against a party, because the Christian name of any person mentioned in any paper in the court has not been written in full, the court must first give ample time and opportunity to the party interested to have the name written in full.
II. It is also claimed that the affidavit of justification of the sureties on the attachment bond is not sufficient. It is claimed that it is not shown by the bond that said sureties are residents of the state. Is it necessary that bond should show it? The bond was regularly approved by the clerk; (§192 of the code; Laws of 1870, page 172, §5.) Does it not therefore devolve upon the other party to' show that the sureties were not at the time the bond was executed residents of the state? But it is sufficiently shown that the sureties were residents of the state. The bond shows that they were residents of “ Chetopa, Labette county,” ancl they justified in the “State of Kansas, ■Labette county.” This is sufficient prima fade to show that the sureties resided in the state of Kansas. It is also claimed that the sureties were not shown to be worth double the amount secured. The bond was for more than double the amount secured, and the sureties were shown to be worth more than the amount of the bond. Hence they were shown to be worth more than double the amount secured. It is further claimed that said sureties were not shown to be worth any sum above their debts. It is shown that they were-“worth the sum of $1,862 over and above all liabilities and exemptions.” We suppose that a debt is a liability; that the word “liabilities” includes debts, and therefore that it was shown that the sureties were worth the sum of $1,862 over and above all exemptions, debts and other liabilities. We think the court might have required an amendment of the justification so as to have made it conform to the language of the statute; (Code, § 724; Robinson v. Burton, 5 Kas., 293, 300;) but the court could not arbitrarily, and without giving any opportunity to amend, dissolve the attachment for such a slight discrepancy as may be found between this justification and the statute. It is also claimed that the affidavit of justification says that the sureties, “are liable to execution.” What if it does? The attachment should not be dissolved for that reason alone. A surety might be liable to an execution, and be ample security for a hundred times the amount to be secured. But the affidavit of justification does not say that the sureties are liable to an execution. It substantially says that the sureties have $1,862 over and above all their liabilities and exemptions which would be liable to be taken on an execution.
III. It is claimed that the affidavit for the attachment was not sworn to. It was in fact sworn to before the deputy clerk of the district court. But it is claimed that a _ , , deputy clerk has no power to administer an oath, and therefore that the affidavit was not in law sworn to at all. We think otherwise. All ministerial officers were at common law empowered to appoint deputies; (Whitford v. Lynch, ante, p. 180, and cases there cited.) But clerks of the district courts are specially authorized by statute to appoint deputies in this state. (Gen. Stat., 287, § 149.) There is no statute defining the powers of the deputy district clerks, and there is no statute establishing any limitation upon their powers. So far as anything is expressed in the statutes, the deputy clerk of the district court may do anything that the clerk himself may do; and such is the natural inference to be drawn from the statutes. The very article that authorizes clerks of the district courts to administer oaths also authorizes clerks of the district courts to appoint deputies; (Gen. Stat., 287, art. 11, §§ 151, 149.) Section 720 of the code provides that “Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.” (Gen. Stat., 771, § 720.) And section 723 of the same code provides that “A ministerial officer whose duty it is to take security in any undertaking provided for by this code, or by other statutes, shall require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer, and shall be indorsed upon or attached to the undertaking.” (Gen. Stat., 771, § 723.) We quote this to show that a ministerial officer may by statute administer an oath. Also, notaries public, county clerks, and registers of deeds are authorized to administer oaths; (Gen. Stat., 598, § 1;) and they are all ministerial officers. The power to administer oaths is however an incident to all courts. It belongs to all courts. Whenever a court is created, that power is also necessarily created as being a necessary incident to the court. But such power does not belong exclusively to courts. When exercised by a ministerial officer it is purely a ministerial power, and the act of the officer is a ministerial act. This power is given to the clerk of the district court, and either he or his deputy may exercise it as a ministerial power. It is not in its nature anything like judicial power. It has none of the attributes of judicial power. It does not require the exercise of judgment, discre tion, discernment, or discrimination, as the exercise of judicial power does. It is essentially in its nature ministerial. If it were not a necessary incident to courts no one would ever suppose that it had any of the attributes of judicial power. (As throwing some light upon this question see Amrine v. K. P. Rld. Co., 7 Kas., 178; Whitford v. Lynch, supra; Huey v. Van Wie, 23 Wis., 613.)
IV. It is claimed that the affidavit for attachment does not state the nature of the plaintiff’s claim. It does, however. The claim was for “the sum of $930.85, now due and payable to the said Ferguson from the said to ° Smith & Dunham on an account for merchandise sold by the said Smith & Dunham as auctioneers on commission for the said Ferguson.” If this was not sufficiently definite and certain the defendants should have stated in their motion to dissolve the attachment wherein and in what particular it was not sufficiently definite and certain, so as to give the plaintiff an opportunity to amend the affidavit. This the defendants did not do; and the defect in the affidavit, if there is any such defect, is not obvious.
V. It is also claimed by the defendants that the affidavit for attachment was insufficient because “ It purports to set forth the grounds of the attachments in the words of the statute by way of conclusion, yet states that one 0f the above-named debtors has absconded instead of one of the defendants.” Frank Smith is one of the parties to this action. The action was brought against Frank Smith and E. A. Dunham, partners as F. Smith & Co. He is and was when the affidavit was filed one of the defendants, and the affidavit so showed it. It was also alleged in the affidavit that he was one of the debtors of the plaintiff. The part of the affidavit claimed to be defective as stating “debtor” instead of “defendant” reads as follows: “The affiant further says that Frank Smith, one of the above-named debtors, has absconded with intent to defraud his creditors.” The statute under which this part of the affidavit was intended to be drawn reads as follows: “When the defendant, or one of several defendants, has absconded with the intention to defraud his creditors.” (Sec. 190 of the code; laws of 1870, page 171, §4, subdiv. 2.) The point made is.íoo fine. We shall not discuss it. The affidavit was good enough. How Frank Smith could have .absconded when considered as a debtor, and not have absconded when considered ás a defendant, we are entirely unable to comprehend.
The order of the court below dissolving and vacating the order of attachment on the motion of the defendants must be reversed, and cause remanded for further proceedings.
All the Justices concurring.
|
[
-80,
-4,
92,
44,
26,
96,
-94,
-69,
-45,
-93,
-89,
83,
77,
-54,
4,
107,
-13,
45,
113,
122,
-58,
-73,
7,
-21,
-10,
-13,
-63,
-59,
-79,
109,
-26,
117,
76,
40,
74,
-43,
102,
10,
-59,
84,
-50,
-126,
-87,
-27,
-47,
-54,
48,
51,
4,
79,
85,
-98,
-13,
46,
29,
83,
105,
40,
-54,
44,
-64,
-71,
-113,
-57,
79,
6,
-77,
37,
-98,
-127,
-56,
62,
-88,
49,
0,
-8,
114,
-90,
6,
-10,
47,
57,
8,
98,
34,
17,
-107,
-17,
-104,
-104,
47,
110,
29,
-90,
-109,
89,
9,
13,
-74,
-99,
111,
17,
-89,
126,
-22,
13,
28,
44,
15,
-53,
-122,
-77,
-81,
58,
-102,
3,
-21,
-125,
16,
113,
-60,
-16,
92,
99,
56,
-109,
-50,
-72
] |
The opinion of the court was delivered by
Valentine, J.:
This action was prosecuted by A. C. Beck-with, as plaintiff, against Shawnee county, for damages claimed to have resulted from the establishment of a certain public road or highway across the plaintiff’s land. The road was located on the west line of plaintiff’s land — (one-half being located on the plaintiff’s land, and the other half on an adjoining proprietor’s land) — the west line of the plaintiff’s land running through the middle of the road from the north side of the land to the south side. The plaintiff claimed a judgment for the full value of the land taken, the full value of some hedge that was growing on the west line of his land which came within the road, and for the entire cost of building a new fence across his land along the line of the road as laid out. The case was tried by the court, without a jury. On the trial the county offered to prove that the said hedge could be removed without any material injury to it, and that the cost of the removal would be greatly less than the value of the hedge. The plaintiff objected to the evidence; the court sus tained the objection, and the defendant excepted. The court afterward found upon the evidence in favor of the plaintiff, and rendered judgment for him for the full value of the land taken, for the full value of the hedge, and for the entire cost of building said new fence, deducting' from the aggregate of said turns the amount of the benefits which accrued to the plaintiff by reason of the establishment of said road. The only question involved in this case is, what damages had the plaintiff a right to recover? We suppose it will be admitted that he had a right to recover full compensation for all direct losses or damages which he sustained by reason of the establishment of said road, minus all direct gains or benefits. Then what were his damages? We suppose it is fundamental that no man can be divested of his land, or any part or portion thereof, or any interest therein, through the exercise 0f the power of eminent domain, (or in fact through the exercise of any other power,) except under the provisions of express and positive constitutional or statutory law, and that he cannot be divested through the exercise of such power of any more or greater interest in his land than the constitution or statutes expressly provide for. In this state the statutes provide for the establishment of public roads and highways, (Gen. Stat., 897, ch. 40,) but both the constitution and the statutes are silent as to how much of the land, or what interest therein shall pass to the public, and how much of the land or what interest therein shall remain with the original proprietor. Therefore we would infer that nothing connected with the land passes to the public except what is actually necessary to make the road a good and sufficient thoroughfare for the public. The public obtains a mere easement to the land. It obtains only so much of the land, soil, trees, etc., as is necessary to make a good road. It obtains the right for persons to pass and re-pass, and to use the road as a public highway only, and nothing more. (Caulkins v. Mathews, 5 Kas., 199, 200, and cases there cited.) The fee in.the land never passes to the public, but always continues to belong to the original owner. He continues to own the trees, the grass, the hedges, the fences, the buildings, the mines, quarries, springs, watercourses, in fact everything connected with the land over which the road is laid out, which is not necessary for the public use as a highway. (Angell on Highways, ch. 7, §§ 301 to 312, and cases there cited.) He may remove all these things from the road, or use and enjoy them in any other manner he may choose, so long as he does not interfere with the use of the road as a public highway. No other person has any such rights. In iact, the original-owner has as complete and absolute dominion over his land, and over everything connected therewith after the road is laid out upon it, as he had before, except only the easement of the public therein. In the present case there is no claim or even pretense that the said hedge was needed for the road. The plaintiff therefore had absolute control over wag j£ wag anything standing in the road—if it was worth any thing for removal—if it would cost less to remove and transplant it than it would be worth after its removal, then the plaintiff should not have received full compensation for its value. He should merely have received compensation for the cost of its removal to the place where needed, and for any depreciation in value caused by such removal. With these views we are of the opinion that the court-below erred in excluding said evidence. We perceive no other errors.
If it was necessary for the plaintiff to build a new fence entirely across his land in order to use his land as he had previously done, then full compensation should have been allowed in estimating his damages; and with the record brought to this court we cannot say that such a fence was not necessary. If the hedge could have been removed to the place where he wanted the fence, so as to make a good fence, then he should have removed it; and then it would not have been necessary for him to build a new fence entirely across his land. The hedge would have been sufficient as a part of such fence. Our statutes do not compel adjoining proprietors of land to build partition fences where the parties otherwise agree. (Gen. Stat., 488, ch. 40, § 8.) And if a public road should be laid out on the line between such adjoining proprietors, each would be entitled to have the cost of all additional fences which he would be required to build in order that he might use his land as he had previously done considered in estimating the amount of his damages. The judgment of the court below is reversed, and cause remanded for a new trial.
All the Justices concurring.
|
[
-14,
110,
-40,
28,
24,
96,
42,
-104,
65,
-93,
-12,
83,
-83,
-54,
1,
107,
-26,
-5,
116,
122,
-43,
-93,
71,
-125,
-110,
-13,
-5,
-35,
-71,
76,
-26,
-41,
76,
48,
-54,
85,
102,
72,
69,
92,
-114,
14,
-101,
93,
-63,
64,
60,
59,
80,
75,
49,
-99,
-13,
46,
57,
-61,
41,
44,
75,
-87,
17,
-8,
-82,
-41,
95,
4,
1,
7,
-68,
3,
-40,
42,
-112,
61,
1,
-24,
115,
-90,
6,
-12,
13,
-103,
8,
-94,
99,
17,
84,
-17,
-4,
-103,
14,
-12,
13,
-90,
-128,
88,
67,
9,
-74,
-99,
89,
20,
71,
126,
-17,
77,
31,
104,
7,
-117,
-42,
-93,
-113,
40,
-118,
66,
-57,
3,
-79,
97,
-58,
-30,
93,
97,
114,
-101,
-113,
-45
] |
The opinion of the court was delivered by
Valentine, J.:
This action was brought in the district court by Balderston and Keplinger,' as plaintiffs against Stewart and Emmert, as defendants. The plaintiffs below allege in their petition that the defendants were register and receiver of the Humboldt land office; that they illegally received $4,125 in various sums as fees from 670 different persons who purchased land at said land office, and that the said 670 persons have severally assigned their respective claims for said illegal fees to said plaintiffs, who now aslc judgment in favor of themselves and against the said defendants for the whole amount of said claims. The petition contains, first, the title; second, a general heading, (which general heading is drawn more particularly for the first intended cause of action, but it is also drawn with the intention that it shall apply to all the supposed causes of action;) third, 670 separate paragraphs or sections numbered consecutive from 1 to 670; fourth, a general prayer for judgment for $4,125 and costs. The most of the facts stated in the petition are contained in the said general heading. Two different motions were made in writing by the defendants below to require the plaintiffs to make their petition more definite and certain, and to require them to separately state and number their several supposed causes of action. These motions were severally overruled by the court, and the rulings thereon were duly excepted to. Three different demurrers to the petition were then successively filed, containing between them the first, second, fourth, fifth and sixth statutory grounds for demurrer. (Civil code, § 89.) Those demurrers were also severally overruled by the court below and the rulings thereon were also duly excepted to. The defendants then brought the case to this court on petition in error, and now ask to have the judgment of the district court reversed because of said rulings.
The first question arising in the case is, whether a claim for money, tortiously obtained from the claimant, can be assigned to a third person so as to give the assignee a right to recover the same in his own name. We think it can. Butler v. N. Y. & E. Rld., 22 Barb., 110, 112; Foy v. Boston Rld., 24 Barb., 382; Hall v. Robinson, 2 N. Y., 293; Hoyt v. Thompson, 5 N. Y., 347; McKee v. Judd, 2 N. Y., 622, 625; Zabriski v. Smith, 13 N. Y., 322, 332; Byxby v. Wood, 24 N. Y., 607; Hall v. Cin., Ham. and Dayton Rld., 1 Disney, 58; Grant v. Ludlow, 8 Ohio St., 1, 37; Moore v. Massini, 32 Cal., 590; Jones v. Vanzant, 4 McLean, 600; North v. Turner, 9 S. & R. 241, 248, et seq.; Comegys v. Vasse, 1 Peters, 193, 213; 2 Story Eq. Juris., § 1040. The taking of, a man’s money tortiously, as is charged in this case, is such a tort as affects and injures his personal estate by lessening the same; and at the same time it increases the value of the estate of the person who receives the money. At common law the party injured could in such a case waive the tort and sue as upon an implied contract. He could sue in assumpsit for money had and received. (1 Chitty Pl., 68.) In such a case the plaintiff alleged an indebtedness on the part of the defendant for the money had and received, and also a promise and undertaking on the part of the defendant to pay the money back. And when the plaintiff showed that the defendant had received the money, although it may have been tortiously or wrongfully received, yet the common law would imply a contract or agreement on the part of the defendant to pay it back, and would not permit him to show that in fact there had been no such contract or agreement. Under the statutes of this state a cause of action for money had and received, whether obtained tortiously or otherwise, as well as every other cause of action which affects injuriously the estate of the party injured, is such a cause of action as will survive after the, death of the party injured to his legal representa tives. (Civil code, §§ 420, 421.) And according to many of the authorities which we have already cited this is conclusive proof that the cause of action is assignable. As long ago as 1828 it ivas said in the case of Comegys v. Vasse, 1 Peters, 213, Mr. Justice Story delivering the opinion of the court, that “ In general, it may be affirmed, that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights, ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, may pass by assignment.” And this doctrine has been generally followed in this country ever since. It is’ now generally said that survivorship of a cause of action, and assignment, go hand in hand. Also, in this state, a cause of action for money had and received, although the money may have been tortiously obtained, as it is a cause-of action on an implied contract, may be united or joined in the same petition with other causes of action arising on contract either express or implied. (Code, § 83.) And under § 26 of the code such a cause of action, as well as every other cause of action, “ must be prosecuted in the name of the real party in interest,” except in certain cases ivhere it is “ otherwise provided.” This is not one of the cases where it is “ otherwise provided.” According to said § 26 every cause of action which has been assigned must be prosecuted in file-name of the assignee. But said section does not operate “ to authorize the assignment of a thing in action, not arising out of contract.” But as we have already seen, the plaintiff has a right in a case of this kind to claim that his cause of action did arise out of an implied contract, and the defendant has no right to claim that in fact it did not, or to deny that if did arise out of contract. Upon the authorities then, and our statutes, taken together, we think a cause of action for money tortiously obtained is assignable, and that the assignee may sue in his own name.
There are other questions raised in this case, the principal of which are the following: First, Are the facts which are stated in the petition well pleaded? Second, Must the facts which are stated in the petition be well pleaded in order that the petition may withstand the objections made thereto by the said motions and the said demurrers? Third, Are there sufficient facts stated in the petition well pleaded to constitute a cause of action? Fourth, Are there sufficient facts stated in each and every paragraph or section of the petition well pleaded to constitute a cause of action? Fifth, Are there sufficient facts stated in any one of said paragraphs or sections well pleaded to constitute a cause of action? We must answer all of these questions except the second in the negative, and the second must be answered in the affirmative. The said motions and demurrers should therefore have been sustained. The plain- . ■* . ™s below undoubtedly intended to state 670 separate and distinct causes of action. They numbered these supposed causes of action consecutively from 1 to 670, but they did not state what these numbers were intended to represent, ■ whether they were intended to represent paragraphs of one cause of action, or whether they were intended to represent separate and distinct causes of action. And they did not state in any one of those supposed causes of action (except perhaps the first) all the facts which they intended should enter into and constitute a part of said supposed cause of action; but much the larger portion of the facts which they intended should enter into and constitute a part of each cause of action was stated in said general heading to the petition. Hence the said supposed causes of action were in no just sense separately stated as required by the code. In every case “The petition must contain a statement of the facts constituting the cause of action.” (Code, §87, subdiv. 2.) “And where the petition contains more than one cause of action each shall be separately stated and numbered.” (Code, §88.) Or in other words: each count in a petition should contain in and of itself a full and complete statement of all the facts (and no more) constituting the cause of action therein intended to be stated. In other words: each count should be separate and distinct from eveiy other count, and be complete within itself. This is the general rule. There are possibly some exceptions, one of which we shall hereafter discuss in this opinion. The proposition that each and every separate and distinct fact which enters into and assists in constituting either a cause of action or a defense must have at least one separate and distinct statement, has no exception in pleading. Facts cannot be classified and grouped together, and then alleged in the group, as has been done in this case. If the facts are single, if they are separate and distinct from each other, they must be alleged separately, arid must be alleged in the counts to which they respectively belong. No two separate and distinct facts can be grouped together and stated in one allegation; much less can 670 separate and distinct facts' be grouped together and stated in one allegation because they are similar, and because one general allegation can be framed which will cover all of them. But while it is necessary to state every fact at least once, we do not suppose it is necessary to state any fact more than once in any pleading. Probably it is not necessary to state any fact more than once in the whole case, or in all the pleadings. If such fact enters into and constitutes a part of several separate and distinct causes of action or defenses it may, after being once clearly stated in any count where it properly belongs, be referred to in any subsequent count, and by such reference be made a part of such subsequent cause of action or defense. This mode of pleading is an exception to the general rule. But such exception is founded in reason, and must be tolerated for the sake of brevity. No exception however can be tolérated that has not some strong reason in its favor. To illustrate the foregoing rule and the exception we would say: that if the 670 persons mentioned in the plaintiffs’ petition were all present at the office of the defendants at one and the same time seeking to purchase their lands, find if the defendants then and there told them all together that they must each first pay said illegal fees or they could not have their lands, then it would do for the plaintiffs to state such fact (as it would really be but one fact) once only in their petition, and then in each separate and subsequent count refer intelligibly to said fact and make it a part of such count. But if these 670 persons applied at different times and under different circumstances to enter their lands (as we must presume they did under the pleadings, and as the case is presented to us,) then a separate and distinct statement of each separate and distinct application, and the threats then and there made, must be made in the petition or the petition will be bad. In other words, it is not sufficient to state 670 separate and distinct facts (though similar) in the lump, but each must be stated separately. Every fact that requires separate evidence to prove it must be separately stated in the pleading. In the case we have supposed, if the threats that said 670 persons could not have their lands without first paying said illegal fees were all made at once, and to the whole 670 persons as they were congregated together at the office of the defendants, then evidence of such threats for any one of the causes of action would be evidence for every other cause of action, and once proving such threats would be sufficient for the whole 670 causes of action, and therefore one statement of the fact in the petition would be sufficient for all the causes of action if intelligibly referred to in every count which did not contain a full statement of such fact. But if the threats wore made at 670 different times, and under different circumstances each time, and to each of the 670 persons separately, then evidence tending to prove one threat would be no evidence of another; and evidence tending to prove the threats for one cause of action would be no evidence for any other; and in such a case the threats in each case and for each cause of action would necessarily have to be stated separately in the petition, and proved separately on the tidal; and each threat would necessarily have to be stated in the count to which it properly belonged, and could not properly be stated anywhere else. After the said general heading in the petition came the said 670 supposed causes of action. The following is the statement of the first supposed cause of action not including the said general heading, and the other 669 supposed causes of action are in form precisely like the one we here give, to-wit: “And the plaintiffs say, that for money had and received as aforesaid $7 was due from the defendants jointly to Henry Surig, who purchased theN.E.J of sec. 4, T. 29 south, of R. 16 east, and duly assigned his claim to the plaintiffs as aforesaid, which sum is due the plaintiffs from the defendants.” We suppose it will hardly be contended that this statement taken alone contains facts sufficient to constitute a cause of action. Can any one tell from the words, “that for money had and received as aforesaid,” how the money was received? The reception of the money may have been legal and valid, and such as would not create a cause of action. By using the word “aforesaid” it renders the allegation incomplete, and it can mean nothing in and of itself. . Even if it should be conceded that the allegation in the said general heading that the defendants were register and receiver of the Humboldt Land Office, is well pleaded, and still there is nothing to show without still further resorting to said general heading that this money was received by said defendants as officers, or that it was not their legal fees, or that it was not received for extra woi'k done by them as individuals and not as officers, or that this money was not paid voluntarily and without any threats or coercion, and with a full knowledge of all the facts; or that it was not paid for the purpose of obtaining some illegal advantage over some other person, both the parties being in pari delicto; or that the money wras not received in some other manner so that no cause of action would accrue. This allegation of itself amounts to nothing. Neither does the allegation that Surig “duly assigned his claim to the plaintiffs as aforesaid.” How was that assignment as aforesaid made? There is nothing to show. And were the 670 assignments of claims one act, so that they could all be stated in one allegation, and then simply referred to in subsequent counts? Such in the nature of things could not be so. If this mode of pleading jvere correct, then the plaintiffs might have alleged in general terms in the said general heading in their petition that the defendants received from each of said 670 persons seven dollars, (or some other sum large enough to cover the largest amount received from any one of said 670 persons,) and thereby saved themselves the trouble of even alleging in each separate count of their petition the amount received from the individual mentioned in that count. In fact, if such were correct pleading the plaintiffs might by general allegations in the general heading to their petition so reduce the number of the allegations for each count that the simple name of any one of the said 670 individuals from whom the money was received - would be sufficient to constitute a separate and distinct count, and the whole of such count. In such a case the first count in this case would read as follows: .. , tt n • ,, xxr > “ 1. — Jtlenry bung." We suppose that such a mode of pleading can hardly be tolerated. And if not, then the defect or irregularity can certainly be reached by motion ; and after motion made and overruled, by demurrer. Both at common law and in chancery upon a demurrer to a pleading everything stated in the pleading was taken to be true that was well pleaded, and nothing was taken to be true that was not well pleaded. Comyn Dig., “Pleader,” 26; 1 Chitty Pl., 662, (13 Am. ed.,) notes i and 1; Story’s Eq. Pl., §452; 2 Whittaker Pr., § 168; But under our code-system of practice it would seem that the rule that nothing is to be taken as true unless well pleaded has been greatly modified. It would now seem from the decisions, where no motion has been made to have the pleading made more definite and certain, or to have the several causes of action or grounds of defense separately stated and numbered, or to 'have the pleading corrected and made more formal in some other respect, that, on a demurrer to the pleading everything stated therein should be taken as true, and be considered by the court, whether well pleaded or not. Civil code, §115; Sattig v. Small, 1 Kas., 177; Western Mass. Ins. Co. v. Duffey, 2 Kas., 347, 353; Crowther v. Elliott, 7 Kas., 235; Park v. Tinkham, 9 Kas., 615; Prindle v. Caruthers, 15 N. Y., 425; Richard, v. Edick, 17 Barb., 261; Hartford Tp. v. Bennett, 10 Ohio St., 441; Lewis v. Colter, 10 Ohio St., 451; Stoutenberg v. Lybrand, 13 Ohio St., 228; Summers v. Parrish, 10 Cal., 347, But when the proper motions have been made to require the adverse party to so amend his defective pleading as to make it definite, certain, correct and formal, thereby giving the adverse party notice wherein his pleading is defective, informal, or insufficient; and where the adverse party then refuses to amend'' his defective pleading, resists the motions to have it amended, and has the motions overruled by the court, the most rigid rule of the common law should prevail. No statement of fact in the pleading which the motions reached should then be taken as true, unless well pleaded; and if any such statement would bear different constructions the party demurring should be allowed to adopt anyone of such constructions which he should choose. The old rule of the common law that “ Everything should be taken the more strongly against the party pleading,” although it can seldom have application under our code practice, should then prevail. After a party has received full notice that his pleading is defective in some particular, and has been asked to correct it, it is his fault if it still remains defective in such particular, and he is the one who should suffer on account of such defective pleading, and not the other party. In the present case there was scarcely a fact in the whole petition that was well pleaded. Nearly all the facts that were intended to constitute 670 different causes of action were grouped together, although separate and distinct, and were stated in very general terms in one general heading to the petition. Probably no defendant'was ever before asked to answer to such a petition, and certainly no defendant should ever be asked to answer to such a petition.
The judgment of the court below is reversed, and cause remanded with instructions that further proceedings shall be had in accordance with this opinion.
All the Justices concurring.
|
[
-14,
-18,
-40,
46,
26,
-32,
42,
-70,
65,
-95,
-74,
87,
-19,
-37,
20,
37,
-13,
-87,
113,
106,
-34,
-77,
6,
-94,
-110,
-13,
-37,
-43,
-71,
79,
-26,
-42,
76,
48,
-62,
21,
102,
-126,
-59,
-44,
78,
-121,
-119,
-51,
-39,
72,
48,
123,
114,
67,
113,
31,
-13,
44,
24,
-61,
41,
46,
-53,
-79,
-64,
-71,
-85,
-115,
25,
18,
-93,
103,
-98,
67,
74,
-88,
-112,
57,
1,
-24,
82,
-90,
-122,
116,
75,
-71,
13,
102,
102,
33,
69,
-17,
120,
-104,
46,
-42,
-99,
-89,
-78,
56,
35,
4,
-106,
-99,
116,
20,
-121,
118,
-21,
-107,
29,
44,
5,
-113,
-42,
-77,
-113,
122,
-120,
-45,
-57,
35,
49,
112,
-63,
-92,
94,
69,
114,
27,
15,
-66
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action founded upon a promissory note and a written contract. The plaintiff in his petition below made all the necessary allegations concerning said note and contract, and the defendant’s liability thereon, to show a good cause of action. But instead of attaching copies of said note and contract to his petition, as he might have clone under § 118 of the code, he attached .the original note .and contract to his petition. The defendant answered, denying indebtedness to the plaintiff, and setting up new matter constituting a counterclaim and set-off; but he did not deny the execution of said note and contract. In fact, he expressly admitted the execution of the note, and impliedly at least ■admitted the execution of the contract. During the trial the plaintiff offered to introduce in evidence the note and contract. The defendant objected on the ground that no copies of the same had been attached to the petition, as required by said § 118 of the code. The court sustained the objection, and the plaintiff duly excepted. The verdict of the jury and the judgment of the court were in favor of the defendant and against the plaintiff for fifteen dollars, and the plaintiff now asks to have the judgment reversed.
The only ruling complained of is that- of the court in excluding said evidence. If the only reason for excluding said evidence was that copies of said note and contract were not attached to the petition, when the originals themselves were so attached, we think the reason was a very unsound one. Certainly, wherever copies of written instruments may be used, the originals may also be used. But there was a better reason for the exclusion of said evidence. There was no issue upon which it could be introduced. There was no controversy about the note or contract. The execution of both were admitted by the pleadings. Every material allegation of the petition not controverted by the answer must be taken as true. Civil code, § 128. And every pleading controverting the execution of a written instrument must be verified by affidavit. Code, § 108. Neither was done in this case. There was no denial of the execution of the note or contract, and no allegation of the answer was verified by affidavit. A mere denial of indebtedness on the note or contract is no denial of the execution of either. When the execution of a written instrument is admitted by the pleadings its legal effect must of necessity follow; and what its legal effect is, is purely a question of law for - the court to determine. There is then no issue of fact with reference to the existence or effect of the written instrument upon which evidence can be introduced to the jury; and evidence can never be introduced to a jury except in support of some issue of fact made by the pleadings. The evidence then, as we think, was rightfully excluded. Williams v. Norton, 3 Kas., 295, 298; Zane v. Zane, 5 Kas., 140; Furguson v. Tutt, 8 Kas., 370. It may be that the court below excluded said evidence for a wrong reason, but we will not reverse the judgment on that ground. The judgment of the court below is affirmed.
All the Justices concurring.
|
[
-80,
120,
80,
-82,
-118,
96,
-86,
-104,
-47,
33,
-89,
119,
109,
-62,
4,
97,
-10,
125,
84,
122,
69,
51,
39,
65,
-14,
-13,
-15,
84,
-79,
-19,
-26,
93,
76,
32,
-30,
-43,
-26,
74,
-63,
82,
-50,
7,
9,
-60,
-47,
72,
52,
51,
82,
9,
69,
-114,
-29,
39,
24,
75,
-17,
44,
107,
45,
-64,
-80,
-99,
-123,
125,
3,
-79,
55,
-100,
75,
-54,
46,
-104,
49,
1,
-8,
112,
-74,
-122,
116,
105,
59,
-128,
98,
102,
0,
85,
77,
-68,
-100,
47,
110,
15,
-89,
-47,
88,
11,
13,
-106,
-99,
92,
16,
39,
118,
-2,
29,
31,
108,
11,
-49,
-14,
-77,
63,
126,
-102,
3,
-17,
-77,
17,
113,
-58,
112,
92,
99,
25,
-101,
-114,
-110
] |
The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error engaged to teach a school for the plaintiff in error for six months under a written contract which contained this clause: “The district board reserving the right to discharge the teacher at any time he fails to give satisfaction to said board.” Under this contract defendant in error taught the school for three-and-a-half months, and was then discharged by the board. He was paid for'the time he taught, and brought his action to recover for the residue of the six months. It was proven on the trial that he failed to give satisfaction to the board and for that reason he was discharged. It was also shown that he was willing to continue for the whole term of six months, and so informed the board. The district court held that that part of the contract which gave the school-district board the right to discharge the teacher at any time he failed to give satisfaction to the board was void, and gave him judgment for the unpaid balance for the whole time. This decision presents the only question in this case, and involves a construction of §7 of chapter 86 of the Laws of 1869, page 181, which section is as follows:
“Sec. 7. The district board in each district shall contract with and hire qualified teachers for and in the name of the district, which contract shall be in writing, and shall specify the wages per week or month as agreed upon by the parties, and such contract shall be filed in the district clerk’s office, and in conjunction with the county superintendent may dismiss for incompetency, cruelty, negligence, or immorality.”
Under the last clause of this section the district board in conjunction with the county superintendent may dismiss the teacher for certain causes, no matter what the terms of the contract may be. So far it is a new feature in the law intended as a remedy for any improvidence on the part of the board in making a contract. It would be a public calamity if a teacher employed for a year should prove negligent or immoral and there was no way to rid the district of such a teacher. It was wise in such a case to make provision by law for his discharge, and it was thought wise to connect the county superintendent with the board in any such action. If all the contracts were made as the one in this case is made, there would be no necessity for such enactment. The law was made for the benefit of the district. It does not prevent the board from making any other contract with the teacher. In this case they have made one which is not prohibited either by law or public policy. No one doubts that a contract hiring a teacher might be abrogated by mutual consent. So they may stipulate in advance, as in this case, what shall put an end to the contract. That contingency arose, and the board, with the previous consent of the teacher, put an end to the contract. There seems to be no doubt -but what that part of the contract was valid. The judgment is reversed and the cause remanded for further proceedings.
All the Justices concurring.
|
[
16,
-6,
-36,
-65,
26,
64,
122,
-104,
89,
35,
37,
87,
-23,
-109,
28,
105,
115,
111,
16,
106,
82,
-77,
2,
0,
-78,
-13,
-47,
-51,
-79,
78,
-12,
93,
76,
48,
-62,
-43,
102,
66,
-63,
80,
-122,
-89,
-87,
-26,
91,
-61,
52,
121,
50,
15,
33,
-34,
-13,
46,
24,
71,
-24,
60,
88,
33,
64,
-15,
58,
-115,
111,
4,
-77,
37,
-98,
-121,
-8,
44,
-104,
57,
13,
-8,
18,
-74,
-62,
20,
109,
-119,
41,
96,
102,
16,
-68,
109,
-40,
-103,
14,
-6,
-83,
-90,
-111,
88,
43,
77,
-98,
-99,
116,
20,
-121,
118,
-25,
-124,
19,
37,
64,
-101,
-108,
-79,
79,
45,
-110,
-117,
-29,
35,
49,
117,
-49,
-88,
92,
98,
19,
19,
90,
-100
] |
The opinion of the court was delivered by
Prager, J.:
This is an action to enjoin permanently any further steps to carry out the existing program for urban renewal in the city of Parsons, Kansas. The plaintiffs C. J. Anderson and Verda M. Anderson are residents of Parsons who own a business building included in the Downtown Parsons Urban Renewal Project. Defendants are the city of Parsons and its commissioners and the Urban Renewal Agency and its commissioners. The urban renewal program for Parsons had its genesis on May 16, 1966, when the board of commissioners of the city adopted a resolution finding certain areas in the city to be “slum and blight areas”. On the same day the city commissioners passed a resolution creating and appointing the Urban Renewal Agency of the city and authorizing it to exercise the powers conferred upon such agencies by the Kansas Urban Renewal Law. (K. S. A. 17-4742 thru 17-4761.) The city commissioners appointed as Urban Renewal Commissioners Clyde M. Reed, Charles H. Miller, John J. Troy, Charles W. Brown and Carl Herring. The urban renewal agency proceeded to carry out its functions by taking the necessary steps to conduct preliminary surveys and in due course developed an urban renewal plan and an urban renewal project for the Parsons central core area. The urban renewal plan was submitted for approval to the city commissioners of Parsons. After a public hearing the city commissioners on January 22, 1969, by resolution approved the urban renewal plan as proposed by the urban renewal agency and also an urban renewal project commonly known as “Downtown Parsons, Kansas R-46”. On February 5, 1969, the city of Parsons acting through its commissioners entered into a contract with the urban renewal agency by which the agency obligated itself to enter into a contract with the United States for the acquisition, clearance, and disposition of the land contained in the urban renewal project. The city obligated itself to pay one-fourth of the net project costs.
The controversy in this case arose because the Andersons did not want their business building taken for the urban renewal program. They had been in business at the same location in Parsons for approximately 33 years. The Andersons took the position that their business building was in good condition and structurally sound, and that it was arbitrary and capricious for the urban renewal agency and the city commission to designate their building for destruction to provide land area for use by a major mercantile establishment which was to be the keystone of the central core project.
On March 17, 1969, the Andersons filed this action on behalf of themselves and all other persons similarly situated to enjoin further urban renewal action under the urban renewal plan and project adopted on January 22, 1969. At the time the action was filed the urban renewal agency had spent $185,248 for planning services and entered into contracts obligating the expenditure of further sums in the total amount of $605,172. On June 24, 1969, the Andersons filed a motion for a temporary restraining order which was denied on September 2, 1969. On December 23, 1969, the Andersons filed another motion for a temporary restraining order or in the alternative for permission to take an interlocutory appeal from the previous order of the court denying temporary relief. On January 17, 1970, the district court denied the motion for a restraining order or for permission to take an interlocutory appeal.
The Anderson case was tried on its merits before District Judge Hal Hyler sitting without a jury. On June 12, 1970, the district court entered judgment in favor of the defendants denying injunctive relief to the plaintiffs and making findings of fact and conclusions of law. The Andersons appealed to this court.
During the period this litigation has been pending the urban renewal agency has continued to develop the Parsons urban renewal program. As of January 30, 1970, the urban renewal agency had purchased for demolition property of the value of $1,000,000 and contracted to purchase other property for an estimated cost of $185,000. As of that date the urban renewal agency had relocated 31 families, 48 individuals, and 27 businesses and had contracted to move a total of 88 families, 120 individuals, and 130' businesses. The utility companies in Parsons were involved in plans and engineering for relocating utility lines. Downtown business stores had been demolished and a high-rise apartment for the elderly was in the process of construction on a portion of a street that had been vacated. On April 7, 1972, oral argument was presented to this court. At that time we were advised that as of March 31, 1972, there had been spent in excess of $6,000,000, the project was 58% completed and 220 properties had already been demolished.
The appellants, Mr. and Mrs. Anderson, raise a number of points on this appeal which attack the validity of various proceedings in the development of the urban renewal program in Parsons. Ap pellants’ primary point raises an issue o£ conflict of interest involving the city commissioners of Parsons and also the board of commissioners of the urban renewal agency. In addition appellants contend that both the urban renewal board and the city commissioners acted arbitrarily with respect to the designation of the urban renewal area and in formulating and executing the Parsons Urban Renewal Project. Let us consider each of these points in order.
The appellants’ first point involves an alleged conflict of interest arising from the fact that City Commissioners Myer S. Freshman and Barton Dean and all of the five urban renewal commissioners owned property within the general urban renewal area at the time they voted on various resolutions during the progress of the urban renewal program. The legislature provided in the urban renewal law for a special conflict of interest section to disqualify any officer or employee of the city or of the urban renewal board who owned property included or planned to be included in an urban renewal project. The specific section referred to is K. S. A. 17-4758 which declares as follows:
“No public official or employee of a municipality (or board or commission thereof), and no commissioner or employee of an urban renewal agency which has been vested by a municipality with urban renewal project powers under section 15 [17-4756] shall voluntarily acquire any interest, direct or indirect, in any urban renewal project, or in any property included or planned to be included in any urban renewal project of such municipality or in any contract or proposed contract in connection with such urban renewal project. Where such acquisition is not voluntary, the interest acquired shall be immediately disclosed in writing to the local governing body and such disclosure shall be entered upon the minutes of the governing body.
“If any such official, commissioner or employee presently owns or controls or owned or controlled within the preceding two (2) years, any interest, direct or indirect, in any property which he knows is included or planned to be included in an urban renewal project, he shall immediately disclose this fact in writing to the local governing body, and such disclosure shall be entered upon the minutes of the governing body, and any such official, commissioner or employee shall not participate in any action by the municipality (or board or commission thereof), or urban renewal agency affecting such property. [Emphasis supplied].
“Any disclosure required to be made by this section to the local governing body shall concurrently be made to an urban renewal agency which has been vested with urban renewal project powers by the municipality pursuant to the provisions of section 15 [17-4756]. No commissioner or other officer of any urban renewal agency, board or commission exercising powers pursuant to this act shall hold any other public office under the municipality other than his commissionership or office with respect to such urban renewal agency, board or commission. Any violation of the provisions of this section shall constitute misconduct in office.”
It is undisputed in the evidence that on May 16, 1966, at the time the resolutions were passed by the city commission declaring certain areas of Parsons to be “slum and blight areas” and creating and appointing the urban renewal agency, two of the three Parsons city commissioners owned real estate in the slum or blight areas. The same two commissioners continued to own their properties at the time the urban renewal plan was adopted. The two commissioners mentioned were Myer S. Freshman and Barton Dean. On January 22, 1969, the city commission by resolution approved the urban renewal project. At that time commissioners Freshman and Dean owned property within the urban renewal area but did not own any land within the area covered by the urban renewal project. As pointed out heretofore, at all stages in the development of the urban renewal program, all of the five urban renewal commissioners had an interest in property located within the general urban renewal area. The first issue to be determined is whether or not the various actions of the urban renewal board in establishing and developing the urban renewal program and the various actions of the Parsons city commissioners in approving the urban renewal plan and in approving the urban renewal project were so tainted with conflict of interest within the meaning of K. S. A. 17-4758 as to completely invalidate ab initio all of the actions and steps taken by the urban renewal board and by the city commissioners in developing the Parsons urban renewal program. It should be emphasized that each of the commissioners made a full disclosure of his property interest in the urban renewal area before participating in any action of his board.
We, of course, recognize the common law principle that a public officer owes an undivided duty to the public whom he serves and is not permitted to place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public. If he acquires any interest adverse to those of the public, without a full disclosure it is a betrayal of his trust and a breach of confidence. (United States v. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515.)
The law, however, does not forbid the holding of an office and exercising powers thereunder because of a possibility of a future conflict o£ interest. (Reilly v. Ozzard, 33 N. J. 529, 166 A. 2d 360, 89 A. L. R. 2d 612.) It has generally been held that the vote of a council or board member who is disqualified because of interest or bias in regard to the subject matter being considered may not be counted in determining the necessary majority for valid action. There are many cases cited in the annotation in 42 A. L. R. 698 in support of this principle. It is also the rule that where the required majority exists without the vote of the disqualified member, his presence and vote will not invalidate the result and further that a majority vote need not be invalidated where the interest of a member is general or of a minor character. (Beale v. City of Santa Barbara, 32 Cal. App. 235, 162 Pac. 657; Corliss v. Village of Highland Park, 132 Mich. 152, 93 N. W. 254, adhered to on rehearing 132 Mich. 159, 95 N. W. 416; 56 Am. Jur. 2d, Municipal Corporations, Etc. Section 172.)
The difficult problem which is often presented in conflict of interest cases is in determining whether or not the personal interest of the commissioner or board member is of a nature justifying disqualification to act. Usually this is a question to be determined under the peculiar facts and circumstances of the particular case presented to the court for determination.
A question of disqualification similar to that presented in the case at bar arose in City of Topeka v. Huntoon, 46 Kan. 634, 26 Pac. 488. The facts of that case were that in 1890 the mayor and council of the city of Topeka passed an ordinance creating and establishing a sewer district, defining the territory thereof, providing for a complete sewer district therein, and providing for the manner of construction and payment thereof. The real estate situated in the sewer district was appraised, estimates of the cost of the system were obtained, and several proposals for the construction work were received. The city officers were about to enter into a contract for the construction of the sewers. The plaintiff Joel Huntoon, who was the owner of real property within the sewer district, brought an action for an injunction. Along with other things he complained of the fact that certain members of the city council owned tracts of land which were to be included within the sewer district and that this constituted fraud and in effect a conflict of interest which invalidiated all of the proceedings in the city council to establish the sewer district and to construct the sewer. The district court granted an injunction on the theory that each commissioner who owned land which was to be included in the sewer district had a personal interest in the proposed ordinance which disqualified him from voting and therefore the resolutions setting up the sewer system were invalid. The basis of the holding of the district court was G. S. 1889, Section 653, which made it unlawful for the mayor or a member of a city council who had a pecuniary interest, direct or indirect, in any question submitted or proceeding upon which such officer should be called upon to vote, to act officially, with intent to gain any profit or advantage. On appeal this court reversed the trial court and dissolved the injunction. In the opinion it was pointed out that if the theory of the plaintiff was correct as applied to the extent claimed this would practically disfranchise every member of a city council who owned city property. After citing a number of cases this court concluded that it could not say that the councilmen were disqualified by the reason of the fact that some of their property was included in and some excluded from the sewer district. The essence of the decision is that there was no showing that any member of the city council had a pecuniary interest adverse to the city of Topeka which he represented.
As pointed out heretofore in the case at bar the claim of disqualification of the urban renewal commissioners and the city commissioners arises from the specific statute, K. S. A. 17-4758, which is quoted in full above. The first paragraph of the statute deals with public officers who voluntarily acquire an interest in property included or planned to be included in an urban renewal project. This paragraph is not applicable here since all of the property interests of the various commissioners were owned long prior to the beginning of the urban renewal program in Parsons. The second paragraph, however, might reasonably be applicable since it is directed toward public officers who own or control property included or planned to be included in any urban renewal project.
When a close analysis of paragraph two of the statute is made it is clear that before a public officer is disqualified two elements are necessary: (1) He must own, or within the preceding two years have owned, an interest in property included or planned to be included in any urban renewal project. (2) Such officer is precluded from participating in any action of his board “affecting such property.”
The term “Urban Renewal Project” is specifically defined in K. S. A. 17-4760 (/) to include “undertakings or activities of a municipality in an urban renewal area for the elimination and for the prevention of the development or spread of slums or blight, and may involve slum clearance and redevelopment in an urban renewal area, or rehabilitation or conservation in an urban renewal area, or any combination or part thereof in accordance with the urban renewal plan.” In K. S. A. 17-4760 (m) the term “Urban Renewal Area” is defined as “a slum area or a blighted area or a combination thereof which the local governing body designates as appropriate for an urban renewal project.” We have concluded that the conflict of interest statute, K. S. A. 17-4758, disqualifies a commissioner only where the property interest of the commissioner exists in property included or planned to be included in a specific urban renewal project and does not apply where the commissioner owns property in the general urban renewal area not included within the specific urban renewal project upon which action is being taken. It seems obvious to this court that there may be a number of specific urban renewal projects which are developed from time to time under the general urban renewal plan. The disqualification is not a blanket disqualification covering all actions of a city commissioner or urban renewal commissioner who owns property in the urban renewal area. The disqualification is limited to actions where the officer or employee has an interest in property which is included or planned to be included in the specific urban renewal project under consideration. Until there is a specific urban renewal project to be voted on the statute does not come into play.
In the case at bar the record does not disclose that any city commissioner or urban renewal commissioner participated in voting on any urban renewal project in which he owned an interest in property included or planned to be included in the specific urban renewal project under consideration. The vote of City Commissioner Combs when he voted to ratify the previous actions of the city commission approving the core area project would be subject to question since a corporation in which he owned stock had owned real estate within the project area within the past two years. But this vote would not affect the validity of the original vote on the project.
The appellants in this case have relied upon Wilson v. Iowa City, 165 N. W. 2d 813. In Wilson the Supreme Court of Iowa had before it a statute which was practically identical with K. S. A. 17-4758. There is language in this Iowa case which might well justify a court in taking the position that an urban renewal commissioner or city commissioner owning property within the general urban renewal area is disqualified from participating in the voting on a resolution establishing an urban renewal project even though the property of such commissioner was not included within the specific urban renewal project area being voted on. The decision in the Wilson case was handed down by the Supreme Court of Iowa on March 11, 1969. We note that following this decision the legislature of Iowa took immediate action to amend the conflict of interest statute effective April 26, 1969, and thereby nullified the Wilson decision the following month after it was rendered. This result was accomplished by the legislature defining the wording “action affecting such property” to include only that action directly or specifically affecting such property as a separate property but not to include any action, any benefits of which accrue to the public generally or which affects all or a substantial portion of the properties included or planned to be included in such a project.
We believe that the interpretation of K. S. A. 17-4758 which we have adopted is sound and is consistent with the rationale contained in City of Topeka v. Huntoon, supra. We adhere to the rule that members of a public board are disqualified to vote as such on proposals on which they have a prime interest adverse to the municipality they represent. This rule should not be applied, however, under the circumstances presented in the case before us. We hold that K. S. A. 17-4758 is not applicable to disqualify any of the urban renewal commissioners or the city commissioners in acting upon the resolutions complained of by the appellants in this case.
The other points raised on this appeal involve the claim that the urban renewal board acted arbitrarily and capriciously in establishing and developing the urban renewal program in Parsons and that the city commissioners acted arbitrarily and capriciously in approving the same. The district court made findings of fact that neither the city commissioners nor the urban renewal commissioners were guilty of fraud, bad faith, or abuse of discretion in finding and determining that slum and blight existed in the downtown area and in finding that the taking of the appellants’ property pursuant to the urban renewal plan was for a valid planning purpose. The trial court further found that it would be unjust and inequitable to enjoin the completion of the program in view of the great sums of money already expended for the development of urban renewal, the demolition of many buildings, the relocation of utility lines and streets, and the displacement of numerous families, individuals and businesses. We do not believe that it would serve any useful purpose to set forth with specificity the evidence in this case which supports the findings of the trial court. We recognize that the evidence was in conflict, especially in regard to the physical condition of the appellants’ building. We think it sufficient to hold that the findings and conclusions of the trial court are adequately supported by substantial competent evidence.
For the reasons set forth above the judgment of the court below is affirmed.
|
[
-112,
-18,
-44,
-49,
30,
-58,
88,
-100,
72,
-86,
102,
95,
105,
-34,
21,
123,
-77,
93,
-48,
105,
-27,
-77,
83,
-62,
-110,
-9,
-13,
-59,
-5,
93,
-12,
68,
72,
48,
-62,
-99,
-122,
-62,
85,
-100,
-122,
5,
-120,
-64,
-4,
-64,
-74,
106,
48,
-117,
85,
15,
-73,
104,
21,
-57,
-15,
44,
91,
41,
81,
-8,
-117,
-123,
-4,
15,
1,
36,
-68,
-121,
-16,
47,
-112,
-79,
0,
-24,
-41,
-26,
-122,
-12,
71,
-37,
12,
35,
98,
1,
33,
-81,
-40,
-100,
6,
-38,
-83,
-91,
-75,
88,
66,
69,
-66,
-100,
117,
22,
3,
126,
-25,
5,
-33,
124,
-113,
-106,
-44,
-79,
79,
112,
-126,
3,
-1,
1,
-96,
116,
-113,
-78,
94,
-10,
50,
90,
-117,
-80
] |
The opinion of the court was delivered by
Prager, J.:
This is an action by a bank against a general contractor for breach of contract for failing to pay retainage to the bank. The case was tried to the court sitting without a jury. The trial court entered judgment in favor of the plaintiff, Farmers and Merchants State Bank, in the amount of $13,000 with interest. The appellant, Snodgrass and Sons Construction Company, Inc., was the defendant in the district court.
In entering judgment in favor of the plaintiff the trial court made extensive findings of fact and conclusions of law which set forth the controlling facts and the legal principles upon which the judgment in the trial court was based. The findings of fact and conclusions of the court are as follows:
“Findings of Fact
“1. The plaintiff, Farmers and Merchants State Bank of Derby, Kansas, is a banking corporation organized and existing under the laws of the state of Kansas, with its principal place of business in Derby, Sedgwick County, Kansas. Mr. Elwood Jones is president of plaintiff bank.
“2. The defendant, Snodgrass and Sons Construction Co., Inc., is a Kansas corporation with post office address in Wichita, Kansas. During the month of December, 1967, Mr. Victor M. Schimming was the secretary-treasurer of Snodgrass and Sons Co., Inc.
“3. The defendant, Jayhawk Services, Inc., was a Kansas corporation with post office address in Wichita, Kansas. Richard LaFoy, Jr. was president of Jayhawk Services, Inc. On June 20, 1968, Jayhawk Services, Inc. was duly adjudged a bankrupt and a trustee was duly appointed for this corporation.
“4. On April 24, 1967, Jayhawk entered a sub-contract agreement (defendant’s Exhibit 10) with Snodgrass to furnish certain necessary labor, materials and equipment on a construction job known as Mulvane Schools (Unified School District # 263). This sub-contract was known as the mechanical contract.
“5. Under the provisions of the sub-contract agreement, Snodgrass agreed to pay Jayhawk the principal sum of the sub-contract by partial payments as the work progressed less retainages in the amount of 10% of payments due.
“6. Section 5(h) and (d) of the sub-contract provided as follows:
“‘(b) To submit to the Contractor on or before the 25th of the month estimates for partial payment for labor and materials delivered to the job site during the preceding month, and if required by Contractor shall submit receipts or other vouchers showing payment for labor and material to the date of estimate for partial payment. In the event Sub-Contractor does not furnish such receipts and vouchers, Contractor is authorized to pay said bills directly and deduct such sums from the estimate for partial payment.’ “‘(d) To promptly pay when due for all labor and materials used and required in completing this contract, and to save Contractor harmless from any claim, lien, judgment, court costs and expenses incurred on account of Sub-Contractor’s failure to comply with the terms of this contract.’
“Section 9 (a) of the sub-contract provided as follows:
“‘(a) In the event of any default on the part of the Sub-Contractor hereunder, Contractor shall have the right after two (2) days written notice to terminate this contract and to complete the work required hereunder and charge the cost thereof to Sub-Contractor, crediting or debiting his account as the case may be when the work under this contract is fully completed and accepted, and such right of the Contractor shall not affect the right of the Contractor to recover damages for Sub-Contractor’s delay or non-performance of this contract.’
“7. From and after April 24, 1967, Snodgrass had the right to require Jay-hawk to furnish receipts or vouchers showing payment of labor and materials to the date of estimate for partial payment. From the beginning of the subcontract, Snodgrass was in a position to know what labor and material bills Jayhawk had not paid. If the required information was not furnished by Jay-hawk, Snodgrass could terminate the sub-contract.
“8. Jayhawk was a customer at plaintiff bank. On December 5, 1967, LaFoy discussed with Jones the possibility of Jayhawk obtaining a loan from the bank.
“9. Jones told LaFoy that the bank required security for a loan to Jayhawk. LaFoy told Jones that as a sub-contractor of Snodgrass on the Mulvane job, Jayhawk had earned retainages then in the amount of $16,059.90 which retainage Jayhawk would assign as security for a loan.
“10. Jones, as president of plaintiff bank, prepared plaintiff’s exhibit 4, Agreement and Recognition of Assignment of Account, which read as follows:
“ ‘The undersigned Snodgrass and Sons Construction Inc. does hereby agree that as of this 5th day of December, 1967, Jayhawk Services Inc. has accumulated a retainage on the construction job for Mulvane Schools in the amount of $16,059.90.’
“ ‘Since Jayhawk Services Inc. has borrowed in excess of this amount from The Farmers & Merchants State Bank of Derby, Kansas, the undersigned agrees when all work is completed by Jayhawk Service, Inc., they will pay the entire amount retained plus additional retainage accumulated from this date to date of completion by making a check for the amount due, $17,187.10 to Jayhawk Service Inc. and the Farmers & Merchants State Bank of Derby, Kansas.’
“Jones advised LaFoy that if and when plaintiff’s exhibit 4 was executed by Snodgrass and returned to the bank, a loan could be secured for Jayhawk.
“11. On December 11, 1967, LaFoy presented plaintiff’s exhibit 4 to Schiming and discussed with him the necessity of the instrument being signed by Snodgrass for the purpose of Jayhawk securing a loan at the bank.
“12. A part of Schimming’s duties as secretary-treasurer of Snodgrass was the detail paper work and accounting involving payments to sub-contractors and retainages. After checking the retainage due Jayhawk, Schimming determined the correct retainage due Jayhawk was in the amount of $12,113.20. Schimming struck out the $16,059.90 figure typed in plaintiff’s exhibit 4 and by hand inserted the figure $12,113.20 and initialed same. After correcting the amount of retainage due, Schimming signed plaintiff’s exhibit 4 and returned it to LaFoy. At the time Schimming signed plaintiff’s exhibit 4, he told LaFoy that Snodgrass would recognize an assignment to plaintiff or any bank if it was prepared on a regular assignment form and presented to him for execution.
“13. LaFoy took plaintiff’s exhibit 4, as corrected and signed by Schimming, to Jones for the purpose of using it as security for a loan. Because of the change in the amount of retainage, Jayhawk could only borrow $13,000.00. A note in the amount of $13,000.00 was prepared and signed by LaFoy for Jayhawk. The note due the bank is dated December 11, 1967, and reads in part, ‘Assignment of Account due from Snodgrass & Sons, Inc.’ Jones made the loan to Jayhawk in reliance upon plaintiff’s exhibit 4 signed by Schimming.
“14. Schimming knew when he was requested to and did sign plaintiff’s exhibit 4 that LaFoy intended to use the instrument as security for a loan at plaintiff bank.
“15. When Jayhawk’s note for $13,000.00 became due, LaFoy told Jones that the work at Mulvane was not completed. Jones did not know the work had been completed until he learned of Jayhawk’s bankruptcy proceedings in June of 1968.
“16. Schimming states that in the construction business, the words ‘work is complete’ means that all the material and labor required have been furnished and when all bills and accounts for same have been fully paid and settled. Jones was not aware of any special or unusual meaning placed on these words by those in the construction industry.
“17. On page C-2 of the specifications for the Mulvane job, Defendant’s Exhibit 9, is found the following:
“ ‘Definitions (e) The term “work” of the contractor or subcontractor includes labor or materials or both.’
“The architect’s certificate of substantial completion contains a definition of substantial completion as follows:
“ ‘The date of substantial completion of a project or specified area of a project is the date when the construction is sufficiently completed, in accordance with the contract documents, as modified by any change orders agreed to by the parties, so that the Owner can occupy the project or specified area of the project for the use for which it was intended.’
“18. Plaintiff’s exhibit 6, an instrument from the files of Snodgrass entitled payment estimate-contract performance shows the mechanical work to be 100% completed on May 1, 1968, and that retainage in the amount of $13,350.70 was due Jayhawlc on that date.
“19. On April 20, 1968, a certificate of substantial completion was issued by the architect. This certificate contained a list of unfinished items which Snodgrass agreed to complete. The owners of the building agreed to accept the project as substantially completed on April 29, 1968. The items contained on the architect’s certificate to be completed by Jayhawk were completed by Jayhawk.
“20. Jayhawk or LaFoy have not paid the $13,000.00 note due plaintiff bank. Snodgrass has never paid plaintiff bank any part of the retainage on the Jayhawk sub-contract of the Mulvane job or any other project.
“21. Sometime shortly prior to May 14, 1968, Snodgrass learned that Jayhawk had not paid for many of the materials and equipment purchased for use in performance of the sub-contract. Beginning May 14, 1969, Snodgrass delivered several checks payable to Jayhawk and various vendors to whom Jayhawk was indebted for material and equipment on the Mulvane subcontract.
“Conclusions of Law
“1. In the absence of evidence that Jones knew of any special meaning placed on the words ‘work is completed’ by Schimming or by the construction industry, the words will be given their ordinary meaning. Their ordinary meaning under the circumstances is that the labor and materials called for in the sub-contract had been furnished and the building was ready for acceptance and occupancy by the owner.
“2. There was a valid assignment of the retainage from Jayhawk to plaintiff bank. Plaintiff bank’s right to recover against Snodgrass is, however, not based on the assignment, but is based upon the agreement expressed in plaintiff’s exhibit 4.
“3. Jones was entitled to rely on plaintiff’s exhibit 4 in making the loan to Jayhawk. Such reliance is sufficient consideration for the agreement between plaintiff bank and Snodgrass set forth in plaintiff’s exhibit 4.
“4. Plaintiff’s exhibit 4, by its terms, is more than an acknowledgement of an assignment. It is an agreement constituting a contract between plaintiff bank and Snodgrass, binding Snodgrass to pay the bank. The work was completed and payment was due not later than May 1, 1968.
“5. Plaintiff bank is entitled to and is awarded judgment against defendant Snodgrass in the amount of $13,000.00 with interest thereon from December 11, 1967, at the rate of 7% per annum until paid.
“6. The costs of this action are taxed to the defendant Snodgrass. Each party will pay the costs of depositions it caused to be taken.”
At the outset this court finds that all of the Findings of Fact of the court are supported by substantial competent evidence. The issues to be determined by this court are issues of law which must be based upon the facts as established by the trial court.
The appellant Snodgrass’ first contention is that the "Agreement and Recognition of Assignment of Account” as set forth in Finding of Fact No. 10 by the terms of which Snodgrass agreed to pay the accumulated retainage and additional retainage by check jointly to the subcontractor Jayhawk Service Inc. and to the Farmers and Merchants State Bank constituted a mere assent to the assignment of Jayhawk’s rights to retainage under its subcontract. Appellant takes the position that it was not an independent contract which established any obligation on Snodgrass to pay to the bank the entire retainage held under the subcontract. The appellant Snodgrass in substance contends that under the subcontract for mechanical work entered into by Jayhawk as subcontractor, Jayhawk was obligated to promptly pay when due for all labor and materials used and required in completing the subcontract, and authorized Snodgrass to pay bills directly for labor and materials if Jayhawk did not pay the same and to deduct such payment from the amounts retained under the 10% retainage provided for in the subcontract. Snodgrass emphasizes that Jayhawk did not pay for all labor and materials and that Snodgrass was compelled to pay them. It is ■undisputed that such payments exceeded the amount due Jayhawk by way of retainage under the subcontract.
The rationale which Snodgrass asserts as a basis for its position simply is that an assignee does not have greater rights against the debtor than does his assignor. Starting with this premise Snodgrass reasons that since Jayhawk failed to fulfill its obligation under the contract to pay for labor and materials, Snodgrass was entitled to a setoff for those items it paid against any sums due from the retainage account under the subcontract. Appellant then contends that the bank as assignee stands in the shoes of Jayhawk and therefore Snodgrass is not indebted to the bank.
We cannot accept appellant’s rationale. The “Agreement and Recognition of Assignment of Account” which was signed by Snodgrass and which was relied upon by the bank in making the loan to Jayhawk was more than a simple assignment. We have no hesitancy in holding that by virtue of this instrument Snodgrass agreed to pay the entire retainage to the bank. This instrument constituted an independent contract between Snodgrass and the bank and simply provided additional protection to the bank for the making of the loan by the bank to Jayhawk.
The specific language of the instrument is important. In the first paragraph Snodgrass agreed that as of December 5, 1967, Jayhawk Service Inc. had accumulated a retainage on the construction job for the Mulvane Schools in the amount of $12,113.20. Paragraph two declares that since Jayhawk Service Inc. has borrowed in excess of this amount from the Farmers and Merchants State Bank of Derby, Kansas, Snodgrass agrees that when all work is completed by Jayhawk Service Inc. it will pay the entire amount retained plus additional retainage accumulated from this date to date of completion by making a check for the amount due, $17,187.10, to Jayhawk Services Inc. and the Farmers and Merchants State Bank. It should be noted that the amount to be borrowed by Jayhawk is in excess of “this amount” which is the agreed amount of retainage. Snodgrass agreed to pay “the entire amount retained” now plus “additional retainage accumulated from this date to the date of completion.” The amount to be paid, $17,187.10, is a fixed amount and constituted the full 10% of the total contract price of $171,871 provided as a retainage in the subcontract to Jayhawk. The “Agreement and Recognition of Assignment of Account” signed by the contractor Snodgrass clearly obligated Snodgrass to pay the entire amount of the retainage of 10% provided in the subcontract of Jay-hawk Services Inc. without a deduction for any setoffs for unpaid obligations of Jayhawk for labor and materials. The evidence is undisputed that the bank relied upon this agreement when it made the loan to Jayhawk.
Under the facts of this case, the reliance doctrine as applied by the trial judge, is applicable. The Restatement, Contracts, Section 90, succinctly states the doctrine: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (p. 110.)
This doctrine has been recognized and applied in State Investment Co. v. Cimarron Insurance Co., 183 Kan. 190, 326 P. 2d 299; Sterling Construction Co. v. Humboldt National Bank, 345 F. 2d 994 (10th Cir. 1965); and in Nello L. Teer Company v. Kanawha Valley Bank, 227 F. 2d 306 ( 4th Cir. 1955).
Were this action merely one by an assignee against a debtor, appellant’s argument that it had a right to setoff might be more persuasive. In this case, however, the trial court correctly found the breach of an independent contract. Before appellant would be entitled to a setoff against the bank, it would have to establish an independent claim or cause of action against the bank itself and this it has not done.
The appellant’s second contention is that even if the bank acquired greater rights against Snodgrass than Jayhawk had by virtue of the “Agreement and Recognition of Assignment of Account” Snodgrass is still not liable to the bank because the obligation to pay was subject to the condition that all work be completed by Jayhawk. Appellant’s contention in this regard is that th© phrase “work is completed” has a special meaning in the construction industry which requires not only that the labor and materials be furnished but also that the subcontractor must pay for all labor and materials furnished. On this point the trial court held that in the absence of any evidence showing that the bank was aware of a special meaning attached to the phrase “work is completed”, the phrase must be given its ordinary meaning. The court concluded that the work was actually completed on or before May 1,1968, and further found as a fact that the banker, Jones, was not aware of any special or unusual meaning placed on the words “work is completed” in the construction industry. Since there was substantial competent evidence to support the findings of fact of the trial court they will not be disturbed on this appeal.
We think it is also important to note that the “Agreement and Recognition of Assignment of Account” makes no reference whatsoever to the provisions of the subcontract entered into between Snodgrass and Jayhawk. The language of that instrument states unequivocally that Snodgrass will pay to the bank the entire amount retained as of December 5, 1965, plus additional retainage accumulated from that date to the date of completion when all work was completed by Jayhawk. Snodgrass may have improvidently entered into this agreement, but having done so it is bound to carry out its obligations thereunder. For the reasons set forth above the judgment of the district court is affirmed.
|
[
-112,
104,
-15,
-52,
10,
-24,
34,
-102,
56,
-91,
36,
87,
-21,
-57,
4,
104,
-90,
13,
-44,
98,
102,
-77,
3,
73,
-46,
-77,
-15,
-59,
-70,
91,
-76,
-42,
76,
48,
-126,
-43,
-90,
-61,
-59,
28,
-114,
5,
41,
113,
-40,
33,
52,
-69,
52,
79,
17,
60,
-77,
40,
21,
-58,
108,
62,
79,
105,
81,
-47,
-104,
-123,
77,
85,
17,
32,
-116,
7,
-40,
62,
-112,
57,
9,
-24,
115,
-74,
-62,
-12,
33,
-103,
73,
46,
98,
34,
52,
-51,
-36,
-39,
22,
-43,
-115,
-26,
-110,
89,
3,
11,
-66,
-98,
126,
86,
-122,
-8,
-25,
12,
-97,
109,
11,
-49,
-14,
83,
15,
116,
-110,
15,
-17,
2,
48,
100,
-57,
-78,
89,
-57,
51,
27,
-2,
-67
] |
The opinion of the court was delivered by
Prager, J.:
The appellant, Stephen Stice Braun, was convicted by a jury of possession of marijuana in violation of K. S. A. 65-2502. The prosecution followed the search of a residence in rural Douglas County, Kansas, on January 13, 1970. Entrance to the residence was gained pursuant to a search warrant issued by Judge Charles Rankin of the county court on January 12, 1970. The police officers searched a room of the house occupied by appellant. He was sleeping in the room at the time the search was conducted. As a result of the search the police officers found behind the bookcase on the west side of the room a green trash bag containing 30 wrapped packets of marijuana. When the search was made appellant’s personal belongings were in the room including his clothing, a billfold containing appellant’s identification and $400 in cash, books and letters. There was no evidence indicating that anyone other than the appellant occupied the room. Following the discovery of the marijuana appellant was placed under arrest for possession of marijuana in violation of K. S. A. 65-2502. The appellant entered his plea of not guilty to tire charge. A series of pretrial motions were filed on behalf of the appellant including a motion to suppress the drugs discovered at the time of the search; a motion to compel the state to reveal the name of the informant upon whose information tire original search warrant was issued; a motion to dismiss and abate the proceedings attacking the constitutionality of K. S. A. 65-2502; and a motion to dismiss the information because of the insufficiency of the complaint. All of these motions were overruled. The case was then tided to a jury.
At the trial the state presented the testimony of the law enforcement officers as to their activities in the search and the events that followed and in addition presented expert testimony identifying the contents of the 30 plastic packets found in appellant’s room as. marijuana. The state rested without offering into evidence the marijuana found in appellant’s room. Appellant requested a recess-before beginning his defense and during the recess moved for his discharge. The state immediately moved to reopen its case and introduce the two exhibits which it had failed to offer. The court allowed the state to reopen its case to introduce the two exhibits and overruled the appellant’s motion for discharge. The appellant offered no evidence in his defense. The jury brought in a verdict of guilty of possession of marijuana as charged. The appellant filed, motions for a new trial and for a directed verdict which motions-were overruled. A timely appeal from the conviction was taken to' this court.
The appellant raises a number of points on this appeal which will’ be considered in order. The appellant’s contention in his first point is that the trial court was in error in overruling appellant’s motion to suppress all of the evidence seized in the search of the residence on January 13, 1970. The appellant in essence attacks the sufficiency of the affidavit upon which the search warrant was issued by Judge Rankin on the basis of the affidavit of Ronald A. Hanson, a special agent of the Federal Bureau of Narcotics and Dangerous Drugs. This affidavit in its entirety was as follows:
“Complaint for Search Warrant
“State of Kansas, Douglas, County, ss:
“Ronald Hanson, being first duly sworn upon his oath, deposes and says:
“That he has just and reasonable grounds to believe, and does believe, that there is certain contraband or property which constitutes or may be considered a part of the fruits, instrumentalities or evidence of a crime under the laws of this state, any other state, or of the United States of America, located in or upon property described as: The house and surrounding outbuildings located .6 mile south of Highway K-10 on Eisele Road with a post office address of Route 2, Box 227, Lawrence, Douglas County, Kansas.
“The said contraband or property is described as: a quantity of marihuana and a quantity of hashish, a derivative of marihuana.
“The reasons affiant believes that said property is at the specified location are: Affiant is a special agent of the Federal Bureau of Narcotics and Dangerous Drugs. Affiant has received information from a reliable informant who advises that a person or persons had in his or their possession a quantity of marihuana and who sold quantities of the drug known as hashish and represented that he or they had additional quantities of hashish for sale. The reason the affiant knows said informant to be reliable is that for over one and one-half years said informant has supplied reliable information on at least two instances to the Federal Bureau of Narcotics and Dangerous Drugs involving the sale of narcotics and dangerous drugs which information proved to be true when investigated by the Federal Bureau of Narcotics and Dangerous Drugs. That said informant is still supplying valuable information about current investigations and if his name is not held in confidence, the result would be to endanger him and it would endanger other investigations. On all occasions that information has been given by this informant, it has proved to be reliable. On this occasion informant advises he saw the above described marihuana and hashish at the above described location within the past 4 days, and believes the same to be there at the present time. Based upon said information, this affiant believes there is probable cause for believing said drugs may be found there at this time.
“/s/ Ronald A. Hanson
“Subscribed and sworn to before me this 12th day of January, 1970.
“/s/ Charles C. Rankin
“County Judge”
The appellant contends that the affidavit was insufficient for several reasons. Appellant first argues that the informant was an agent of the Federal Bureau of Narcotics and Dangerous Drugs who may have acted illegally in obtaining the information men tioned in the affidavit for the search warrant. There is no evidence in the record that the informant obtained his information illegally. Evidence obtained by law enforcement officers using the subterfuge of hiding their identity in order to pose as members of the general public has consistently been held to be admissible. United States v. Bush, 283 F. 2d 51 (6th Cir. 1960); State v. Seven Slot Machines, 203 Kan. 833, 457 P. 2d 97. There is no evidence whatsoever that the informant posed as anything other than a member of the general public. The appellant does not allege that anyone broke into his residence or entered it without permission. Appellant simply makes the unsupported statement that the informant conducted an unreasonable search. We hold this contention to be without merit.
The appellant next contends that the affidavit for the search warrant was insufficient because it was based upon the hearsay testimony of an informant and did not meet the standards as set forth in Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Spinelli v. United States, 393 U. S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, and Jones v. United States, 362 U. S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725. Those cases require that the affidavit for the search warrant must set forth facts sufficient to establish the reliability of the unidentified informant and the underlying circumstances from which it could be concluded that the informer had reliable information that the accused was engaged in criminal activity. These same general standards are recognized in United States v. Harris, 403 U. S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075, and by our own cases such as State v. Hart, 200 Kan. 153, 434 P. 2d 999, and State v. Seven Slot Machines, supra. These cases emphasize that it is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists.
Each case must be decided on its own merits. When we turn to the specific affidavit for a search warrant involved in the case at bar we have no hesitancy in upholding its sufficiency. The affidavit states unequivocally not only that the informant is reliable but that the reason the affiant knows the informant to be reliable is that for over one and one-half years the informant has supplied reliable information on at least two instances to the Federal Bureau of Narcotics and Dangerous Drugs which infor mation proved to be true. In addition it should be noted that the affidavit declares that the informant advised that he saw the marijuana and hashish at the premises described in the affidavit within the past four days and that he believed the same to be there at the time the affidavit was executed. The affidavit in the case at bar meets the constitutional requirements of probable cause. It contains facts which support the reliability of the informant based upon specific past experience and which show that the informant’s information was based upon his personal observation. Taken in its entirety the affidavit provided the issuing magistrate with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for the issuance of a search warrant existed.
Appellant next attacks the sufficiency of the affidavit because it failed to identify the premises to be searched with sufficient particularity. The affidavit described the property to be searched as the house and surrounding outbuildings located .6 mile south of Highway K-10 on Eisele Road with a post office address of Route 2, Box 227, Lawrence, Douglas County, Kansas. The record is undisputed that this house and its outbuildings constitute one property and was rented as such. We are not concerned here with an apartment building divided into apartments or subunits as discussed in the annotation in 11 A. L. R. 3d 1330. We hold the description of the premises here to be sufficient.
Appellant next urges that the court should have made specific findings of fact and conclusions of law at the time the motion to suppress was overruled. In a situation where the sufficiency of an affidavit for a search warrant is involved the specific facts contained in the affidavit are the basis for the determination of probable cause by the trial court. The circumstances are not the same as in habeas corpus cases where an evidentiary hearing is often required and where factual issues may be presented. The important finding is the finding of probable cause on the part of the magistrate which finding is specifically contained in the search warrant which was issued in this case. We find this contention of appellant without merit.
As his second point appellant contends that the trial court erred in refusing to sustain appellant’s motion to require the state to reveal the identity of the informer upon whose information the search warrant was issued. Appellant contends in substance that if he had knowledge of the identity of the informer he might be able to develop a defense of entrapment and therefore the disclosure of the identity of the informer was essential to guarantee his right to a fair trail. The issue presented here was determined in State v. Robinson, 203 Kan. 304, 454 P. 2d 527, and in State v. Nirschl, 208 Kan. 111, 490 P. 2d 917, where we held that ordinarily the disclosure of the identity of an informer lies within the sound discretion of the district court whose discretion will not be overturned unless that discretion is abused. Under K. S. A. 60-436 the district court may compel disclosure of the identity of an informer if it finds that the identity of the informer has already been disclosed by some other source or if disclosure of his identity is essential to assure a fair determination of the issues. It is incumbent upon the defendant to show that the identity of the informer is material to his defense. (People v. Martin, 82 Cal. Rptr. 414, 2 C. A. 3rd 121.) It is clear from the record in this case that there was no showing that the informer participated in the offense or that the informer was present at the time of the serving of the search warrant or that he was a material witness in the case. As pointed out in State v. Robinson, supra, when the issue is probable cause for the search and not guilt or innocence of the defendant, the state generally need not disclose the identity of the informer. The reason for this rule is that the prosecution is usually based upon the narcotics taken at the time of the search and arrest and the informer has little or nothing to do with this aspect of the case. Since the appellant failed to show that the informer participated in the offense or that the informer was in any way a material witness we cannot say the district court abused its discretion in refusing to compel disclosure of his identity.
In his third point the appellant attacks the constitutional validity of K. S. A. 65-2502, under which appellant was charged, and the other sections of the Uniform Narcotic Drug Act which require records to be kept of sales of narcotic drugs, such records being subject to inspection by federal, state, county and municipal officers. He refers specifically to K. S. A. 65-2504, 65-2508 and 65-2515. Appellant contends this statutory scheme is a violation of his constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution. In substance he argues that compliance with the state statutes which require the keeping of records of the sale of narcotic drugs subjects him to prosecution under other sections of the act and also under the Marijuana Tax Act 26 U. S. C. A. 4741, et seq. In asserting this argument appellant relies on Marchetti v. United States, 390 U. S. 39, 19 L. Ed. 2d 889, 88 S. Ct. 697; Grosso v. United States, 390 U. S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709; and Leary v. United States, 395 U. S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532. Marchetti and Grosso were prosecutions brought by the United States for failure to pay wagering excise taxes. Leary v. United States, supra, involved an alleged violation of the Marijuana Tax Act. Those cases did not arise under a state statute regulating the traffic in narcotic drugs. It is well established that in the exercise of its police power a state may regulate the administration, sale, prescription, possession and use of narcotic drugs. Robinson v. California, 370 U. S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417; Whipple v. Martinson, 256 U. S. 41, 65 L. Ed. 819, 41 S. Ct. 425. Robinson declares that such regulation by a state can take a variety of valid forms. A state may impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase or possession of narcotics within its borders. The regulation of marijuana may be included in the same category as other narcotic drugs.
The Uniform Narcotic Drug Act has been adopted in Kansas and in all but a few jurisdictions within the United States. Under the Uniform Narcotic Drug Act detailed records of all narcotic drugs received, administered, sold, or disposed of must be kept and preserved by all persons authorized to deal in narcotic drugs. These records must be kept and maintained in the form prescribed for a specified time and must be open for inspection to federal, state, county and municipal officers whose duty it is to enforce the narcotic drug laws. They are “required records”. Both Marchetti and Grosso recognize the “required records” doctrine established in Shapiro v. United States, 335 U. S. 1, 92 L. Ed. 1787, 68 S. Ct. 1375. Shapiro declares that there is no privilege against self-incrimination as applied to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subject of governmental regulation and the enforcement of restrictions validly established. Examples of such “required records” suggested in Shapiro are records kept by such individuals as druggists who are required by statute to keep a record of all sales of intoxicating liquors. We hold that the “required records” doctrine is applicable in the case at bar since the records of narcotic sales are part of a statutory scheme of state regulation of the narcotics traffic. They are records of a kind which have customarily been kept in the business by dealers in drugs and narcotics. These records are not directed against individuals inherently suspect of criminal activities. Hence the rules applied in Marchetti, Grosso and Leary are not applicable to the case at bar. We therefore reject appellant’s third point as being without merit.
Appellant’s next point is that the trial court erred in failing to sustain appellant’s motion to dismiss the information for the reason that the complaint was insufficient to establish probable cause as a basis for the issuance of the arrest warrant. The record shows that the appellant was first arrested on January 13, 1970, after a search of his room disclosed a large quantity of marijuana. Subsequent to appellant’s arrest a formal complaint charging appellant with the possession of marijuana in the language of the statute was filed in the county court and an arrest warrant was issued thereon. We hold the complaint was sufficient to support a finding of probable cause by the county judge and as a basis for criminal prosecution. When a crime is charged substantially in the language of the statute, the requirement of the Bill of Rights that no arrest warrant shall be issued but on probable cause supported by oath or affirmation is satisfied by the charge made and the positive form of the verification. (State v. Addington, 205 Kan. 640, 472 P. 2d 225.) Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245, relied upon by appellant has no application in this case since we are not concerned here with the suppression of evidence seized incidental to an arrest made under an invalid arrest warrant.
Appellant’s next contention is that it was error for the trial court to permit the state to reopen its case after the state had rested to allow the introduction into evidence of the marijuana smoking pipe and the marijuana samples. Appellant further argues that the trial court committed reversible error in not discharging the appellant at the close of the state’s evidence because these exhibits had not been formally admitted into evidence before the state rested its case. It has long been the law of Kansas that the granting of permission to the state to reopen its case rests in the sound discretion of the trial corut, State v. Wooden, 110 Kan. 315, 203 Pac. 722; State v. Gibbs, 105 Kan. 52, 181 Pac. 569. In State v. Benson, 207 Kan. 453, 485 P. 2d 1266, it was held not to be prejudicial error to permit the introduction of the state’s exhibits during the intro duction of the state’s evidence in rebuttal. In the case at bar the record discloses the testimony of expert witnesses who identified state’s exhibits 2 and 3 and established that each of the 30 bags along with the pipe contained marijuana. The failure to formally offer these exhibits was obviously a mere oversight. We find no prejudicial error in the order of the trial court permitting the state to reopen its case in order to admit these exhibits into evidence.
Appellant further contends that the trial court erred in overruling appellant’s motion to discharge at the close of the evidence for the reason that the state failed to provide substantial competent evidence that the narcotics were in the exclusive possession of the appellant at the time they were seized. The record in the instant case shows that the appellant was present at the time the property was first rented. The pipe and marijuana were found behind a bookcase in a room where the appellant was sleeping alone. Only the appellant’s personal belongings were in the room and there was no evidence indicating occupancy of the room by anyone other than the appellant. We hold this evidence was sufficient to raise a jury question on the issue of the appellant’s possession of the narcotics.
Appellant next urges that the trial court erred in failing to require the state to prove that the appellant was not an exempt person under the act and that appellant had not fully complied with the procedures required by the statutes. This point is controlled by K. S. A. 65-2517 which relieves the state in its case in chief of the burden to negative exceptions and exemptions under the statute. K. S. A. 65-2517 provides as follows:
“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this act, it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.”
There is nothing new about this provision in Kansas. In State v. Miller, 127 Kan. 487, 274 Pac. 245, it was held that when the state has established a prima facie case against a defendant charged with possession of narcotics, the defendant is under the necessity of combating this prima facie case by some explanation of his possession of the property consistent with his innocence, and his failure to make such explanation subjects him to the risk of conviction. The general rule has always been in Kansas that the accused has the burden of introducing evidence as a matter of de fense that he is within an exception or exemption in the statute creating the offense where such exception or exemption is not part of the description of the offense. Accordingly, the prosecution owes no duty to prove on its case in chief that the accused is not within the exception. This, of course, is a mere rule of procedure and does not relieve the state of its burden of proving guilt. (State v. Wilson, 62 Kan. 621, 64 Pac. 23; State v. Huff, 75 Kan. 585, 90 Pac. 279; State v. Driscoll, 134 Kan. 671, 8 P. 2d 335.)
Appellant complains that the court should have included appellant’s requested instruction No. 9 in its instruction to the jury. The matters contained in this requested instruction were adequately covered in the court’s instructions 3, 4 and 5, and we find no error in the court’s refusal to give the same.
As a final point appellant urges that he was denied a fair trial because of the trial court’s failure to admonish and chastise the county attorney about certain statements made in his summation and by the failure of the court to admonish the jury to disregard such statements. An examination of the record in this case shows that upon objection by appellant’s counsel the court admonished counsel for the state that he was getting beyond the evidence and issues involved in the case and that he should stop commenting on the subject forthwith. The prosecutor stated on the record before the jury that he was sorry for having gone into the subject and the court further admonished him about it. The comments made by the prosecutor had nothing to do with the failure of the appellant to take the stand. Under all the facts and circumstances we cannot find that the prosecutor’s argument resulted in prejudice so as to deny the accused a fair trial.
For the reasons set forth above we find no error in the trial justifying a reversal and the judgment of the district court is therefore affirmed.
|
[
-79,
-18,
-3,
30,
10,
96,
42,
24,
121,
-91,
34,
83,
-87,
-22,
4,
121,
51,
29,
84,
105,
-49,
-74,
83,
-63,
-106,
-13,
-88,
-43,
-71,
91,
53,
-12,
12,
-112,
-126,
117,
6,
72,
-41,
92,
-118,
4,
-56,
-48,
82,
42,
52,
43,
22,
11,
49,
31,
-29,
40,
17,
-57,
13,
44,
-37,
61,
8,
-15,
-103,
23,
-52,
18,
-79,
-96,
-100,
-121,
-8,
127,
-40,
49,
0,
-24,
-5,
-90,
-106,
116,
39,
-71,
-116,
102,
106,
33,
53,
-83,
-4,
-119,
14,
21,
-67,
-90,
-104,
73,
97,
77,
-106,
-97,
100,
18,
43,
-8,
-29,
84,
29,
124,
2,
-50,
-112,
-109,
73,
112,
-114,
97,
-21,
33,
16,
97,
-59,
-94,
88,
-9,
48,
-101,
-53,
-74
] |
The opinion of the court was delivered by
Prager, J.:
This is an appeal from an order of the district court summarily dismissing a petition for a writ of habeas corpus filed by the appellant Arthur L. Hamrick, an inmate at the Kansas State Penitentiary, Lansing, Kansas. The respondent named in the petition is the warden of the penitentiary. The proceedings were instituted on May 22, 1970, by the pro se filing of a handwritten instrument designated as a “Petition for Writ of Habeas Corpus Ad Testificandum Pursuant to K. S. A. 60-1501.”
In his petition the appellant complains that he has been placed in protective custody for a period of two years without benefit of working, or exercising, or other privileges that would contribute to his morale or rehabilitation. He further alleged that he has been denied adequate medical attention. Appellant describes with particularity that he has a crushed bone located in his nose which obstructs the nasal passages making breathing very difficult and painful and that the same has been in need of surgery which the institution has failed to provide. Appellant further complains in his petition that while confined in the Adjustment and Treatment Building (A & T) he had been denied personal cleanliness; work programs; education and training; adequate food; and access to the inmate canteen, library privileges, handicraft programs, athletics, motion pictures, television, radio and religious services. Appellant further complains that he is only allowed one three-minute shower a week and furthermore that the warden, in violation of statutory standards, has failed to provide adequate food, light and heat, recreation facilities, sanitation facilities, medical attention, and an adequate guard system causing danger of beatings, sexual attacks and other types of intimidation. He alleges that these conditions just described constitute cruel and unusual punishment and that the respondent has arbitrarily and capriciously refused to respond to appellant’s request for relief.
On tire same day the petition was filed the trial court summarily dismissed the petition without affording the appellant an opportunity to appear and present evidence thereon. On June 10, 1970, appellant filed a notice of appeal. Counsel was appointed to represent him in the appeal which was perfected to this court.
The record discloses two basic points relied upon by appellant on this appeal.
(1) The trial court erred in holding that habeas corpus is available only to contest the legality of the detention and does not provide a remedy for review of the mode or conditions of confinement.
(2) The court erred in not affording appellant a hearing on his petition to determine whether the allegations of mistreatment contained therein were true, justifying judicial relief.
The appellant in his brief contends that his petition alleges facts which, if true, would entitle him to relief from the court. Appellant contends that he has been mistreated during the confinement in the penal institution, that his rights have been denied and that there are substantial issues of facts to be determined. He contends that habeas corpus is a proper remedy and that the trial court should have granted him a hearing and permitted him to present his evidence. The appellee contends that a petition for a writ of habeas corpus which attacks the mode or conditions of a confinement rather than the legality of the detention should not be cognizable in the state of Kansas and further that even if habeas corpus were the proper remedy, the factual allegations of the petition are insufficient to state a claim upon which relief may be granted. Hence it is argued that it was not error for the district court to deny summarily a full evidentiary hearing to appellant.
We hold that the trial court was in error in holding that habeas corpus is available only to contest the legality of the detention and does not provide a remedy for review of the mode or conditions of confinement in our penal institutions. We further hold that the court erred in not affording appellant a hearing on his petition. This case is determined on the basis of Levier v. State, (46,390), 209 Kan. 442, 497 P. 2d 265, where we held that an inmate confined in a penal institution retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law including entitlement to adequate food, light, clothing, medical care and treatment, sanitary facilities, reasonable opportunity for physical exercise and protection against physical or psychological abuse or unnecessary indignity. We further held in Levier that habeas corpus provides an appropriate remedy for inquiry into mistreatment alleged by an inmate of a penal institution. It is clear that the trial court was in error in summarily dismissing appellant’s petition for a writ of habeas corpus for want of jurisdiction and in failing to provide appellant an evidentiary hearing on his petition. The judgment is reversed and the action is remanded to the trial court with instructions to provide appellant counsel and an evidentiary hearing on his petition.
|
[
48,
-20,
-35,
-97,
11,
-31,
10,
-100,
115,
-93,
118,
83,
-23,
83,
1,
123,
115,
101,
80,
121,
-114,
-73,
87,
-63,
-78,
-6,
-7,
-43,
51,
95,
-27,
-12,
73,
48,
-118,
21,
6,
-54,
91,
-36,
-114,
5,
-23,
-11,
81,
0,
32,
111,
-42,
15,
49,
31,
-29,
46,
26,
-62,
-87,
44,
-53,
-83,
-104,
-15,
-85,
13,
-37,
18,
-94,
2,
-108,
-25,
80,
46,
-104,
49,
1,
-24,
81,
-106,
-122,
-76,
107,
-7,
36,
102,
98,
49,
31,
-29,
-88,
-87,
14,
28,
-67,
-89,
-111,
80,
98,
-27,
-106,
-99,
115,
20,
47,
-2,
-26,
4,
117,
44,
-118,
-53,
-68,
-111,
79,
125,
-98,
-3,
-21,
37,
0,
113,
-123,
-94,
88,
-57,
123,
123,
-18,
-74
] |
The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order dismissing a motion of the appellant, James LeRoi Kirtdoll, filed pursuant to K. S. A. 60-1507.
Appellant was originally charged with the offense of assault with intent to kill under K. S. A. 21-431 (now K. S. A. 1971 Supp. 21-3410, 21-3414), and after trial to a jury he was found guilty of the lesser included offense of felonious assault under K. S. A. 21-435 (now K. S. A. 1971 Supp. 21-3414). Appellant appealed his conviction and it was upheld in State v. Kirtdoll, 206 Kan. 208, 478 P. 2d 188, to which reference is made for a more detailed statement of the facts.
Appellant filed his petition pro se, challenging the validity of his conviction on three grounds. After an evidentiary hearing, the trial court denied the relief sought. On appeal only one specification of error is briefed and argued — the trial court erred in its finding that the appellant had been accorded a trial by a jury of his peers.
The specified error was not raised at the trial or argued as part of the direct appeal, and first appears in this appeal from dismissal of the motion pursuant to K. S. A. 60-1507.
In view of this situation it is our opinion that we cannot consider this appeal on its merits. Challenges to the array at common law must be made before the beginning of the voir dire. (State v. Woods, 191 Kan. 433, 381 P. 2d 533, cert. den. 376 U. S. 919, 11 L. Ed. 2d 615, 84 S. Ct. 676.) If a defendant in a criminal case has valid grounds for questioning the legal selection of a jury panel he should promptly present his objections to the trial court. Generally speaking, the composition of a jury panel is available to a defendant in advance of trial and he has an opportunity to investigate the manner in which it was selected and the personnel composing the same. Even if no investigation is made, he is fully aware of the composition before the qualification of the panel is commenced, particularly as to its racial components.
A defendant, knowing he has objections which have their foundation in the array, cannot play a waiting game. He cannot gamble that the prospective challenges for cause and the state’s exercise of the right of peremptory challenge will result favorably to him, and then if disappointed, for the first time present objections to the array. (State v. Logan, 344 Mo. 351, 126 S. W. 2d 256.)
In this proceeding, in the absence of a showing to the contrary, we may presume the defendant passed this particular panel for cause. We have concluded therefore that an orderly administration of justice requires a defendant in a criminal case to challenge the array prior to voir dire and that failure to challenge results in a waiver of his right to challenge at a later time. Each of the following cases supports the rule that a timely challenge to the jury panel must be made: Cooley v. State, 174 Tenn. 168, 124 S. W. 2d 250, Kurn v. Campbell, 188 Okla. 636, 112 P. 2d 386; Green v. State, 73 Ala. 26. The rule enunciated herein does not apply to a grand jury, since no challenge to the array can be made prior to the time an indictment is returned.
We are also prevented from considering this appeal on its merits since appellant failed to raise this question in his direct appeal. It is obvious that the position of the appellant at the time he made his direct appeal is identical to his position when he filed his mo tion under K. S. A. 60-1507. Failure to raise this issue in his direct appeal prevents the appellant from raising the issue in this proceeding. We have said frequently and repeatedly that a proceeding under K. S. A. 60-1507 which collaterally attacks a judgment of conviction should not be used as a substitute for a second appeal. (Hacker v. State, 207 Kan. 195, 483 P. 2d 484.)
The judgment of the lower court is affirmed.
|
[
-16,
-22,
-19,
-97,
9,
96,
50,
-72,
64,
-77,
35,
115,
45,
-102,
4,
123,
-6,
125,
84,
105,
-52,
-73,
87,
-63,
54,
115,
-39,
-47,
-73,
-53,
-11,
-2,
8,
-16,
-30,
-43,
102,
-54,
103,
86,
-114,
0,
9,
65,
-46,
-120,
56,
115,
62,
11,
49,
-98,
-13,
40,
30,
-61,
-53,
40,
91,
-68,
64,
-79,
-119,
7,
-49,
20,
-77,
-122,
-100,
-121,
112,
118,
-40,
56,
0,
-20,
115,
-106,
-126,
84,
105,
25,
12,
102,
98,
32,
24,
-51,
41,
-95,
62,
31,
-99,
-89,
-104,
17,
73,
40,
-106,
-33,
118,
54,
46,
124,
-21,
-36,
17,
108,
-126,
-57,
-112,
-77,
79,
48,
18,
-54,
-53,
-123,
16,
37,
-51,
-30,
94,
87,
82,
63,
-84,
-108
] |
The opinion of the court was delivered by
Schroeder, J.:
This is a malpractice action in which the plaintiff seeks to recover damages for injuries alleged to have been sustained as a result of negligence on the part of a medical doctor.
The trial court sustained the defendant’s motion to dismiss on the ground that the statute of limitations had run on the alleged cause of action.
The petition alleges that Betty T. Seymour (plaintiff-appellant and cross-appellee) sought treatment from Dr. Victor Lofgreen (defendant-appellee and cross-appellant) on or about September 1, 1964, because she was suffering from headaches, swelling of the stomach, extensive sinus drainage, mucous colitis, diarrhea, sweating, nausea and leg cramps. It alleged the defendant was a duly licensed physician holding himself out to the community of Ottawa, Kansas, as being skilled in the field of general medicine; that during 1964, 1965 and 1966 and through April 25, 1967, the defendant failed to discover any physical reason for her condition and failed to diagnose that she was mentally ill and suffering from schizophrenic disorder with paranoid trends and depression; and that during the years of treatment the plaintiff’s physical problems became more severe and her mental condition became so distorted that on April 25, 1967, her family took her to Dr. E. H. Trow-bridge, Jr., a psychiatrist, who immediately admitted her to Research Hospital in Kansas City and began extensive electro and insulin shock therapy. It alleged the plaintiff was admitted to the Osawatomie State Hospital on April 3, 1968, and was not discharged until March 7, 1969. This action was commenced on March 27, 1970.
The acts of negligence with which the defendant is charged in the petition are:
(1) The defendant employed improper diagnostic procedures and departed from recognized medical principles in failing to discover any physiological reason for her illness.
(2) The defendant failed to diagnose that she was mentally ill, when she was in fact suffering from a mental illness of schizophrenic disorder and paranoid trends of depression.
(3) The defendant failed to discover the ailment as being beyond his knowledge or technical skill or capacity to treat with a likelihood of success, and his failure to disclose this fact to the plaintiff.
(4)The defendant failed to advise her to seek other physicians’ diagnosis or treatment.
All of the foregoing were alleged to be the proximate cause of the plaintiff’s injuries.
The plaintiff alleged her injuries to be:
(1) That during all of this time plaintiff continued to suffer from the complaints for which she originally sought treatment.
(2) That her headaches became so severe that for weeks at a time she was not able to pursue her employment which was that of a bookkeeper.
(3) That she could not sew or cook the food for the family or clean house or do the many other household tasks.
(4) That her conjugal relationship with her husband ceased and she screamed and shouted at the children and her husband constantly, and her communication with her parents all but ceased.
(5) That she was unable to stand crowds or even groups of people.
(6) That in March and April, 1967, she seriously threatened suicide.
The petition alleged “that it was not until her discharge from the Osawatomie State Hospital that she was capable of ascertaining the fact of her injury as caused by the defendant.” Among the allegations of negligence the plaintiff alleged the defendant was negligent in attempting to treat her mental condition “in failing to recognize the transference phenomenon and negligently manipulated the transference phenomenon; that plaintiff’s emotions became so aroused that the plaintiff’s feelings toward the defendant reached the point that plaintiff was in love with the defendant; that said defendant knowing of said condition and love for him, took advantage of said condition,” causing the plaintiff to in fact love the defendant, who, during this period, sexually assaulted the plaintiff on many occasions.
The defendant moved to dismiss the action pursuant to K. S. A. 1970 Supp. 60-212 (b) on the grounds (1) that the service of process was insufficient; and (2) that the petition disclosed on its face it was barred by the statute of limitations.
The trial court found the service of process sufficient, but dismissed the action on the ground that the petition showed on its face it was barred by the statute of limitations. Whereupon, the plaintiff appealed from the court’s order holding that the action was barred by the statute of limitations, and the defendant cross-appealed from the order holding the service of process sufficient.
It may summarily be stated the resident service of process was sufficient, and that the defendant’s cross-appeal has no merit. This point is inconsequential in view of our decision on the statute of limitations.
Simply stated, the petition alleges the appellant’s injury is an aggravation of a pre-existing schizophrenic condition caused by the alleged acts of defendant’s negligence with resultant damages.
The mishandling of the phenomenon of transference was the subject of a malpractice action against a psychiatrist by a patient in Zipkin v. Freeman, 436 S. W. 2d 753 (Mo. 1968). There the plaintiff recovered a judgment, and the court in its opinion discusses the improper handling of the transference phenomenon, which was characterized as a continuing tort. The opinion of the court quoted several authorities as follows:
“ “What is perhaps regarded as the most significant concept in psychoanalytical therapy, and one of the most important discoveries of Freud, is the emotional reaction of the patient towaid the analyst known as the transference . . .’, Modern Clinical Psychiatry, Noyes & Kolb, 6th Ed., 1963, p. 505.
“ ‘Inappropriate emotions, both hostile and loving, directed toward the physician are recognized by the psychiatrist as constituting a special aspect of the patient’s neurosis — the transference. The psychiatrist looks for manifestations of the transference, and is prepared to handle it as it develops.’ Melvin S. Heller, M. D., Some Comments to Lawyers on the Practice of Psychiatry, 30 Temple University Law Quarterly 401, 402.
“ ‘[Transference ... In psychiatry, the shifting of an affect from one person to another . . . especially the transfer by the patient to the analyst of emotional tones, either of affection or of hostility . . .’ Dorland’s Illustrated Medical Dictionary, 23rd Ed., 1957, p. 1454.
“ ‘. . . Transference may be positive, when the feelings and reactions are affectionate, friendly, or loving. . . . Understanding of transference forms a basic part of the psychoanalytic technique.’ Blaldston’s New Gould Medical Dictionary, 2nd Ed., 1956, p. 1260.”» (Footnote 1, p. 755.)
Counsel for the appellant contends, when the alleged facts are given credence for the purposes of the motion, it becomes a question for the trier of fact to determine when the fact of injury became reasonably ascertainable to the plaintiff under K. S. A. 1970 Supp. 60-513 (4).
If the petition be construed as an action for sexual assault during 1965, 1966 and 1967 (not asserted by the appellant in her brief) even if not discovered or reasonably ascertainable by the plaintiff until March 7, 1969, it is barred by the one-year statute of limita Rons applicable to acRons for assault (K. S. A. 60-514 121), or, if she asserts a legal disability, it is barred upon plaintiff’s failure to bring the acRon within one year after the removal of the disability (K. S. A. 1971 Supp. 60-515 Id.)
K. S. A. 1971 Supp. 60-513 in perRnent part provides:
“The following actions shall be brought within two (2) years: . . .
“(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
“The cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
Of the four possible periods of limitations applicable to an acRon based upon negligence the first and most common period begins from the date of the injury. Here the defendant ceased being the plaintiff’s doctor on April 25, 1967, and his negligence ceased on that date. The two-year period of limitations from April 25, 1967, would have expired on April 26, 1969, thus barring ihe instant acRon filed on March 27,1970. (60-513 [4], supra.)
The second possible period of limitaRon begins when the act giving rise to the cause of acRon first causes substantial injury. (60-513 [4], supra.) On April 25, 1967, the plaintiff began treatment with Dr. E. H. Trowbridge, Jr., a psychiatrist at Kansas City, Missouri. She was admitted to Research Hospital for two months, there receiving numerous electro-shock and insulin shock treatments. She then received outpatient treatment consisting of shock treatments and was admitted to Osawatomie State Hospital on April 3, 1968, where she remained' until June 10, 1968, when placed on convalescent leave unRl her discharge on March 7, 1969.
According to the plaintiff’s petiRon she first contacted the defendant on or about September 1, 1964, complaining of headaches and other physical ailments. These condiRons conRnued through the balance of 1964, all of 1965 and 1966 and until April 25,1967. The aggravaRon of these condiRons and the aggravaRon of her preexisRng mental condiRon as alleged in the petiRon have previously been stated. After reviewing these allegaRons with the dates stated, it is quite obvious that the acts, if any, giving rise to the cause of action first caused substantial injury no later than April 25, 1967, in which case the period of limitation expired on April 26, 1969. This would bar the instant action filed on March 27, 1970.
The third possible period of limitation begins when the fact of injury becomes reasonably ascertainable. Rut this period is not applicable unless the condition precedent stated in 60-513 is met— “if the fact of injury is not reasonably ascertainable until some time after the initial act.”
The record clearly reflects the fact of injury was ascertained no later than April 25, 1967, by her family, her psychiatrist, and herself, when, having changed doctors, she began a new course of treatment. This, together with her complaints and physical participation in the events prior and subsequent to April 25, 1967, shows an awareness on her part of the fact of injury, unless she was under a legal disability by reason of incapacity.
Counsel for plaintiff in arguing the motion to dismiss before the trial court asserted the plaintiff was not claiming she was incompetent or insane, but that her mental illness, nevertheless, made her unable to ascertain the fact of her injury.
The mere statement by the plaintiff that she was unable to ascertain the fact of her injury until March 7, 1969, is insufficient to raise a genuine issue of fact concerning the statute of limitations. Where the injured party does not assert legal incapacity as a cause for delay in commencing an action in court, such injured party stands in the position of a person possessing the attributes of a person with legal capacity, when confronted with the two-year statute of limitations in a negligence action.
In Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693, the plaintiff brought an action charging fraud against an attorney. The court found the plaintiff’s statement that she had not discovered the fraud until less than two years before the action was filed was insufficient to create an issue of fact, where it appeared she had earlier become dissatisfied with the defendant’s service and engaged a new attorney.
If it be assumed that the plaintiff was not under legal disability, the condition in the statute has been fulfilled. The fact of injury under the allegations of the petition had become reasonably ascertainable to the plaintiff on April 25, 1967, and the action was barred on April 26, 1969.
The legislature in recognizing the need to protect persons in a case such as this, where the fact of injury is reasonably ascertainable by others but not by the injured party, provided that persons under a legal disability shall be entitled to bring their action within one year after such disability has been removed. (K. S. A. 1971 Supp. 60-515 [a].) This is the fourth possible period of limitation applicable to the cause of action alleged.
A person under legal disability is an “incapacitated person” as defined in K. S. A. 77-201 (31) and K. S. A. 1971 Supp. 59-3002 (1).
It is not necessary that the injured party be legally adjudicated an “incapacitated person,” as defined in the above statutes, before receiving protection extended to such persons under the statute of limitations. (Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745.)
K. S. A. 1971 Supp. 60-515 provides in part:
“Persons under legal disability, (a) Effect. If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of twenty-one (21) years, or an incapacitated person, or imprisoned for a term less than his natural life, such person shall be entitled to bring such action within one (1) year after such disability shall be removed, but no such action shall be maintained by or on behalf of any person under the disabilities specified after twenty-two (22) years from the time the cause of action shall have accrued.”
The obvious reason the plaintiff contends in her brief that she did not allege a legal disability is that her cause of action would be barred by the one-year statute of limitations. She alleged a discharge from the Osawatomie State Hospital on March 7, 1969, and her cause of action would be barred on March 8, 1970.
The statement of the plaintiff that she was unable to ascertain the fact of her injury until March 7, 1969, the affidavit of Dr. Trow-bridge placed before the trial court in argument on the motion to dismiss, and the statements of counsel, establish that the plaintiff was under a legal disability prior to March 7, 1969. Obviously, the plaintiff cannot take advantage of the fact that she was unable by reason of mental illness to ascertain the fact of her injury until March 7, 1969, and thereby seek to take advantage of the two-year statute of limitations (citing Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P. 2d 535), by calling upon a jury to determine the matter as a question of fact, and at the same time take an inconsistent position to circumvent the one-year statute of limitations in 60-515 (a) by denying in argument that she is an incapacitated person.
Miller v. Beech Aircraft Corporation, supra, relied upon by the appellant, is inapplicable to the case at bar. In that case there was substantial medical evidence to show tibe injury complained of (emphysema) was "progressive in nature, without external or visible sign, and [that it] may remain latent for many years.” (p. 188.) In die opinion the court said:
“Without getting into specifics, we incline to the belief it was for the jury to determine in this case when plaintiff’s disabling disease and its cause became manifest or when, in the exercise of due care,- the same was reasonably ascertainable. . . .” (p. 189.)
In the instant case, which involves mental and physical illness, the injuries alleged, complaints made and treatment received, as previously related, were by dieir nature acute and easily ascertainable. The allegations in the petition merely show diat die plaintiff was unable to ascertain them because of mental illness.
The belated discovery provision in 60-513, supra, was obviously intended to apply to situations where the injury itself is of such a nature that it could not reasonably be ascertained until sometime after the commisison of the act which caused it. (Gard, Kansas Code of Civil Procedure Annotated, § 513, p. 533.)
In conclusion the record here presented discloses as a matter of law that the plaintiff’s cause of action was barred at the latest on April 26, 1969, if the first three periods of limitation heretofore discussed are applicable, or on March 8, 1970, if the plaintiff was under a legal disability until March 7, 1969. The petition not having been filed until March 27, 1970, the trial court did not err in sustaining the defendant’s motion to dismiss.
Since our decision turns on a question of law, consideration of the appellant’s second point, challenging the refusal of the trial court to disqualify in the case, becomes immaterial.
The judgment of the lower court is affirmed.
|
[
-80,
-22,
-35,
-115,
10,
98,
48,
10,
115,
-85,
37,
115,
-19,
-47,
5,
109,
106,
-75,
-64,
97,
115,
51,
71,
10,
-10,
-38,
106,
-57,
-71,
-49,
-28,
-33,
72,
56,
-125,
21,
-30,
-54,
-47,
-36,
-62,
-108,
-119,
-12,
81,
-110,
120,
62,
-36,
7,
49,
94,
-29,
42,
22,
-58,
104,
40,
123,
52,
-64,
-80,
-120,
21,
93,
18,
-93,
6,
-68,
7,
-40,
63,
-102,
-72,
40,
-84,
48,
-74,
-122,
117,
79,
-71,
12,
98,
98,
33,
5,
-25,
-32,
-72,
30,
55,
13,
-90,
-69,
65,
-47,
-120,
-66,
-67,
116,
84,
9,
120,
-12,
-34,
27,
44,
8,
-117,
-112,
-71,
-49,
116,
-98,
-29,
-21,
-113,
36,
81,
-113,
116,
92,
87,
123,
-101,
-70,
-108
] |
The opinion of the court was delivered by
Fromme, J.:
John Calvin Sanders entered a voluntary plea of guilty to the crime of unlawful possession of a pistol after having been convicted of burglary in 1966, in the state of California. His plea was entered on March 19, 1969, in conjunction with pleas on five other felony counts. He was sentenced under K. S. A. 21-2611 and no direct appeal was perfected.
Thereafter, Sanders filed a motion in the district court to vacate judgment and sentence under K. S. A. 60-1507. The sole basis for the motion was that upon being convicted in California he was placed under the control of the California Youth Authority by reason of his age and that his conviction constituted a misdemeanor, not a felony. He asserted that K. S. A. 21-2611 requires the previous conviction to be a felony.
The district judge by order summarily overruled appellant’s motion. The order in pertinent part reads as follows:
“Movant’s sole contention is that his prior conviction for second degree burglary in California was a misdemeanor and not a felony, and by reason of that fact he would not be guilty of a violation of K. S. A. 21-2611.
“K. S. A. 21-2611, however, does not specify that the burglary must be a felony; it merely states:
“ ‘It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing . . . burglary, ... to own a pistol or to have or keep a pistol in his possession, or under his control . . .’
“The movant’s act was unlawful regardless of whether the burglary was defined as a felony or a misdemeanor in the state of California, Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28 (1960).”
The decision o£ the trial court was eminently correct. Under K. S. A. 21-2611, making it unlawful for a person to own, possess or control a pistol if that person has previously been convicted of burglary, it matters not whether the burglary was punishable as a felony or as a misdemeanor. The case of Lawton v. Hand, 186 Kan. 385, 350 P. 2d 28, is controlling authority.
Our opinion might well end here, for we have answered the one point raised by the motion and decided by the district court. However, two other matters raised on appeal deserve comment.
Appellant earnestly contends his conviction and sentence should be set aside because the state failed to introduce evidence during the original sentencing proceedings to establish that the burglary in California amounted to a felony.
It matters not whether the burglary was punishable as a felony or as a misdemeanor and in view of the guilty plea entered by movant there was no occasion for the trial court to hear evidence relating to his admission of guilt upon which the conviction rests. Once a plea of guilty has been voluntarily entered by an accused, there is no necessity to introduce evidence to maintain the conviction. A voluntary plea of guilty is a confession of guilt of the crime charged and every fact alleged therein. See Hughes v. State, 206 Kan. 515, 517, 479 P. 2d 850, and cases cited therein.
Appellant further argues on appeal that the charge contained in the information was fatally defective because it failed to state the case number and location of the California court where the prior burglary conviction occurred.
Appellant fails to include the information as a part of the record on appeal, so the record presented to this court is insufficient to consider the question he seeks to present. However, what appears to be a similar contention was considered and rejected by this court in State v. Way, 204 Kan. 375, 377, 461 P. 2d 820. See also Weathers v. State, 208 Kan. 653, 656, 493 P. 2d 270, where it was pointed out the sufficiency of an information should be challenged on direct appeal.
It is clear the one question raised by appellant’s motion was one of law. It was correctly decided by the district court. An evidentiary hearing was not required to determine that question. The order of the district court is affirmed.
|
[
-79,
-22,
-35,
62,
11,
97,
43,
-72,
82,
-15,
-90,
-109,
-19,
75,
5,
121,
81,
101,
117,
120,
-57,
-122,
39,
-63,
-76,
51,
-40,
-43,
53,
79,
-18,
53,
8,
-32,
-62,
-11,
6,
-118,
55,
-36,
-114,
5,
26,
-45,
80,
74,
36,
42,
20,
11,
-15,
29,
-13,
42,
22,
-39,
105,
44,
75,
-67,
64,
-71,
-102,
69,
-17,
50,
-77,
38,
-100,
-123,
120,
32,
-100,
17,
0,
-23,
51,
-74,
0,
-12,
111,
-101,
-84,
98,
98,
35,
61,
-18,
-71,
-128,
79,
91,
-67,
-90,
-103,
88,
97,
32,
-105,
-97,
98,
52,
46,
-4,
-25,
-76,
31,
108,
6,
78,
-108,
-109,
-119,
112,
-50,
-38,
-53,
37,
0,
53,
-50,
-90,
92,
115,
80,
-101,
-114,
-44
] |
The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Danny McCollum, was convicted by a jury of selling, offering for sale, or having in his possession with the intent to sell d-lysergic acid diethylamide (LSD) in violation of K.S.A. 1971 Supp. 65-2602 ( 8).
The appellant was 18 years of age and a senior at Manhattan High School. He was employed at Wharton Manor, Manhattan, Kansas. On August 1, 1970, while he was at work, the appellant was visited by a friend who lived with his parents in Concordia, one Dan Bowersox. Bowersox had purchased fifty tablets of LSD in Manhattan that day and told the appellant of his intention to sell them that night in Concordia. Bowersox asked the appellant to come and see him. Early that evening McCollum and one Jim Strouse drove to Concordia in McCollums Volkswagen to visit Bowersox.
After paying a social visit to the home of Bowersox and his parents, the appellant, Bowersox, Strouse, and one John Delahantey, who owned a one-fourth interest in the LSD with Bowersox, drove to downtown Concordia in the appellant’s car to eat supper. After-wards, and about 9:00 p. m., they drove to the Broadway Bar. McCollum parked the Volkswagen across the street from the bar, and Bowersox and Delahantey remained in the car. McCollum went into the bar where he met one Patrick Deal. McCollum had previously met Deal, and he asked Deal if he wanted to purchase some LSD. Deal said he would have to see, and left the bar. Deal then telephoned the substance of McCollum’s conversation to Loren Kasper, Cloud County undersheriff.
Undersheriff Kasper requested that Deal permit two other young men, Steve Bender and Douglas Dunn, to accompany him to the Broadway Bar and. attempt to purchase some of the LSD offered by the appellant. Bender was given two marked $10 bills to purchase the LSD if an agreement was reached.
Bender and Dunn went into the Broadway Bar pursuant to the undersheriff’s instructions and remained there about five minutes. Deal came into the bar and the three went outside where they met McCollum. The four of them then walked across the street and gathered near a dock in front of the Bowman Seed Company building. Bender and the appellant sat on the loading dock while Bowersox and Delahantey remained in the appellant’s car which was parked in front of the Bowman Seed Company building. The ap pellant talked to Bender for about ten minutes negotiating a price. The appellant wanted $3 per tablet. Bender wanted more than seven tablets for the $20. At the conclusion of the conversation, Bender talked briefly to Bowersox, and an agreement was reached to sell eight tablets for $20. Bowersox then gave eight tablets to Bender, and Bender took the two $10 bills from his pocket and gave them to the appellant. Bender and his companions left the area and returned to the Concordia police station with the evidence. The appellant later gave the $20 to Bowersox. The time would have been between 11:30 p. m. and 12:00 midnight.
Early in the morning of August 2, 1970, Undersheriff Kasper arrested the appellant and the other young men in the Volkswagen. The appellant was searched at the scene of the arrest. No drugs or currency were found on his person or in his automobile. The two marked $10 bills were found in Bowersox’ shirt pocket. The eight tablets received by Bender had been turned over to Kasper prior to the appellant’s arrest.
The appellant first contends the district court erred in failing to grant a continuance on the morning of the trial in order that a preliminary hearing could be held, notwithstanding the fact the request came nearly five months after his arrest and after he had voluntarily waived his right to a preliminary hearing. In making the contention, the appellant concedes that whether a continuance should be granted in any given case is within the discretion of the district court (State v. Neil, 203 Kan. 473, 454 P. 2d 136), and further, that a defendant may waive his right to a preliminary hearing. (K. S. A. 1971 Supp. 22-2902.)
In support of his contention, the appellant directs attention that his case was set for trial on the morning of January 13, 1971, and that about a week prior, the county attorney filed an amended Information charging the offense of which he was convicted. Also, that on January 6, 1972, the county attorney filed and served upon the appellant’s counsel of record, a motion to endorse the name of Patrick Deal upon the Information as a witness for the state. The motion was allowed by the district court on January 13.
While the record does not indicate the date the appellant waived his right to a preliminary hearing, it does show the county attorney explained to the appellant and his parents the purpose of and his right to a preliminary hearing, and it further shows that when the appellant and his parents were present in the Cloud County court room on the day set for the preliminary hearing, the judge of the county court fully apprised each of them of the appellant’s right to a preliminary hearing and the effect of a waiver of such a hearing. After the appellant and his parents were so advised, and upon the advice of his father, the appellant voluntarily waived his right to a preliminary hearing. Although the judge of the county court did not appoint counsel to represent the appellant at that time, the record shows that after the appellant waived his right to a preliminary hearing, both he and his father expressed a desire to proceed to the district court where the appellant would enter a plea of guilty to the charge alleged against him. The county attorney cautioned both the father and the appellant that the district court would not accept a plea of guilty unless counsel was employed or appointed to represent the appellant in the district court, and suggested they contact Mr. Robert Viets, of Concordia, to represent him. Charles D. Green, of Manhattan, did not become associated with Mr. Viets until approximately two weeks prior to trial.
We think the district court did not err in denying the continuance. It has been consistently held that the granting or refusal of a continuance is largely within the discretion of the district court, and will not be disturbed on appeal in the absence of clear abuse of that discretion. In the instant case, the appellant had voluntarily waived his right to a preliminary hearing. That being the case, such a hearing was not required and a continuance would serve no useful purpose. (State v. Callison, 119 Kan. 532, 240 Pac. 850; State v. Caton, 134 Kan. 128, 4 P. 2d 677; State v. Latham, & York, 190 Kan. 411, 375 P. 2d 788, cert. den. 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310; State v. Dickson, 198 Kan. 219, 424 P. 2d 274; State v. Neil, supra; State v. Watson, 204 Kan. 681, 466 P. 2d 296; State v. Hill, 207 Kan. 714, 486 P. 2d 1398.) Moreover, the state’s motion to endorse the name of Patrick Deal on the Information was to forestall any anticipated defense of entrapment. The appellant concedes this point, and in denying the motion, the district court pointed out that counsel had notice of the motion at least one week before trial, and it assumed diligent counsel would investigate the witness when he knew or had reason to believe Deal might be called as a witness in the case. Permission to endorse the name of an additional witness upon an Information is a matter within the judicial discretion of the district court. Under the circumstances, we conclude the district court did not abuse its discretion in this case. (State v. Law, 203 Kan. 89, 452 P. 2d 862; State v. Hill, supra; 2 Hatchers Kansas Digest [Rev. Ed.], Criminal Law, § 77.)
The appellant next contends the district court erred in admitting into evidence the bottle containing the remaining LSD tablets because the state failed to establish a chain of custody of tibe tablets. The tablets were taken by Bender to the undersheriff. Kasper placed them in a plastic bottle and kept them in his custody until August 6, 1970, when he mailed the bottle and contents by certified mail, return receipt requested, to the Kansas Bureau of Investigation Laboratory in Topeka. The bottle and contents was received by the KBI on August 7, and the return receipt therefor was acknowledged by Jean Mulligan, an employee at KBI. Kasper received the return receipt at Concordia, which was state’s Exhibit “D.”
W. S. Cowan, Laboratory Supervisor for the KBI, testified that on the morning of August 7, 1970, he received a registered package from the sheriff’s office in Concordia at the KBI mail room; that he opened the package, read the transmittal letter, and performed proper police procedures concerning a custody receipt; obtained a file number for the evidence; initialed the plastic bottle containing the tablets on August 7, and took the bottle and contents to the Board of Health Laboratories in Topeka, where the evidence was signed for by Elaine Bumau and Dr. Glendening of that laboratory. Later, Cowan went to the Board of Health Laboratory and obtained the plastic bottle containing the tablets from Dr. Glendening, and gave him a receipt for the evidence. Cowan then took the evidence to the KBI office, put it in the evidence room, and kept it under lock and key where it remained until he brought it to Concordia for the trial.
Elaine Bumau, Laboratory Technician, testified the bottle containing the tablets was given a number at the Board of Health Laboratory, and was placed in the security cabinet in her presence by Dr. Glendening, her supervisor. The cabinet is accessible toGlendening and Mrs. Shepek who also is employed at the laboratory. On August 12, 1972, Dr. Glendening opened the cabinet for Bumau and she ran a series of tests on one of the tablets. The tests confirmed the presence of LSD. After tibe analysis was completed, the bottle and the unused tablets were returned to the security cabinet. Cowan returned for the bottle and obtained it and the tablets from Dr. Glendening.
At this point, the plastic bottle containing the tablets was marked state’s Exhibit “E,” and admitted into evidence over the appellant’s objection.
In contending the state’s evidence lacked a complete chain of custody, counsel suggests that either one of two things should have been shown by the state’s evidence; one, testimony of Jean Mulligan should have been secured indicating she was the party who signed the receipt, Exhibit “D”, and that she delivered the package to Cowan, or two, that Kasper should have testified state’s Exhibit “E” was in fact the bottle and tablets which he mailed to the KBI Laboratory. The point is not well taken.
The admissibility of evidence of a physical character is to be determined by the district court on the basis of its relevancy and connection to the case. In order to justify admission, the district court must be satisfied of the chain of custody and that the identity of the object is established. Although admissibility in the first instance rests within the sound discretion of the district court, the relevancy and identity of that object are an issue of fact to be presented to the jury. (State v. Robinson, 203 Kan. 304, 454 P. 2d 527; 2 Wharton’s Criminal Evidence [11th Ed.], § 761, pp. 1290, 1292.)
The jury found the appellant guilty, and this court cannot conclude from the facts and circumstances that the district court erred in admitting the evidence, particularly when tibe appellant himself conceded on the witness stand the tablets were those given to Bender by Bowersox on August 1, 1970:
“Q. Let me ask you this, Hap. Do you admit that the contents of Exhibit E amount to LSD?
“Mb. Green: Excuse me, if the Court please, there hasn’t been any testimony to the effect that these were analyzed except the one taken out. We will stipulate LSD is a dangerous drug.
“Mb. Walsh: I’m only asking the defendant if he will admit the contents of this Exhibit E are LSD.
“The Court: Overruled.
“A. Yes, I guess.
“Q. You also admit that these are the pills that were given by Dan Bowersox to Steven Bender on August 1, 1970?
“A. I guess. They look like them.
“Q. You would admit that?
“A. Yes.”
The district court did not abuse its discretion in admitting the tablets.
Lastly, the appellant contends there was no substantial, competent evidence to show that he had sold, offered to sell, or possessed with the intent to sell LSD as charged in the information. When considering the sufficiency of evidence to sustain conviction of a crime, the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Murphy, 145 Kan. 242, 65 P. 2d 342; State v. Gregory, 191 Kan. 687, 383 P. 2d 965; State v. Hale, 207 Kan. 446, 485 P. 2d 1338.) This court is of the opinion the test was met in this case. The facts previously related require no repetition. Suffice it to say the facts reasonably infer the appellant and his friend, Bowersox, were at the Broadway Bar for the purpose of selling LSD and in fact consummated a sale. The appellant was the negotiator, and having agreed upon a price, the proceeds were paid over to him. It cannot now be said the appellant did not sell or offer for sale LSD regardless of his denials and selfserving testimony. His explanation was not believed by the jury.
The judgment is affirmed.
|
[
48,
-20,
-71,
30,
58,
-32,
46,
-102,
73,
-89,
52,
123,
-55,
88,
5,
121,
-73,
109,
-44,
105,
-6,
-73,
7,
-93,
-62,
-13,
120,
-59,
-79,
-52,
-18,
84,
77,
116,
2,
21,
-58,
-56,
-46,
86,
-54,
1,
-119,
-46,
88,
-54,
48,
59,
18,
10,
97,
26,
115,
44,
29,
-50,
109,
40,
91,
61,
72,
-15,
-103,
-105,
-35,
18,
-125,
34,
-100,
5,
-6,
94,
-36,
51,
1,
-24,
123,
-106,
-122,
-44,
73,
-103,
-116,
34,
98,
32,
89,
-19,
-72,
-119,
63,
-93,
-83,
-89,
28,
88,
64,
69,
-66,
30,
116,
57,
-117,
-14,
-22,
29,
13,
-20,
11,
-54,
-110,
-111,
109,
48,
-106,
17,
-5,
-125,
5,
113,
-57,
54,
84,
85,
112,
-101,
78,
-108
] |
The opinion of the court was delivered by
Fromme, J.:
The defendants appeal from a summary judgment entered against them in the sum of $16,773.48.
The background facts were stipulated by the parties in a pre-trial order. The defendants organized a retail meat corporation, Colonial Meats, Inc. (Colonial). The corporation was short lived. It acquired its business tools and equipment by executing a written leasing agreement with Intercontinental Leasing, Inc. (Intercontinental). The leasing agreement was dated January 21, 1966. Contemporaneously the defendants, being the incorporators, stockholders, directors or officers of Colonial, entered into a written guaranty agreement as an inducement to Intercontinental to purchase and deliver the tools and equipment to Colonial. The leasing agreement covered a term of five years and required monthly payments totaling $23,808.60. Colonial paid eight monthly installments and then defaulted. Five months later, no further payments having been made, Intercontinental repossessed the tools and equipment pursuant to default provisions in the leasing agreement. Repossession occurred on March 11, 1967, without objection from either Colonial or the defendants. Colonial became insolvent and no steps have been taken to wind up its business or pay its creditors. The tools and equipment were sold on April 25, 1967, at public auction. Expenses of repossession and sale were incurred and paid by Intercontinental. These included storage rentals, a sale commission and a delinquent personal property tax warrant. Intercontinental filed this action against the defendants as guarantors to recover the difference between the gross unpaid rentals reserved in the five year leasing agreement and the net proceeds of the sale.
The issues as defined in the pre-trial order were:
“4. The remaining issues to be determined are:
“(a) Whether expenses of repossession and sale are properly allowable as a deduction from the proceeds of sale of the leased equipment; and
“(b) If expenses of repossession and sale are properly allowable as a deduction from the proceeds of sale of the leased equipment: (i) whether Plaintiff had a duty to make a reasonable effort to sell the leased equipment for the best price obtainable and, if so, whether it exercised such duty; (ii) whether such expenses were reasonable; and (Hi) in what amount are expenses of sale allowable as a deduction?
“(c) Whether the Defendants are entitled to credit for the leased equipment shown on page A-l of Lease No. 707 attached hereto which was not sold by Plaintiff at the public auction held April 25, 1967, and, if so, in what amount?
“(d) Whether the proceeds from the sale of the leased equipment were properly applied by Plaintiff?
“(e) Whether Defendants are entitled to credit for that portion of the difference between Plaintiff’s cost of the leased equipment and the rental charge therefor?
“(f) Whether Plaintiff is entitled to interest from April 25, 1967, and if so, whether the rate of interest if [sic] 10% per annum?
“(g) Whether Plaintiff is entitled to recover the lessor’s reversion in the leased equipment shown in Lease No. 707 in the amount of $1,725.27 from the Defendants?
“(h) Was the transaction between the parties actually a conditional sale of equipment or a lease of equipment?
“(i) Is the action brought by the Plaintiff, (i) for recovery of rent or (ii) for damages for breach of contract?
“(j) If the action is on a lease contract, did the plaintiff effectively cancel the lease contract by seizing the personal property covered thereby and subsequently selling the same?
“(7c) By reason of the Guaranty referred to in 3. (d), did the Defendants agree to pay any taxes?
“(Z) By reason of said Guaranty did the Defendants agree to pay any rent to the landlord or any commission on the sale of the property by Plaintiff?
“(m) Do the Defendants owe Plaintiff for loss of rent for the period to April 25, 1967, less amount paid, or what loss of rent would there be if Plaintiff had re-rented the property to another, or do they owe damages for breach of contract by Colonial Meats, Inc.?
“(n) In the event that Defendants are liable for rentals over the five-year term of the lease, then, in such event, are the Defendants entitled to the possession and use of the personal property covered by the lease?
“5. The documentary evidence is Lease No. 707 and die Guaranty.
“6. Each party shall advise the other party as to the names of all witnesses to be called by such party at least ten (10) days prior to trial; and no other witnesses will be permitted to testify except for rebuttal and impeachment puiposes, or, by order of the Court.
“7. Plaintiff contends that all issues set forth in Paragraph 4 of this pretrial order (except those issues set forth in sub-paragraph (b) of paragraph 4 and the amount of any credit for leased equipment set forth in sub-paragraph (c) of paragraph 4, which issues plaintiff concedes to be of a factual nature) are issues of law and not properly triable to a jury. Defendants contend that all issues set forth in paragraph 4 of this pre-trial order are issues of fact and properly triable to jury; and Defendants demand a jury trial on all issues.
“The Court should determine: (1) whether Defendants are entitled to a jury trial on any issue or issues in view of defendants’ failure to demand a jury trial pursuant to K. S. A. 60-238; (2) if the Court determines that Defendants are entitled to a jury trial on any issue or issues, then the Court should determine which issue or issues are properly triable to a jury; and (3) any issue or issues which are not properly triable to a jury should be determined by the Court prior to the submission of any issue to a jury.”
After abortive attempts at an intermediate appeal and a direct appeal a further stipulation of the parties was made in the trial court. The parties stipulated the expenses of repossession and sale previously claimed by Intercontinental were incurred, were reasonable in amount and were necessary in order to conduct the sale.
With the lawsuit in this posture the plaintiff filed a motion for summary judgment. The trial court in response to the motion construed the terms of the two contemporaneous written instruments, found there was no genuine issue of material fact remaining and entered judgment for plaintiff.
Before discussing the merits of this appeal pertinent parts of the agreements should be mentioned or quoted. The leasing agreement required monthly payments of $396.81 over a term of five years. The agreement contained no option to purchase. Title to the property remained in Intercontinental. At the end of the initial five year term the agreement was renewable by payment of an annual renewal rental of $517.58. Other pertinent parts of the leasing agreement provide:
“17. Insurance; Liens; Taxes. Lessee shall provide and maintain insurance against loss, theft, damage or destruction of the equipment in an amount not less than the total rent payable hereunder, with loss payable to lessor. Each policy shall expressly provide that said insurance as to lessor and its assigns shall not be invalidated by any act, omission or neglect of lessee. Lessor may apply the proceeds of said insurance to replace or repair the equipment and/or to satisfy lessee’s obligations hereunder. At lessor’s request, lessee shall furnish proof of said insurance.
“Lessee shall keep the equipment free and clear of all levies, liens and encumbrances. Lessee shall pay all charges and taxes (local, state and federal) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the equipment, excluding however, all taxes on or measured by lessor’s income.
“If lessee fails to procure or maintain said insurance or to pay said charges and taxes, lessor shall have the right, but shall not be obligated, to effect such insurance, or pay said charges and taxes. In that event, lessee shall repay to lessor the cost thereof with the next payment of rent.
“20. Late Payments. Should lessee fail to pay when due any part of the rent herein reserved or any other sum required to be paid to lessor, lessee shall pay to lessor interest on such delinquent payment from the due date thereof until paid at the rate of ten percent (10%) per annum.
“21. Default. If lessee fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable, or if lessee fails to perform any other provisions hereof within ten (10) days after lessor shall have demanded in writing performance thereof, or if any proceeding in bankruptcy, receivership or insolvency shall be commenced by or against lessee or its property, or if lessee makes any assignment for the benefit of its creditors, lessor shall have the right, but shall not be obligated, to exercise any one or more of the following remedies: {a) to sue for and recover all rents and other amounts then due or thereafter accruing under this lease; (b) to take possession of any or all of the equipment, wherever it may be located, without demand or notice, without any court order or other process of law, and without incurring any liability to lessee for any damages occasioned by such taking of possession; (c) to sell any or all of the equipment at public or private sale for cash or on credit and to recover from lessee all costs of taking possession, storing, repairing and selling the equipment, an amount equal to ten percent (10%) of the actual cost to lessor of the equipment sold, and the unpaid balance of the total rent for the initial term of this lease attributable to the equipment sold, less the net proceeds of such sale; (d) to terminate this lease as to any or all items of equipment; (e) in the event lessor elects to terminate this lease as to any or all items of equipment, to recover from lessee as to each item subject to said termination, of the excess, if any, of the amount of rent reserved herein for said items for the balance of the term hereof over the then reasonable rental value of said item for the same period of time; (f) to pursue any other remedy now on [sic] hereafter existing at law or in equity.
“Notwithstanding any such action that lessor may take, including taking possession of any or all of the equipment, lessee shall remain liable for the full performance of all its obligations hereunder, provided, however, that if lessor in writing terminates this lease, as to any item of equipment, lessee shall not be liable for rent in respect of such item accruing after the date of such termination.
“In addition to the foregoing, lessee shall pay lessor all costs and expenses, including reasonable attorneys’ fees, incurred by lessor in exercising any of its rights or remedies hereunder.”
The guaranty agreement, omitting the signatures of the defendants, is as follows:
“For Value Received and in consideration of, and as an inducement to, Intercontinental Leasing, Inc., hereinafter referred to as Lessor, leasing certain equipment to Colonial Meats, Inc. hereinafter referred to as Lessee, by written lease dated the 21st day of January, 1966;
“The Undersigned unconditionally promises and guarantees the prompt payment by Lessee to Lessor, when due, of all monthly installments of rent under said lease.
“The Undersigned hereby waives notice of non-payment, non-performance and protest and expressly agrees that the validity of this agreement and his obligations hereunder shall in no wise be terminated, affected or impaired by reason of the Lessor’s assertion against the Lessee of any of the rights or remedies reserved to Lessor under provisions of said lease. Lessor shall be under no obligation to proceed first against Lessee or against any collateral security which the lessor may hold nor to exhaust any such remedies before proceeding hereunder against the Undersigned. No extension to the Lessee of the time for payment of rent shall release or discharge the Undersigned from liability under this guaranty; nor shall any changes or modifications of the lease agreement, or the equipment leased thereby, nor any assignment thereof have the effect of releasing or discharging the Undersigned.
“Dated at Hutchinson, Kansas this 21st day of January, 1966.”
We have examined the tortured progress of this case as it appears in the bifurcated record presented to this court. The original record contains eight claims of error under the Statement of Points. The supplemental record lists two points and attempts therein to include by reference all points contained in the abortive appeal previously dismissed by this court.' Appellants’ brief contains a list of three claims of error in a Statement of Points hut the argument set forth in appellants’ brief speaks to one point only. Serious procedural defects in the record have been raised on motion to dismiss this appeal under our rules. We elect to disregard these procedural defects and answer the one point briefed and argued.
Points neither briefed nor argued on appeal will be deemed abandoned. (See Hatchers Kansas Digest [Rev. Ed. Perm. Supp.] Vols. 1-3, Appeal and Error, § 184.)
Appellants list six matters in their brief which they claim should have been submitted for jury determination. They argue the trial court erred in determining the issues as matters of law on the motion for summary judgment.
Before examining this contention it might be well to review certain general principles of contract law. When there is no substantial question of material fact remaining in a case the interpretation and construction of a contract becomes a question of law for the court to determine. (McAfee v. City of Garnett, 205 Kan. 269, Syl. ¶ 6, 469 P. 2d 295.) That being so, the construction of the terms and the effect of a written instrument can be determined as a matter of law on a motion for summary judgment. (West v. Prairie State Bank, 200 Kan. 263, Syl. ¶ 5, 436 P. 2d 402.)
These rules of law apply in the present case for the existence and validity of the two contemporaneous contracts were admitted by the parties in the court below. Now let us examine the six matters which appellants claim were questions to be submitted for jury determination.
In entering summary judgment the trial court determined the six matters raised by appellants as follows: (1) That the leasing agreement was a lease and not a conditional sale contract; (2) That the guaranty agreement was not terminated or impaired when the property was repossessed and sold; (3) That neither Colonial nor the defendants had a right under the leasing agreement to require the equipment be re-rehted; (4) That the leasing agreement provided for payment of ten percent (10%) interest per annum on delinquent and accelerated payments due; (5) That the deduction of sale expenses from the gross sale receipts was authorized in the leasing agreement, and (6) That the obligations arising from guaranty agreement did not terminate when Intercontinental repossessed and sold the equipment.
These are the six issues which appellants now contend should have been submitted to a jury for determination. These six issues necessarily depend upon an interpretation and construction of the wording in the two written instruments. They were properly resolved as questions of law by the trial court. None were issues to be resolved by a jury. They were questions of law and could be determined on the motion for summary judgment. The appellants were not entitled to a jury trial on these six questions of law. Since this is the only point presented and argued in appellants’ brief we consider no others.
The judgment is affirmed.
|
[
80,
124,
-40,
-116,
10,
102,
58,
-102,
76,
-31,
101,
83,
-27,
-61,
4,
107,
-29,
125,
116,
126,
-57,
-13,
6,
67,
-41,
-13,
-79,
-43,
-79,
111,
-28,
-44,
-52,
37,
-62,
-107,
-14,
-109,
98,
-36,
-82,
5,
-103,
-19,
125,
64,
48,
-8,
16,
11,
113,
-116,
-29,
44,
25,
-49,
105,
44,
-21,
77,
-16,
-80,
-93,
5,
127,
19,
50,
38,
-110,
119,
-40,
28,
-112,
-79,
32,
-23,
114,
-74,
-58,
-12,
35,
-71,
-120,
2,
99,
0,
105,
-17,
88,
-108,
14,
-33,
31,
-125,
-62,
88,
3,
96,
-65,
-99,
58,
16,
53,
118,
-28,
-107,
31,
101,
5,
-118,
-76,
-125,
15,
-22,
-98,
2,
-18,
-77,
48,
112,
-52,
-102,
92,
23,
122,
19,
-121,
-110
] |
The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, John Samuels, was convicted by a j'ury of robbery in the first degree in violation of K. S. A. 21-527 (repealed July 1, 1970), and sentenced to a term of not less than ten nor more than twenty-one years in the Kansas State Penitentiary, Lansing, Kansas.
The facts are not in dispute and those pertinent to the disposition of this case may be summarized as follows: The appellant was charged on September 25, 1967, with first degree robbery and three counts of felonious assult. A warrant was issued the same day. Prior to being arrested in connection with those charges, the appellant was apprehended by federal authorities on another charge.
On October 11, 1967, the appellant was arraigned on the federal charges in the United States District Court in Topeka, and was at that time served with the warrant on the state charges involved in the case at bar. He was subsequently convicted of the federal charges and sentenced to confinement in the federal penitentiary in El Reno, Oklahoma. On January 11, 1968, the state of Kansas lodged a detainer against the appellant at El Reno on the state charges.
On August 21, 1969, the appellant filed in the magistrate court of Shawnee County, a pleading entitled “Petition for Dismissal,” in which he alleged that his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution had been denied and that his constitutional rights had been violated, upon the theory that Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 2d 607, 89 S Ct. 575, controlled. He contended the charges pending against him should be dismissed because the state failed to move promptly on the detainer lodged against him.
The record indicates the magistrate court considered the appellant’s petition to be a motion for dismissal. The motion was continued until September 18, 1969, to permit the parties to file briefs, and on September 28, 1969, the motion was overruled.
Subsequently, the county attorney, considering the “Petition for Dismissal” to be a request for a trial made pursuant to K. S. A. 62-2903 (repealed July 1, 1970), had the case set down for trial on February 16, 1970. The district court convened for trial on that date, and considered anew the appellant’s motion for dismissal. Upon the hearing of arguments and the evidence surrounding the appellant’s contention that he was denied a speedy trial, the motion was again overruled.
On February 18, 1970, the appellant was found guilty by a jury of robbery in the first degree. A motion for new trial or judgment notwithstanding the verdict was overruled on March 17, 1970, and he was sentenced by the district court on March 27, 1970 — the effective date of the sentence was set at December 27, 1969. Thereafter on September 23, 1970, the appellant perfected this appeal.
The record does not indicate the appellant filed a Statement of Points as required by Supreme Court Rule No. 6 (d); however, his brief reflects as “Specifications for Error Relied Upon” that the magistrate court erred in overruling his “Petition for Dismissal” pursuant to K. S. A. 62-2901 et seq. (repealed July 1, 1970), upon the theory his right to a speedy trial, as determined by Smith v. Hooey, supra, has been denied.
The appellant places controlling significance upon the holding in Hooey and the provision of the Uniform Mandatory Disposition of Detainers Act (K.S.A. 62-2903 [now K. S. A. 1971 Supp. 22-4301 et seq.]), and contends he was not brought to trial within 180 days as required by the legislative definition of a speedy trial in that statute. This court has previously given recognition to the constitutional duty imposed by Hooey in State v. Stanphill, 206 Kan. 612, 481 P. 2d 998. In Stanphill it was said the Uniform Mandatory Disposition of Detainers Act was founded on legislative policy, as distinguished from constitutional grounds, and we refused to adopt the 180-day provision of that Act as the applicable standard to persons incarcerated in penal institutions outside the state. In the opinion it was said:
“~We must reject appellant’s suggestion that the 180-day provision of the Uniform Mandatory Disposition of Detainers Act should be adopted as an arbitrary standard for determining whether his right to a speedy trial was violated. The constitutional duty imposed by Hooey requires the state, upon demand by the accused, to make a diligent, good-faith effort to bring him to trial without unreasonable delay. Whether that duty has been fulfilled must be gauged by all the surrounding facts and circumstances in the particular case. Even then, the accused’s rights are not violated unless he can show prejudice resulted from an unreasonable delay by the state after trial wás demanded.” (1. c. 616.) (Emphasis supplied.)
We adhere to our decision in Stanphill, and point out again that the Uniform Mandatory Disposition of Detainers Act imposes restraints upon the state for the speedy prosecution of persons confined in penal institutions in this state and is apart from those required by the Constitution of the United States as it applies to the speedy trial of persons confined outside of this state.
In Stanphill we rendered the constitutional guaranty announced in Hooey effective by adopting the judicial standard therein stated, and placed a constitutional duty upon the state in such cases to make a good-faith and diligent effort to bring the accused to trial without unreasonable delay once the accused has made demand. Whether the state has fulfilled its constitutional duty must be gauged by all the surrounding facts and circumstances on a case by case basis. If the accused can show prejudice resulting from an unreasonable delay by the state after demand is made, the infringement of that constitutional guaranty will require judicial relief.
The court has reviewed the record in the instant case and, under the facts and circumstances, it is clear the state made diligent and good-faith effort to bring the appellant to trial. To controvert that record, the appellant has only asserted prejudice because of an alleged delay. The delay in this case — from the filing of the demand to commencement of trial — was one day less than six months; in Stanphill the delay was eight months. In State v. Brooks, 206 Kan. 418, 479 P. 2d 893, another case involving allegations of a denial of the right to a speedy trial, the delay was eleven months. Considering our holdings in those cases, it is our opinion the appellant’s constitutional rights have not been impaired. In addition, it must be noted this case does not present the characteristics of actual prejudice as found in Dickey v. Florida, 398 U. S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564. In short, we find nothing to indicate the state has violated the constitutional duty imposed, and conclude that neither the magistrate court nor the district court erred in overruling the appellant’s motion to dismiss.
The judgment is affirmed.
Prager, J., not participating.
|
[
112,
-30,
-7,
94,
10,
-64,
42,
-100,
90,
-13,
118,
83,
-23,
11,
1,
121,
19,
45,
81,
121,
-22,
-73,
119,
-63,
-80,
-13,
-39,
-35,
58,
91,
-82,
-44,
76,
-16,
98,
85,
38,
-54,
-61,
28,
-114,
1,
-88,
-47,
-46,
8,
40,
107,
70,
7,
49,
14,
-13,
10,
26,
-48,
-23,
60,
91,
47,
-64,
-39,
-54,
21,
77,
18,
-77,
-96,
-106,
5,
80,
62,
-36,
49,
32,
-24,
115,
-90,
-126,
-12,
109,
-87,
36,
-26,
98,
19,
-35,
-18,
-20,
-72,
14,
55,
-99,
-89,
-111,
88,
65,
13,
-106,
-35,
127,
20,
-117,
-14,
-25,
4,
21,
108,
15,
-50,
-78,
-109,
79,
120,
-126,
-5,
-13,
3,
96,
113,
-52,
-94,
92,
119,
121,
-69,
-114,
-48
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an action on a homeowner’s insurance policy to recover damages to the plaintiff’s home resulting from a “collapse” within the terms of the policy written by Millers’ Mutual Insurance Association of Illinois (defendant-appellee). The trial court sustained a motion for summary judgment and appeal has been duly perfected.
The only issue is whether the contract of insurance issued by the defendant to the plaintiff covers the kind of damage the plaintiff claims he suffered.
The matter was determined by the trial court on the pleadings and the deposition testimony of the plaintiff. There is no dispute in the facts.
The plaintiff’s residence home covered by the defendant’s policy of insurance is connected to the city water system of LaCrosse, Kansas. The city water main runs under a street adjacent to the plaintiff’s property, and his house is connected to the water main by pipes passing underground to the house. The water line goes through the foundation wall and is connected to the water system in the home. The ownership of the pipe from the city main to the house is in the plaintiff and the pipe is maintained by the plaintiff at his own expense.
In December, 1964, a water leak occurred in the plumbing system near the northwest corner of the plaintiff’s home in the pipe leading from the city main to the home. The leak occurred at a point ten to fifteen feet from the side of the house. The water ran along the pipe to the foundation and concentrated beneath the ground at that point. Some of the water ran into the basement of the home. The plaintiff had the leak in his water line repaired within a reasonable time after it was discovered. Three or four months after the discovery of this leak the plaintiff noticed the east wall of his kitchen had separated from the ceiling. The soil around the house, saturated with the water from the leak, sagged from the weight of the house, creating the crack in the kitchen wall. The plaintiff made this discovery in his home shortly after he heard a noise that sounded like a shot.
The policy of insurance here in question was issued by the defendant and was in force at the time the water leakage took place and at the time the break was found in the kitchen wall of the plaintiff’s home.
The plaintiff does not claim any direct loss from water leakage; but his claim consists entirely of a loss caused by the settling of his house that he claims was directly brought about by the water leakage in December, 1964.
The policy of insurance issued by the defendant insured the plaintiff against direct loss to the property covered on nineteen different perils which are listed in the policy.
Peril No. 14 reads in part:
"14. Collapse (not settling, cracking, shrinkage, bulging or expansion) of building(s) or any part thereof, . . .”
Peril No. 15 reads in part:
“15. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating, or air conditioning system or domestic appliance,
The policy contains certain exclusions to perils Nos. 14 and 15, which read as follows:
“C. Special Exclusions
“This Company shall not be liable:
“(a) as respects Perils . . . 14, 15, . . . for loss caused directly or indirectly by earthquake, volcanic eruption, landslide or other movement:
“(b) as respects Perils ... 14, IS, .. . for loss caused by, resulting from, contributed to or aggravated by any of the following:
“(1) flood, surface water, waves, tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;
“(2) water which backs up through sewers or drains;
“(3) water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors; unless loss by fire or explosions ensues, and this Company shall then be liable only for such ensuing loss; but these exclusions do not apply to loss by theft;” (Emphasis added.)
The trial court found there was no coverage in favor of the plaintiff under the policy for cracking and settling of his house that might be caused from water that escaped from the broken water line. It found peril No. 14 set forth in the insurance policy specifically excludes “settling, cracking, shrinkage, bulging or ejqpansion” of buildings. It thereupon concluded the defendant’s motion for summary judgment should be sustained and it entered an order accordingly.
The term “collapse” in a fire insurance policy was treated by this court in Jenkins v. United States Fire Ins. Co., 185 Kan. 665, 347 P. 2d 417. There the appellant was insured under a policy against all direct loss to the property caused by “collapse of building(s) or any part thereof.” (p. 667.) The insurance company urged that the word “collapse” was unambiguous and should be construed according to its dictionary interpretation; that there was no coverage under the “collapse” clause of the policy until the basement walls fell into a flattened, wrecked or distorted state. The court, however, disagreed with the insurance company’s position and thought the term “collapse” was ambiguous. In the opinion the court said:
“. . . we believe the clause ‘collapse of building or any part thereof’ as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a ‘collapse’ of the building within the meaning of that word as used in such clause of the policy.” (pp. 671, 672.)
The language of the policy considered in the Jenkins case did not qualify the term “collapse” in any way. To counter the ambiguity which courts found in the use of the word by itself, insurance companies thereafter drafted new policies that covered “collapse” but did not cover “settling, cracking, shrinkage, bulging or expansion” until collapse ensued.
In Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P. 2d 829, this court followed the decision in Jenkins and affirmed a jury’s verdict against the insurance company in a case involving policy language similar to that in the Jenkins case. But our court has not yet considered the new policy language here presented. (See Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 250, 477 P. 2d 966.)
The appellant contends the term “collapse” used in the policy here in question is ambiguous. It is argued the primary requirement for collapse is abruptness, which is clearly present in the case at bar-, because it happened suddenly without any prior warning or knowledge on the plaintiff’s part. The appellant urges that the “settling” and “cracking” excluded in peril No. 14 should be thought of in the normal everyday sense in which these words are used — that houses normally settle with age and this causes small hairlike cracks in walls and ceilings. It is argued the public would so construe these two words of exclusion (citing Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 470 P. 2d 821).
The plaintiff urges the proper construction of the two words of exclusion, “settling” and “cracking,” refers only to normal settling and cracking. In this connection he quotes 13 Couch on Insurance 2d § 48:175 as follows:
“. . . Included within the concept of normal settling, shrinking, or expansion are not only those forces which are constantly and habitually operating, but also those ordinary forces which operate periodically or within a certain degree of frequency.” (pp. 612, 613.)
The foregoing quotation is prefaced in Couch with tie statement that a comprehensive dwelling policy will generally exclude liability for “normal settling, shrinking, or expansion of foundations, walls, floors, and ceilings.”
Upon the foregoing the appellant contends the water leakage here was clearly not an ordinary force and it does not occur periodically; that the loss here was caused by a more severe and abrupt event that sounded like a shot. It is urged that whether the loss was caused by normal settling and cracking, or by water, is a jury question and not one to be decided on summary judgment.
The authorities are not all in agreement as to whether the new policy language involved in this appeal is unambiguous. In Gov’t Employees Insur. v. DeJames, 256 Md. 717, 261 A. 2d 747 (Md. App. 1970), the court held language identical to that in the policy here in question to be ambiguous, paying special attention to our Jenkins decision as well as the Tenth Circuit Court of Appeals’ decision in Travelers Fire Insurance Company v. Whaley, 272 F. 2d 288 (10th Cir. 1959).
In Graffeo v. United States Fidelity & Guaranty Co., 20 A. D. 2d 643, 246 N. Y. S. 2d 258, motion for leave to appeal dismissed, 14 N. Y. 2d 685, 249 N. Y. S. 2d 882, 198 N. E. 2d 911 (1964), the New York Court of Appeals considered a comprehensive insurance policy insuring all risk of physical loss except settling, cracking, etc., unless loss by collapse ensues. There the concrete slab under a split-level house had settled so that the interior walls pulled away from the ceilings. The Appellate Division held that such damage was not a “collapse” within the clause of the policy.
The Kansas City Court of Appeals considered the same policy language in Eaglestein v. Pacific National Fire Insurance Co., 377 S. W. 2d 540 (Mo. App. 1964). There vertical and horizontal cracks developed in the north and west walls of a one-story ranch home. The policy insured against “collapse” but excluded coverage for “ ‘settling, cracking, shrinkage or expansion of pavements, foundations, walls, floor or ceilings.’” (p. 545.) The court rejected the more liberal interpretation of the Jenkins case urged upon it saying that:
“The policy on which this suit was brought did not insure against ‘collapse’ and stop. It carried a plain exclusion of ‘settling, cracking, shrinkage or expansion of pavements, foundations, walls, floor or ceilings’ from coverage.” (p. 545.)
The California Supreme Court considered similar policy language in Sabella v. Wisler, 59 C. 2d 21, 27 Cal. Rptr. 689, 377 P. 2d 889 (1963). There the National Union Fire Insurance Company had issued a policy to the Sabellas containing an “‘“All Physical Loss” Ruilding Endorsement.’” (p. 26) National Union agreed to insure the house “‘against all risks of physical loss except as hereinafter excluded.’ ” (p. 26.) Under the heading “ ‘Exclusions,’ ” it was stated:
“. . . ‘This endorsement does not insure against loss ... by . . . settling, cracking, shrinkage, or expansion of pavements, foundations, walls, floors, or ceilings; unless loss by .. . collapse of buildings ensues. . . .’ (Emphasis added.)” (p. 26.)
There a sewer pipe leaked at a point near the plaintiff’s house, causing the sewer overflow to infiltrate the unstable earth near and below the foundation. After three months of such drainage the house settled to such an extent that its foundations and walls cracked, its floors became no longer level and certain of its doors and windows could no longer be opened or closed. The trial corut found the insurance company exempt from liability under the policy because the loss was caused by “settling” within the meaning of the exception to the insurance coverage. On appeal the trial court’s decision as to this point was affirmed, and in the course of its opinion, the court discussed the meaning of the term “settled” as follows:
“But it appears that an ordinary individual surveying the instant damage could properly conclude that the house ‘settled,’ so that placement of the word ‘settling’ in the exclusion clause would convey to the ordinary person reading the policy exceptions . . . , the meaning that the type of subsidence loss herein was meant to be excluded from coverage. It should be noted that the understanding as to non-coverage here relevant is that of the ordinary purchaser of insurance, desirous of knowing what he is getting for his money. . . . While somewhat more clarity of statement might be desirable from the standpoint of the average lay purchaser of insurance, it would appear that the present exception was sufficiently understandable by an ordinary reader.” (pp. 30, 31.)
For other decisions of like import see Samuel v. Sewerage & Water Board of New Orleans, 181 So. 2d 243 (La. App. 1965); and Anderson v. Indiana Lumbermens Mutual Ins. Co., 127 So. 2d 304 (La. App. 1961).
After giving consideration to the foregoing authorities, we do not think the language used in peril No. 14 of the insurance policy here in question is ambiguous. “Collapse” is specifically defined as not including settling, cracking, shrinkage, bulging or expansion. On the facts in this case, the appellant’s home settled. It did not collapse within the meaning of the language in peril No. 14.
Was the loss to the appellant within peril No. 15 of the insurance policy?
The risk insured against in peril No. 15 of the insurance policy would grant recovery as to damage occurring to the appellant’s house by reason of accidental discharge, leakage or the overflow of water from within a plumbing system. The policy here in question insures the entire premises on which the house is located. The plaintiff’s plumbing system started at the city water main and the leak occurred within the plumbing system on the premises. (See Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 470 P. 2d 821; Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571; Schmitt v. Paramount Fire Insurance Company, 92 N. W. 2d 177 [N. D. 1958]; and World Fire & Marine Ins. Co. v. Carolina Mills Dist. Co., 169 F. 2d 826 [8th Cir. 1948].)
Under special exclusion (b) (3) a loss occurring by reason of the accidental discharge of water from within a plumbing system is excluded, if the loss was caused by, resulted from or contributed to by water below the surface of the ground.
It is a general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms. (Roach v. Churchman, 431 F. 2d 849 [8th Cir. 1970]; and Stanley v. Onetta Boat Works, Inc., 431 F. 2d 241 [9th Cir. 1970].) The strict construction of exclusionary clauses in insurance policies has been followed in Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 308 P. 2d 119, where the court said:
“. . . if an insurer intends to restrict the coverage of a policy it should use language clearly stating its purpose.” (p. 737.)
Other Kansas decisions affirming the rule are Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 292 P. 2d 711; and Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P. 2d 477.
Where an insurer attempts to avoid liability under an insurance policy on the ground that the loss for which recovery is sought is covered by some exclusionary clause, the burden is on the insurer to prove the facts which bring the case within the specified excep tíon. (Leiker v. State Farm Mutual Automobile Ins. Co., 193 Kan. 630, 396 P. 2d 264.)
It is the appellant’s position with respect to exclusion (b) (3) that water below the surface of the ground, under proper rules of construction, means that water which is defined as groundwater. The appellant argues:
“. . . This is the water that we all normally accept as the water seeping into basements. This construction is fortified by the remaining words in the sentence ‘which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basements, or other floors . . .’ All of which describe water problems where a high underground water table exists. Again, following the proper rules of interpretation, we have to view this clause under a normal person’s understanding of the terms.”
We fail to see merit in the appellant’s argument relative to the-construction of exclusion (b) (3). The exclusion does not speak of “ground water” as the appellant defines it. The exclusion states “water below the surface of the ground including that which, exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundaRons, walls, basement or other floors, etc.” (Emphasis added.) When the exclusion is read as a part of the contract its plain meaning is to limit the coverage which might otherwise fall within the policy language under peril No. 15. Where the language-is unambiguous, as here, the appellee under the rules stated must prevail.
Here the water which leaked from the broken water line was. water below the surface of the ground within the meaning of the-exclusion. In other words, under our interpretation of the policy here at issue, the damage caused to the appellant’s house from water below the surface of the ground, which caused the home to-settle, was a loss excluded from the basic coverage under peril No. 15, insuring against accidental leakage of water from within a. plumbing system. (Park v. Hanover Insurance Company, 443 S. W. 2d 940 [Tex. Civ. App. 1969].)
In conclusion we find that the trial court did not err in entering; summary judgment for the appellee in this case.
The judgment of the lower court is affirmed.
|
[
-16,
124,
-68,
-83,
-120,
104,
122,
-38,
123,
-75,
-89,
83,
-3,
-30,
29,
111,
-122,
57,
64,
49,
-41,
-30,
31,
-117,
-42,
-77,
-13,
77,
-72,
95,
124,
-49,
76,
32,
10,
-43,
-26,
-54,
-43,
92,
-126,
14,
-118,
-28,
-35,
90,
52,
75,
20,
74,
53,
-125,
115,
43,
-103,
-49,
-83,
44,
-53,
37,
65,
-80,
-118,
-105,
123,
5,
33,
70,
-110,
-57,
-22,
10,
-112,
57,
1,
-84,
115,
-90,
-122,
37,
35,
-117,
8,
98,
98,
50,
37,
-21,
-20,
-103,
39,
-57,
15,
-90,
51,
72,
-101,
44,
-67,
-99,
100,
16,
39,
92,
-27,
85,
31,
-83,
1,
-121,
-10,
-15,
-53,
96,
17,
42,
-18,
-127,
-91,
100,
-49,
-80,
76,
71,
115,
23,
14,
-49
] |
Ter Curiam:
This is an appeal from an order denying relief under K. S. A. 60-1507. In this proceeding appellant’s only contention is that he was denied a trial by an impartial jury, an issue that was raised and determined in his direct appeal, State v. Sagebiel, 206 Kan. 482, 480 P. 2d 44. Appellant has shown no circumstances which would require us to re-examine that question. See, Carter v. State, 199 Kan. 290, 428 P. 2d 758; Basker v. State, 202 Kan. 177, 446 P. 2d 780; Baker v. State, 204 Kan. 607, 464 P. 2d 212; Hacker v. State, 207 Kan. 195, 483 P. 2d 484; Cipolla v. State, 207 Kan. 822, 486 P. 2d 1391.
The judgment is affirmed.
|
[
-48,
-24,
-27,
125,
8,
-32,
50,
26,
97,
-13,
55,
83,
111,
-98,
-123,
125,
-85,
61,
113,
113,
-35,
-73,
55,
73,
122,
123,
-101,
-59,
-77,
75,
-27,
-12,
76,
112,
10,
85,
70,
-54,
-115,
28,
-114,
0,
56,
-48,
80,
2,
-80,
-18,
94,
23,
49,
-98,
-13,
40,
-102,
65,
-119,
12,
-37,
-73,
-63,
-80,
-6,
-121,
125,
4,
-93,
-76,
28,
38,
80,
38,
-104,
56,
11,
-56,
115,
-90,
-126,
-107,
35,
-71,
-84,
98,
102,
35,
56,
-51,
40,
-88,
15,
119,
-115,
-25,
-37,
88,
112,
44,
-74,
-67,
112,
116,
47,
124,
-11,
-123,
61,
124,
14,
-50,
-108,
-77,
-113,
52,
22,
-128,
-21,
-127,
20,
113,
-35,
112,
94,
-41,
51,
91,
-22,
-76
] |
The opinion of the court was delivered by
Kaul, J.:
Plaintiffs-appellants appeal from a judgment of the trial court sustaining a motion of defendants-appellees to dismiss on the ground the petition failed to state a claim upon which relief could be granted. (K. S. A. 1971 Supp. 60-212 [b] [6]). The trial court did not specify the reasons for its ruling.
This litigation stems from the tragic deaths of Lionel D. Otta and Walter R. Buehler who were killed on the Kansas Turnpike when the truck they were operating struck a bridge abutment near Wichita. Plaintiffs are the surviving spouses and minor children of the two deceased. The truck was owned by Leslie L. Johnson, employer of the two deceased. Following the accident, the widow and minor children of Mr. Otta instituted a workmen’s compensation proceeding against Johnson and his alleged insurance carrier, State Automobile and Casualty Underwriters. The trial court, in that case, found adversely to claimants on several grounds and the judgment was affirmed by this court on December 6, 1969. (Otta v. Johnson, 204 Kan. 366, 461 P. 2d 758.)
A motion for rehearing in the Otta case was denied by this court on January 9, 1970. Thereafter plaintiffs filed their petition instituting the instant action on June 1, 1970.
As previously noted, the issue before us is framed by defendants’ motion to dismiss under 60-212 (b) (6), supra, which is to be treated as the modern equivalent of a demurrer; thus, our consideration of the question to be decided is limited to the well-pleaded facts of plaintiffs’ petition, which must be taken as true. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347; and Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501.)
Briefly, plaintiffs’ petition alleges that their respective decedents were both employees of Leslie Johnson; that they died as a result of injuries sustained in an accident on June 9, 1965, while employed by Johnson; that previously, on or about May 25, 1965, Johnson contacted defendant Stockham concerning tihe purchase of a policy of workmen s compensation insurance. The petition further alleges:
“. . . [T]hat on June 1, 1965, the said Leslie Johnson directed defendant Glenn F. Stockham, Jr. to procure said policy of Workmen’s Compensation insurance and, on the same date, defendant Glenn F. Stockham, Jr. orally informed the said Leslie Johnson that his employees were now covered by a policy of Workmen’s Compensation insurance; on said last mentioned date, defendant Glenn F. Stockham, Jr. further informed the said Leslie Johnson that said defendant would cause an election to be filed on behalf of the said Leslie Johnson with the Workmen’s Compensation Commission of the State of Kansas, electing for the said Leslie Johnson to be covered by the provisions of the Workmen’s Compensation Act of the State of Kansas; that it was understood by and between defendant Glenn F. Stockham, Jr. and the said Leslie Johnson that said policy of Workmen’s Compensation insurance was to be procured from State Automobile and Casualty Underwriters.”
Plaintiffs further allege that because of defendants’ failure to procure tihe workmen’s compensation insurance and to cause an election for Johnson to be filed with the workmen’s compensation director they, as third party beneficiaries of the agreements between Johnson and defendants, have suffered damages equal to the sums they would have been entitled to had the insurance been procured and the election filed. In their petition, plaintiffs cite the opinion of this court in Otta v. Johnson, supra. Our affirmance of the trial court’s judgment therein was based on the determination of one point on appeal, which appears as follows:
“. . . [A]n election to come under the compensation act not having been filed, it was incumbent upon the appellants under the then existing law (K. S. A. 44-507) to show that five workmen were employed at the time of the alleged accident (Thorp v. Victory Cab Co., 172 Kan. 384, 240 P. 2d 128; Bratcher v. Royse, 185 Kan. 589, 345 P. 2d 648). Appellants’ failure to sustain this burden alone precludes them from recovery of compensation and renders determination, of the other matters urged upon appeal unnecessary.” (p. 371.)
In short, the theory of plaintiffs’ petition appears to be that because of defendants’ alleged breach of contract in failing to procure the insurance and to cause an election to be filed as promised, the plaintiffs are entitled to recover at common law either in contract or tort. We pause to note that our decisions uphold the right of a plaintiff to plead alternate causes of action arising out of a single transaction; the one sounding in tort and the other sounding in contract. (Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.)
In their motion in the trial court, defendants asserted nine grounds for dismissal of plaintiffs’ petition. The first of which was that the petition failed to state a claim or cause of action. The second and third grounds dealt with a motion to intervene at the trial court level; these two grounds have been stipulated out of the case and need not be considered on appeal. As a fourth ground, defendants contend the applicable statutes of limitations are a bar to plaintiffs’ action either in tort or contract. The remaining grounds deal generally with defendants’ position that the present action is actually to recover workmen’s compensation benefits and thus cannot stand for jurisdictional reasons; and further that all issues pertaining to a claim for workmen’s compensation have been fully resolved in the case of Otta v. Johnson, supra; and that the decision therein is a bar to plaintiffs’ instant action by reason of the principles of res judicata.
Since we are not informed of the ground or grounds upon which the trial court based its ruling, we shall consider each point raised by the parties in their briefs on appeal.
Assuming the allegations of the petition to be true, and giving it the liberal construction required on consideration of a motion to dismiss, we believe the petition states causes of action sounding in contract and tort. A petition will not be dismissed for failure to state a claim upon which relief can be granted, unless it appears to a certainty that plaintiff is not entitled to relief under any state of facts which could be proved in support of the claim.
In Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875, we considered the scope of a motion to dismiss and said:
“. . . The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” (p. 413.)
See, also, Robertson v. McCune, 205 Kan. 696, 472 P. 2d 215; Banks v. Lockheed-Georgia Co., 46 F. R. D. 442 (1968); and Josephson v. Joslin, 38 F. R. D. 344 (1965).
This court follows what appears to be the general rule that a broker or agent who undertakes to procure insurance for another and thereafter the broker neglects or fails to do so, he will be held liable for any damage resulting therefrom. The liability of the agent or broker in such a case rests on the theory that he is the agent for the insured in negotiating for a policy and has a duty to exercise reasonable care, skill and diligence in effecting the insurance, and may be sued for breach of contract or negligent default in the performance of a duty imposed by contract. (43 Am Jur. 2d, Insurance, § 174, pp. 230-231.)
The law of this state, in this regard, was enunciated in the case of Rezac v. Zima, 96 Kan. 752, 153 Pac. 500, wherein this court considered the allegations of a petition in an action against an insurance broker — we quote from the opinion as follows:
“. . . This action was not brought to recover upon a contract of insurance against the insurer, but is an action against the defendants for the failure to procure insurance on his property as they had undertaken to do so, and for wrongfully representing that insurance had been procured when in fact it had not, as a result of which a considerable loss had been sustained. A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain insurance in accordance with his agreement and to notify his principal if he is unable to do so. According to the averments of the petition the defendants failed to perform this duty, and, as has been alleged, Zima deliberately deceived the plaintiff by giving him assurance that the property had been insured when he knew that no insurance had been procured. If defendants had informed plaintiff of the omission or failure he could have obtained insurance elsewhere and have provided against loss. It does not appear that a particular insurer was named, but it was agreed that insurance should be obtained in a responsible company. If defendants had failed to exercise reasonable care in the selection of an insurer and had placed the insurance with a company that was insolvent or one not authorized to insure, and subsequently the property had been destroyed and the plaintiff had been unable to realize on the policy, the defendants would have been liable. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214; Harrod v. Latham, 77 Kan. 466, 94 Pac. 11.) Brokers are equally liable where they undertake to procure insurance and utterly neglect to obtain any insurance or fail to carry out material provisions of their agreement and a loss results. In such a case they are liable for as much as would have been covered by the insurance which they agreed to procure, (citing cases).” (pp. 754-755.)
See, also, Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023; Smith v. Hartford Fire Ins. Co., 120 Kan. 53, 242 Pac. 455; and Cushenberry v. Grecian, 112 Kan. 778, 212 Pac. 681.
Viewing the petition in the light most favorable to plaintiffs, as we are required to do at this juncture of the litigation, we believe the allegations therein are sufficient to state a cause of action against defendant brokers for failure to procure insurance as they agreed.
In response to plaintiffs’ analysis of the theory of their cause of action, defendants argue the trial court’s ruling was correct because it has no original jurisdiction, at common law, to determine issues concerning recovery of workmen's compensation. Defendants say that such jurisdiction is vested solely and exclusively in the director of workmen’s compensation and the courts on appeal. Of course, as an abstract statement, the assertion of defendants is entirely correct. This court has said many times the Workmen’s Compensation Act provides a procedure of its own which is substantial, complete and exclusive in compensation cases. (Garrigues v. Fluor Corporation, Ltd., 201 Kan. 156, 439 P. 2d 111, and cases cited therein.) The trouble with defendants’ position in this regard is that the petition states a common law claim for damages against an insurance broker, not a claim for workmen’s compensation.
Defendants further argue that the contract alleged by plaintiffs is null, void and against public policy creating no liability against defendants in favor of plaintiffs. In support of this argument defendants rely on the case of King v. El Dorado Motor Co., 181 Kan. 477, 311 P. 2d 999. The King case was a claim for workmen’s compensation under the Workmen’s Compensation Act. In the King case, one Murray, an independent insurance agent, made a side arrangement or agreement with Noffsinger, an employer, to personally carry Noffsinger’s compensation coverage. We held:
“In a proceeding under the Workmen’s Compensation Act the Commissioner lacks jurisdiction to enter an award against an insurance agent or broker who is in no way qualified to transact the business of workmen’s compensation insurance in the State of Kansas and, by a side arrangement or agreement with an employer, undertakes the workman’s compensation insurance coverage of the employer.” (Syl.)
The King case simply stands for the proposition that an award of compensation cannot be made in a workmen’s compensation proceeding against a broker or other third party. The decision has no bearing on a common law action against a broker for breach of contract or negligent default, which must be pursued in a court action at common law.
The parties next take issue on two propositions which are somewhat interwoven in their briefs; namely, whether plaintiffs can be third party beneficiaries of the alleged contract and, if so, are they barred or estopped from asserting rights as third party beneficiaries.
In paragraph three of their petition, plaintiffs allege in essence that defendants contracted with Johnson to procure workmen’s com pensation insurance and to cause an election to be filed on behalf of Johnson with the workmen’s compensation director. In the fourth paragraph of their petition, plaintiffs allege that they were third party beneficiaries to the aforementioned contract. Defendants say that plaintiffs cannot be third party beneficiaries; and further that any claim asserted is barred by the applicable stautes of limitations, citing K. S. A. 60-512 (breach of contract not in writing — three years) and K. S. A. 1971 Supp. 60-513 (actions in tort— two years), and since the alleged breach or tort occurred more than five years before the filing of the action, it is barred on either theory. Defendants cite no cases in support of the two positions asserted.
We shall first consider the issue concerning the bar of the respective statutes of limitations. As previously noted, we proceed on the assumption that the petition before us, given a liberal interpretation, contains two causes of action — one, ex contractu; the other, ex delicto. If either the cause of action sounding in tort or the cause of action sounding in contract was not barred by the applicable statute of limitations, defendants’ motion to dismiss should not have been sustained on this ground.
The case of Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976, although factually dissimilar, dealt with the identical issues concerning the application of the respective statutes of limitations to actions sounding in tort and contract. In Price we considered a petition claiming damages resulting from the faulty execution of a will. The petition was construed to state causes of action sounding in tort and contract. We held that the cause of action for breach of contract arose when defendant Holmes allegedly breached an implied warranty to direct and secure a proper execution of the will in question. We further held that, even though the cause of action arose when the breach occurred at the time of the execution of the will, the statute of limitations was tolled during the pendency of the will contest proceedings until a final determination by this court on appeal that the will was invalid. With respect to the tort action in Price we held the action accrued, not when the alleged tortious act was committed, but on the date actual damages resulted therefrom, i. e., when the will was finally adjudged invalid. In Price the tort action aborted because, being in tort, it did not survive the death of the beneficiary of the will which occurred be fore final adjudication of invalidity, but the principle announced is applicable here.
In the instant case plaintiffs are in the identical position as Lillian Price, beneficiary of the will in Price, Administrator v. Holmes, supra. Plaintiffs were effectively prevented from suing defendants until it was finally determined in Otta v. Johnson, supra, that insurance had not been procured, nor an election caused to be filed, and with respect to the action sounding in tort actual damages did not result until a final determination of those matters.
The general rule which has often been followed by this court is found in our holding in the case of In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305:
“The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues.” (Syl. ¶ 7.)
See, also, Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986; Newcom, Administrator v. Potterf, 182 Kan. 73, 318 P. 2d 1069; and Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64.
Returning to defendants’ contention that plaintiffs cannot be deemed third party beneficiaries of an alleged contract between Johnson and defendants, we find nothing in the allegations of the petition, which is all we have before us, that supports defendants’ position. Nor is our attention directed to any reason why the general rules relating to third party beneficiary contracts should not apply to the facts pleaded in the petition here.
In the case of Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320, wherein a petition was challenged by appellees on the ground there was no privity of contract which authorized plaintiffs-appellants to maintain an action as third party beneficiaries, we said:
“In view of the limited scope of appellees’ position under the foregoing contention there is no occasion to here write a thesis on the right of a third person to enforce a contract between other persons for his benefit. While it has not always been so the general rule, now well established in the United States, including our own jurisdiction, is that he may avail himself of such a contract when made for his benefit and maintain an action thereon notwithstanding he was a stranger thereto and paid no part of the consideration therefor or had no knowledge thereof and was not identified therein when it was made. . . .” (p. 680.)
As a principle of contract law, tbis court has long recognized the rule that a person may avail himself of a promise made by a second party to a third for the benefit of the first, although the first was not a party to it and had no knowledge of it when made. (In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443, and cases cited therein.) In the instant case the allegations of the petition bring plaintiffs well within the spectrum of the rule affording a remedy to plaintiffs as third party beneficiaries of a contract.
Finally, defendants contend that plaintiffs’ alleged cause of action as to plaintiff Jo Ann Janice Keith (formerly Otta) and her dependent children is barred by reason of principles of res judicata since the plaintiffs mentioned had pursued an action under the Workmen’s Compensation Act in which they were denied benefits. In response plaintiffs say the defendants herein were not parties to the action in Otta v. Johnson, supra; thus plaintiffs are not barred in this suit by the judgment in that action, and defendants are not entitled here to assert res judicata or the related doctrine of collateral estoppel. Plaintiffs argue that defendants’ contentions on this point ignore the doctrine of mutuality of estoppel, which plaintiffs say proscribes the application of the principles of res judicata or collateral estoppel to their claim herein. We are constrained to agree with plaintiffs. In support of their position, plaintiffs rely on the general rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action. This proposition in turn is based upon the doctrine of mutuality of estoppel; that is, a litigant may invoke the bar of the prior judgment only if he would have been bound by it had it gone the other way. (50 C. J. S., Judgments, § 765, P. 293; Restatement of the Law, Judgments, § 93, p. 459; 46 Am. Jur. 2d, Judgments, § 521, p. 673.)
In the recent case of Adamson v. Hill, 202 Kan. 482, 449 P. 2d 536, we were asked to modulate the application of the principles of res judicata and collateral estoppel by adopting the so-called Bern-hard doctrine enunciated in Bernhard v. Bank of America, 19 Cal. 2d 807, 122 P. 2d 892, in lieu of the doctrine of mutuality of estoppel. We rejected the Bernhard doctrine for reasons stated in the Adamson opinion and reaffirmed our adherence to the rule we have long followed; namely—
“. . . [T]hat an issue is res judicata only when there is a concurrence of four conditions, namely, (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made, (citing cases.)” (p.487.)
Inherent in the rule stated is the requirement of mutuality. With respect to persons in whose favor or against whom the doctrine of res judicata is applicable, a former adjudication is binding only on the parties in the proceedings in which it was rendered and their privies. Defendants here were not parties to the former action nor was it a forum in which the common law action pleaded here could have been litigated.
We have carefully examined the petition in the instant case and the challenges lodged against it, we find that it states a cause of action as hereinbefore described and that it is not subject to dismissal under K. S. A. 1971 Supp. 60-212 (b) (6) for any of the reasons asserted by defendants. Therefore the judgment of the trial court is reversed with directions that the case be remanded for further proceedings.
Fontron, J., not participating.
|
[
-48,
107,
-12,
-84,
8,
-30,
32,
-78,
81,
-61,
39,
83,
-113,
-21,
5,
61,
-33,
29,
-15,
107,
118,
-77,
23,
-118,
-46,
-77,
121,
-60,
-79,
75,
-28,
-9,
76,
48,
11,
-59,
-90,
-62,
-59,
30,
-52,
6,
-88,
-28,
-7,
64,
48,
123,
118,
71,
-79,
-114,
115,
42,
24,
-61,
-19,
46,
91,
-7,
-29,
-80,
-117,
5,
95,
19,
33,
4,
-104,
-123,
-40,
9,
-112,
-112,
40,
108,
50,
-90,
-42,
-44,
113,
-103,
4,
102,
101,
33,
21,
-19,
-68,
-104,
46,
-70,
-115,
-57,
-102,
88,
25,
-119,
-105,
29,
116,
20,
6,
122,
-2,
21,
95,
-20,
7,
-117,
-76,
-71,
-81,
118,
0,
-125,
-17,
-125,
50,
113,
-40,
98,
92,
71,
122,
-69,
31,
-100
] |
The opinion of the court was delivered by
Fontron, J.:
The defendant, Daniel C. Austin, was convicted of first-degree robbery. He was sentenced to the Kansas State Penitentiary for a term of not less than twenty nor more than forty-two years. The present appeal followed.
In brief, the salient facts are as follows: In the early hours of February 7,1969, the defendant and one Lewis B. Soupene engaged in a friendly game of pool at the Outer Limits tavern in Wichita. Soupene lost three games at a dollar a game, whereupon the ante was raised to two dollars per game and Soupene won the next three games. An argument ensued during which Mr. Soupene hit Mr. Austin in the face. At this juncture the proprietor arrived on the scene, blackjacked both disputants and threw them out the door.
Soupene re-entered the tavern to retrieve his hat and pool cue. Upon re-emerging he was accosted by Austin and a companion by the name of Patterson. Austin demanded an apology from his erstwhile pool playing friend. When this was refused, Austin struck Soupene and Patterson tackled him around the legs, throwing him to the ground. Austin began to kick Soupene in the ribs and face as he lay on the ground and then fell on him and grabbed his head while Patterson grabbed his wallet, which contained some $140. When Soupene said “Man, please don’t take my wallet”, both men jumped up and ran for the car.
The victim ran back to the tavern and said he had been rolled. On receipt of this information the proprietor went out and hollered to Austin and Patterson, who departed at a high rate of speed. The couple was arrested about two hours later emerging from another tavern. Neither man had Soupene’s wallet but Austin had $70 in currency on his person and Patterson $57. The wallet was found at a later time, stripped of its contents. Additional facts will be related as they become pertinent.
Several points of error are alleged and will be discussed in order.
First, the defendant contends that hearsay evidence was erroneously admitted. This claim grows out of the testimony of a Wichita police officer with respect to a trip made by several officers and Mr. Patterson to an area on South Broadway. In response to a question propounded by the state as to why they were going to the south part of town, the witness replied “Mr. Patterson was going to try and show us where he’d thrown the billfold.”
No objection was interposed to this answer nor was any motion made to strike the same. Accordingly, the question is not before us for review. Our rule is that an error alleged in the admission of evidence is not subject to appellate review in the absence of a timely and specific objection addressed thereto. (See 2 Hatcher’s Kansas Digest [Rev. Ed.] Criminal Law, § 425, p. 273.)
In the second place, Mr. Austin contends the evidence is insufficient to establish robbery on his part. The gist of his argument is that Patterson took Soupene’s wallet and Austin had nothing to do with that — nor had any thought of theft ever entered his mind. This is an argument which could have been and probably was presented to the jury. However, we deem the evidence amply sufficient to sustain the verdict. Both Austin and Patterson attacked Soupene and threw him to the ground. Austin continued his attack, throwing himself upon Soupene and holding his head while Patterson wafted his wallet. Both fled the scene in haste as the tavern owner yelled at them. Both men feigned surprise when the arresting officer mentioned Soupene’s billfold and both men said they knew nothing about it.
As we have already said, Mr. Soupene had approximately $140 in currrency in his wallet. He carried his currency folded over. Four twenty-dollar bills were among the bills taken and one of those had been tom in two and pieced together with scotch tape. Two folded twenty-dollar bills were found in the possession of each of Soupene’s assailants and one of the two twenty-dollar bills in Patterson’s possession was pieced together by scotch tape of the same width and in similar fashion to the one carried in Soupene’s wallet.
It is true that Austin, in an effort to account for the $70 in his possession, offered evidence that a few days previously he had received and cashed a $100 check. This evidence was a matter for the jury’s consideration in pondering the issue of guilt or innocence — and apparently the explanation was given little weight.
We have often stated our rule to be that on appellate review the question is not whether the evidence established guilt beyond a reasonable doubt but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. We believe that test was met in this case. (State v. Fouts, 169 Kan. 686, 221 P. 2d 841; State v. Mitchell, 181 Kan. 193, 310 P. 2d 1063; State v. Burgess, 205 Kan. 224, 468 P. 2d 229.)
A third assignment of error relates to a portion of the state’s final argument wherein attention was directed to Austin’s failure to call Patterson as a witness. It is contended this deprived the defendant of a fair trial.
Patterson had been tried and found guilty prior to Austin’s trial. His motion for a new trial was still pending and his time to appeal had not expired. Patterson was present in court, at the state’s behest, for at least a part of Austin’s trial and the state alluded to this fact in posing the question “Why wasn’t he put on?”
Overlooking the fact that no objection was interposed to the state’s argument, we believe no error flowed from the state’s argument, or that Austin was denied a fair trial thereby. The applicable rale is set out in 2 Wigmore, Evidence, 3d Ed., § 286, p. 167, where, in discussing the principle that the failure to produce available evidence may give rise to an inference that it would have been adverse to the party who could have produced it, Mr. Wigmore states:
“When the -witness is privileged, and the privilege is independent of the party’s control, the witness’ claim of privilege renders the party unable to use his testimony; but it would seem that the witness should at least have been summoned and asked, for he may waive his privilege. . .
In the instant case the defendant did not see fit to call Mr. Patterson to ascertain whether that gentleman would or would not waive his privilege against self incrimination. Accordingly, we cannot say that the state’s argument constituted error.
The judgment of the court below is affirmed.
|
[
112,
-23,
-40,
62,
25,
-32,
42,
-72,
34,
-94,
-9,
115,
-23,
-23,
0,
105,
-12,
79,
84,
113,
-2,
-73,
23,
97,
-30,
-69,
-7,
-43,
-79,
111,
-18,
-43,
72,
112,
-122,
-35,
102,
66,
-61,
-36,
-114,
1,
-88,
96,
-13,
0,
32,
43,
38,
6,
49,
29,
-13,
43,
24,
110,
-23,
44,
91,
-83,
-48,
-15,
-56,
5,
-19,
20,
-94,
-121,
-99,
7,
-40,
62,
-99,
49,
48,
40,
115,
-90,
2,
116,
109,
-119,
-59,
98,
98,
36,
85,
-113,
36,
-87,
47,
-65,
-115,
-113,
-108,
97,
65,
45,
-108,
-35,
118,
20,
15,
-12,
121,
92,
91,
108,
-101,
-34,
-108,
-109,
-51,
126,
22,
122,
-61,
35,
4,
117,
-52,
98,
76,
85,
114,
-101,
-114,
-44
] |
The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a conviction for aggravated robbery as set forth in K. S. A. 1970 Supp. 21-3427. On the basis that the defendant was denied due process of law the defendant made timely motions to dismiss and to suppress evidence, objected to admission of evidence at trial, and moved for a new trial, all of which motions and objections were denied by the court.
On September 14, 1970, John Hardie and his wife, while traveling from Joplin, Missouri, to Colorado Springs, Colorado, stopped their convertible to give a ride to a stranger who had apparently wrecked a car. They were on U. S. Highway 54 between Ft. Scott and Iola. The man talked to them for about ten minutes, then placed a knife at Mr. Hardie’s throat. He took $40.00 from Mrs. Hardie’s purse and Hardie kept driving. Hardie crashed his automobile into an outdoor refrigerator at Gas, Kansas, in a successful attempt to escape his assailant.
Mrs. Hardie gave a description to the Iola sheriff, as she saw the assailant for a longer period than did her husband. He was reported to be wearing dark trousers, a light T-shirt, long dark hair, had the appearance of an an Indian male, and was approximately in his middle twenties.
Just after midnight of the same evening the defendant was arrested while prowling around an apartment house in Iola. He was intoxicated. On September 15, 1970, defendant was sentenced to ten days in jail at Iola for being drunk in public by the city court.
On the same day, September 15, the sheriff at Iola mailed a mug shot of the defendant to Mr. Hardie in Colorado. It was sent following a telephone call by the sheriff to the Hardies in which he told them he had a suspect and asked if they would return to Iola to identify him. Hardie replied he could not unless he had something more to go on. The mug shot was forwarded without any letter or comment and was unaccompanied by other photos.
On September 21, 1970, the sheriff received a phone call from Hardie and was informed that the person in the picture was similar to the assailant. Arrangements were made for Hardie to visit Iola on September 22,1970.
Just before Hardie’s arrival, on the 22nd, Judge Norton appointed John Foust as attorney for defendant Hill after finding him to be an indigent. Foust discussed having a lineup, but none was held as no arrangements had been made and no people who resembled defendant were available. Foust told the sheriff Hardie could either go to the jail or view Hill in a lineup. Hardie arrived at 2:30 p. m., saw Hill at about 4:00 p. m., and left town at 4:50 p. m. to catch a plane in Kansas City. This time limitation influenced the manner in which the confrontation was held.
Prior to going to the jail to see Hill, Hardie sat in the sheriff’s office for nearly two hours where he learned the suspect’s name, that he had a prior criminal record, and was suspected by police of a car theft.
The confrontation was held at the Allen county jail in the presence of the sheriff and Attorney Foust. Hardie was taken to interview a single person whom he identified as the assailant.
On October 9, 1970, a preliminary hearing was had where Hill was represented by Charles Forsyth. Hardie again identified Hill as the assailant. Mrs. Hardie also identified Hill and testified that she, too, had seen the mug shot sent by the sheriff to Colorado. She further revealed that her husband told her the defendant had a criminal record and several tattoos.
Defendant’s attorney moved to exclude testimony from the Hardies about identification, on grounds that there was no lineup and identification was tainted due to the police procedures followed in this case. The motion at the preliminary hearing was overruled.
Arraignment was had on November 11,1970. A plea of not guilty was entered. Counsel was appointed on November 25, 1970, as Hill had no means with which to employ counsel. A motion for change of venue was filed on December 24, 1970, and overruled January 4, 1971. On January 18, 1971, a hearing was had on a motion to dismiss and motion to suppress evidence. After hearing evidence the court overruled both motions. The Hardies testified at the hearing how they identified Mr. Hill and stated that a positive identification was not made from the photograph.
Trial was held on May 26, 1971, after defendant had been sent to the Earned State Hospital at Larned, Kansas, on February 17, 1971, for a determination of his mental competency. A jury verdict of guilty was returned on May 27,1971.
The defendant summarizes his position on appeal in the following language:
“Defendant first submits that the failure to appoint counsel for the defendant until September 22, 1970, although he was in jail and suspected of the Hardie robbery, denied him his constitutional right to- counsel and denied him due process of law during a critical stage of the investigation in this matter. Defendant further submits that the identification procedures followed by investigating authorities relative to the identification of the defendant by John Rex Hardie and Linda Hardie were conducted in such a manner as to violate due process of law and to deny the defendant certain fundamental rights guaranteed by the Constitution of the United States and rendering tihe identification evidence inadmissible. Furthermore, these violations of due process so tainted the proceedings against the defendant herein as to- make it impossible for him to- receive the fair and impartial trial to- which he was entitled and he was, as a result thereof, denied a fair and impartial trial. . . .
“Defendant’s contention is essentially that the identification procedures followed by the sheriff’s office in investigating this case were so unnecessarily suggestive and prejudicial to the defendant as to constitute a denial of due process and there is a high degree of probability that the identification of the defendant by Mr. and Mrs. John Rex Hardie is in error as a result of the procedures followed.”
In support of these contentions, defendant cites these authorities: United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; Simmons v. United States, 390 U. S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967; and Mason v. United States, 414 F. 2d 1176 (D. C. 1969).
In Wade, the court held that a post-indictment identification made without benefit of counsel was a confrontation made at a critical period in the prosecution and was a denial of the Sixth Amendment guarantee of assistance of counsel.
In Gilbert, the court held that an identification lineup without notice to counsel was a violation of the Sixth Amendment right to counsel at a critical stage and in-court identification was tainted because it was not shown that the in-court identification was made from independent sources.
In Stovall, the defendant had fatally stabbed a doctor and stabbed his wife, resulting in major surgery to save her life. Two days later, a Negro suspect was brought to her hospital room without affording him time to retain counsel. The wife identified him as her assailant. The court found the defendant was not deprived of due process of law saying:
“. . . However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F. 2d, at 735,
“Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “ ‘He is not the man’ ” could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might five. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.” (p. 302.)
In Simmons, photographs were shown to the victim prior to accusation and prior to trial. There were some photographs in which Simmons and others were shown the victim and the court held the defendant’s constitutional rights to have an attorney present at the identification from photographs was not violated. The court said:
“Applying the standard to this case, we conclude that petitioner Simmons’ claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities. The justification for this method of procedure was hardly less compelling than that which we found to justify the ‘one-man lineup’ in Stovall v. Denno, supra.” (pp. 384, 385.)
In Mason, a bank teller identified a single photograph of a defendant and the court held the photographic identification was inadmissible in that it was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.
The testimony on which defendant Hill was convicted was an in-court identification by John Rex Hardie and Linda Hardie. The proper manner of handling in-court identification was explained in Clemons v. United States, 408 F. 2d 1230 (D. C. 1968).
“[4] Where the prosecution intends to offer only an in-court identification, the defense may challenge its admissibility. The court should then, on facts elicited outside the presence of the jury, rule upon whether a pre-trial identification by the same eyewitness is violative of due process or the right to counsel. If a violation is found, the court should then decide whether the in-court identification is still admissible because it has an independent source; indeed, it would appear in the interest of expeditious judicial administration for such a ruling to be made in any event. If the judge regards only the in-court identification as admissible, in the trial to the jury thereafter, the defense may, as a matter of trial tactics, decide to bring out the pre-trial confrontation itself, hoping that it can thus detract from the weight the jury might otherwise accord the in-court identification.” (p. 1237.)
In this case, Linda Hardie testified at the preliminary hearing:
“Q. Now Mrs. Hardie I am going to ask you to take your time and answer this question. Do you see this man in this Courtroom?
“A. Yes, Sir I do.
“Q. Now, you had a good chance to look at him, did you not?
“A. Yes, Sir I did.
“Q. And you were turned around and looking at him for quite a little— (interrupted)—
“A. Yes, Sir.
“Q. (continuing) time before you pulled into the gas station?
“A. Yes, Sir.
“Q. Would you say how many minutes, Mrs. Hardie?
“A. I would say about ten minutes.
“Q. That you had been actually been looking at him?
“A. Yes.
“Q. Now did you say you see this man in this court room? Will you point him out, please?
“A. Yes, that is him right there in the yellow shirt (indicating).
“Q. The man there (indicating). Now, I would like to ask that the record show that the witness pointed to the Defendant, Lloyd Dean Hill. Are you positive of this?
“A. Yes, I am.”
Mrs. Hardie further stated that she had seen a picture of the defendant before making the identification in court and that she could not give a positive identification from the picture. On cross-examination of Mrs. Hardie, in connection with her identification, she testified as follows:
“Q. Well, if you were so upset, how can you be positive about the other identification, which is tougher?
“A. Because, I set in that car and looked at that man for ten minutes, and I know that is the man.”
At the hearing on motion to suppress evidence and motion to dismiss, Mrs. Hardie testified:
“Q. And would the fact that you had seen a picture have influenced— (interrupted)
“A. No, I made no definite conclusions.
“Q. Well, will you just state in your own words as well as you can, why you identified him, and what you based that identification on?
“A. Well, when this person got in the car with us, it was — we had our top down, and it was a moonlight night, and I was just turned around in the car seat there talking to him and I could really see him almost as well as I could see you. And I turned around and talked to him for, oh, five, maybe ten minutes, and then after he pulled the knife on my husband, I could still turn around and see him. So I had, I feel excellent opportunity to remember him.”
Also, at the hearing on motion to suppress evidence and motion to dismiss, Mr. Hardie testified as follows:
“Q. And what in your opinion was that identification based on?
“A. Well, that identification was based on my, what I remember the man as being that got in our car that night, and committed this, compared to the man that they had in jail.
“Q. And was that from a physical view, from looking at him?
“A. Yes, it was.
“Q. Did you also talk to him at that time?
“A. Yes, I did.
“Q. Did you recognize his voice?
“A. Yes, I did. I said that his voice was, sounded the same to me as the man’s that night did.”
Although not entirely clear, we believe the record discloses that the quoted testimony was repeated in substance at the trial in the district court.
It can be argued that the testimony of John Rex Hardie was tainted by cellblock confrontation. We must give significance, however, to the fact that defendant’s counsel was present at the time and agreed that such a procedure be followed. Since counsel can waive his presence at a lineup identification (State v. Coleman, 206 Kan. 587, 481 P. 2d 1008), it should follow that he could also waive the defendant’s right to a lineup identification. We cannot say the court erred in failure to suppress Mr. Hardie’s testimony in view of these circumstances.
Some justification existed for sending the photograph to the victims in view of the distance between the residence of the victims and Iola, Kansas. We do not condone, however, the sending of a single photograph since the law enforcement officers could easily have sent several other photographs. We recognize it would have been impossible for the victims to return to Iola on each occasion the officers requested an identification. We accept the officer’s testimony that a meaningful lineup identification would have been difficult to set up under the circumstances. We also recognize the photograph was sent in the investigation stage rather than in the accusatory stage. We are impressed by the fact the victims made several trips to Iola at considerable expense and inconvenience under circumstances which could not result in any material gain to them.
These facts are reviewed in connection with the claimed violation of due process by the officers in the confrontation conduct in this case. We believe the totality of the circumstances as defined in Stovall, justifies the acts of the officers in this arrest and conviction, at least to the extent that we cannot say the defendant was denied due process of law.
In Clemons, the court held that, “In-court identifications may be found capable of standing on their own feet even though preceded by deficient pretrial confrontations.” (Syl. ¶ 8.) We believe the mailing of one photograph to the victims of a crime for identifi cation is a deficient pretrial confrontation. Linda Hardie did not identify the defendant from the photograph. Her in-court identification was based on her full opportunity at the time of the crime to observe the defendant. As we see her identification, it was independent of the photograph incident.
The judgment is affirmed.
|
[
-48,
-24,
-15,
62,
10,
-32,
42,
-102,
64,
-43,
-12,
83,
-85,
-56,
5,
121,
-22,
111,
-44,
113,
-53,
-73,
22,
96,
-14,
-109,
-15,
-59,
-79,
79,
-4,
-12,
31,
-48,
-118,
85,
-26,
-56,
-57,
20,
-116,
4,
-8,
-30,
-48,
10,
32,
107,
6,
15,
113,
15,
-13,
42,
22,
-62,
-55,
44,
11,
-84,
-6,
-15,
-127,
-105,
-33,
16,
-125,
32,
-97,
5,
-48,
58,
-104,
-79,
0,
-88,
115,
-90,
-122,
-12,
101,
-119,
68,
-26,
98,
32,
88,
-21,
-84,
-119,
47,
58,
-113,
-89,
-106,
80,
75,
109,
-106,
-103,
106,
-76,
-97,
120,
-17,
76,
125,
108,
-121,
-34,
-48,
-111,
-51,
60,
-124,
91,
-5,
5,
116,
113,
-51,
-94,
76,
84,
123,
-105,
-114,
-13
] |
The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which Warren Smith (defendant-appellant) was tried to a Jury and convicted of grand larceny pursuant to K. S. A. 21-533, and sentenced in accordance with K. S. A. 21-534. Appeal has been duly perfected.
The appellant raises two points:
“I. The complaint was signed and the warrant issued without probable-cause.
“II. There was insufficient evidence to support the jury’s verdict.”
Evidence presented during the trial showed three calves, two-saddles and two bridles, all of which totaled more than $50 in value, were taken from the Robert Knox farm in northern Elk County, Kansas, on or about June 2, 1970.
A search of the premises uncovered a Boeing tool check bearing the name of William Atkins, one of the participants in the crime. When confronted with this evidence by the sheriff, Atkins talked. Eefore the trial Atkins pleaded guilty to the theft of the calves and the bridles, but not the saddles. Atkins testified at the appellant’s trial that he and the appellant and one Robert Lawhon loaded the calves into his pickup and took them to Lawhon’s place.
After the implication of the three participants in the crime, Atkins said the three of them returned the calves and the saddles to the Knox farm, where Mr. Knox later discovered them. The bridles were not returned, but Atkins admitted he had them and would return them to Mr. Knox.
The appellant steadfastly maintained he was not present when the theft occurred and that he was not involved in the theft at any later time. He introduced alibi testimony which would have placed him somewhere else when the larceny occurred.
The appellant first contends the complaint was signed and the warrant issued without probable cause.
No objection to the sufficiency of the complaint and warrant was made at the preliminary hearing and the question was not presented to the district court. Consequently, we will not consider the matter for the first time on appeal. (Tate v. State, 196 Kan. 435, 411 P. 2d 661; and State v. Blair, 197 Kan. 693, 421 P. 2d 32.) Even if the point were properly before us, it has no merit. An unlawful arrest does not deprive a court of jurisdiction to try the accused or accept his plea of guilty, nor does it alone invalidate a subsequent conviction. (Williams v. State, 197 Kan. 708, 421 P. 2d 194; State v. Addington, 205 Kan. 640, 472 P. 2d 225; Young v. State, 206 Kan. 318, 478 P. 2d 194; and State v. Theus, 207 Kan. 571, 485 P. 2d 1327.)
The appellant next contends there was insufficient evidence presented at the trial to support the jury’s verdict.
The appellant argues primarily that the evidence was insufficient to establish the value of the property taken to be $50 or more.
The owner of the property, Mr. Robert Knox, testified the calves taken included a black white-faced heifer calf, two Hereford bull calves, a Veach saddle and a Buck Steiner saddle. He further described the calves as weighing between 100 to 110 pounds and estimated their value to be somewhere around $50 apiece. He estimated the saddles to be worth $75 apiece.
It has long been established that value testimony of the owner whose property was taken is competent. (State v. Ireton, 193 Kan. 206, 392 P. 2d 883, and cases cited therein.)
The only purpose of proving value in a case such as this is to distinguish between the two crimes, grand larceny and petty larceny, and if the evidence showed an actual or market value of more than $50 for all of the articles proved to have been taken, the crime would be grand larceny. (State v. Handler, 142 Kan. 455, 50 P. 2d 977.)
It is the function of the jury, not of an appellate court, to weigh the evidence and pass upon the credibility of the witnesses; and a verdict based on substantial competent evidence will not be disturbed on appellate review. (State v. Theus, supra, and cases cited therein.)
An examination of the record shows substantial competent evidence to support the jury’s verdict that the appellant was guilty of grand larceny.
Other points asserted by the appellant in the record on appeal have not been briefed and are therefore deemed to have been abandoned.
The judgment of the lower court is affirmed.
|
[
52,
-22,
-7,
29,
10,
-32,
42,
56,
3,
-95,
118,
83,
109,
66,
4,
123,
122,
61,
85,
96,
-57,
-74,
71,
-45,
-110,
115,
-39,
-43,
-78,
73,
-84,
-44,
77,
48,
-54,
85,
102,
-86,
-59,
-40,
-114,
0,
24,
-11,
-48,
16,
40,
107,
-106,
14,
-79,
31,
-14,
42,
56,
-53,
41,
44,
75,
45,
80,
-15,
-70,
7,
95,
22,
35,
6,
-66,
5,
72,
46,
-104,
25,
0,
120,
123,
-106,
-126,
116,
77,
-103,
12,
38,
98,
33,
93,
-51,
108,
-56,
46,
127,
-99,
-89,
-112,
88,
115,
37,
-106,
-99,
119,
18,
38,
-8,
-25,
45,
31,
108,
3,
-50,
-108,
-109,
13,
54,
-122,
89,
-13,
-76,
16,
49,
-51,
-30,
92,
69,
48,
-101,
-122,
-105
] |
The opinion of the court was delivered by:
Fromme, J.:
This is an appeal from a summary judgment in favor of defendants on a claim for damages alleged to have been caused by false representation and fraud of N. F. English Construction Company, a partnership. The partnership was terminated by the death of N. F. English. This claim was continued against his co-executors and C. S. English, the surviving partner. We will refer collectively to the construction company and to those united in interest in the partnership estate as English.
Prior to the time the claim was filed, the defendant-subcontractor, Wilbur L. Bybee, was discharged a bankrupt by the bankruptcy court. We will refer to him by his last name.
The trial court sustained a motion for summary judgment in favor of the defendants English on the grounds of res judicata in that the plaintiff’s claim was or could have been adjudicated in the Bybee bankruptcy proceedings.
The plaintiff, Hutchinson National Bank and Trust Company, appeals from that order. It will be referred to as the Bank or as plaintiff.
The motion for summary judgment was lodged after answers were filed and after interrogatories were answered by plaintiff Bank. The record discloses no pre-trial order. The trial court did not explore the issues of fact raised by the answer. We will not do so. The summary judgment rests solely on whether the Bank’s claim was res judicata by reason of the Bybee bankruptcy proceedings and this appeal will be decided on that narrow issue without examining other possible issues of fact or law raised by the answer of English.
The parties were previously before this court in a related matter in Hutchinson Nat'l Bank & Trust Co. v. N. F. English Construction Co., Inc., 206 Kan. 661, 482 P. 2d 35. That case was filed in the lower court almost four years after the present case. It was disposed of on appeal about a year ago. No reason appears for the delay in processing the present case. The previous decision will be discussed later.
A very brief summary of background facts is necessary to understand the interrelationship of the parties. English was a general contractor engaged in various building projects. Bybee was in the floor covering business and entered into various sub-contracts with English. One of the building projects was the Flandreau School in South Dakota. The present claim arises out of financial arrangements for the project. From the pleadings on file it appears that Bybee sought and obtained financing from the plaintiff Bank on the basis of representations of both Bybee and English. Two months after the Bank loaned money to Bybee on the Flandreau School project Bybee filed a voluntary petition in bankruptcy. Bybee listed both tire Bank and English among his creditors. Both the Bank and English filed claims and received small sums from the bankrupt estate. Bybee was discharged from all debts and claims which, by the act of congress relating to bankruptcy, were provable against his estate. This occurred on March 17, 1964.
Thereafter on January 11, 1965, the Bank filed the present claim for damages against English. Summary judgment was entered against plaintiff Bank. The trial court held that the Bank’s claim against English was or could have been adjudicated in the bankruptcy court when both were claimants in the Bybee bankruptcy proceedings, and the Bank’s claim against English was res judicata by reason of the bankruptcy proceedings. We do not agree.
When the motion was heard an affidavit was filed and it was agreed that Bybee purchased no materials for and did no work on the Flandreau School sub-contract. It is now agreed that English owed Bybee nothing on the Flandreau School sub-contract. Since nothing was owed by English on the Flandreau School sub-contract, the sub-contract formed no basis for assets marshalled by the receiver in the Bybee bankruptcy estate. The sub-contract could form no basis for a right of off-set by English against Bybee. In addition the present claim of the Bank against English is not brought to recover an account receivable. It is a separate claim for damages alleged to have been caused by the false representation and fraud of English.
In Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 397 P. 2d 342, the court said:
“The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal.” (p. 61)
The term “cause of action” was used in the above case prior to the advent of the Code of Civil Procedure and is now technically the same as “claim for relief”. (See K. S. A. 60-208.) This statutory change in terminology was not always adhered to by those who drafted the code. (See K. S. A. 60-308 (b) referring to cause of action.) The two terms have, on occasion, been used interchangeably and will be, no doubt, in the future. Nevertheless we will attempt to use the term, claim for relief, in the context of the present statute.
A doctrine closely akin to that of res judicata is collateral estoppel. The distinction between the two should be understood. In Penachio v. Walker, 207 Kan. 54, 483 P. 2d 1119, the technical difference was pointed out as follows:
“. . . Courts have sometimes used the two terms synonymously and if a party is barred from relitigating a matter it can make little difference to him by what name the lethal doctrine is called. However, the two doctrines have different application and a distinction should be recognized. The doctrine of res judicata is a bar to a second action upon the same claim, demand or cause of action. It is founded upon the principle that the party, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action. (James, Civil Procedure, § 11.18, p. 575; 46 Am. Jur. 2d, Judgments, § 398, p. 556; 50 C. J. S., Judgments, § 593, p. 13.)” (p. 56)
This distinction should be kept in mind in determining whether the bar of res judicata or collateral estoppel applies in the present case.
The salutary rule of res judicata forbids a suitor to twice litigate a claim for relief against the same party. The rule is binding, not only as to every question actually presented, considered and decided but also to every question which might have been presented and decided. (Topeka State Bank v. Waters, 121 Kan. 126, Syl. ¶1, 245, Pac. 1028; Smith v. Russ, 184 Kan. 773, 776, 339 P. 2d 286; Wells, Administrator v. Ross, 204 Kan. 676, 465 P. 2d 966.) In Kansas the rule of res judicata is not binding and does not apply to a different claim for relief even though it may be between the same parties. (Tidewater Oil Company v. Jackson, 320 F. 2d 157; Topeka State Bank v. Waters, supra; Smith v. Russ, supra.) However, when a different claim for relief is filed between the same parties a collateral estoppel may be invoked as to questions and issues shown to have been actually decided in the prior action. (Green v. Kensinger, 193 Kan. 33, 39, 392 P. 2d 122; Burnison v. Fry, 199 Kan. 277, 428 P. 2d 809.)
It is readily apparent that the doctrine of res judicata cannot be applied to the claim for relief in damages on the basis of the Bybee bankruptcy proceedings. The present action is based on an entirely different claim for relief. It is equally apparent none of the issues in the present action were actually decided in the bankruptcy proceedings. Such a showing is required before the doctrine of collateral estoppel may be invoked.
In their brief appellees English rely almost entirely upon the earlier case of Hutchinson Nat’l Bank & Trust Co. v. N. F. English Construction Co. Inc., supra. Their argument misapprehends this court’s holding in the earlier case.
In the earlier case two accounts were involved. One, the Santa Fe account, was admittedly due from English to Bybee and was part of the assets of the bankrupt’s estate. The Bank’s objection was that English was permitted to set-off that debt in the bankruptcy proceedings against a larger amount owing from Bybee to English. The part of that opinion quoted by appellee relates to the Santa Fe account and is devoted to pointing out that the Bank had submitted its conflicting claim on the account to the bankruptcy court. It could have objected to the set-off of English and did not do so. Therefore it was bound by its failure to object to the set-off.
The other account considered in the earlier opinion, the Metropolitan account, was handled differently by this court for Bybee had failed to perform the contract. Nothing was due Bybee thereon and it formed no part of the assets of the bankrupt’s estate. This court disposed of the Metropolitan account by saying:
“Was there a question of fact concerning the collectibility of the assigned account in connection with the Metropolitan contract? English alleged that Bybee failed to perform the Metropolitan sub-contract; that another floor covering company was engaged in Bybee’s stead, and thus no amount became due Bybee. The trial court noted that Bank states:
“ ‘. . . it has no evidence to refute that portion of the defendant’s answer stating Bybee did not perform the work which pertains to one accounts receivable involved in this case.’
“Bank makes no claim now that it has evidence to refute the allegation of English. Bank merely argues that since Bybee warranted in his assignment the account was valid, existing and collectible, English cannot deny liability thereon. The trouble is that English was not a party to such warranty. In its acceptance of the assignment, English merely agreed to make all checks in payment of the account, payable jointly to Bybee and Bank. Since it is undisputed that Bybee did not perform on the Metropolitan sub-contract nothing became due and no checks were written by English. The terms of the acceptance by English fell far short of an outright agreement between a general contractor and a bank, which created a new and direct legal right in the Bank, such as existed in Nello L. Teer Company v. Kanawha Valley Bank (4th Cir. 1955), 227 F. 2d 306, cited by Bank.
“Since nothing was due him, Bybee did not list the Metropolitan account in his bankruptcy schedules, thus Bybee’s bankruptcy had nothing to do with the Metropolitan account. Inasmuch as Bybee never performed, the Metropolitan account never came into- being as to English under the terms of his acceptance. There is nothing due Bank from English by reason of the assignment.” (206 Kan. at 665.)
It is clear to us that the doctrine of res judicata should not bar the present claim for relief on the basis of the Bybee bankruptcy proceedings. The summary judgment in favor of English is reversed and the case is remanded for further proceedings.
|
[
-112,
104,
-8,
-68,
26,
-32,
42,
-102,
81,
-95,
37,
-45,
-83,
-53,
21,
111,
-10,
29,
-60,
122,
-41,
-77,
47,
-85,
-42,
-77,
83,
-51,
-78,
-35,
-12,
-41,
76,
48,
-62,
-107,
-30,
-62,
-59,
28,
-118,
4,
9,
-28,
-39,
1,
52,
-21,
20,
7,
49,
-100,
-13,
41,
57,
-54,
104,
44,
107,
-19,
80,
-80,
-118,
13,
109,
23,
49,
4,
-98,
79,
-40,
12,
-112,
49,
-120,
-56,
114,
-74,
-57,
116,
107,
123,
9,
118,
99,
2,
-111,
-53,
-4,
-104,
30,
-2,
-115,
-89,
-80,
24,
59,
105,
-67,
-99,
121,
22,
-122,
-4,
-18,
-108,
27,
-20,
5,
-49,
-44,
-109,
-101,
124,
26,
15,
-17,
-109,
48,
117,
-52,
-96,
93,
14,
59,
59,
-114,
-78
] |
The opinion of the court was delivered by
Owsley, J.:
The plaintiff filed this action to quiet title to the NW K of Section 14, Township 28S, Range 39W, Stanton County, Kansas, against the defendant’s term mineral interest therein. The dispute relates to the question of whether the said term mineral interest (created 12-10-28) has been extended beyond its primary term (ending 12-10-49) by production commenced within the primary term on an adjacent quarter, both quarters being within a unitized leasehold.
The case was submitted to the trial court upon stipulated facts. A jury trial was waived and the trial court found in favor of the plaintiff, quieting title in plaintiff as against the defendant. The defendant appeals from this judgment.
The case was tried on a document entitled, “Stipulation, Designated Pre-trial Order.” We will set forth that part of the stipulation necessary to a determination of this appeal.
On December 31, 1928, Moores conveyed to the Home Royalty Association an undivided one-half interest in and to all of the oil, gas, casinghead gas and all other minerals in and under, or which may be produced from the NW % 14-28S-39W, Stanton County, Kansas, for a period of twenty-one years from December 10, 1928, and as much longer thereafter as oil, gas or other minerals are produced from said land.
On April 27, 1940, a sheriff’s deed was executed and delivered to the Federal Farm Mortgage Corporation conveying said northwest quarter. It was admitted that the sheriff’s deed did not extinguish the term mineral interest owned by the defendant.
On November 17, 1941, an oil and gas lease was executed by Federal Farm Mortgage Corporation to Joe E. Denham on said northwest quarter. On November 28, 1941, an oil and gas lease was executed by the defendant to said Joe E. Denham on said northwest quarter. Each of these leases was subsequently assigned to the Stanolind Oil and Gas Company. On August 9, 1945, said northwest quarter was conveyed by Federal Farm Mortgage Corporation to Rozella M. Glenn, subject to the mineral deed to the defendant. Under date of November 29, 1946, a notice of unitization was filed by Stanolind Oil and Gas Company and subsequently, on November 3, 1948, an order was made by the State Corporation Commission permitting said unitization. On January 31, 1946, a stipulation and agreement was made by the Federal Farm Mortgage Corporation and Glenn, creating a term mineral interest in the same undivided one-half of the minerals in which the defendant then owned a term mineral interest. The newly created term mineral interest recognized the existence of the defendant’s mineral interest and it was to commence only in event the defendant’s mineral interest terminated prior to or during a period of eleven years from and after December 10, 1949. On April 16, 1948, Stanolind Oil and Gas Company filed a proof of extension of leases by production showing production from a gas well on the NE }l 14-28S-39W. It was stipulated that no gas well was ever drilled on the NW M 14-28S-39W. Under date of June 4, 1953, Federal Farm Mortgage Corporation and the defendant made a stipulation and agreement that the defendant’s mineral rights acquired and held by virtue of a mineral deed above described has been and will be continued in full force and effect by the production from said gas well on Hinshaw Gas Unit 'A’. On August 25, 1949, Glenn and wife conveyed said northwest quarter to Campbell. Under date of March 1, 1968, Campbell and wife conveyed said northwest quarter to the plaintiff, Mary T. Smith. It was further stipulated that gas was produced from said northeast quarter about February 24, 1948, and that from said time the, defendant has been paid royalties up to about May 6, 1968.
The parties stipulate that there are the following issues of law:
"A. Has there been a defeasance of the Home Royalty Association, Inc. mineral interest by virtue of the failure to drill a gas well in the NW X 14-28S-39W, Stanton County, Kansas, even though, during the primary term of said term mineral interest a gas well was drilled and gas was and still is being produced in paying quantities on the NE X 14-28S-39W, Stanton County, Kansas, which quarter section is included in the same unitized area as the NW X 14-28S-39W, Stanton County, Kansas?
“B. Are the Plaintiffs barred, by K. S. A. 60-503, K. S. A. 60-507, K. S. A. 60-508 or any other statute of limitations, from maintaining this action, seeking to challenge the Defendant’s, Home Royalty Association, Inc., open, exclusive and continuous possession of said undivided one-half of the minerals in, under or that may be produced therefrom, under a claim knowingly adverse or under a belief of ownership?”
We believe the question of law A can be more simply stated. A conveys to B the oil, gas and other minerals under tract one for a term of twenty-one years and as long thereafter as oil, gas, or other minerals are produced from said land. During the definite term tract one is unitized with tract two for the production of oil and gas. Production is obtained from tract two within the definite term and production continued thereafter. In this factual situation, does production from tract two fulfill the production requirements in the original conveyance from A to B?
Each of the parties have comprehensively reviewed the previous decisions of this court. We have carefully analyzed each of these decisions. We have concluded that only two of the cases have a direct bearing on the issue involved here. They are Deiveil v. Federal Land Bank, 191 Kan. 258, 380 P. 2d 379, and Stratmann v. Stratmann, 204 Kan. 658, 465 P. 2d 938.
In Dewell v. Federal Land Bank, supra, the defendant conveyed the land to the Federal Farm Mortgage Corporation, reserving an undivided one-half interest in minerals for a term of twenty years from and after May 13, 1939, and “so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.” The Federal Farm Mortgage Corporation in 1943 conveyed the real estate to the plaintiff, subject to the mineral interest. In 1947, the plaintiff executed an oil and gas lease with the usual contingency for perpetuation by production, a shut-in royalty clause, and a provision for unitization. The defendant in 1947 also executed an oil and gas lease with like provisions. Subsequently, the lessee executed a declaration that it unitize the leasehold on the land above conveyed with the leasehold on other land. During the primary term of the mineral interest held by the defendant, gas was produced from other land within the unitized area in paying quantities. The gas well was not connected to a pipeline until 1960 and in the meantime shut-in royalty payments were made to each of the parties. We held that the shut-in royalty clause contained in the leases was for the sole benefit of the lessee. It was a privilege granted the lessee in lieu of production. It does not purport to convey any rights to anyone else. It does not purport to extend the interest of the holders of the mineral rights. We said the mineral reservation and the separate oil and gas leases executed by the parties should not be construed together. We pointed out that the instruments were not executed by the same parties and they were not contemporaneous since the reservation was made in a deed executed in 1941, the landlord executed his lease in 1947, and the defendant executed its lease in 1947. We concluded there was no indication of any joint action between plaintiff and defendant at the time the leases were executed. We based our decision in favor of plaintiff on a holding that shut-in royalty payments were not equivalent to “production” or “being developed or operated.”
In reaching that conclusion we stated: “The owner of a defeasance mineral interest cannot change the conditions by which the interest is to continue beyond the primary term, by any provision in an oil and gas lease to which the landowner is not a party.” (p. 263.) We construe this language to mean that the owner of the mineral interest, the defendant herein, could not by the terms of the oil and gas lease executed by it, change the provisions in the original mineral reservation which required production from the land described therein.
In Stratmann v. Stratmann, supra, we clarified Dewell by saying:
‘In Dewell a term mineral interest under a half section of land was reserved in a deed. The reservation ran for a primary term of twenty years and as long thereafter as oil was produced from the premises. The interest was leased and the lease on this half section was unitized with leases on other land. Production was obtained on the other land. There were no producing wells drilled on the half section of land. The court held that production on the other land did not perpetuate the mineral interest on the half section beyond the primary term. To perpetuate the interest production had to come from the half section.” (p. 663.)
We further stated:
“A mineral interest may also be reserved for a period so long as production from the land continues. We have designated such an interest a base or determinable fee. (Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899.) It may be dependent upon continued production but the event which determines the interest must be found in the instrument creating it. The interest is not created by nor is it dependent upon a particular oil lease.” (p. 663.)
In this case there was a common ownership of 240 acres of land and three oil and gas leases had been executed prior to partition on each of three eighties. The land was then partitioned but the minerals were left in common ownership. In the partition action the court found:
“That oil and/or gas is being produced at this time from the West Half of the Northwest Quarter (W/2NW/4) of Section One (1), and the Northeast Quarter (NE/4) of Section Two (2), in Township Seventeen (17) South, Range Ten (10) West, in Ellsworth County, Kansas and the several part owners as are hereinafter by the court found and determined are each receiving their proportionate share of the oil runs and proceeds therefrom and such mineral interests should not be partitioned and the partition of the last described real estate should be made subject to the mineral rights of the several part owners thereof as hereinafter determined for such a period of time as oil and/or gas or either of them is being produced in paying quantities from said real estate, and upon the termination of production of such oil and/or gas, the rights of all of the several part owners thereof as is hereinafter found and determined, should terminate, so that the title thereto shall at such time merge and vest in the then owner, or owners, of the surface of such real estate.” (p. 659.)
Production ceased from the wells located on the eighty acres in litigation, but continued on the balance of the land. We held that the continued production on the balance satisfied the requirement of production of the eighty in litigation.
We believe the rule of law promulgated by these cases has established a controlling principle. The facts in the case now before the court clearly disclose that the oil and gas lease executed by the defendant had no relation or connection with the oil and gas lease executed by the plaintiffs predecessors. The application of the rule in Stratmann that the requirement of continued production in the original mineral interest granted defendant must be found in the instrument creating it, and that the requirement for production cannot be dependent or modified by a particular oil lease, requires us to answer stipulated question of law A in the affirmative. We are fully aware that the rules of law stated in Dewell and Stratmann, and here reiterated, are contrary to the rule in Oklahoma and Texas as disclosed by Panhandle Eastern Pipeline Company v. Isaacson, 255 F. 2d 669 (10th Cir. 1958), and South. Royalty Co. v. Humble Oil & Ref. Co., 151 Texas 324, 249 S. W. 2d 914.
The rationale of the Texas and Oklahoma cases is appealing; however, the holdings in Dewell and Stratmann have become a rule of property in this state. The rule should not be changed in the absence of other controlling circumstances, even though logic might be effectively presented for a different holding.
Defendant asserts question of law B should be answered in the affirmative. The effect is to find that plaintiff’s cause is barred by adverse possession of defendant (K. S. A. 60-503) or by limitations (K. S. A. 60-507).
The prayer of plaintiff’s petition is for a judgment that plaintiff is the owner in fee simple of the subject land. The prayer of the answer is for judgment that defendant is the owner of a base or determinable fee in one-half the minerals in the subject land.
We have difficulty determining when defendant commenced holding the mineral interest “knowingly adverse or under a belief of ownership.” Prior to the expiration of the base term (expired 12-10-49) the defendant’s mineral interest had to be based on the original mineral conveyance of 12-10-28. After 12-10-49, defendant’s claim to the mineral interest was based on a misconception of the law as hereinbefore discussed and determined. It follows that the record title owner of all other interest in the property could have filed suit to recover the royalty payments and for a declaration of his rights. The plaintiff and her predecessors in title could not have successfully maintained that the outstanding mineral interest was eliminated since it was not subject to reversion to plaintiff’s predecessors in title until December 10, 1961. This was the date the reverter mineral interest of Federal Farm Mortgage expired. The reverter mineral interest of Federal Farm Mortgage continued the terms of the original mineral interests of defendants for eleven years. Since plaintiff’s predecessors in title could not maintain an action to set aside the mineral estate until December 10, 1961, we conclude that defendant could not hold adversely to her prior to that time.
We also note the rule that a tenant cannot acquire title by adverse possession against his cotenants. The rule as applied to mineral interests is stated in 3 Am. Jur. 2d, Adverse Possession, §221, pp. 317, 318, as follows:
“After severance of the surface and mineral estates, the mineral owner must be disseised to lose his rights, and there can be no disseisin by any act which does not actually take the mineral out of his possession. It follows of course that the execution or recording of deeds or leases of the minerals does not give title to the minerals by adverse possession.
“In accordance with the general rule as to cotenants, it seems that where there is a severance of the surface and mineral estates the possession of the minerals by one cotenant does not give him title by adverse possession as against his cotenants unless there is an ouster of which they have notice.”
The reasoning as to when adverse possession of defendant could commence, also controls the statute of limitation issue. Plaintiff did not have a cause of action to eliminate the mineral interest until December 10, 1961. Since fifteen years has not expired, plaintiff’s cause of action is not barred.
The judgment is affirmed.
|
[
-12,
-24,
-11,
28,
-118,
-32,
42,
-103,
104,
-87,
-27,
83,
109,
-54,
4,
57,
-93,
13,
117,
104,
3,
-77,
67,
-47,
86,
-77,
81,
-51,
-68,
93,
-76,
-42,
13,
16,
74,
21,
-62,
-128,
71,
92,
-50,
5,
-119,
69,
73,
8,
52,
43,
52,
73,
65,
-81,
-9,
45,
20,
-61,
73,
46,
-49,
61,
65,
-8,
-118,
-123,
127,
50,
19,
4,
-128,
-121,
-40,
26,
-112,
57,
40,
-20,
91,
38,
-42,
-12,
43,
-103,
40,
38,
107,
35,
116,
-17,
108,
-100,
15,
-2,
-99,
-91,
-110,
24,
99,
0,
-66,
-99,
117,
80,
-57,
126,
-18,
5,
93,
125,
3,
-53,
-42,
-125,
15,
120,
-103,
21,
-21,
-121,
52,
96,
-55,
-94,
92,
71,
120,
27,
-121,
-75
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the defendant in a criminal action from a conviction of third degree burglary as defined by K. S. A. 21-520 and larceny as defined by K. S. A. 21-524. Sentences of not less than fifteen years on each count were imposed to run concurrently.
Various points, including trial errors, are asserted on appeal for reversal of the judgment of the trial court.
The Sid Oil Company, located at 159 South Fourth Street in Salina, Kansas, was burglarized sometime between Saturday evening, May 9, 1970, and Sunday evening, May 10, 1970. Entry to the building was gained by removing the plate glass window from a side door and then reaching inside to open the door. To remove the plate glass in one piece, as was done, it was necessary to pry off the molding surrounding the plate glass.
Sid Danderand, owner of the Sid Oil Company, testified approximately $15 to $17 had been taken from the cigarette and pop machines at his place of business, although he conceded the amount could range from $12 to $25.
Mr. Danderand also noticed a long black-handled screwdriver missing. The screwdriver was distinctive in that it had dots of blue paint on the handle.
In the course of investigation the Salina police gathered several pieces of the wood molding which bore marks or gouges on the underside and made Koflex impressions of other marks on the cigarette machine. The pieces of wood and the Koflex impressions were later sent to the Kansas Bureau of Investigation laboratory for examination.
At approximately 4:10 a. m., Monday, May 11, 1970, two Junction City, Kansas, police officers while cruising in their patrol car noticed the appellant when he “ducked into an alley.” They had just finished working two burglaries and were “looking for possible suspects in the area,” and therefore accelerated the speed and pulled their patrol car into the alley.
By the time the officers reached the alley the appellant had “gotten down behind some vehicles.” After spotting him behind the vehicles, both officers got out of the patrol car, one circling around behind the appellant and the other approaching from the front.
The appellant was ordered to come out from behind the vehicles with his hands up, and directed to come to the patrol car and place his hands on top of the patrol car, to back up, and to spread his legs. He promptly complied.
At the time the appellant raised his hands in response to the officers command, the front of his jacket spread open and the officer observed a blue bag suspended beneath his arm.
A search of the appellant by the officers then proceeded. As one officer approached the appellant from the rear and placed his left hand on the appellant’s back, he felt an object under the appellant’s jacket in the back of his waist. Upon raising the jacket, the officer saw a large screwdriver along with three other screwdrivers, a knife variously described as a “small paring knife” or a “steak knife,” and a flashlight, stuck in the back of the appellant’s waist. With his left hand still on the appellant’s back, the officer removed these items from appellant’s possession, and as he “pulled them off of the subject” he ‘laid them directly to the rear of where [the officer] was standing in the alleyway.” The officer then removed appellant’s jacket and the bag (which was found to be a blue money bag) from around the appellant’s arm. These also were placed on the ground next to the other items.
Up to this point in the confrontation between the Junction City police officers and the appellant diere had been no conversation of any kind between them, except for the commands given by the officer. The appellant had not been told that he was being arrested for anything, nor even that he was being detained on suspicion of any offense.
Refore any inquiry was directed to the appellant, the officer in charge recited the standard Miranda warning to him, and having done so, he testified:
“1 asked the subject where he was working or if he was living in Junction City. He advised that he was not working and he did not live in Junction City.”
The officer then informed the appellant he was under arrest for vagrancy.
Thereafter, the appellant was handcuffed and placed in the rear seat of the patrol car. The officers picked up the four screwdrivers, the paring knife, the flashlight, appellant’s jacket and money bag and placed them in the patrol car. They then drove to the police station and booked the appellant.
The items which had been taken from the appellant were recorded on appellant’s personal property sheet at the police station and placed in the personal property locker.
At approximately 10:00 a. m. on May 11, 1970, Detective Huff and Detective Landers of the Salina police department arrived at the police station in Junction City. Before seeing the appellant a detective of the Junction City police department delivered to Detective Huff a long black-handled screwdriver, a short black-handled screwdriver, two screwdrivers with yellow handles, a flashlight, a paring knife, and a money bag containing $15.51, of which $6.75 was in quarters; $1.10 in nickels; $6.10 in dimes; and $1.56 in pennies.
Having examined the screwdrivers and the money bag, together with its contents, Huff and Landers then interrogated the appellant. Before asking him any questions, Detective Huff again recited to the appellant the Miranda warning. The appellant was also told he was suspected of a burglary in Salina, and asked if he wanted to talk about it. Detective Landers testified “he said, yes, he would talk about it but he didn’t know anything about it; that he had committed no burglary in Salina.” He did admit; however, that he had been in Salina; that he had arrived in Salina on May 8 and had stayed there May 8 and 9 and left on May 10 at about 12:30 p. m. on a bus bound for Junction City. He was asked about the long black-handled screwdriver, and he said he had found it in Salina in front of the A & G Cafe.
Detective Huff retained the appellant’s personal property, which had been delivered to him by the Junction City police, and transported it with him to Salina. Upon his return to Salina, Detective Huff marked all of those items as evidence, and mailed them to the K. B. I. laboratory.
Following the return of Detectives Huff and Landers to Salina, the Saline County attorney executed an affidavit of complaint against Sylvester Dale Hazelwood for breaking and entering the building of the Sid Off Company, and taking and carrying away approximately $15 in United States coins with intent to convert them to his own use. The complaint was filed in the magistrate court of Saline County, Kansas, and a warrant was issued for the appellant’s arrest.
The warrant was executed by arresting Hazelwood at Junction City on May 13, 1970. On that same day he was brought before the magistrate court of Saline County, bond was fixed, the time for preliminary hearing was set, and upon a showing of indigency, counsel was appointed.
On June 3, 1970, a preliminary hearing was had in the magistrate court, and the appellant was bound over to the district court of Saline County for trial.
At the time of trial the appellant filed a motion to suppress the evidence obtained as a result of the search and seizure by the Junction City police officers, and to suppress any admissions made by the appellant to the Salina detectives during their interrogation of him in Junction City. The trial court heard extensive evidence on the motion out of the hearing of the jury and overruled the motion.
Over objection the trial court received in evidence on behalf of the state the following exhibits:
Exhibit 1 — A long black-handled screwdriver, with blue dots on the handle;
Exhibit 2 — A two-foot piece of blue molding from the scene of the burglary;
Exhibit 7 — A small yellow-handled screwdriver;
Exhibit 9 — A photograph of the small yellow-handled screwdriver about to be placed in an indentation in the blue molding (Exhibit 2); and
Exhibit 10 — A photograph of the small yellow-handled screwdriver completely placed in an indentation in the blue molding (Exhibit 2).
Mr. Danderand testified Exhibit 1 was the screwdriver taken from his place of business.
Detective Huff testified the appellant admitted he had been in Salina on May 8, 9, and until shortly after noon on May 10.
William Tucker, an employee of the Kansas Bureau of Investigation assigned to the K. B. I. laboratory, testified he had examined Exhibit 2 and Exhibit 7 and had conducted an investigation to determine the relationship between them. Over objection of the appellant Mr. Tucker was permitted to testify Exhibit 7 was unique in that the side corner portion of the blade at the end of the screwdriver was broken or missing; that it was his “expert opinion” that the indentations on the molding (Exhibit 2) were made by the screwdriver (Exhibit 7) to the exclusion of all other screwdrivers.
After the state rested its case in chief the appellant presented no evidence, but moved the court for a directed verdict for failure of the state to present any competent evidence to establish a prima facie case on either offense charged. The motion was overruled, but the court did find that no evidence had been introduced from which the jury could conclude the burglary was committed in the nighttime. It therefore withdrew from the jury’s consideration the charge of burglary in the second degree. The jury was instructed, however, it could find the appellant guilty of burglary in the third degree.
The appellant first contends the trial court erred in permitting the introduction into evidence of the articles seized by the police in Junction City.
Here the appellant asserts when he was booked at the Junction City police station for vagrancy, neither of the officers had any knowledge or information that a burglary had occurred in Salina, Kansas. He takes the position that the evidence seized was the result of a warrantless search, and his right to privacy guaranteed by the Fourth Amendment to the Federal Constitution, and made applicable to the states through the due process clause of the Fourteenth Amendment (Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A. L. R. 2d 933), was violated and requires the exclusion of the evidence seized. (Mapp v. Ohio, supra; and Terry v. Ohio, 392 U. S. 1, 12-13, 20 L. Ed. 2d 889, 88 S. Ct. 1868.)
Both this court and the United States Supreme Court have recognized that the Fourth Amendment does not in express terms require a warrant in every case. What the Constitution forbids is not all searches and seizures, but only unreasonable searches and seizures. (Terry v. Ohio, supra; State v. Blood, 190 Kan. 812, 378 P. 2d 548; State v. McMillin, 206 Kan. 3, 476 P. 2d 612; and State v. Boyle, 207 Kan. 833, 486 P. 2d 849.) The question posed, therefore, is whether, under the facts and circumstances confronting the court in this case, the police officers in Junction City acted in a reasonable manner when they stopped and frisked the appellant.
The record establishes that two police officers in Junction City, who had just finished working a couple of burglaries, were out “looking for suspects” and at 4:10 a. m. saw a man “duck” into an alley and get “down behind some vehicles.” After commanding the man to come out from behind the vehicles, one officer proceeded to pat the man down “for my protection and the protection of the other officer with me, to see whether the subject had any type of weapon on him.” As the officer began the pat down, he felt objects underneath the mans jacket at the level of his belt. The objects, in this case four screwdrivers, a knife and a flashlight, were then seized by the officer.
Under these circumstances the search and seizure was reasonable, considering the early morning hour, the subject’s furtive behavior and the officers’ own knowledge concerning the recent commission of two burglaries in the area. Accordingly, the trial court did not err in overruling the appellant’s motion to suppress the evidence.
The appellant’s subsequent arrest for vagrancy (which might well have been for possession of burglary tools) whether valid or not is immaterial to the reasonableness of the search and seizure. (See Papachristou v. City of Jacksonville, 405 U. S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839; and State v. Wade, 206 Kan. 347, 479 P. 2d 811.)
Appellant contends the Junction City police had no authority to hand over the items to the Salina police. The items in question were in the lawful custody of the Junction City police, having been properly seized, and properly delivered to officers of the Salina police department. No question is raised by the appellant concerning the chain of possession of the various exhibits admitted in evidence.
The appellant contends the trial court erred in permitting William Tucker to testify as an expert witness.
Mr. Tucker was a laboratory technician for the Kansas Bureau of Investigation who testified concerning his examination of the state’s Exhibit 7 (a yellow-handled screwdriver) and its relationship to an imprint in state’s Exhibit 2 (window molding). The appellant further objects to the introduction of a photograph (Exhibit 9) showing the screwdriver being placed into the molding and also state’s Exhibit 10 (also a photograph) showing the screwdriver as it was completely placed into the indentation on the molding. Mr. Tucker testified that in his opinion the screwdriver made the marks on the molding to the exclusion of all other screwdrivers.
The appellant contends this testimony and related evidence should have been excluded on the ground the matters were within the realm of ordinary comprehension; and that to admit the testimony and evidence was to invade the province of the jury. The trial court, after hearing the arguments, permitted Tucker to testify as an expert witness. Mr. Tucker said during the past eighteen months he had examined anywhere between 100 to 150, perhaps even 200, tool indentations. He further made an eye examination and a microscopic examination of the exhibit.
In State v. Lamb, 209 Kan. 453, 497 P. 2d 275, Syl. ¶ 14, the court said: “The competency of an expert witness to give an opinion concerning matters of expertise lies largely within the trial court’s discretion, and its ruling will not be set aside on appeal in the absence of a clear showing of abuse.” Here the appellant has failed to establish that the trial court abused the exercise of its power of discretion.
After the trial, but before judgment and sentencing, the appellant pro se filed two motions. Each motion, one labeled a motion for new trial, charged his court-appointed counsel with “misrepresentation.” The appellant asserts error on the part of the trial court in refusing to appoint additional counsel to assist him in presenting evidence on the matter. He also urges error because the trial court refused to permit his court-appointed counsel to withdraw because of “a conflict of interest.”
The crux of the appellant’s argument concerns the refusal of his appointed counsel to call certain unnamed individuals as witnesses. The appellant requested these witnesses contending that “they would help my own defense.”
The reason for not calling the requested witnesses is stated by his court-appointed counsel in these words:
“. . . Two particular witnesses, neither of whom are identified by name, but whose existence is referred to in our initial interview, I determined that by virtue of the defendant’s own story that neither of them would constitute an alibi for a sufficient period of time to permit us to effectively argue that this defendant did not in fact have the opportunity to commit the offense with which he is charged; that instead their testimony would indeed place him in Salina, would beyond any doubt provide evidence that he was in downtown Salina within four blocks of the place of the alleged offense during the nighttime. I believe the record — you will recall that the record will indicate that the State’s evidence did not indicate that this offense necessarily was committed at night. The lack of the testimony of these two witnesses enabled us to obtain a reduction of the offense from burglary two to burglary three.
The trial court specifically found, after hearing argument, that the appellant’s appointed counsel was competent. At one point the trial court stated:
“. . . I can’t help but point out that this is a good example of competent representation of an indigent defendant by a lawyer. . . .
“The defendant’s brief in support of the motion for new trial is an excellent brief. I will go farther than that. It is the best brief that the Court has seen in a long, long time on a criminal matter.”
At a later time the court stated to the appellant’s court-apointed counsel:
“I think you are totally and completely competent to advise Mr. Hazelwood as to the matter of self-incrimination and what his rights are. This doesn’t involve any conflict of interest whatsoever. On the other hand, I don’t understand that this Court is requiring you to produce testimony and evidence that you are incompetent. . . .”
Finally, at the conclusion of the appellant’s remarks concerning inadequacy of his court-appointed counsel, the court found:
“. . . that counsel was perfectly competent; and the Court finds that your motions for new trial on the grounds of any inadequate or incompetent counsel should be and is overruled. . .
In light of the trial court’s specific findings that no conflict of interest existed, and that the appellant was properly represented by counsel, we conclude, after reviewing the entire record, there is no merit in the appellant’s assertions.
It is to be noted the appellant later made a specific request for his court-appointed counsel (the same counsel previously challenged) to represent him on this appeal. By this request the appellant, in effect, waived his prior objection.
The appellant next contends he was improperly sentenced under the habitual criminal act (K. S. A. 21-107a).
Court-appointed counsel for the appellant argued the record of the appellant’s two prior felony convictions was insufficiently documented.
The trial court sentenced the appellant approximately two months after notice of intention to invoke the habitual criminal act was served upon him. The court specifically found the appellant had two prior felony convictions and sentenced him under the habitual criminal act.
Prior to sentencing the appellant’s court-appointed counsel specifically announced to the court any statements made by the appellant to the court in post conviction matters were in disregard of counsel’s advice to the appellant; that the appellant was advised he might incriminate himself in making such statements.
The sufficiency of the documents presented to support sentencing under the habitual criminal act was challenged by the appellant’s court-appointed counsel on the ground that the named person in the documents did not sufficiently identify the appellant. These efforts were nullified, however, by the appellant himself. The appellant in addressing his remarks to the court admitted identity by challenging the date of conviction on the 1965 second degree burglary conviction; and by challenging use of the 1962 Indiana conviction on the ground that it was a misdemeanor conviction and not a felony. Under Indiana law the second conviction was clearly shown to be a felony.
Under these circumstances it is unnecessary to determine the sufficiency of the state’s documentary evidence to establish the appellant’s prior felony convictions. The documents clearly disclose the appellant was represented by counsel in each of the prior felony convictions, and the trial court did not err in sentencing the appellant under the habitual criminal act.
The record on appeal prepared by counsel for the appellant consists of 241 pages and indicates the cost of reproduction to be $456.91. Most of the record consists of a reproduction of the transcript in verbatim form. No effort has been made in the preparation of the record on appeal to comply with Rule No. 6 (e) of the Supreme Court (205 Kan. xxviii and xxix), which reads in part:
“. . . For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the Supreme Court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys of parties.”
To burden the “Aid to Indigent Defendants Fund” (see K. S. A. 1971 Supp. 22-4512) with costs of this magnitude for an unnecessarily excessive record, thereby requiring the apportionment of fees allowed to attorneys required to represent indigent defendants of this state on appeal, is unwarranted. Accordingly, counsel for the appellant is censured for his failure to comply with Rule No. 6(e). Should similar infractions of the rule occur in the future, the court will give serious consideration to the imposition of costs upon the offending attorney or attorneys.
The judgment of the lower court is affirmed.
|
[
-16,
-22,
-7,
-100,
59,
-32,
58,
-6,
64,
-107,
-11,
83,
-23,
-53,
5,
123,
30,
93,
116,
104,
-37,
-73,
7,
3,
-122,
-69,
-5,
-63,
-69,
75,
-4,
-44,
28,
96,
-126,
21,
6,
0,
71,
92,
-114,
5,
-88,
-42,
81,
16,
-94,
58,
-108,
10,
-15,
-98,
-93,
43,
20,
-53,
9,
44,
-53,
45,
-48,
-15,
-86,
29,
-1,
18,
-93,
2,
-78,
37,
-40,
31,
-100,
-103,
0,
104,
115,
-90,
-122,
116,
39,
9,
4,
38,
98,
37,
25,
-17,
-20,
-120,
22,
115,
-113,
-89,
-111,
104,
67,
37,
-74,
-97,
100,
18,
7,
-12,
-9,
-99,
25,
125,
-125,
-37,
-44,
-112,
41,
52,
-98,
-101,
-21,
-123,
38,
113,
-51,
34,
92,
22,
115,
-105,
14,
-107
] |
The opinion of the court was delivered by
Harman, C.:
Ray Rincones was found guilty by a jury of the offense of arson (K. S. A. 1971 Supp. 21-3718), was sentenced and now appeals.
The subject of the alleged arson was a building in Garden City known as Taco John’s. The fire occurred during the early morning hours of September 13, 1970.
Appellant first contends the verdict of guilt was contrary to the evidence and was based only on speculation without sufficient eyewitness identification of him as the arsonist. The point is not well taken.
Evidence for the prosecution revealed the following events. Saturday night, September 12, 1970, was the last night of the Mexican Fiesta in Garden City. The following morning the business known as Taco John’s closed at its usual hour of 1:00 a. m. At about 1:30, while the manager and other employees were still present cleaning up, a group of Mexican-American youths knocked on the front door seeking admittance to be served. When told they could not enter they used profanity and pounded on the door. One of them “looked like” appellant. The group departed in a dark car. The employees of Taco John’s extinguished all fires and heating appliances and left about 1:45 a. m. There were no oil or gas cans lying in or about the premises.
That same morning at some time estimated to be about 1 o’clock appellant drove a black Chevrolet automobile into a Derby filling station about two blocks west of Taco John’s. The vehicle had a visibly damaged left rear fender. An employee was on duty at the station. Appellant was in an intoxicated condition, being described as “pretty well loaded”. He asked for a gasoline can. The station attendant placed a large green one in the back seat of appellant’s car. Appellant left but returned in his car a few minutes later. He came from the east. He was angry because no gasoline had been put in the can. He stated he needed just a little gas as his car was stalled at Taco John’s. The attendent filled a quart Pennzoil oil can with gasoline and gave it to appellant who again departed. A few minutes later the station attendant heard that Taco John’s was on fire. The station attendant had not previously known appellant but on the night in question a John Moreno was present at the station and assisted in pushing appellant’s automobile to get it started the first time appellant was at the station; the attendant heard Moreno address appellant by name.
About 2:24 a. m. the fire at Taco John’s was discovered by a police officer. There was a hole in a glass door located at the southwest part of the building. Near the west side of the building there was a green can identified as that given earlier to appellant by the station attendant. A quart oil can similar to that given appellant by the attendant was found inside the door. The can smelled of an inflammable fluid. The fire occurred just inside the door. There was no wiring or other source of ignition in that area and investigating officers concluded the fire was of incendiary origin. Later that same night the Chevrolet automobile driven by appellant was discovered stalled on a railroad right-of-way on a pile of railroad ties. Appellant had previously borrowed the vehicle from another person with a view of buying it. When asked by officers about the vehicle on October 6th appellant stated he had left it at the Fiesta ground; he was “pretty drunk” and later went back to get the car, wrecking it on the way home. He denied having been at Taco John’s.
Appellant testified in his own behalf. He attended the dance, and drank whiskey and tequilla the night in question, stating: “I drink until I don’t remember”. He remembered being at the Zarape Cafe, then the next tiling he remembered was waking up at home. His fiance said some friends brought them home. He knew nothing about the burning of Taco John’s.
Material facts in a criminal case may be established by circumstantial evidence so long as that evidence satisfies the applicable requirements of consistency with guilt and inconsistency with innocence and possesses the requisite degree of probative force (State v. Wall, 206 Kan. 760, 482 P. 2d 41). On appeal, when considering the sufficiency of circumstantial evidence to sustain a conviction of crime, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt, as that question was for the jury and the trial court. The appellate court’s function is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt (Hatcher’s Kansas Digest [Perm. Supp.], Criminal Law, § 285; 4 West’s Kansas Digest, Criminal Law, § 1159[6]).
The evidence here satisfies that test. Appellant was identified by the station attendant as the recipient of the two incriminating gas cans — the other evidence need not be iterated. All of it, once accepted by the fact finder, sufficiently convicts appellant.
Following the jury verdict appellant’s motion for new trial was overruled and on January 14, 1971, he was sentenced to the custody of fire state director of penal institutions, and thereupon committed to the state penitentiary.
On March 12, 1971, appellant filed a second motion for new trial — this time on the ground of newly discovered evidence. Attached to the motion was a brief letter written by a Junior Oscar Burns, an inmate in the state penitentiary. In the letter Burns stated he had committed the crime for which appellant had been convicted and that he would be willing to so testify.
Events thereafter are revealed by the language of the trial judge in his ruling denying the motion for new trial, as follows:
“. . . on March 5th, 1971, after the defendant had been incarcerated in the penitentiary at Lansing, Kansas, a convict in the penitentiary, one Junior Oscar Bums, who was in the penitentiary serving a long sentence and who was acquainted with the defendant, Ray Rincones, wrote a letter to Mr. Lelyn J. Braun, which letter is in the file and in which he states that he was the one that committed the crime for which Ray Rincones was convicted. That thereafter, in accordance with said letter, Mr. Braun filed a motion for new trial, which is the motion to be heard here today. The Court further finds that subsequent to the filing of the motion for new trial the County Attorney of Finney County, Kansas, and Mr. Richard G. Rohleder, the Asssitant Chief of Police of the City of Garden City, Kansas, went to the penitentiary at Lansing and there took a court reporter statement under oath from the witness, Junior Oscar Burns, which statement was taken upon April 14fh, 1971, and which has heen filed herein.
“The Court, having examined the transcript of the trial and also the transcript of the sworn testimony of Junior Oscar Bums, finds that there are so many inconsistencies and discrepancies between the story as told by Bums and the facts as they appear from the transcript that it is obvious that the statement of Bums is complete fabrication made for the sole purpose of attempting to free a fellow convict and has no evidentiary value. Under the circumstances the Court does not feel that the presence of the defendant, Ray Rincones, or the presence of Junior Oscar Burns is required at this hearing and the Court refuses to bring them back from the penitentiary for further hearing herein.
“Thereupon argument is had by counsel in which counsel for the defendant maintains that while there are some inconsistencies in the statements that they are not such as to prevent the statement of Junior Oscar Burns from being valid, and insists upon a motion for new trial being granted.
“The Court, being duly advised in the premises and having carefully studied the transcript of the trial and the transcript of Junior Oscar Burns’ testimony, finds that the testimony of Junior Oscar Burns is totally inconsistent with the actual facts, is a mere fabrication and clearly shows Junior Oscar Burns has no actual knowledge of the crime or the details of the same and that his testimony is totally false.”
Appellant asserts error in the refusal to order a new trial by reason of Bums’ confession. The complaint has no merit.
In State v. Campbell, 207 Kan. 152, 483 P. 2d 495, this court stated:
“A new trial should not be granted on the ground of newly discovered evidence unless the district court is satisfied the evidence would probably produce a different verdict, and the credibility of the evidence offered in support of the motion is for the district court’s consideration. Our appellate review of the order denying a new trial is limited to whether the district court abused its discretion.” (p. 154.)
Certainly newly discovered evidence in the form of a confession by another that he committed the alleged crime can be a ground for granting a new trial; however, a motion of this type is not regarded with favor and should be granted only with great caution (see Casias v. United States, 350 F. 2d 317).
Our review of the entire record, including the Burns’ statement, compels us to agree with the trial court’s conclusion that the so-called confession was gravely lacking in credibility. It contained not only contradictions and inconsistencies with undisputed physical facts disclosed at trial but inherent improbabilities as well. Much of the dovetailing in with the prosecution’s evidence which the confession did embody had patently unconvincing aspects.
The matter need not be labored. The trial court did not abuse sound discretion in refusing to grant a new trial.
Judgment affirmed.
APPROVED BY THE COURT.
|
[
112,
124,
112,
-84,
58,
96,
58,
-36,
126,
-96,
-9,
-37,
-51,
-23,
28,
41,
-45,
93,
-44,
121,
-105,
-89,
23,
3,
-14,
-13,
113,
-59,
48,
75,
-10,
125,
72,
52,
10,
93,
38,
-56,
-61,
84,
-120,
37,
-87,
114,
89,
2,
52,
58,
-76,
15,
49,
60,
-13,
42,
28,
-49,
73,
44,
-37,
45,
65,
-8,
-117,
13,
111,
18,
-125,
34,
-98,
-121,
-8,
62,
-112,
49,
0,
-88,
115,
-90,
-126,
-4,
109,
-119,
4,
-92,
98,
1,
93,
-23,
-20,
-119,
14,
127,
-107,
-91,
-72,
73,
9,
37,
-98,
-99,
58,
54,
6,
-14,
-25,
81,
125,
108,
24,
-38,
-100,
-15,
-55,
116,
-98,
-23,
-5,
55,
-111,
113,
-51,
-90,
92,
34,
50,
-97,
-113,
-108
] |
The opinion of the court was delivered by
Prager, J.:
This is an interlocutory appeal from an order of the district court sustaining a motion to transfer the venue of the action from Sedgwick County to Dickinson County, Kansas. The parties have prepared an agreed statement of facts which sets forth most of the essential facts for determination of this appeal. The agreed statement discloses that several years ago the appellant Lambertz as a licensed real estate broker sold a building in Wichita to Business Investment, Inc., a wholly owned subsidiary of Abilene Flour Mills Co., Inc., one of the appellees. The buyer, Business Investment, Inc., was unable to secure sufficient cash to pay Lambertz his real estate commission. An agreement was reached by which an indenture bond in the amount of $55,000 with interest was given by Business Investment, Inc., to Lambertz. Business Investment, Inc., defaulted and Lambertz obtained a judgment against it in the amount of $56,684.38 plus interest in the district court of Sedgwick County. The date of the judgment was Novem ber 10, 1969. The petition in the case at bar alleges that some time prior to the judgment Business Investment, Inc., transferred certain of its assets worth $330,000 to the appellee Abilene Flour Mills. The petition further alleges that thereafter Abilene Flour Mills transferred certain of its assets worth $220,000 to the appellee Central Soya of Abilene, Inc. It is then alleged that the majority and controlling stockholders in each of the corporate appellees, Abilene Flour Mills and Central Soya of Abilene, Inc., were essentially the same. The appellant Lambertz filed this action against Abilene Flour Mills Co., Inc., and Central Soya of Abilene, Inc., and also against certain individual stockholders of whom seven are residents of Dickinson County and four are nonresidents of the state of Kansas. The petition alleges that although the precise nature of the dealings between the defendants is not known, plaintiff has reason to believe, and does believe and alleges, that all of the defendants realized a pecuniary gain from the transfers of assets heretofore referred. It is claimed that these transfers constituted an illegal and fraudulent preference of creditors to the detriment of plaintiff. It is further alleged that because of these illegal acts neither Business Investment, Inc. nor defendant Abilene Flour Mills is able to pay the indebtedness owed to Lambertz on the judgment. It is further alleged that the illegal fraudulent preferences occurred at the time when Business Investment, Inc. was indebted to plaintiff in the amount of $55,000 plus interest and that this indebtedness was known by all of the defendants. The petition further states that the defendants are liable jointly and severally to the plaintiff Lambertz in the amount of $56,684.38. Petitioner prays for judgment against all the defendants jointly and severally in the amount of $56,684.38 plus interest or in the alternative for the setting aside of the transfer of assets referred to heretofore. At this point it should be noted that there are thirteen named defendants in the lawsuit. Seven of the defendants are individuals who are residents of Dickinson County, Kansas. The two corporate defendants, Abilene Flour Mills Co., Inc., and Central Soya of Abilene, Inc., have their resident agents in Dickinson County. Four of the named individual defendants are nonresidents of the state of Kansas of whom three reside in Missouri and one is a resident of California.
The record does not disclose the nature of the service of process upon any of the defendants in the action. However, at oral argument the court was advised that all nonresident defendants were served personally out of state. The defendants filed a motion to dismiss plaintiff’s petition on the theory that the proper venue of the action was in Dickinson County not Sedgwick County. The defendants subsequently amended their motion to make it a Motion to Transfer Venue to Dickinson County.
It was the contention of the defendants that the case should be transferred from Sedgwick to Dickinson County for several reasons: None of the defendants were transacting business in Sedgwick County at the time the plaintiff filed his petition; none of the defendants have any property or debts in Sedgwick County; and none of the transactions complained of by the plaintiff occurred in Sedgwick County. On September 25, 1970, the motion to transfer venue to Dickinson County was heard by the district court of Sedgwick County. There is nothing in the record to show that any evidence was presented in support of the motion. Following arguments of counsel the court sustained the motion transferring the action to Dickinson County. The record does not disclose the reason for the court’s action. At oral argument we were advised that the trial court concluded it would be more convenient to proceed with the case in Dickinson County. The plaintiff Lambertz filed a timely appeal contending that the trial court erred in refusing to permit plaintiff to proceed with his action in Sedgwick County.
The statutes pertaining to venue should first be noted. K. S. A. 1971 Supp. 60-603 pertaining to actions against residents declares:
“An action against a resident of this state, other than an action for which venue is otherwise specifically prescribed by law may be brought in the county,
“(1) in which the defendant resides, or
“(2) in which the plaintiff resides if the defendant is served therein, or
“(3) in which the cause of action arose, or
“(4) in which the defendant has a place of business or of employment if he is served therein, or . . .”
K. S. A. 1971 Supp. 60-604 is concerned with actions against corporations and states as follows:
“An action against a domestic corporation, or against a foreign corporation which is qualified to do business in this state, . . . may be brought in the county,
“(1) in which its registered office is located, or
“(2) in which the cause of action arose, or
“(3) in which the defendant is transacting business at the time of the filing of the petition, . .
K. S. A. 1971 Supp. 60-605 pertains to actions against nonresidents and nonqualified corporations. It provides:
“An action against a nonresident of this state, . . . may be brought in the county,
“(1) in which the plaintiff resides, . . .
“(2) in which the defendant is served, or
“(3) in which the cause of action arose, or
“(4) in which the defendant is transacting business at the time of the filing of the petition, or
“(5) in which there is property of the defendant, or debts owing to the defendant . . .”
Where there are multiple defendants in a lawsuit, the plaintiff is given an election as to the county where the action may be brought. This is governed by K. S. A. 60-608 which declares in part as follows:
“. . . If there are several defendants properly joined, venue of the action may be determined at the election of the plaintiff as to any one of the defendants against whom a substantial claim exists. If, before trial of an action on the merits is commenced, a party with reference to whom venue was determined ceases to be a party and venue would no longer be proper as to the remaining parties, on the application of any remaining party promptly made, the cause shall be transferred to a county .of proper venue. If there is more than one such county, the transfer shall be to a county selected by the plaintiff.”
It is clear from K. S. A. 60-608 that in any action where there are multiple parties it is the plaintiff who has the discretion in selecting venue. If a proper venue as to any party defendant is a particular county, then the plaintiff has the right under the statute to select that county as the venue of his action against all defendants if he so desires. The only qualification is that there must be a substantial claim existing against that particular defendant before the other defendants may be brought in to litigate in a county over their objections.
The decisions in Kansas emphasize the fact that venue should not be transferred to another county unless there is some compelling reason for doing so. For example in Gray v. Crockett, 35 Kan. 66, 10 Pac. 452, Chief Justice Horton makes this statement in regard to change of a venue:
“A judge ought not to transfer a case upon a mere suggestion, or even upon an affidavit stating conclusions only; and no change of venue should be granted except for cause, true in fact and sufficient in law, and all of this should be made to clearly appear to the court; . . .” (p. 71.)
The doctrine of forum non conveniens was recognized by this court in State of Oklahoma, ex rel., v. H. D. Lee Co., 174 Kan. 114, 254 P. 2d 291 and in Panhandle Eastern Pipe Line Co. v. Herren, 207 Kan. 400, 485 P. 2d 156. In the latter case this court pointed out that the discretionary power to decline jurisdiction under the doctrine of forum non conveniens should be exercised only under exceptional circumstances. Generally it is for a plaintiff to choose the place of trial. Before the doctrine can be applied there should be an adequate showing that the exercise of jurisdiction would be seriously inappropriate.
It is also the rule in Kansas that the burden of proof on a motion to transfer or change the venue is upon the movant. (City of Emporia v. Volmer, 12 Kan. 633; Gray v. Crockett, supra.) This, of course, is logical because improper venue is an affirmative defense which must be specifically raised by defendant and which may be waived if it is not asserted by a timely motion. (K. S. A. 60-610. ) In the case at bar the appellant contends that Sedgwick County furnishes a proper venue of the action for two reasons. First, it is contended by appellant that four of the defendants were nonresidents of Kansas. Appellant is referring to defendants, Lesta Lou Truby, Margaret Youngblood and Mary Carr, all of whom are residents of Missouri and to T. W. Welsh who is a resident of California. The place of residence of each of these four defendants is undisputed. Under K. S. A. 1971 Supp. 60-605, an action against a nonresident of this state may be brought in the county in which the plaintiff resides. In the case at bar the appellant Lambertz’ residence is Sedgwick County. Hence an action against the four nonresident defendants may be brought there. The only limitation is that there must be a substantial claim existing in favor of Lambertz against one of the four nonresident defendants. The petition alleges generally that all defendants realized a pecuniary gain from the illegal and fraudulent transfer of assets and that the defendants are liable jointly and severally. There is no evidence in the record to the contrary. The trial court simply entered an order transferring the venue from Sedgwick County to Dickinson County without requiring the parties to establish an evidentiary record from which this specific issue could be determined.
The second basis for fixing the venue of the action in Sedgwick County asserted by the appellant Lambertz is that the cause of action against all of the defendants, including the four-nonresident defendants, arose in Sedgwick County. In this regard K. S. A. 1971 Supp. 60-603 provides that an action against a resident of Kansas may be brought in the county in which the cause of action arose. Again it is clear that the trial court in sustaining the motion to transfer venue solely on the basis of the petition of plaintiff and the motion to transfer venue, denied to the appellant the opportunity to present evidence tending to establish that the cause of action arose in Sedgwick County.
What we are saying is simply this. The trial court acted prematurely in sustaining the motion to transfer the venue from Sedgwick County to Dickinson County. At the time the order was entered there was no evidentiary record on the basis of which the trial court could have determined the proper venue of the action. The proper procedure was for the trial court to require the defendants to furnish evidence justifying their position that there was no substantial claim existing in favor of the plaintiff and against the nonresident defendants and further that if any cause of action existed, it did not arise in Sedgwick County. Following this appellant Lambertz should have been afforded an opportunity to present his evidence to establish appellant’s position on the disputed issues of fact. From the evidence presented the trial court could then have decided whether or not a proper venue of the action existed in Sedgwick County. If it so found then the case could have been retained in Sedgwick County for determination there. If the trial court did not so find from the evidence the case could then have been tránferred to Dickinson County where admittedly a proper venue exists.
For the reasons set forth above the judgment of the trial court transferring the action from Sedgwick County to Dickinson County is reversed and the district court is directed to proceed with the case in Sedgwick County in a manner not inconsistent with this opinion.
|
[
-16,
-22,
-15,
76,
-102,
-32,
58,
-102,
120,
-27,
-92,
83,
-23,
-34,
20,
121,
-10,
61,
68,
105,
-74,
-77,
3,
105,
-42,
-77,
-127,
-35,
-72,
91,
-28,
-58,
76,
32,
10,
21,
-126,
-126,
-63,
28,
-50,
5,
-119,
116,
-36,
0,
52,
107,
16,
75,
49,
-84,
-13,
41,
29,
-53,
105,
44,
79,
45,
17,
-8,
107,
-123,
127,
19,
1,
36,
-40,
71,
88,
42,
-112,
112,
8,
-24,
115,
-90,
-122,
-76,
43,
-7,
12,
38,
99,
48,
-123,
-17,
-24,
-104,
14,
-42,
-115,
-25,
-80,
88,
-62,
1,
-67,
-100,
117,
6,
7,
-10,
-18,
5,
27,
124,
-121,
-50,
-44,
-109,
15,
117,
-102,
-105,
-21,
7,
-80,
97,
-57,
-74,
93,
87,
50,
27,
-50,
-80
] |
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein Thomas P. Lamb (defendant-appellant) was convicted of two offenses of kidnapping in the first degree with bodily harm having been inflicted (K. S. A. 21-449), and of murder in the first degree (K. S. A. 21-401). The trial court sentenced Lamb to life imprisonment on each count, and decreed the sentences to run consecutively.
The charges arose out of the abduction and murder of Karen Sue Kemmerly, and the abduction of Patricia Ann Childs.
Numerous points, including trial errors, are asserted by the appellant for reversal.
The chronology of events disclosed by the record may be stated as follows:
Karen Sue Kemmerly left her home in Kansas City, Missouri, at approximately 10:00 o’clock on the morning of December 2, 1969, to go shopping. She was attired in a gray plaid dress with a chain- link belt. In her possession was a number of credit cards issued to her as well as a checkbook, billfold and a wrist watch in good condition. Miss Kemmerly’s departure from home in her 1967 green Mustang was witnessed by her mother, Mrs. Dorothy Moberly. The Mustang contained an electronic garage door opener.
Later, on the morning of December 2, 1969, Dorothy Hamilton, a clerk in the Chasnoff Store in Ward Parkway Shopping Center, sold a purse to Miss Kemmerly. Erwin Sterm, an employee of the Caldwell Store in the shopping center, on the same morning sold a pair of shoes to Karen Sue Kemmerly. The shopping center is located on the east side of State Line Road in southern Kansas City, Missouri.
On December 3, 4 and 5 an officer of the Leawood, Kansas, police department, while on routine patrol, observed Miss Kemmerly’s 1967 Mustang parked in the Ward Parkway Shopping Center. The officer examined the vehicle on at least one occasion and observed a woman’s gray plaid dress with a chain-link belt, as well as other articles of women’s clothing, folded and placed on the right front seat of the automobile. This vehicle and the clothing were later identified by Mrs. Moberly as belonging to her daughter. The clothing was the same clothing her daughter had been wearing when she left the family home the morning of December 2, 1969.
While quail hunting with two friends on December 7,1969, Vemie Rome discovered the body of a nude female lying in a hedgerow. The body was found in a rural area of Johnson County, Kansas, approximately three miles south and east of Olathe, Kansas. Mr. Rome promptly telephoned the Johnson County sheriffs office to report the discovery. An on-the-scene investigation by the officers established the body was covered with snow and that neither any clothing of the victim nor any possible murder weapon could be found in the vicinity of the body.
Subsequent to its discovery the body was transported to the Amos Brothers Funeral Home in Shawnee, Kansas, where an autopsy was performed by Dr. James Bridgens, a pathologist with extensive experience in that field. Mrs. Dorothy Moberly identified the body as being that of her daughter, Karen Sue Kemmerly.
After positive identification of the body, the “Metro Squad” of the greater Kansas City area was activated and an intensive investigation ensued. During the course of the investigation, Miss Kemmerly’s Mustang automobile was processed and a partial fingerprint was taken from the right front seat support. Despite the intensive investigation conducted by the “Metro Squad,” no charges were filed against anyone between December 7, 1969, the date the body was discovered, and January 16,1970.
Patricia Arm Childs, an eighteen year old college coed, left her home in Overland Park, Kansas, on January 15,1970, to go shopping at the Metcalf South Shopping Center. The Metcalf South Shopping Center is only a few miles distant from the Ward Parkway Shopping Center.
Miss Childs testified that after shopping approximately forty-five minutes, she proceeded to her car in the parking lot surrounding the shopping center and started to enter the driver s side of her vehicle when the appellant placed a gun in her side and pushed her into her automobile.
After asking for and receiving the vehicle’s keys from Miss Childs, the appellant proceeded to drive around the parking lot for several minutes. He then stopped the car, parked it a few spaces distant from where it had originally been parked, and proceeded to wipe his fingerprints from the interior of the automobile with a handkerchief. Appellant then forced Miss Childs out of her vehicle and into his own automobile, a brown Plymouth. Prior to entering his own vehicle, the appellant also wiped his fingerprints from the exterior of Miss Childs’ automobile.
The appellant tied Miss Childs’ hands with a leather strap, drove out of the shopping center, and headed south on U. S. Highway No. 69.
The appellant drove past Olathe, Kansas, and Pleasanton, Kansas, and then made a short stop in Fort Scott, Kansas, during which he telephoned someone to tell them he would not be home that evening.
The appellant then drove his automobile into a rural area outside Fort Scott and pulled off the roadway. At this time the appellant first ordered Miss Childs to disrobe and get into the back seat of his car. Miss Childs testified appellant informed her she would not be hurt if she did as she was told. While Miss Childs was disrobing appellant picked up her purse and began rummaging through it, asking her if she had any credit cards belonging to either her or her father. Her reply was in the negative.
After disrobing, Miss Childs placed her clothing on the floorboard of the automobile. Appellant then picked up the articles of clothing and placed them on the right front seat of the vehicle. Miss Childs’ hands were then taped and appellant had sexual intercourse with her.
Thereafter appellant again commenced driving his vehicle, and as best Miss Childs could tell, they proceeded to Pittsburg, Kansas, where he directed her to make a telephone call to her parents. Upon placing the call, Miss Childs’ younger sister answered the phone and started questioning her. At this time Patricia was forced to hang up the phone. Appellant and Miss Childs then drove around the Pittsburg, Kansas, area and at one point stopped and ate at a small restaurant outside of Pittsburg. During this stop Miss Childs testified she made no attempt to escape because she was afraid of the appellant.
Later that same evening, January 15, 1970, a second call was placed by Miss Childs to her home in Johnson County, Kansas. That call was answered by Miss Childs’ mother. The appellant told Miss Childs to inform her mother that she had been kidnapped. The appellant himself then talked to Mrs. Childs and demanded $3,500 for the safe release of Patricia. Mrs. Childs informed the appellant he should call back when her husband was there, at which time this conversation was concluded.
Approximately thirty minutes later another call was placed to the Childs’ residence. At this time the appellant spoke with Joseph Childs, Patricia’s father, and advised Mr. Childs to obtain $3,500 in one hundred dollar bills. He informed Mr. Childs if he did as he was told, Miss Childs would not be harmed, and further that he, the appellant, would call Mr. Childs the following day to give him directions as to how the transfer of money would take place.
Thereafter, the appellant drove around the Pittsburg and Fort Scott areas for some time and then proceeded to a rural area, where, in a field several hundred feet off of a country road, Miss Childs was forced to remove her clothing a second time. The appellant again placed the clothing on the right front seat of the automobile after which he forced Miss Childs to submit to an act of sexual intercoruse. Appellant and Miss Childs spent the night in the automobile parked at this location. The next morning they proceeded north toward Olathe, Kansas.
After arriving in Olathe the appellant drove his automobile around the area for some time, and then made a telephone call to the Childs’ residence from a drive-up phone on the south edge of town. At this time the appellant directed Mr. Childs to bring the $3,500 in one hundred dollar bills to the parking lot of the bowling alley in Olathe, where the exchange would be made. While awaiting Mr. Childs’ arrival, the appellant continued to drive around the Olathe area, and at one point stated to Miss Childs, according to her testimony, “I hope your dad does not bring the police, because I don’t want to get caught. I can get hung for this because I kidnapped you and I raped you.”
A short time later, Mr. Childs arrived in Olathe, met.with the appellant and Patricia in the parking lot of the bowling alley and paid the ransom, at which time Patricia Childs was released by the appellant to her father. At this point, as the appellant commenced to drive away from the area, officers of the Overland Park police department and the Johnson County sheriff’s office, who had staked out the area where the exchange was to take place, attempted to apprehend the appellant. A high speed automobile chase commenced which ended a short time later when the appellant crashed his vehicle into a police blockade at a speed of approximately eighty miles per hour. Following the crash, there was recovered from the appellant’s wrecked vehicle a leather thong, tape, a .22 caliber blank pistol, a knife and sheath and $3,500 in one hundred dollars bills.
Although appellant was thrown from his vehicle at the time of the collision, he was not injured seriously. Appellant was first taken to a local area hospital where he received medical treatment for his injuries and later transferred to the Johnson County jail where he was booked and fingerprinted.
Following the appellant’s apprehension on January 16, 1970, the state made application to the Honorable Earle Jones, judge of the Johnson County magistrate court, division No. 2, for issuance of a search warrant for the premises of the Thomas Lamb residence in Fort Scott, requesting permission to search for certain articles belonging to Karen Sue Kemmerly.
The court issued the search warrant after hearing sworn testimony from witnesses, at least two of whom were officers of the law.
This warrant was then executed by officers of the Johnson County sheriff’s office, Bourbon County sheriff’s office, Fort Scott police department and the Kansas highway patrol on the 16th day of January, 1970. During the execution of this warrant, the shoes and purse purchased by Miss Kemmerly on the 2nd day of December, 1969, from Chasnoff’s and Caldwell’s in the Ward Parkway Shopping Center were located in the garage of the Lamb residence. Eight credit cards issued to Karen Kemmerly, as well as her wrist watch, in a damaged condition, and her checkbook covers were found in the Lamb home.
Subsequent to the issuance of the first search warrant on January 16, 1970, the known fingerprints of Thomas Lamb, taken from him at the time of his arrest, were transported to the Kansas City, Missouri, police department where a fingerprint identification technician compared them with the print lifted from Karen Sue Kemmerly’s car on December 7, 1969. In the opinion of the technician, the fingerprint lifted off Miss Kemmerly’s automobile was identical to the known fingerprint of the appellant.
On January 28, 1970, it was brought to the attention of the officers investigating the case by Mrs. Moberly that Karen’s electronic garage door opener was also missing from her automobile. At this point a second application was made requesting a search warrant for the residence of the appellant, and again sworn testimony was presented to the court in support of the application, following which the warrant was issued. The second search warrant was served by officers of both Johnson and Bourbon Counties on January 28, 1970. Recovered from the dresser of the appellant was the missing electronic garage door opener, which later tests revealed would open the garage door of Karen Sue Kemmerly’s home.
Subsequent to appellant’s arrest on January 16, 1970, he was charged with two counts of first degree kidnapping and one count of first degree murder. He was ordered held in the Johnson County jail at Olathe without bond. On January 21, 1970, while being held in the Johnson County jail, and with the help of a jail trustee, Pat McKey, the appellant obtained a .38 caliber pistol. He and the trustee then took three dispatchers and a jailer captive and escaped from the jail after locking the four sheriff’s officers in a jail cell. The appellant and McKey then proceeded across the street from the courthouse to a small cafe where they took a patron, Loyd Midyett, hostage. The pair then commandeered Midyett’s car and, with Midyett in their custody, sped south from Olathe, making good their escape from the Johnson County jail. The subjects were later spotted in the area of LaCygne, Kansas, where they were eventually apprehended at a roadblock without Midyett having suffered any physical harm. According to Midyett’s testi mony, at one point during this trip from Olathe to LaCygne, Lamb told McKey to look out the window to see if they were being followed, and at the same time, said that if they caught him now he would be hanged for sure, following which the hostage, Midyett, said, “you haven’t done anything yet to be hanged for,” and the appellant answered, “Mister, I am a murderer.”
After the appellant’s recapture, a preliminary hearing was held in the magistrate court of Johnson County, Kansas, and the appellant was bound over to the district corut of Johnson County, Kansas, on two counts of first degree kidnapping and one count of first degree murder. Subsequently, several pretrial motions were filed by the appellant, including a motion for severance of the counts, a motion for suppression of evidence obtained as a result of the issuance of the search warrants, a motion for discovery and inspection, and a motion for change of venue. All of these motions were overruled by the trial court.
Subsequent to his arraignment in the district court, the appellant requested that funds be allocated to enable him to employ a psychiatrist to inquire into his mental condition. This motion was granted and appellant employed the Menninger Foundation at Topeka, Kansas, to make such examination. Upon completion of this examination the state moved the court for appointment of a sanity commission to inquire into the appellant’s ability to comprehend his position and aid in his defense. This motion was also sustained. The sanity commission, consisting of three psychiatrists, conducted an examination of the appellant and found he was able to comprehend his position and aid in his defense.
The appellant presented a motion to waive jury trial to the court on May 1, 1970. During these proceedings, the following colloquy was had between the court and the appellant:
“The Court: Mr. Lamb, in connection with your request that a jury trial be waived in this case, are you under any duress or coercion of any kind or nature with respect to waiving or not waiving a jury trial?
“A. I am not.
“The Court: Have any promises or on the other hand, threats been made to you in connection with the matter of waiver of jury trial?
“A. No, your Honor.
“The Court: Then I understand that you are waiving it freely and voluntarily; is that correct?
“A. That is correct.
“The Court: Do you have any questions whatsoever as to the imposition of punishment in this case? Do you understand clearly that if the jury were to bear the case, they would determine your guilt or innocence, and also the punishment? Do you understand that?
“A, Yes, I do.
“The Court: Do you understand that if a jury is waived, and approved by the state and the Court, that the Court then would be under an obligation to determine your guilt or innocence to charges, and also the punishment?
“A. I understand that.
“The Court: Have you discussed this matter with your counsel on a number of occasions?
“A. Quite a few occasions, yes.
“The Court: How many occasions would you say that you have discussed it with your counsel?
“A. At least a dozen.
“The Court: Very well. Is it your decision to waive a jury or your counsel’s decision to waive a jury?
“A. They left the decision up to me and it is mine.
“The Court: Do you understand, sir, that the punishment upon a finding' of guilt in this case must necessarily be either life imprisonment or death?
“A. I do.”
Following this waiver the case proceeded to trial before the court and the state presented evidence by way of testimony and exhibits and then rested its case. Both during the trial and after the prosecution had rested its case, the appellant asked the court to rule as to whether or not he had been proved guilty beyond reasonable doubt, prior to any introduction of evidence as to the defense of insanity. The court, in making its determination, held that it only had to decide whether a prima facie case had been made against the appellant, and the court so found.
The appellant then proceeded to offer testimony of two psychiatrists, Dr. Joseph Satten and Dr. Hector Cavallin, both of whom testified that in their opinion the appellant did not understand the nature and quality of his acts, nor was he able to distinguish between right and wrong. Following the testimony of Dr. Cavallin and Dr. Satten, the state requested the court to require the appellant to submit to a psychiatric examination by the state’s experts, prior to their testifying as to their opinions regarding the defendant’s sanity or insanity at the time of the commission of the offenses charged. The appellant objected to this motion and it was denied by the court.
At the close of his expert psychiatric testimony the appellant rested his case. In rebuttal the state then presented the testimony of three psychiatrists, Dr. Herbert Spiegel of New York City, New York, Dr. Wiliam McKnelly of the University of Kansas Medical Center of Kansas City, Kansas, and Dr. Warren G. Phillips, a practicing psychiatrist in Johnson County, Kansas. All three psychiatrists testified they considered the same things (enumerating and making specific reference to them) in arriving at their opinions as to the appellant’s sanity that the psychiatrists for the appellant had considered, with one exception. They had not had an opportunity to personally consult with the defendant over an extended period of time, nor did they have an opportunity to administer certain psychological tests to the defendant. However, they did testify that, based on their examination and in their opinions, the defendant was capable of distinguishing right from wrong at the time of the commission of the three crimes charged. Following this rebuttal testimony the state rested its case. The matter was then submitted to the court for a decision following oral arguments by both parties. At the conclusion of all the evidence and following the arguments of counsel, the trial court found beyond a reasonable doubt that the appellant was guilty of the three crimes charged: Two counts of kidnapping in the first degree and one count of murder in the first degree.
Our review will consider the appellant’s eleven specifications of error in the order of their presentation on appeal.
I.
The appellant contends the trial court erred in denying his motion to change venue. The appellant states one of the reasons he decided to waive trial by jury was the refusal of the trial court to grant his request for a change of venue.
Recause of local media publicity, appellant argues that a fair trial by jury could not be had in Johnson County, and the denial of a change of venue “forced” him to waive his constitutional right to trial by jury.
Therefore, as appellant reasons, being “forced” into a waiver of his right to trial by jury because of the trial court’s ruling on his motion for change of venue, his waiver of trial by jury was involuntary and thus unconstitutional.
We fail to see merit in the appellant’s argument. The appellant’s decision to either waive or not waive a trial by jury is a matter of trial tactics.
In Cipes, Criminal Defense Techniques, Vol. 1, § 9.04, it was said:
“A decision to waive the jury is the best way to avoid the effects of prejudicial publicity, at least theoretically. An appeal from a jury-waived trial, based on an allegation that the defendant was not afforded a fair trial, will probably fail barring flagrant abuses by the judge or obviously prejudicial influences upon witnesses. . . .”
Wholly aside from the foregoing, the law in Kansas is clear that the trial court may, in its discretion, properly deny a motion to change venue, when the defendant fails to present affirmative evidence that prejudice exists so as to make it reasonably certain he could not obtain a fair trial.
This court, in State v. Anderson, 202 Kan. 52, 446 P. 2d 844, restated the law as follows:
“. . . The allowance or refusal of an application for change of venue rests largely in the discretion of the trial court. (Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100; and Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255.)” (p. 55.)
The court then went on to say:
“In the recent case of State v. Poulos, 196 Kan. 253, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63, it was said:
“ ‘The defendant’s failure to present affirmative evidence that prejudice existed so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. . . .’ (p. 259.)” (p. 55.)
In his application for change of venue, the appellant alleged the inhabitants of the district in which the trial was to be held were prejudiced against him to the extent that he could not receive a fair trial in the district.
In support of appellant’s motion for a change of venue, he filed with the trial court defendant’s Exhibits A and B. Exhibit A consisted of an affidavit of an employee of the Kansas City Times in which the affiant stated the newspaper clippings attached to the affidavit were generally and widely circulated throughout Johnson County, Kansas. Exhibit B consisted of an affidavit of the publisher of the Olathe Daily News, in which the affiant stated the newspaper clippings attached to the affidavit were generally and widely circulated throughout Johnson County, Kansas. These are the only two affidavits filed by the appellant in support of his motion for a change of venue. There was no testimony or affidavit presented to the trial court that any inhabitant of Johnson County, Kansas, was prejudiced against the appellant.
The appellant in his argument required the court to assume such prejudice because the matter was widely covered and reported by the news media. Even though the appellant has shown his case received a great amount of publicity, it does not follow, without further evidence, that such prejudice existed as would deny the appellant a fair trial.
In State v. Welch, 121 Kan. 369, 247 Pac. 1053, it was said:
". . . It is not enough that the petition state prejudice exists and a fair trial cannot be had. Specific facts and circumstances showing prejudice must be stated, and not conclusions. (State v. Knadler, 40 Kan. 359, 19 Pac. 923.) . . .” (p. 372.)
In light of the colloquy between the trial court and the appellant on the record concerning his waiver of jury trial, we hold the waiver was freely and voluntarily made by the appellant, and the trial court did not err in overruling the appellant’s motion for change of venue.
II.
Appellant next contends the trial court erred in failing to suppress evidence obtained through the two searches of appellant’s residence.
Appellant argues the issuance of the search warrant of January 16, 1970, should have been quashed for lack of probable cause.
The state based its approach in obtaining this search warrant on a showing of similarity between the Childs kidnapping and the Kemmerly kidnapping.
The trial court, in hearing appellant’s motion to quash the search warrants, enumerated the similarities between the two kidnappings in the following manner:
“That with respect to the search warrant issued on January 16, 1970, in both Miss Childs’ and Karen Sue Kemmerly’s kidnapping, that a number of similarities were shown to exist, by the evidence presented to the Magistrate. Among those similarities were the following:
“One, that both Miss Childs and Karen Sue Kemmerly were reported missing from shopping centers, one being reported missing from the Ward Parkway Shopping Center, and the other from the Metcalf South Shopping Center, both being located in the southerly part of the Kansas City area, and both being within a few miles of past [sic] distance.
“Another similarity was that the defendant was known to have dressed as a woman, and that there were reports of a man dressed as a woman accosting women in the Metcalf South Shopping Center.
“That another similarity would be that both girls were transported to rural areas between Fort Scott and Olathe. That Miss Childs was sexually assaulted and that Miss Kemmerly had had sexual intercourse.
“That the topography where the offenses occurred were similar. That is, the body of Miss Kemmerly was found in a hedge row.
“That Miss Patricia Childs was taken off of a rural road. There was a similarity in that Patricia Childs was forced to disrobe, and that Karen Sue Kemmerly was found nude.
“There was a similarity in that the defendant had exhibited a knife to Patricia Childs, and that Karen Sue Kemmerly had been stabbed with a knife-like instrument five times.
“There was a similarity in that it was known that the defendant had kidnapped another woman on another occasion, which information was obtained by the witnesses from Under-Sheriff — from the Under-Sheriff of Bourbon County, and an FBI agent who had actually worked on the other kidnapping case.
“There was a similarity in that the defendant had kidnapped a guard at knife point, according to the evidence presented to the Magistrate.
“There was a similarity in that the defendant at the time of his arrest or immediately prior thereto, was driving a white over brown 1963 model automobile, and a brown older model automobile was seen in the vicinity of the field where the body of Karen Sue Kemmerly was found.
“There was a similarity in that the defendant had a knife on his person at the time of his arrest. This Court is satisfied that these are not mere beliefs or suspicions upon the part of the officers who testified before the Magistrate who then issued the search warrant.”
A similar, but more inclusive, list of similarities between the Childs kidnapping and the Kemmerly kidnapping was recited by the court in its determination that there was probable cause for the issuance of the search warrant issued January 28, 1970.
The appellant further charges there was not sufficient proof of the reliability of the hearsay information received by the officers to provide the magistrate with a rational basis for making a finding of probable cause. While considering this argument of the appellant, it should be observed that in the case under consideration the court is not faced with a situation involving an unnamed confidential “reliable informant” who is providing information upon which a magistrate is then requested to issue a warrant.
Here involved are citizen informers and police officers, all of whom are treated differently under the law. Their testimony is not viewed with such rigid scrutiny as is the testimony of a “police informer.” (See State v. Braun, 209 Kan. 181, 495 P. 2d 1000, and cases cited therein.) The rationale for such differentiation is set out in State v. Paszek, 50 Wis. 2d 619, 184 N. W. 2d 836 [1971].
At the hearing held upon application for this search warrant, officers Sparks, Lane and Foote testified in person.
Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. (Henry v. United States, 361 U. S. 98, 102, 4 L. Ed. 2d 134, 80 S. Ct. 168 [1959].) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information led a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. (Draper v. United States, 358 U. S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 [1959].) The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. (Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 [1963].)
Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U. S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 [1925].)
Evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant.
We have no hesitance upon the record here presented in upholding the trial court’s decision that the magistrate, who issued the search warrant here in question, had sufficient evidence before it to warrant a finding of probable cause.
Appellant next contends the evidence presented to the magistrate at the time of the issuance of the two search warrants was incorrect and misleading.
In the absence of statutory authorization to the contrary, it is generally held a person against whom a search warrant is directed may not dispute the matters alleged in the affidavit or complaint supporting the warrant. (Wharton’s Criminal Procedure, Vol. 4, § 1545, p. 168.) This point finds further support in the annotation to Smith v. State, 191 Md. 329, 62 A. 2d 287, 5 A. L. R. 2d 386, wherein it is stated:
“The result of the decisions involving the point under annotation may be concisely summarized. A large majority of the cases deciding the question apart from governing statutory provisions take the position that one against whom a search warrant is directed may not dispute the matters alleged in the affidavit or verified complaint supporting the warrant. . . .” (5 A. L. R. 2d 396.)
Recent cases to the same effect are: Liberto & Mothershed v. State, 248 Ark. 350, 451 S. W. 2d 464 (1970); Tucker v. State, 244 Md. 488, 224 A. 2d 111, cert. denied 386 U. S. 1024, 18 L. Ed. 2d 463, 87 S. Ct. 1381 (1966); Owens v. State, 217 Tenn. 544, 399 S. W. 2d 507 (1965); The People v. Bak, 45 Ill. 2d 140, 258 N. E. 2d 341 (1970); People v. Thornton, 161 C. A. 2d 718, 327 P. 2d 161 (1958); and State v. Edwards, 311 P. 2d 266 (Okl. Cr. 1957).
Appellant contends also that Johnson County sheriff’s officers, although in the company of Bourbon County officers at the time of the execution of the search warrants here in question, had no authority to execute such warrants outside Johnson County, Kansas. K. S. A. 19-812 provides:
“The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all process, writs, precepts and orders issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county, and shall receive such fees for his services as are allowed by law.”
This court held long ago that a sheriff of a county within this state was authorized to serve process outside his county. In State, ex rel., v. Dreiling, 136 Kan. 201, 14 P. 2d 644, the court said:
“. . . It is contended in a petition for rehearing that a sheriff has no more authority to go outside the county to serve criminal process issued by a justice of the peace than a constable [has].
“The statute defining the authority of sheriffs contains no limitation similar to that contained in the statute relating to constables, and grants general authority to execute process issued and delivered to him. (R. S. 19-812.) Because there is no territorial limitation on the authority of a sheriff to execute a warrant of arrest, the contention is not well founded.” (p. 202.)
Finally, appellant questions whether or not a magistrate has authority or jurisdiction to issue a search warrant to be executed outside the territorial jurisdiction of his court, but he cites no authority to support his position.
K. S. A. 62-1830 was in effect at the time the two search warrants in question were issued. This statute was later repealed, effective July 1,1970.
K. S. A. 62-1830 provides:
“A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. The warrant shall be directed to any peace officer of the state of Kansas, or one of its governmental subdivisions who is authorized to enforce or assist in enforcing any law thereof. It shall state the grounds for its issuance, and shall command the officer to search the person, place, thing, or means of conveyance named for the property specified, and to seize such property and hold the same in accordance with the law.” (Emphasis added.)
In A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, 14 Pac. 229, this court said:
"... A justice of the peace is a township officer, under the constitution, and cannot be a county officer or a state officer. It is true that justices of the peace are in some sense ‘justices of the peace in their respective counties,’ and also in the state; it is true that a justice of the peace may, within his own township, perform the duties of an examining magistrate in cases, or hear cases, arising in any part of his county; and it is also true that he may, within his own township, issue criminal process to be served in any part of the state; . . .” (p. 598.)
State v. Durein, 65 Kan. 700, 703, 70 Pac. 601, is to the same effect.
Under K. S. A. 62-1830, a search warrant issued by a magistrate within the confines of his jurisdiction, can be served anywhere within the state of Kansas. That statute provides the warrant shall be directed to any peace officer of the state of Kansas or one of its governmental subdivisions. (But see K. S. A. 1971 Supp. 22-2503, effective July 1, 1970.)
Accordingly, the trial court did not err in upholding the issuance of the search warrants in question or their execution.
III.
The appellant requested an order directing the county attorney to produce for inspection all oral and written statements, and written memorandum of statements, given by any witnesses endorsed on the information filed by the state. The appellant asserts the refusal of the trial court to grant this request as error.
Appellant states in his brief he is mindful of the case authority which precludes him from receiving the requested information before trial. Nevertheless, the appellant suggests we reverse our prior decisions.
Prior to the passage of the new Kansas code of criminal procedure, which became effective July 1, 1970 (not here applicable), the rules governing discovery in criminal proceedings were de Iineated by case law rather than statute. (See K. S. A. 1971 Supp. 22-3212 and 22-3213.)
Under the law here applicable the granting or denial of an application for discovery or inspection of documents in the custody of the prosecution lay within the sound judicial discretion of the trial court, and a ruling by the trial court could not be disturbed absent an abuse of discretion. The court stated in State v. Oswald, 197 Kan. 251, 417 P. 2d 261:
“The granting or refusal of the accused’s request for the production or inspection of a writing for purposes of cross examining the witness lies in the discretion of the trial court, and in the absence of an abuse of discretion no error can be predicated thereon. . . .” (p. 262.)
See State v. Young, 203 Kan. 296, 454 P. 2d 724, and cases cited therein, for an extended discussion on this point.
The appellant has failed to make it affirmatively appear the trial court abused the exercise of its power of discretion in denying his request to produce for inspection statements given by witnesses endorsed on the information filed by the state.
IV.
The appellant contends the trial court erred in its refusal to grant his request to sever Count I (Childs kidnapping) from Counts II and III (Kemmerly kidnapping and murder).
Where separate and distinct felonies are charged in separate counts of an information and all of the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, a defendant may be tried upon all the several counts of the information in one trial. The determination of such matter rests in the sound discretion of the trial court. (State v. Coleman, 206 Kan. 344, 346, 480 P. 2d 78; and cases cited therein.)
In the instant case the offenses charged in the three counts of the information are clearly of the same general character, require the same mode of trial, the same land of evidence, and the same land of punishment. They clearly fall within the guidelines set out in Coleman, supra.
V.
Appellant contends the trial court erred in failing to quash Count III of the information or, in the alternative, to require the state to elect to proceed between alternative theories.
Count III of the information reads in part as follows:
. . Thomas P. Lamb did then and there unlawfully, feloniously, willfully and deliberately with premeditation and malice aforethought and while in the perpetration of a felony, to-wit: Kidnapping, did kill and murder a certain human being, to-wit: Karen Sue Kemmerly, by the strangulation of said Karen Sue Kemmerly.” (Emphasis added.)
Appellant complains he was prejudiced in that he was deprived of any knowledge as to which theory of first degree murder the state intended to rely upon. The state by pleading Count III in the language set out clearly apprised the appellant that it was proceeding on both theories of first degree murder and that it intended to produce evidence on both theories.
The three cases cited by appellant to support his position (State v. Baker, 197 Kan. 660, 421 P. 2d 16; State v. Kamen, 166 Kan. 664, 203 P. 2d 176; and State v. Blaser, 138 Kan. 447, 26 P. 2d 593) are distinguishable. These cases concerned a lack of specificity in pleading rather than too much.
In State v. Roselli, 109 Kan. 33, 198 Pac. 195, it was said:
“. . . Every murder committed by any kind of willful, deliberate and premeditated killing, is murder in the first degree. Use of poison, lying in wait, and killing in perpetrating or attempting to perpetrate arson, rape, robbery, burglary, or other felony, are stautory equivalents for the deliberation and premeditation essential to murder in the first degree. . . .” (p. 35.)
In State v. Keleher, 74 Kan. 631, 87 Pac. 738, it was said, “Proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree.” (p. 635.)
Recent cases discussing the felony murder rule more fully are: State v. Turner, 193 Kan. 189, 392 P. 2d 863; Allen v. State, 199 Kan. 147, 427 P. 2d 598; and State v. Moffitt, 199 Kan. 514, 431 P. 2d 879.
On this state of the law it cannot be said the appellant was prejudiced because the state was proceeding on both theories. Count III was not pleaded in the alternative, and the appellant was thereby advised the state did intend to proceed on both theories. A review of the record discloses sufficient evidence upon which the trial court could find the appellant guilty of murder in the first degree on either or both theories. Admissions and incriminating statements made by the appellant to the expert psychiatric witnesses who testified on his behalf, and the admissions made to the hostage, Mr. Midyett, buttressed the circumstantial evidence.
VI.
The appellant assigns as error the trial court’s refusal to permit him to present his defense in two stages, i.e., a bifurcated trial. The appellant contends he should first have been permitted to present evidence in an attempt to raise a reasonable doubt as to his guilt, and then, if unsuccessful in this endeavor, to proceed with the presentation of evidence as to his alleged insanity at the time of the commission of the offense. There are a few jurisdictions within the United States where a bifurcated trial is authorized by statute alone. (See People v. Cordova, 14 C. 2d 308, 94 P. 2d 40 [1939]; Bennett v. State, 57 Wis. 69, 14 N.W. 912 [1883]; Castro v. People, 140 Colo. 493, 346 P. 2d 1020 [1959]; and People v. Wells, 33 C. 2d 330, 202 P. 2d 53, cert. denied 338 U. S. 836, 94 L. Ed. 510, 70 S. Ct. 43 [1949].)
The appellant’s argument is that in presenting his defense on the issue of insanity it would become necessary for him to incriminate himself.
In the absence of any statute or rule of law recognized in Kansas, which would authorize the trial court to grant defendant’s request for a bifurcated trial, we find no error in the trial court’s refusal to do so. (See State v. Shaw, 106 Ariz. 103, 471 P. 2d 715.)
VII.
Appellant alleges the trial court erred in holding the M’Naghten rule to be the proper test for the defense of insanity in Kansas.
Appellant concedes that a majority of American courts have adopted the M’Naghten rule, including Kansas. However, the appellant earnestly argues the rule in Kansas as to insanity should be changed.
The leading case in Kansas on this question is State v. Andrews, 187 Kan. 458, 357 P. 2d 739, where the court clearly sets out its reasoning in holding the M’Naghten rule to be the proper test to be administered.
Absent any clear and compelling reason to depart from this well established rule, we decline to do so.
VIII.
The appellant contends the expert witnesses who testified on behalf of the state concerning the appellant’s sanity at the time of the commission of the alleged offenses should not have been permitted to testify due to the lack of a proper foundation for their testimony. The appellant concedes the qualifications of the state’s expert witnesses.
Each of the state’s experts testified that in arriving at his opinion as to the appellant’s sanity he considered some ten different items ranging from appellant’s Naval Reserve medical file to Dr. Joseph Satten’s written report concerning the appellant.
Dr. Satten and the other psychiatric expert who testified on behalf of the appellant testified that they considered the same material considered by the state’s experts. But, in addition, they had each had an opportunity to interview the appellant and conduct certain psychological testing on him.
The experts for the state candidly admitted on cross-examination that they would be better equipped to give an opinion as to the sanity of the appellant had they been afforded an opportunity to interview and test the appellant. However, they went on to state that they could formulate an opinion as to the appellant’s sanity based on the items which they had considered, along with their training, experience and professional expertise.
The state did request an opportunity to have its experts examine the appellant. However, the appellant objected and his objection was sustained by the court. Appellant now requests this court to allow him to benefit from his refusal to permit the state’s experts to examine him.
It is settled in this jurisdiction that if a defendant’s mental responsibility for crime is put in issue, his mental responsibility for the crime becomes an essential issue which must be proved by the prosecution beyond a reasonable doubt. (State v. Crawford, 11 Kan. 32; State v. McBride, 170 Kan. 377, 381, 226 P. 2d 246; and Wolcott v. United States, 407 F. 2d 1149 [10th Cir. 1969].)
The competency of an expert witness to give an opinion concerning matters of expertise lies largely within the trial court’s discretion, and its ruling will not be set aside on appeal in the absence of a clear showing of abuse. (State v. Jefferson, 204 Kan. 50, 460 P. 2d 610; and United States v. Kienlen, 415 F. 2d 557 [10th Cir. 1969].)
The objection of the appellant to the testimony of the state’s expert witnesses goes only to the weight of their testimony, and not to its admissibility.
The trial court did not abuse the exercise of its power of discretion in permitting the state’s expert psychiatric witnesses to testify.
IX.
The appellant contends insufficient evidence was presented at the trial for the court to find him guilty of all crimes with which he was charged.
He argues there was insufficient evidence to sustain the conviction on the two counts involving the kidnapping and the murder of Miss Kemmerly. This court’s function, when considering the sufficiency of circumstantial evidence competent to sustain a criminal conviction, is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) As previously stated under point V, supra, a review of the record discloses a sound basis in the evidence for a reasonable inference that the appellant murdered Karen Sue Kemmerly during the perpetration of her kidnapping.
The admission made by the appellant to Mr. Midyett, the hostage taken in making his escape from the Johnson County jail, and the incriminating statements made by the appellant to his expert psychiatric witnesses, which was the subject of their testimony in his defense on the issue of insanity, buttressed the circumstantial evidence in considerable detail.
The evidence was sufficient to support the appellant’s conviction on each of the counts charged.
X.
Appellant next maintains that since K. S. A. 21-403 makes no provision for allowing the court, when it sits as a jury, to make a disposition of the defendant following his conviction for first degree murder, he was improperly sentenced.
Apparently appellant chooses to ignore the fact that at the time he waived his jury trial he voluntarily agreed to and requested an imposition of sentence by the court.
At one point in the hearing on appellant’s motion to waive jury trial, the following colloquy was had between Mr. Lowe, defense counsel, and the appellant:
“Q. Now, do you in view of those absolute and constitutional rights that you have and that I have just reviewed with you, and that we have heretofore reviewed privately, do you ask that the Court waive the jury trial and try the case to the Court?
“A. Ido.
“Q. And you would likewise request then that the sentence, if any is imposed, if you are found guilty on any charges, that any sentence imposed be imposed by Judge Riggs; is that correct?
“A. That is correct.
“Q. Realizing that if a jury tried this case that a jury would have the obligation under the law to also impose the sentence; you realize that?
“A. I understand that.”
The argument raised by the appellant herein has been squarely dealt with by this court in State v. Burnett, 194 Kan. 126, 397 P. 2d 346, where it was said:
“. . . it is clear that the trial judge, in a case where the plea is hot guilty’ and a jury is waived — is empowered to fix the punishment. Who else could? . . .” (p. 131.)
In light of the foregoing we hold the trial court committed no error in pronouncing sentence on the appellant.
XI.
Finally, appellant contends the trial court erred in overruling his application to defer sentencing pursuant to K. S. A. 62-1534, el seq.
This court’s construction of the pertinent statutes can be found in State v. Daegele, 193 Kan. 314, 319, 393 P. 2d 978, cert. denied 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686.
A careful perusal of the statutes in question clearly shows their use is discretionary with the trial court. Our review of the evidence reveals no abuse of discretion on this point.
The judgment of the lower court is affirmed.
|
[
-48,
-26,
-36,
47,
27,
98,
42,
58,
51,
-45,
-10,
-45,
-119,
-63,
5,
59,
90,
-67,
84,
105,
-15,
-74,
71,
-31,
-46,
-5,
56,
-43,
-78,
91,
62,
-10,
109,
112,
74,
93,
70,
10,
69,
90,
-114,
-124,
-69,
-16,
89,
82,
-72,
56,
62,
14,
-15,
30,
-85,
43,
20,
-49,
41,
40,
106,
-67,
-64,
-8,
-85,
-121,
95,
18,
-109,
4,
-74,
7,
-40,
55,
-40,
57,
32,
-24,
-6,
-106,
-122,
124,
109,
-119,
12,
34,
98,
32,
-116,
-81,
-8,
-119,
110,
118,
-115,
-89,
24,
8,
64,
100,
-106,
-97,
110,
20,
9,
-8,
-10,
78,
93,
-28,
-119,
-49,
-76,
-79,
77,
113,
-98,
-70,
-5,
37,
35,
113,
-51,
104,
92,
118,
118,
-109,
-114,
-104
] |
The opinion of the court was delivered by
Schroeder, J.:
This is a declaratory judgment action to determine the validity of a CATV enabling ordinance known as the “Topeka Cable Television Systems Franchise Ordinance,” and a franchising ordinance issued pursuant thereto under the Home Rule Amendment of the Kansas Constitution.
The action was originally commenced by Capitol Cable, Inc. (plaintiff-appellee) for mandamus and damages. After pretrial and before the case was ultimately submitted to the trial court, it was converted to a declaratory judgment action challenging the validity of the enabling cable television ordinance. (See K. S. A. 60-1701.) The trial court rendered its decision in this action upon due con sideration of appellants’ motion for summary judgment. (K. S. A. 60-256.) It concluded the “Topeka Cable Television Systems Franchise Ordinance” (ordinance No. 12959) was void and unenforceable. As a consequence ordinance No. 12986 granting a franchise to Cablecom-General of Topeka pursuant to the enabling ordinance was declared invalid.
The material facts are not in dispute.
Ordinance No. 12959 of the City of Topeka known as the “Topeka Cable Television Systems Franchise Ordinance” was enacted on July 7, 1970. It provides, in essence, for the issuance of a nonexclusive franchise or permit for cable television systems by the governing body of the City of Topeka. It provides that an award of franchise is to be made on the basis of applications. In connection with the ordinance instructions were prepared and distributed to those wishing to make application for a franchise. The details required in the application are similar to those specified in the ordinance and need not be set forth.
Pursuant to the provisions of ordinance No. 12959, nine applicants made application for a franchise. All nine were certified to the City Commission by the City Clerk, and on August 4, 1970, the applicants were given an opportunity to present their applications orally. On August 5, 1970, the City Commission awarded a franchise to Cable-com-General of Topeka, one of the nine applicants. The other eight, including Capitol Cable, Inc., the plaintiff herein, were denied franchises. As a result the plaintiff brought this action originally as a mandamus action to compel the City of Topeka to issue a franchise to it under the ordinance. In essence, the plaintiff’s original petition admitted the validity of ordinance No. 12959, but subsequent developments, prior to submission of the case, raised an issue concerning the constitutional validity of the ordinance.
Thereafter ordinance No. 12986 granting Cablecom-General of Topeka a franchise was enacted on August 25, 1970. It authorized Cablecom-General to construct, operate and maintain a community antenna television system within the City of Topeka. As a result of the plaintiff’s action herein the City was enjoined from publishing the ordinance until final determination of the litigation.
Provisions of the enabling ordinance (No. 12959) are summarized as follows:
Among the definitions at the beginning of the ordinance it defines “CATV System” and “Franchise” as follows:
“ ‘CATV System’ means a system composed of, without limitation, antennae, cables, wires, lines, wave guides or other conductors, equipment, or facilities, designed, constructed or used for the purpose of receiving, amplifying and distributing by coaxial cable audio-visual, television, electronic, electrical, or radio signals to persons in the City for a fee.
“ ‘Franchise’ means the non-exclusive authorization granted hereunder to use the streets and alleys of the City to construct, operate, maintain or lease a CATV system and provide CATV service within the corporate limits of the City.”
It then provides:
(a) No person shall use the streets or other public ways of the City to install or operate a CATV system, or provide CATV service in the City without a franchise.
(b) A franchise is to be granted on the basis of the applications made to the City in writing to be accompanied by a $250 nonrefundable application fee. The application should contain the following information:
(1) The name, address and form of business organization.
(2) A description of the CATV system proposed to be installed or operated; the proposed location of components of such CATV system, the manner in which the applicant proposes to install or operate the same; the extent to which existing or future poles or other facilities of public utilities will be used for such system; the personnel and qualifications of the working organization proposed for the City; a map specifically showing and delineating the proposed service area within which the applicant proposes to provide CATV service.
(3) A copy of each agreement the applicant has with any other person or firms relating to the proposed franchise, including public utilities.
(4) A copy of the CATV service agreement proposed for use by the applicant with its subscribers.
(5) A statement describing the applicant, its officers and directors, partners or major stockholders, indicating business experience, including experience and performance in the CATV system and service field showing any interest in other franchise, the dates of such; a separate listing showing all city employees or officers or appointees that have any interest, direct or indirect, in the applicant; and the application filed with the City shall be accompanied by a bid bond acceptable to the City for $10,000, to be returned if applicant is not awarded a franchise.
(6) A detailed statement showing the estimated cost of the system which applicant proposes to install, the amount of working capital necessary to operate the system during the first five-year period of the franchise. A projection of revenue and expenses for the first five years’ operation is to be included.
(7) A declaration that the application is true and complete and that no person not shown in the application has any interest in the application for franchise.
(8) A statement setting forth those signals which the applicant would bring into the City, and in addition thereto, information regarding programming, setting forth the channels to be used.
(9) A statement or schedule of proposed rates and charges to subscribers for installation and services.
(10) A financial statement prepared by a certified public accountant within the last 180 days showing applicant’s financial status and his financial ability to complete the construction and installation of the proposed CATV system.
(11) The City Attorney shall prepare instructions and furnish them to all interested parties stating how the application shall be submitted.
“(12) The applicant may submit any information they deem appropriate whether required herein or not.”
(c) The Commission will then award a franchise, or franchises, on the basis of the applications, to use the public streets.
(d) The franchise confers on the grantee for twenty years from its effective date, or until terminated, the nonexclusive right to install and operate a CATV system in the City, and for those purposes, to install in, on, over, under, upon, across and along any street any part of the CATV system of the grantee which may be necessary or desirable for operation of the CATV system.
(e) Grantee shall begin installation of the CATV system within a reasonable length of time after the effective date of the franchise ordinance.
(/) Whenever public utility facilities are underground the CATV system, when subsequently installed in the area, shall be installed underground; the CATV system shall only be installed on property of the grantee, on existing pole facilities covered by utility approval, on property of a subscriber, or on utility easements, rights of way, or streets of the City; installation of new poles in the street is forbidden without the prior written consent of the City; the installation of the CATV system shall be in accordance with the requirements of the National Electrical Safety Code of the American Insurance Association and all local and state laws and regulations; the grantee shall at its own expense relocate or change any of its property located on the public streets, rights of way and easements when required to do so by the Commission.
(g) Grantee shall maintain an office staffed to provide adequate service during all usual business hours, and have a listed telephone so that messages, complaints and requests for repairs or adjustments may be received at any time without toll charges.
(h) The grantee shall pay all damages which the City is required to pay as a result of granting a franchise, and shall maintain in effect during the term of the franchise insurance as specified. It shall also provide a corporate surety bond in the sum of $200,000 conditioned upon the faithful performance of the grantee under the ordinance and the franchise. The grantee shall maintain statutory workmen’s compensation insurance, including $100,000 coverage for employer’s liability coverage.
(i) The grantee is required to file a schedule of fees and charges it will make upon subscribers with the City Clerk upon issuance of tire franchise.
(/) The grantee shall pay to the City, in lieu of all occupation and license taxes, charges or fees other than ad valorem taxes which might be imposed by the City, $25,000 for the first year upon the granting of the franchise; beginning the first year after the franchise is granted the grantee shall pay quarterly an amount equal to twenty cents per month, per main installation within the City for the period; and the City shall have the unqualified right at any time to inspect the grantee’s records from which payments to the City are computed.
(k) The grantee cannot transfer, sell, lease, assign or dispose of the franchise without prior consent of the City Commission, which will not be unreasonably withheld.
(l) Any franchise granted under the ordinance shall be nonexclusive.
(m) The grantee may renew the franchise for an additional twenty-year term, subject to the provisions of the ordinance, except that the City expressly reserves the right to raise or lower the rate of payment to the City and make other changes it deems advisable.
(n) The City may amend any provision of the ordinance and may adopt regulations it finds necessary in the exercise of the police power, but such amendments and regulations shall be reasonable and not in conflict with the rights granted or with Federal or State legislation and regulations; franchises may be terminated prior to their expiration if the Commission finds, after thirty days’ notice to the grantee and a public hearing regarding the proposed termination, if the grantee violates provisions of the franchise or ordinance, or if the grantee has been adjudicated a bankrupt, insolvent, or has made an assignment for the benefit of creditors.
(o) The City may require the grantee to permit a public utility serving the City to use some of the component parts of the CATV system as the Commission shall determine to be just and reasonable, when that use would enhance the public convenience, if agreement cannot be reached between the grantee and the public utility; the City may inspect the books, records, maps, plans and other like materials of the grantee for the purpose of determining the grantee’s compliance with the orders; the City is authorized to settle disputes arising from the grantee’s operations except those to which the City is a party; the City Attorney is authorized to settle disputes arising from the grantee’s operations under a franchise or this ordinance, except those to which the City is a party. Appeal may be taken to the City Commission.
(p) Copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, Corporation Commission, or any other Federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting CATV system and franchise shall also be submitted simultaneously to the City.
(q) The installation, construction, operation and maintenance of the CATV system and the conduct of its business shall comply with all current Federal, State and City laws, regulations and ordinances applicable thereto. Anything in this ordinance which is in conflict with or contrary to a rule or regulation of the Federal Communications Commission is of no force and effect during the period the rule or regulation of the FCC is in force and effect.
On the basis of a record presenting the foregoing facts the trial court found there was no showing the City intended to regulate CATV business as a public utility, and the court specifically found “that this business is a private commercial enterprise.”
Accordingly the trial court concluded that a municipality cannot, under the guise of police power, enact an ordinance which would regulate the business of a private commercial enterprise, unless the provisions or regulations are reasonably designed to accomplish the purpose and have a rational relationship thereto; and that the ordinance had no rational relationship to the use and regulation of the city streets, and the Home Rule Amendment under Article 12, Section 5, of the Kansas Constitution does not grant powers to the City of Topeka to enact unreasonable ordinances. It further concluded:
“5. An ordinance which puts it in the power of the officers of a city to grant one and deny others the right to operate a commercial business is invalid and void.”
It is apparent the trial court was relying on Community Antenna TV of Wichita, Inc. v. City of Wichita, 205 Kan. 537, 471 P. 2d 360, 41 A. L. R. 3d 374. Some of the trial courts conclusions are taken directly from the syllabus in that case.
It cannot be overemphasized that the Wichita case was premised upon the trial court’s conclusion that community antenna television service “ ‘is a commercial enterprise of nonpublic utility character.’ ” (p. 540.) After quoting the trial court’s conclusion in the opinion the court said:
“Both parties have accepted and adopted the conclusion. We therefore accept the statement as conclusive in this particular case without consideration or determination of the question.” (p. 541.) (Emphasis added.)
In the instant case the conclusion of the trial court that the CATV business is a private commercial enterprise is not accepted by the appellants. This must be noted as a major point of distinction.
Senate Bill No. 499 entitled “An Act authorizing cities to grant franchises to those engaged in operating or providing cable television service within cities” was enacted by the 1972 session of the legislature and signed by the Governor on March 17, 1972. The act becomes effective and will be in force from and after its publication in the official state paper. Section 1 provides:
“[CJable television service regulation. The furnishing of cable television service by means of facilities in place in the public ways, streets and alleys is hereby declared to be a private business affected with such a public interest by reason of its use of the public ways, alleys and streets so as to require that it be reasonably regulated by cities. Every city is hereby authorized and empowered by ordinance to permit or prohibit the operation of all businesses furnishing cable television service within its corporate limits. Each city shall supervise and regulate all cable television service businesses operating within its corporate limits so far as may be necessary to prevent such operation and service from having detrimental consequences to the public interest, and for this purpose may promulgate and enforce such reasonable rules and regulations as it may deem necessary with reference to commencement of operation, territory of operation, the extension of service equitably to all parts of the franchise area, abandonment of facilities, elimination of unjust discrimination among subscribers, financial responsibility, insurance covering personal injury and property damage, safety of equipment, use of streets, alleys, dedicated easements and other public places, and reasonable grounds for forfeiture of franchise rights.” (Emphasis added.)
This enactment by the legislature supersedes Community Antenna TV of Wichita, Inc. v. City of Wichita, supra, when the act declares CATV to be a private business affected with such a public interest as to require reasonable regulation, contrary to the premise upon which the Wichita opinion was written.
While the enabling ordinance here under consideration is similar to the enabling ordinance enacted by the City of Wichita, it cannot be overemphasized that there is another important area of distinction. The Wichita ordinance required the payment of a percentage of the gross income as a franchise privilege. It also required free CATV service to all hospitals, public and parochial schools located within the City, and to municipal buildings. These requirements were held to be unreasonable and void because neither of the above two provisions (the payment of a percentage of gross income and the requirement for free service) bore a “reasonable relationship to expense and inconvenience to be occasioned by the city.’” (p. 540.) In the Wichita case the court concluded:
“Although many provisions of the ordinance are proper as regulation of the streets, they are so commingled with the unlawful exactions that they are not severable and the entire ordinance must fall.” (p. 544.)
On the record here presented we cannot say the annual fee imposed upon the grantee of a franchise by ordinance No. 12959 is unreasonable or excessive in relation to the expense and inconvenience to be occasioned by the City.
The appellants frankly concede they have not relied upon K. S. A. 12-2001 as authority for the enactment of ordinance No. 12959. That statute has been held to apply only to public utilities. (Manor Baking Co. v. City of Topeka, 170 Kan. 292, 225 P. 2d 89.)
Since July 1, 1961, under Article 12, Section 5, of the Kansas Constitution, the cities of Kansas have had Home Rule powers. Under Home Rule authority the cities are “empowered to deter mine their local affairs and government,” and the cities “shall exercise such determination by ordinance,” subject only to state statutes of statewide concern applicable uniformly to all cities. (Art. 12, §5 [b], Kansas Constitution.) The Constitution also provides that the powers and authority granted to cities under the Home Rule Amendment “shall be liberally construed for the purpose of giving to cities the largest measure of self-government.” (Art. 12, §5 [d], Kansas Constitution.)
Prior to the Home Rule Amendment G. S. 1949, 13-434, pertaining to franchises, authorized a city “To grant to any person or corporation die use of the streets, alleys or public grounds” for certain purposes “or other use” to furnish or supply “such city and its inhabitants” with "service” under “such restrictions as shall protect public and private property,” provided that no such privilege last longer than “twenty years.’’ After the adoption of the Home Rule Amendment to the Constitution, this and many other statutes affecting cities were repealed in 1963.
Inferentially, Community Antenna TV of Wichita, Inc. v. City of Wichita, supra, may be construed to uphold the power of a city to regulate a CATV business under the police power if the ordinance enacted was not unreasonable. Syllabus f 1 reads:
“The home rule amendment in broadening the powers of municipalities did not extend to them the power to enact unreasonable ordinances under the guise of police power.”
Counsel for the appellee in the instant case addressed the trial court with reference to the CATV business and said:
“If it is a utility, then I would have to say the City in my opinion probably has the right [to regulate]. If it is private enterprise, I say no. And this becomes the peanut of the case. . . .”
Some courts have classified CATV companies as “public utilities” in the broad sense of that term (Staminski v. Romeo, 62 Misc. 2d 1051, 310 N. Y. S. 2d 169; and Aberdeen Cable TV v. Aberdeen & S. D. TV, 85 S.D. 57, 176 N. W. 2d 738), or as a public utility in a limited sense impressed with a public interest (State Ex Rel. Pruzan v. Redman, 60 Wash. 2d 521, 374 P. 2d 1002). Some say the business is monopolistic in character and affected with a public interest (TV Fix, Inc. v. Taylor, 304 F. Supp. 459 [Nev. 1968]), but others say a CATV company is not a natural monopoly and not sufficiently affected with a public interest (Greater Fremont, Inc. v. City of Fremont, 302 F. Supp. 652 [N. D. Ohio, 1968].)
In view of the record and recent developments in the CATV busi ness, we think the nature of a CATV business is to be resolved, not as a question of fact, but as a question of law. Accordingly, we conclude CATV is a private business affected with such a public interest as to require reasonable regulation by the City. This determination is based not only on the record, but in part on the action of the state legislature in 1972 in adopting Senate Bill No. 499, upon regulations adopted by the Federal Communciations Commission effective March 31, 1972, and proceedings conducted by the FCC prior thereto as reported in the Federal Register (Feb. 12, 1972, Vol. 37, No. 30), hereinafter discussed.
An objective of the Home Rule Amendment to the Kansas Constitution was to give each municipality authority to carry out municipal functions without statutory authorization. Accordingly, the City of Topeka had authority to enact ordinance No. 12959 providing for the issuance of a nonexclusive franchise or permit for cable television systems in accordance with the provisions set forth in the ordinance. On the basis of our review of the ordinance and the record on appeal we find nothing in ordinance'No. 12959 which is unreasonable.
Under such ordinance the governing body of the City has discretion, and it is under no positive duty to grant a franchise; hence, mandamus asserted by the appellee to compel the granting of a franchise to it will not lie. (Cablevision v. Winston-Salem, 3 N. C. App. 252, 164 S. E. 2d 737.)
The power of the governing body of a city to grant or refuse to grant a franchise is essentially legislative in nature requiring the exercise of judgment and discretion, and courts may not inquire into motives which prompt a municipality’s legislative body to enact an ordinance which is valid on its face. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161; Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194; Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89; City of Emporia v. Humphrey, 132 Kan. 682, 297 Pac. 712; and Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545.)
The Federal Communications Commission published the report of its inquiry into cable television service and cable television relay service in the Federal Register, supra, under Title 47 — Telecommunication, page 3252. The inquiry was conducted into the development of Communications Technology and Services to formulate regulatory policy and rule making and/or legislative proposals. Concerning the communications regulatory program it said:
“177. Dual jurisdiction. The comments advance persuasive arguments against Federal licensing. We agree that conventional licensing would place an unmanageable burden on the Commission. Moreover, local governments are inescapably involved in the process because cable makes use of streets and ways and because local authorities are able to bring a special expertness to such matters, for example, as how best to parcel large urban areas into cable districts. Local authorities are also in better position to follow up on service complaints. Under the circumstances, a deliberately structured dualism is indicated; the industry seems uniquely suited to this kind of creative federalism. We are also persuaded that because of the limited resources of States and municipalities and our own obligation to insure an efficient communications service ivith adequate facilities at reasonable charges, we must set at least minimum standards for franchises issued by local authorities. These standards relate to such matters as the franchise selection process, construction deadlines, duration of the franchise, rates, and rate changes, the handling of service complaints, and the reasonableness of franchise fees. The standards will be administered in the certificating process.” (p. 3276.) (Emphasis added.)
Under “Franchising” the Commission said:
“178. Franchising. We afe requiring that before a cable system commences operation with broadcast signals, it must obtain a certificate of compliance from the Commission. The application for such a certificate must contain (§ 76.31 [a] [1 ]) a copy of the franchise and a detailed statement showing that the franchising authority has considered in a public proceeding the system operator’s legal, character, financial, technical, and other qualifications, and the adequacy and feasibility of construction arrangements. We expect that franchising authorities will publicly invite applications, that all applications will be placed on public file, that notice of such filings will be given, that where appropriate a public hearing will be held to afford all interested persons an opportunity to testify on the qualifications of the applicants, and that the franchising authority will issue a public report setting forth the basis for its action. Such public participation in the franchising process is necessary to assure that tire needs and desires of all segments of the community are carefully considered.” (p. 3276.) (Emphasis added.)
The report covers among other things applicant qualifications, franchise area, construction, franchise duration, subscriber rates, service complaints, franchise fee, and grandfathering. Its conclusions were set forth in paragraph VI in part as follows:
“189. Cable television is an emerging technology that promises a communications revolution. Inevitably, our regulatory pattern must evolve as cable evolves — and no one can say what the precise dimensions will be. This report and order represents the amount and the substance of regulation that we believe is essential, at this stage, for the orderly development of the industry. We have taken long overdue first steps after more than 3 years of exhaustive inquiry.
“190. The rules will be effective March 31, 1972. Out of an abundance of caution, we are delaying the date beyond the 30 days ordinarily required so that we may have before us any petitions for reconsideration prior to the rules becoming operative. But for more than 3 years we have been gathering data, soliciting views, hearing argument, evaluating studies, examining alternatives, authorizing experiments — turning finally to public panel discussions unique in communications rule making — and, in this effort, have necessarily postponed the substantial public benefits that cable promises. In these circumstances, we do not foresee that there can be any case for further delay.
“191. Authority for adoption of these rules is contained in sections 2, 3, 4 (i), and (j), 301, 303, 307, 308, and 309 of the Communications Act of 1934, as amended. We reaffirm our view that cable systems are neither broadcasters nor common carriers within the meaning of the Communication Act. Rather, cable is a hybrid that requires identification and regulation as a separate force in communications.” (p. 3277.) (Emphasis added.)
Accordingly, the Federal Communications Commission, effective March 31, 1972, ordered its rules and regulations amended.
Under Subpart B — Applications and Certificates of Compliance, the rules and regulations provide (§ 76.11 [a]) that no cable television system, shall commence operations or add a television broadcast signal to existing operations unless it receives a certificate of compliance from the Commission. In subparagraph (b) it provides that no cable television system lawfully carrying television broadcast signals in a community prior to March 31, 1972, shall continue carriage of such signals beyond the end of its current franchise period, or March 31, 1977, whichever occurs first, unless it receives a certificate of compliance.
Under Subpart C — Federal-State/Local Regulatory Relationships, Section 76.31 sets forth franchise standards under (a), similar to those enumerated in the summary of the ordinance here under consideration. Under subparagraph (b) it provides:
“(b) The franchise fee shall be reasonable (e. g., in the range of 3-5 percent of the franchisee’s gross subscriber revenues per year from cable television operations in the community [including all forms of consideration, such as initial lump sum payments]). If the franchise fee exceeds 3 percent of such revenues, the cable television system shall not receive Commission certification until the reasonableness of the fee is approved by the Commission on showings, by the franchisee, that it will not interfere with the effectuation of Federal regulatory goals in the field of cable television, and, by the franchising authority, that it is appropriate in light of the planned local regulatory program. The provisions of this paragraph shall not be effective with respect to a cable television system that was in operation prior to March 31, 1972, until the end of its current franchise period, or March 31, 1977, whichever occurs first.’’ (p. 3281.) (Emphasis added.)
If the annual charge to a subscriber for CATV service is $60, as indicated in the report of the FCC’s inquiry, the twenty cents per month set up in the Topeka ordinance per subscriber as the basis for an annual fee would amount to four percent of the gross revenue of the franchisee. The record is insufficient to go beyond this observation, but if the ordinance fails to comply with requirements of the FCC this would be changed by FCC regulation.
We now turn to the ordinance adopted by the City of Topeka purporting to grant a franchise to Cablecom-General of Topeka to construct, operate and maintain a community antenna television system within the City of Topeka, Kansas (ordinance No. 12986).
The trial court issued both a temporary and a permanent injunction to halt publication of the franchising ordinance until the litigation was finally determined.
One of the provisions in ordinance No. 12959, the enabling ordinance, provides:
“(12) The applicant may submit any information they deem appropriate whether required herein or not.”
Cablecom-General of Topeka, to whom the franchise was granted, under the foregoing provision in its application made a generous offer of fringe benefits to the City. “Fringe benefits” is a term used by Lauren Nash, one of the City Commissioners of Topeka, in his deposition testimony taken during discovery which was before the trial court. Mr. Nash indicated in awarding a franchise he took into consideration the financial ability of the applicant to perform, how much experience the company had, “these all were taken into consideration besides the fringe benefits, as you might put it.”
Nash testified concerning the lack of qualifications of the appellee, Capitol Cable, Inc. In response to a question he stated:
“They didn’t have the financial backing, to start with. They didn’t have the experience behind them, secondly. They didn’t give the fringe benefits, thirdly. What else do you want to know?” (Emphasis added.)
Under section 6 of ordinance No. 12986 the City accepted the offer of Cablecom-General of Topeka as follows:
“Section 6. Benefits to Community: Pursuant to Section 10 of grantee’s application, grantee has offered to furnish various services, merchandise and equipment which the City agrees to accept. It is agreed that said services, merchandise and equipment shall be available to the respective recipients within twenty-four (24) months from the effective date of this ordinance. It is understood that through negotiation and compromise and because of the time of construction, certain alterations in equipment and other matters may be agreed upon by the grantee and the various recipients. Therefore, it is not the intent of this ordinance to prevent further negotiation to modify the guarantees made by the grantor so long as they are requested by the recipient.
“Grantee has offered and the City accepts grantee’s proposal to pay to Washburn University in connection with KTWU Television Station annually an amount equal to two (2) percent of its gross revenues. Grantee shall begin said payments annually, beginning one year from the effective date of this ordinance.
“Grantee agrees to pay the sum of Fifty Thousand ($50,000.00) Dollars upon the effective date of this ordinance as advance payment of the amounts to become due hereunder to Washburn University. Grantee shall be credited annually against the advance payments for the amounts due hereunder. Grantee agrees to notify the City of all payments and credits hereunder.’’ (Emphasis added.)
When the cost to Cablecom-General of Topeka of these additional benefits to the community are added to the annual fee which it is required to make to the City under the enabling ordinance, the total fee exacted by the City for administering the CATV system by the City governing body is far beyond what is reasonably necessary for regulatory purposes.
A study of all nine applications for a franchise made to the City governing body, readily discloses that the franchise was awarded to the highest bidder. Other applicants made similar bids, but considerably less in total benefits inuring either directly or indirectly to the City. One of the major reasons for holding the enabling ordinance of the City of Wichita void (Community Antenna TV of Wichita, Inc. v. City of Wichita, supra) was that the charges made by the City for the franchise were excessive and bore no reasonable relationship to the expense and inconvenience to be occasioned by the City. Washburn University is a municipal university deriving the majority of its support from the taxpayers of the City of Topeka. Any financial benefit received by Washburn University as a result of the issuance of the franchise to CablecomGeneral of Topeka would inure indirectly to the City and be over and above the annual fee required by the enabling ordinance.
The annual franchise fee exacted by a city for the issuance of license or franchise must be reasonable and commensurate with the expense encountered to administer the public aspect of the business licensed or receiving the franchise. The control of annual franchise fees to assure their reasonableness is assumed by the Federal Communications Commission in its regulations.
Accordingly, ordinance No. 12986, whereby the City of Topeka attempts to grant a franchise to Cablecom-General of Topeka, is permeated with arbitrary and unreasonable action on the part of the governing body of the City of Topeka and must be set aside as void. (Community Antenna TV of Wichita, Inc. v. City of Wichita, supra.) The franchising ordinance of the governing body of the City fails to comply with the enabling ordinance.
Other points asserted on appeal are either moot or immaterial in view of our disposition of the case.
The judgment of the lower court declaring ordinance No. 12959 of the City of Topeka void is reversed, but as to ordinance No. 12986, granting a franchise to Cablecom-General of Topeka, the judgment voiding the franchise is affirmed.
|
[
-44,
-36,
-36,
-52,
14,
98,
-112,
-108,
59,
-79,
-89,
83,
-115,
-56,
20,
106,
-54,
61,
16,
99,
-14,
-94,
15,
-22,
-110,
-45,
-73,
-43,
-14,
79,
-12,
-18,
76,
48,
74,
-107,
102,
-62,
69,
28,
-114,
6,
-103,
81,
-31,
67,
54,
81,
50,
-125,
81,
13,
-69,
46,
25,
-61,
-88,
60,
-37,
-19,
79,
-7,
-21,
-43,
92,
23,
48,
4,
-40,
-123,
-56,
62,
-102,
57,
8,
-24,
83,
-90,
-114,
116,
43,
-39,
12,
38,
99,
33,
-87,
-17,
-68,
-104,
6,
-47,
-99,
-122,
-73,
88,
99,
5,
-74,
-65,
100,
22,
7,
-2,
-25,
-124,
27,
108,
9,
-122,
-44,
-77,
12,
113,
-125,
65,
-5,
-60,
49,
52,
-49,
-44,
95,
119,
22,
27,
-98,
-35
] |
The opinion of the court was delivered by
Fromme, J.:
This is a garnishment proceeding brought to recover on a prior judgment for alimony and child support in the amount of $8,014. The prior judgment was affirmed by this court in Washburn v. Washburn, 204 Kan. 160, 460 P. 2d 503.
A previous attempt to collect this judgment by a sale of property on execution resulted in contested litigation which has reached this court and is this day decided. The opinion in that appeal is titled and appears as Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321, 496 P. 2d 1358. The present garnishment proceeding is a sequel to that case and we suggest the factual background of that case be kept in mind. The property sought to be sold to satisfy the judgment in that case is the same property which gave rise to the credits or indebtedness sought to be reached by garnishment in this case. The property consists of a residential property at 1718 North 79th Street in Kansas City, Kansas. An equity was acquired in the property by Howard Washburn, the judgment debtor in the divorce action.
The holder of legal title to the property was Jackson & Scherer, Inc. The Brotherhood State Bank of Kansas City, Kansas, held a first mortgage on the property. The money was used for construction purposes. Jackson & Scherer, Inc. had granted to Howard Wash-burn, the judgment debtor, an option to purchase the property. Substantial payments on the contract price had been made by Washburn under the option contract. This particular form of contract (Form 319A “Option Agreement — Flat Payment”) is no stranger to this court. See Letzig v. Rupert, Executor, 209 Kan. 143, 495 P. 2d 955, and cases cited therein. When a substantial portion of the contracted amount has been paid under this particular form of option contract the party to whom the option was given acquires an equitable interest in the property. (Stevens v. McDowell, 151 Kan. 316, 98 P. 2d 410.)
Before the present garnishment proceeding was initiated a sale of this property, including the equitable interest of Howard Wash-burn, was negotiated by Jackson & Scherer, Inc. The sale was evidenced by a written contract between Howard Washburn and Jerry L. Andrew whereby Andrew agreed to purchase the property. Washburn was designated in and signed the contract as the seller. The purchaser Andrew agreed to pay the seller the difference in cash between the sale price ($54,000) and an outstanding mortgage ($41,300) upon proof of merchantable title and delivery of a warranty deed. The contract was dated January 27, 1970.
The garnishment order served on Jerry L. Andrew sought to reach any amount due Howard Washburn under this contract. The order was served on February 25, 1970. The garnishee Andrew filed an answer on March 4, 1970, alleging no indebtedness was due to Washburn. In reply the judgment creditor, Margaret A. (Wash-burn) Castagna, filed and served upon the garnishee a notice as follows:
“Please take notice that the plaintiff in the above entitled action elects to take issue on your answer as garnishee herein to the garnishment summons, and will maintain you to be liable as garnishee.”
Such a notice was provided for under our former statute, G. S. 1949, 60-948, but that statute has been repealed. The statute in effect when the present garnishment proceeding was initiated was K. S. A. 1969 Supp. 60-718. The latter statute provides that a reply should be filed “controverting any statement in the answer.” However, we do not deem the failure to follow the latter statute determinative in this case. The case was set for trial to the court. On the day appointed the court took judicial notice of the proceedings and the judgment entered in the case of Jackson & Scherer, Inc. v. Washburn, supra. After listening to the arguments of counsel the trial court held in favor of the garnishee.
The primary question raised by this appeal is whether the garnishment order served on Andrew reached the funds under the contract of purchase which were to be paid to Howard Washburn for his equity in the property.
Appellant’s argument is based upon the premise that an unmatured and contingent liability is subject to garnishment under our present Kansas law. There can be little doubt that under prior law the premise was sound. See Lewis v. Barnett, 139 Kan. 821, 825, 33 P. 2d 331, 93 A. L. R. 1082; Anderson v. Dugger, 130 Kan. 153, 285 Pac. 546; and Winterscheidt v. Wilson, 110 Kan. 649, 205 Pac. 600. Statutes in effect when those cases were decided provided that a garnishee was liable to the plaintiff “to the amount ... of all debts due or to become due to the defendant, except such as may be by law exempt from execution.” (See R. S. 1923 and G. S. 1949, 60-954.) R. S. 1923, 60-946 (First), which later became G. S. 1949, 60-946, required a garnishee to answer “whether he was . . . indebted or under liability to the defendant named in the notice in any manner . . . specifying, if indebted, . . . when payable, whether an absolute or contingent liability. . . .” R. S. 1923, 60-955, which later became G. S. 1949, 60-955, provided that “judgment may be given for any money or other thing owing, although it has not become payable, in which case the garnishee shall not be required to pay or deliver it before the time appointed by the contract.” (See the last paragraph of said statute.) These statutes supported the holding in those cases which held an unmatured and contingent liability was subject to garnishment.
However, on January 1, 1964, when the present Code of Civil Procedure went into effect, marked statutory changes appeared in our garnishment laws. K. S. A. 60-717 (c) later amended as K. S. A. 1969 Supp. 60-717 (c) in relevant part provides:
“The order of garnishment shall have the effect of attaching (1) . . . all credits and indebtedness due from the garnishee to the defendant at the time of service of the order, and (2) . . . all credits and indebtedness becoming due to the defendant between the time of the serving of the order of garnishment and the time of the filing of the answer of the garnishee.” (Emphasis added.)
Under the above statute any indebtedness becoming due after the time of filing the answer of the garnishee, by negative implication at least, is not to be reached by the order of garnishment.
Significantly the requirement of the former statute, 60-946, that the garnishee specify indebtedness whether absolute or contingent, was deleted from K. S. A. 60-717 (a) and K. S. A. 1969 Supp. 60-717 (a). Equally notable is the fact that the provision which protected the garnishee from being required to pay unmatured amounts under a contract before they came due (G. S. 1961 Supp. 60-955) was entirely deleted when the present statute (K. S. A. 60-724) was enacted. Likewise the provision in G. S. 1949,60-954, which held the garnishee liable for all debts due or to become due to the defendant was deleted.
Considering the foregoing changes in the law it appears clear to us that under the present Code of Civil Procedure an order of garnishment will not reach credits or indebtedness which remain unmatured and contingent when the garnishee’s answer is filed. The effect of an order of garnishment is to attach those credits and indebtedness due from the garnishee to the defendant at the time of service of the order and those becoming due between the time of serving the order of garnishment and the time of filing the answer of the garnishee. (K. S. A. 60-717 [c] as amended.)
Let us now consider the question which naturally follows. Did any credits or payments under the contract negotiated by Jackson & Scherer, Inc. become due and unpaid between February 25, (when the garnishment order was served), and March 4, 1970 (when the garnishee’s answer was filed)? We think not.
During the critical period from February 25 to March 4, 1970, the property which was the subject matter of the contract was in litigation as indicated by Jackson & Scherer, Inc. v. Washburn, supra. During this period the judgment creditor, Margaret A. (Washburn) Castagna was attacking the validity of the WashburnAndrew contract and was seeking to obtain a public sale of the property on execution. If she had been successful in that litigation, the Washbum-Andrew contract would have been nullified. There fore, the seller, Howard Washburn, was not at that time capable of showing merchantable title. Until merchantable title was available and a warranty deed could be delivered no further credits or payments were due under the contract. It was well over a month after the filing of the answer of the garnishee that the district court’s decision in Jackson & Scherer, Inc. v. Washburn, supra, was filed and shortly thereafter the funds were paid into court pursuant to judgment in that case. It would appear that the judgment in favor of the garnishee was proper.
Two other matters argued by appellant deserve comment. It is contended that the trial court failed to provide a proper hearing on the “Election to Take Issue on Answer of Garnishee” filed by appellant. The statute, K. S. A. 60-718, provides if a reply is filed the court shall try the issue joined. The case was set for trial to the court and during presentation counsel for appellant acknowledged that the court could take judicial notice of the files and records in the prior case which was pending in another division of that court. The record before us fails to indicate what evidence appellant desired to offer at the hearing. None appears to have been rejected, and in view of the files and records in the prior case it is difficult speculate on what available evidence could have changed the ultimate decision of the court in this garnishment proceeding. In view of the record on appeal it appears the trial court was justified in entering the judgment.
When a trial court has given a party the benefit of all reasonable inferences which may be drawn in his favor from the evidence and the pleadings, the court has inherent power to summarily dispose of the litigation on its own motion when there remains no genuine issue as to any material fact and a judgment must be for one of the parties as a matter of law. (Hutchinson Nat’l Bank & Trust Co. v. N. F. English Construction Co. Inc., 206 Kan. 661, Syl. ¶ 1, 482 P. 2d 35.)
Appellant makes some further inquiry as to the propriety of the trial court’s decision, claiming the decision was conditioned upon the outcome of the prior case which concerned collateral issues and in which the garnishee defendant, Andrew, was not a party. As we view the record in this case the decision was not conditioned upon the outcome of the prior case. It was entirely proper to take judicial notice of the files of that case in order to determine whether title to the property was merchantable and whether any payment was due under the contract to the judgment-debtor, Washburn. A failure to take cognizance of a pending case in another division of the same court, which case had an identical purpose, that of collecting on a judgment from the sale of the same property, might Well have resulted in conflicting decisions. We believe the trial court’s decision in this case logically follows when you consider the pendency of that action and the final decision in the Jackson & Scherer case.
Accordingly the judgment is affirmed.
|
[
-112,
110,
-39,
76,
74,
96,
10,
72,
121,
-128,
55,
83,
-29,
-62,
5,
127,
-10,
25,
96,
96,
-47,
-77,
7,
67,
-46,
-77,
-39,
93,
-68,
79,
-12,
-42,
76,
32,
66,
-43,
-30,
-118,
-128,
28,
14,
-122,
9,
100,
-39,
66,
52,
-5,
18,
72,
-79,
-113,
-13,
44,
25,
74,
-19,
42,
-49,
105,
-32,
-72,
-22,
5,
127,
22,
-125,
36,
-108,
7,
-56,
-82,
-104,
57,
9,
-55,
114,
54,
-122,
116,
73,
-85,
12,
34,
98,
50,
1,
-19,
-36,
-104,
14,
-35,
-99,
-90,
-111,
88,
2,
41,
-66,
-98,
108,
22,
5,
-4,
-18,
-123,
29,
-20,
1,
-54,
-42,
-79,
-119,
92,
-104,
10,
-10,
-121,
33,
112,
-49,
34,
92,
-42,
56,
27,
-113,
-71
] |
The opinion of the court was delivered by
Brewer, J.:
Counsel for plaintiffs in error have abandoned all the points but one in this case, and upon that rest their claim for a reversal of the judgment of the district court. Defendants in error applied for a mandamus to compel plaintiffs in error, who constitute the board of county commissioners of Ottawa county, to submit to a vote of the people the question of relocating the county-seat. They allege themselves to be “legal electors, tax-payers, and the lawful owners of lands and tenements in the town of Lindsay,”' a place other than the present county-seat. Docs this show such an interest as entitles them to the mandamus? This is the only question presented for our consideration. When mandamus is sought to enforce some matter of private interest, the relator must show such interest in himself. A stranger may not interfere when the party beneficially interested is himself silent. Upon this there is no controversy. But where the proceedings are for the enforcement of a duty, affecting not a private but a public right, one common to the whole community, there is great conflict of authority as to who may apply for the writ, and what interest must appear in the relator. In Sanger v. County Comm’rs, 25 Maine, 291, Tenney, J., says: “A private individual can apply for this remedy only ,in those cases where he has some private or particular interest to be subserved, or some particular right to be preserved or protected by the aid of this process, independent of that which he holds in common with the public at large; and it is for the public officers exclusively to apply when public rights are to be ¡subserved. Supporting this view are the cases of Bates v. Plymouth, 14 Gray, 163; People v. Regents of the University, 4 Mich., 98; People v. Inspectors of State Prison, 4 Mich., 187; Heffner v. The Commonwealth, 28 Penn St., 108. On the other hand, in Hamilton, Auditor, v. The State, 3 Ind., 452, the court uses this language: “That the defendant should discharge correctly the duties of his office, was a matter in which Bates, as a citizen of the county, had a general interest; and that interest was of itself sufficient to enable him to obtain the mandamus in question, and have his name inserted as the relator.” And sustaining this are the following: The People v. Collins, 19 Wend., 56; County of Pike v. The State, 11 Ill., 202; State v. County Judge, 7 Iowa, 186; State v. Bailey, id., 390; Moses on Mandamus, 197.
It is evident from these citations that a decision either way would be well supported by authority. Here the relators show no interest differing in kind or degree from that of the community in general. They simply allege that they are voters, pay taxes, and own property. That this gives them no specific, peculiar, interest in the question is well shown by the opinion in the case of Craft v. Comm’rs Jackson County, 5 Kas., 518. That the duty sought to be enforced is a public duty, one affecting the whole community, is also clear. The question is therefore narrowed down to this: Can .a private citizen by mandamus compel the performance of a public duty? To allow any citizen to litigate with public officers the propriety of their acts, exposes them to constant litigation. If one may, so may another. If one act .may be litigated, so may all; and so the time, attention and thought of the officer diverted from the duties of his office to the defense of harassing suits. This topic is pursued at length in the case of Craft v. The Comm’rs of Jackson County, just cited, and needs no further discussion here.
Again, mandamus, like other' proceedings under our code,, should be brought in the name of the party interested. The State ex rel. Wells v. Marston, 6 Kas., 532. Where a public duty is neglected, the public, the community as a whole, is the party interested. Where a wrong is done to a corporation, not a stockholder, an individual member, but the corporation itself appears as plaintiff, and pursues the remedy. Where the law of the state is broken by the commission of a crime, the state prosecutes, not the individual. It is not “John Doe against John Smith,” (charge, murder,) but “The State of Kansas against John Smith.” Not only is the state the nominal plaintiff, but public officers, and not private citizens, conduct the prosecution. So, where a public duty is neglected, the party wronged, the public, should be the complainant, and her officers should conduct the suit. The great business of the public is carried on by agents, officers whom the people select; and if the public suffers wrong, it is the duty of those agents to see that such wrong is righted. The county attorney and attorney general are the officers specially charged with the duty of representing the public in all litigation. Gen. Stat., ch. 25, §136, p. 284; ch. 102, §64, p. 986. They can use the name of the county, or state, to pursue any remedy. If they decline to institute proceedings, when proceedings ought to be instituted, the courts may perhaps on a proper showing compel them to proceed, or permit others to use the name of the state, so that justice may not fail. Here there is no suggestion of any unwillingness of either the county attorney or the attorney general to take any legal measures deemed necessary to enforce the performance of the alleged neglected duty.
But the statute authorizes the issue of the writ “ on the information of the party beneficially interested.” Civil Code, §689. This evidently refers to- an interest peculiar and specific, and not one common and general. All citizens are in a certain sense interested in the proper discharge of their duties by public officers, but it is not such an interest as will enable each citizen to describe himself as “the party beneficially interested.” The party beneficially interested in the discharge of a purely public duty, is the public. These considerations all point to the conclusion that a private citizen may not invoke the aid of mandamus to compel the performance of a purely public duty, as was well said by Woodward, J., in the case from 28 Penn. St., heretofore cited: “ In order to obtain a writ of mandamus, the applicant must have a right to enforce which is specific, complete, and legal, and for which there is no other specific legal remedy. When public rights are to be subserved, public officers must apply for the writ. But if a private individual make himself the relator, he must show some particular right or privilege of his own, independently of that which he1 holds with the public at large.”
The judgment of the district court must be reversed and the case remanded.
All the Justices concurring.
|
[
-16,
-18,
-35,
-68,
-118,
96,
34,
-88,
1,
-95,
-89,
115,
-81,
-37,
16,
41,
-77,
41,
80,
75,
-58,
-73,
23,
-61,
-10,
-13,
-109,
-43,
-78,
77,
-9,
-25,
76,
33,
74,
85,
103,
-124,
-59,
-44,
-114,
-121,
9,
73,
-47,
73,
56,
58,
18,
79,
53,
-34,
-29,
46,
25,
67,
-23,
44,
89,
-67,
16,
-71,
-98,
13,
89,
6,
-95,
38,
-104,
39,
120,
46,
-104,
25,
11,
-23,
119,
-74,
2,
-75,
75,
-103,
-116,
98,
99,
-127,
61,
-17,
-96,
-87,
14,
-6,
61,
-26,
-48,
24,
105,
11,
-106,
-97,
116,
20,
7,
-4,
-30,
5,
85,
108,
5,
-118,
-42,
-73,
-113,
44,
-104,
66,
-29,
39,
-80,
113,
-64,
104,
95,
-57,
50,
19,
-114,
-92
] |
The opinion of the court was delivered by
Bbeweb, J.:
Two questions arise in this case: First, Has the vendor of real estate, who has executed only a bond to convey, a lien for the unpaid purchase-money? and second, If he has, will the indorsement of a note given for the unpaid price transfer this lien ? Counsel for defendant in error have cited Simpson v. Mundee, 3 Kas., 172, as furnishing a conclusive answer to the first question. We do not so understand it. That case decided that, where an absolute conveyance has been made, the grantor has no lien for the unpaid purchase-money. That decision we have no desire to disturb; but it does not reach the question here. True, the lien claimed in this, as in that, is called a vendor’s lien, and properly so, for it is a lien claimed by a vendor upon the real estate he has sold. But beyond the identity of name there is little similarity between them. There the conveyance had been made; the title parted with. The lien, if it existed, grew not out of the contract of the parties. They had not in terms stipulated for any security. As was then said by Ch. J. Crozier, “There is a gx’eat variety of opinion axnong modern courts as to what the vendor’s lien is. Some of them regard it as a resxxlting trust; others as an equitable mortgage; and others still as a compound of both. Very maxxifestly it has none of the attrh butes of either. It does not arise out of the contract of the parties, nor does it result from the operation of law. It is the mere creatux-e of a court of equity, breathed into existence independently of the original ixxtention of the parties, and entirely without their aid.” But here the title is not parted with. By contract it is to be retained till the price is paid. The agreement of the vendor substantially is this: When you pay the price, you can have the title; till you pay, I retain it. The title is held as security for the price. The vendee cannot compel a conveyance till he pays the price; not even, says the supreme court of Alabama, though the notes given for the price are barred by the statute of limitations and no recovery can be had thereon. Driver, Adm’r, v. Hudspeth, 16 Ala., 348, There is no secret trust in this; nothing which is repugnant to the real-estate jurisprudence of this state. The rights of the parties are determined by and expressed in the contract. The vendee holds no title, can convey none till he has paid the purchase-money. All this appears upon the record. To hold that there is no lien, would be to repudiate the contract which the parties have made — a contract which is fair and reasonable for both, conflicts with no statute, and is not against public policy. The distinction between these two liens is not always recognized or noticed in the books. Especially in those states, where the vendor’s lien after absolute conveyance is enforced, are the two liens treated as though identical, and subject to the same rules. But the distinction between them is obvious, and has been often noticed. Chief J. Watkins, in Moore and Cail, Adm’rs, v. Anders, 14 Ark., 634, speaking of bonds for conveyance, says: “The lien reserved by means of them to the vendor has none of the odious characteristics of the vendor’s equitable lien for the unpaid purchase-money, where, having conveyed the legal title, acknowledging the receipt of the purchase-money, he ought not to be heard to assert it against any subsequent purchaser, or incumbrancer, without clear and unequivocal proof of actual notice.” Chief J. Field, in Sparks v. Hess, 15 Cal., 194, uses this language: “Between the lien they thus assert, and the ordinary lien of a vendor after conveyance executed, there is a marked difference. In the latter case the vendor has parted with the legal and equitable title, and possesses only a bare right, which is of no operative force or effect until established by the decree of the court. In the present case, the vendors have retained the legal title, and evidently as security for the purchase-money. Their position is, in some respects, similar to what it would have been, had they executed a conveyance to the vendee and taken from him a mortgage upon the property. A mortgage is in form a conveyance of the legal title, though intended only as security for the debt. Here the title is retained by the vendors for a similar purpose of security.” See also as .authorities sustaining this kind of lien, Smith v. Robinson, 13 Ark., 533; Taylor v. McKinney, 20 Cal., 618; Haley v. Bennett, 5 Parker, (Ala.,) 452; Driver, Adm’r, v. Hudspeth, 16 Ala., 348; Kelley v. Payne, 18 Ala., 371; Burns v. Taylor, 23 Ala., 255; Moore v. Burrows, 34 Barb., 173; Scarlett v. Hunter, 3 Jones Eq., (N. C.,) 84.; Lewis v. Capertoies, 8 Grattan, 148; Graham v. McCampbell, Meigs Rep., 52; Anthony v. Smith, 9 Hump., 511; Amory v. Reilly, 9 Ind., 490; Button v. Schroyer, 5 Wis., 598; Clark v. Hall, 7 Paige Ch., 382. In Virginia, where by statute the lien after conveyance was abolished, a lien like this was sustained. In Yancy v. Mauch, 15 Grat., 305, the court say: “The statute abolishes the lien where the vendor has conveyed the legal title, and has not reserved it on the face of the deed. It does not apply to the case where the title has been retained by the vendor, for the obvious reason that in such case the principles of our statutes requiring mortgages or deeds of trust to be recorded, was not infringed upon, and because purchasers for value of the legal title would not be endangered by parol proof of notice.” It seems therefore to us both on reason and authority that the first question must be answered in the affirmative.
II. Will an indorsement of a note given for the purchase-money transfer the lien? In eases of lien, after absolute 'conveyance, the general drift of the authorities is to the effect that an indorsement of the note does not transfer the lien; and this upon the ground that, the lien not being the result of contract, but the mere creature of equity, a bare right of no operative force or effect until established by the decree of a court, is a purely personal privilege which cannot be transferred. See a collection of the authorities made by Chief J. English in the case of Shall v. Biscoe, 18 Ark., 142. There are, as will be seen, conflicting decisions upon this point; but such seems to be the great weight of authority. The principle upon which these decisions rest seems to have little application here. The lien which the vendor has is something more than a bare right, a personal privilege. It is an interest created by the contract of the parties, and is as fixed, complete, and absolute as the interest of a mortgagee. It is more, for the mortgagee has no estate in the land under the decisions of this court, while the vendor in a bond to convey holds the legal title. It is a general rule, that the incident follows the principal; the transfer of a debt carries with it the security. The vendor holds the legal title as security. He transfers the debt which is secured. Why may not the indorsee, the holder of the debt, avail himself of the security? In case of a mortgage the rule is well settled. What is this but an equitable mortgage? We shall have to answer the second question also in the affirmative. Authorities are ample sustaining these views. See among others, Graham v. McCampbell, Meigs, 52; Thompson v. Pyland, 3 Head, 537; Raper v. McCook, 7 Ala., 318; Connor v. Banks, 18 Ala., 42; Kelley v. Payne, 18 Ala., 371; Wells v. Morrow, 38 Ala., 125; Smith v. Robinson, 13 Ark., 533; Moore & Cail, Adm’rs v. Anders, 14 Ark., 628; Logon v. Badollet, 1 Blackf., 416; Brumfield v. Palmer, 7 Blackf., 227; Farmer v. Hicks, 4 Smedes & M., 294; Parker v. Kelley, 10 Smedes & M., 184; Terry v. George, 37 Miss., 539. In the following cases the assignment of the note was accompanied by a conveyance of the land, and the lien was held to be transferred: Taylor v. McKinney, 20 Cal., 618; Baum v. Grigsby, 21 Cal., 172; Hooper v. Logan, 23 Md., 204.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring.
|
[
-46,
122,
88,
63,
-6,
64,
42,
-120,
-39,
-27,
39,
83,
109,
-58,
20,
33,
-12,
123,
97,
106,
71,
-78,
7,
97,
-46,
-77,
-45,
85,
-71,
-51,
70,
-34,
76,
48,
-62,
-43,
102,
-53,
-35,
84,
78,
-125,
11,
68,
-7,
-64,
52,
19,
64,
73,
97,
-121,
-13,
61,
25,
79,
105,
40,
107,
57,
-16,
-72,
-97,
-115,
127,
7,
17,
117,
-36,
73,
-24,
12,
-112,
49,
1,
-24,
83,
-74,
-122,
84,
9,
-101,
41,
98,
98,
0,
69,
-17,
-56,
-104,
46,
-2,
36,
-90,
-48,
88,
2,
105,
-65,
-99,
126,
0,
-92,
-10,
-26,
28,
-99,
108,
3,
-50,
-106,
-95,
45,
124,
-104,
11,
-34,
3,
49,
96,
-50,
-80,
92,
102,
123,
-101,
-113,
-3
] |
The opinion of the court was delivered by
Brewer, J.:
Defendants in error brought suit in the district court of Labette county to recover for personal injuries. Some question was raised as to the regularity of the service of the summons, and a motion made to set it aside. Pending this motion, and on November 15th 1871, the third day of the November Term, by consent leave was given to plead, and the case continued to the next term.. This was entered upon the journal. The answer was filed on the 23d of November 1871. On the 25th of November the court adjourned the term to December 26th, and ordered a new docket to be made up and a new pannel of jurors drawn for such adjournment term. On the 29th of December the case was called and disposed of. The journal reads:
[Title :] “And the said cause being duly called upon its order on the docket, on motion of Ayres & Fox, attorneys for plaintiffs, a jury was duly called and sworn, and having heard the allegations of the parties, and the proofs adduced by the plaintiffs, the defendant not appearing,” etc.
A verdict was returned and judgment entered for $9,657.50. Of this judgment thus entered plaintiff in error complains, and brings the record here for review. That the continuance carried the case over to the next regular term, was jn March 1872, seems under the decisions of this court to admit of no doubt. An adjourned term is in no proper sense an independent distinct term, but merely a prolongation, a continuance of that already begun. The State v. Montgomery, 8 Kas., 351; Mechanics’ Bank v. Withers, 6 Wheaton, 106. It would seem to follow from this that the judgment was improperly rendered, and that the plaintiff in error should be relieved from it. It may be remarked in: passing that no question is raised as to the power of a court* after a cause has once been continued, to set aside-_ . _ . the continuance and proceed to trial and judgment at the same time. Nothing of the kind was done. ‘ Both counsel and court proceeded upon the assumption that the ■ adjourned term was the term to which the cause had been continued. It is contended very strenuously by counsel for defendants in error that though the judgment may have been improperly rendered, yet, that this was pimply an irregularity which must be corrected by motion in the district court.. That it could have been thus corrected is plain. Civil code, § 568, clause 3. That a question of this kind should be first presented to that court, in order to give it an opportunity of correcting its mistakes, mistakes constantly liable- ^ ' J to occur in the hurry of business, seems reasonable. There is great wisdom, as we think, in a provision of the Iowa statutes, Revision of 1860, § 3645, which reads-that “a judgment or order shall not be reversed for an error which can be corrected on motion in the inferior court until such motion has been made there and overruled.” Pigman v. Denney, 12 Iowa, 396. But we have no such statute, and of course cannot legislate one- into being. The question, before us is not, which is the better practice, blit has the-plaintiff in error a right to pursue this. It is a question of law, and not one of propriety. Where a judgment appears'upon the face of a record to have been erroneously entered, the party aggrieved can bring the record directly here and have it reviewed. Lender v. Caldwell, 4 Kas., 339; Dutton v. Hobson, 7 Kas., 196. The only limitation placed in the statute is in § 563 of the code: “A mistake, neglect, or omission of the clerk shall not be a ground of error, until the same has been presented and acted upon in the court in which the mistake, neglect, or omission occurred.” But in this case the error is not chargeable to the clerk. The defendants in error knew that the case had been continued. Yet it was upon their motion that a jury was impanneled and sworn, and the trial had. True, they supposed the case was for hearing at such adjourned term, but the error was theirs, and the clerk is in nowise responsible for it. It was not for him to decide the effect of the continuance. He prepared a docket in obedience to the order of the court, leaving it properly to the court to determine as to each particular case whether it were triable or not. See as sustaining these views, Innerarity v. Fowler, 2 Ala., 150; Mattingly v. Bosley, 2 Metc. (Ky.,) 443; Culver v. Felt, 4 Robertson, 681. The judgment of the district court will be reversed and the case remanded for a new trial.
All the Justices concurring.
|
[
-14,
-6,
-3,
-98,
10,
96,
34,
-104,
65,
-31,
35,
83,
-83,
-125,
16,
117,
115,
41,
85,
122,
68,
-89,
23,
67,
-10,
-109,
82,
-59,
-75,
111,
-12,
-1,
12,
50,
10,
-43,
70,
-62,
-59,
20,
-122,
-124,
-119,
108,
-47,
72,
48,
121,
114,
79,
49,
46,
-29,
42,
24,
-61,
105,
41,
-54,
61,
-47,
-16,
-102,
5,
125,
6,
-95,
38,
-100,
7,
120,
62,
-112,
53,
3,
-24,
114,
-106,
-122,
-43,
103,
-103,
44,
102,
102,
1,
29,
-17,
-72,
-87,
14,
30,
-99,
-26,
-112,
81,
-21,
9,
-74,
-103,
116,
20,
7,
122,
-17,
68,
25,
116,
3,
-54,
-48,
-77,
-113,
118,
-72,
-125,
-5,
-125,
48,
113,
-115,
-28,
88,
-57,
121,
25,
-50,
-70
] |
The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error as plaintiff below brought suit and obtained an attachment in the district court of Labette county against the defendants in error. J. M. Wiggins and others, judgment creditors of the defendants, filed a motion to vacate and discharge this attachment. The defendants were not parties to this motion, interposed no motion of their own, and made no appearance. Plaintiff objected that the judgment-creditors had no right to appear in the case, and make the motion, but the judge of the district court decided otherwise, and discharged the attachment. Plaintiff by this proceeding in error now seeks to reverse that decision. But he makes only the defendants in the court below defendant^ here. He does not make the judgment-creditors, upon whose motion the attachment was discharged, parties, nor bring them into court. If the creditors were proper parties to make such a motion in the district court, they are necessary parties to a proceeding in this court to reverse the decision thereon. The defendants should not be placed in such position as possibly to become responsible for the costs of a controversy between their creditors, in which they have no interest; otherwise their whole property might be absorbed in costs, and none of it be applied to the payment of either debt. The petition in error must therefore be dismissed.
All the Justices concurring.
|
[
-14,
-8,
-71,
60,
10,
96,
34,
-102,
81,
-95,
51,
83,
-19,
-118,
-112,
105,
114,
57,
117,
122,
69,
-73,
15,
-31,
-42,
-109,
-46,
-43,
-79,
111,
-12,
-59,
76,
49,
10,
-43,
70,
-126,
-59,
-36,
-50,
-122,
9,
108,
-47,
75,
48,
51,
22,
15,
117,
14,
-13,
46,
57,
67,
-23,
40,
-7,
61,
-14,
-80,
-98,
5,
95,
6,
-95,
23,
-104,
7,
-56,
56,
-112,
49,
-125,
-24,
114,
-74,
-122,
117,
41,
-103,
44,
102,
102,
1,
25,
-49,
-100,
-71,
14,
-65,
-99,
-90,
-111,
24,
-117,
9,
-74,
-99,
116,
82,
-121,
-4,
-18,
-124,
31,
-20,
3,
-18,
-42,
-75,
-114,
60,
-40,
-61,
-5,
-125,
48,
113,
-51,
-32,
92,
-57,
59,
-101,
-18,
-71
] |
The opinion of the court was delivered by recognizance. A demurrer to the petition having been overruled, judgment was entered in favor of the state. Three points are presented for our consideration. It is insisted that the bond is void because it does not appear “that the defendant
Brewer, J.:
The action in the district court was on a was legally in custody charged with a public 0ffense ” if by this is meant that the recognizance does not show this fact, it is unnecessary; if that the petition does not, it is incorrect. All that the recognizance need contain is the penalty, and the condition. It is unnecessary that it recite the antecedent steps in the prosecution. It is enough if those steps were taken, and proper evidence of them preserved in the records of the magistrate, or court. All these are alleged in the petition, and there being no answer are not controverted.
Again, it is objected that the condition of the recognizance fails to show that the defendant is charged with a public offense, or prosecuted by the state. It reads “ To answer to the charge of Alonzo F. Dexter for embezzlement and con verting to his own use moneys belonging to said A. E. Dexter while in his employ.” The petition shows that Alonzo E.. Dexter was the prosecuting witness, and made the affidavit upon which the defendant was arrested. While it is true, in precise legal language, that the charge is made by the state, yet there is no inaccuracy in the language according to the ordinary understanding. The prosecution is in the name of the state, and conducted by public officers, yet the charge is preferred by the prosecuting witness. To hold this recognizance void on this account would be straining a point even according to the strictness of the common law, and our statute has laid down a much more liberal rule of construction: Criminal code, Gen. Stat., 844, § 154.
The last point is, that embezzlement may be a misdemeanor or felony according to the amount embezzled, and thus an offense of which the justice has final jurisdiction, or one in which he must bind over to the district court: aud that inasmuch as this recognizance does not fbg vaque 0f the property charged to have been embezzled it fails to show a crime for which the justice had jurisdiction to require a bond. Some cases can be found in the reports of other states where this objection has been held good. But in all of them the strict rule of the common law prevailed. That strictness of construction is, as we have stated, done away with by statute; and under the rule of that statute we are compelled to hold that this point also is not well taken. It may be remarked that - the proceedings anterior to the recognizance, as alleged in the petition, show that the amount charged to have been embezzled was $1,500, thus charging a crime over which a justice would have no final jurisdiction. These being all the objections to the judgment, it must be affirmed.
All the Justices concurring.
|
[
48,
-20,
-40,
-68,
42,
-32,
42,
-104,
-45,
-93,
32,
51,
-23,
66,
16,
57,
113,
-1,
117,
56,
-36,
-106,
39,
67,
-14,
-109,
-56,
-43,
49,
-49,
-26,
-41,
76,
-80,
-30,
-43,
102,
74,
-9,
-40,
-54,
3,
-118,
-59,
-13,
72,
32,
35,
17,
15,
-15,
-114,
-93,
58,
24,
-37,
-23,
44,
-53,
-65,
-32,
48,
-116,
21,
-5,
23,
-111,
119,
-100,
67,
-8,
46,
-100,
57,
1,
-24,
123,
-106,
-122,
-12,
111,
-69,
8,
98,
106,
-127,
-27,
36,
-100,
-120,
46,
-2,
-115,
-89,
-109,
88,
11,
37,
-106,
-103,
117,
16,
-89,
-4,
-9,
4,
31,
108,
3,
-49,
-122,
-77,
-115,
54,
30,
123,
-25,
32,
16,
113,
-60,
114,
92,
103,
57,
-101,
-121,
-108
] |
The opinion of the court was delivered by
Valentine, J.:
did, then it is clear that the clerk should have executed to . them a valid tax deed. (Gen. Stat., 1055, ch. 107, § 112.) And if he did not, they may compel him to do so by mandamus, whether he has formerly executed to them a void tax deed, or none at all. The owner of a valid tax-sale certificate to whom a tax deed fatally defective in form has been issued, may compel the county clerk by man-
The questions involved in this case were raised in the court below on petition and demurrer. The demurrer was interposed by the defendant Tuller, and the ground on which he demurred was, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against himself. The demurrer was sustained by the court below, and the plaintiff now brings the case to this court. The plaintiff in this case seems to consider this action as a suit in equity, but the defendant seems to consider it substantially as an application for a writ of mandamus. But in whatever light it may be viewed we do not think that the petition states any cause of action against Tuller. It is not stated in the petition that Tuller had any interest in the land in controversy, either legal or equitable; nor is it stated that he claimed to have any such interest. He was county clerk of Nemaha county; but it is not shown in the petition that he ever failed to perform his duty as clerk toward the plaintiff. It is true that he once executed a defective and void tax deed to Hidden and Slater, but the petition at most only shows inferentially that he was under any obligation to them, or to any one else to execute a better one. Did Hidden and Slater ever own a valid tax-sale certificate? and if so, did they ever present it to the county •clerk and ask that a valid tax deed should be executed upon it? This is scarcely shown from the petition. But if they damus to execute to him a proper tax deed: State v. Winn,, 19 Wis., 304; Woodman v. Clapp, 21 Wis., 350; Maxey v. Clabaugh, 6 Ill., 26; Furguson v. Miles, 8 Ill., 358. But Hidden and Slater are not asking the clerk to execute a second tax deed to them, or to anyone else; and the tax-sale certificate owned by them has never been assigned according to the statutes in such cases provided: Gen. Stat., 1063, ch. 107, §145; page 1048, §91; page 1047, §90. It is true, the plaintiff has a quitclaim deed for the premises covered by the tax-sale certificate from Hidden and Slater to himself. But a quitclaim deed from the holder of a tax-sale certificate is not of itself such an assignment of the tax-sale certificate as will authorize the clerk to issue a tax deed to the grantee mentioned in the quitclaim deed: State v. Winn, 19 Wis., 304, 307. The assignment under the statutes to authorize the clerk to act in such a case must be “a written assignment indorsed upon ” or “attached to ” the tax-sale certificate: Gen. Stat., 1048, §90. It must accompany the tax-sale certificate, be filed away with it, and be preserved as evidence in the office of the county clerk. The question whether the court could not compel Hidden and Slater to execute a valid assignment of the tax-sale certificate, or render a decree, declaring that the quitclaim deed should be considered as equivalent to such an assignment, is not in this case, as Hidden and Slater were not made parties to this suit; and of course no decree requiring them to make such an assignment, nor any other decree, could be rendered against them. Possibly a suit in equity compelling them to make such an assignment, and then compelling the county clerk to execute a tax deed on such assignment could be maintained, if all the parties were in court. But a suit in equity to compel the county clerk to execute a tax deed to a supposed assignee of a tax-sale certificate, when the supposed assignors are not brought into court, and when no valid assignment of the tax-sale certificate has ever been made, cannot be maintained. The order of the court below sustaining the demurrer to the-petition is affirmed.
All the Justices concurring.
|
[
-16,
-4,
80,
28,
58,
-32,
34,
-119,
73,
53,
39,
115,
105,
-126,
0,
61,
-14,
59,
117,
122,
-49,
-78,
99,
41,
-10,
-78,
-39,
85,
-75,
75,
-12,
-57,
76,
33,
-62,
-43,
-25,
2,
-121,
80,
70,
-89,
8,
-51,
-39,
-64,
52,
91,
102,
75,
117,
-50,
-13,
59,
29,
67,
43,
44,
75,
-69,
-48,
-72,
-65,
-99,
91,
7,
-79,
39,
-40,
67,
-24,
-118,
-104,
61,
-128,
-23,
91,
-74,
-122,
52,
13,
-85,
40,
102,
34,
32,
21,
-1,
-96,
-104,
-82,
-10,
13,
39,
-16,
88,
106,
41,
-106,
-99,
124,
112,
103,
-2,
-26,
-121,
25,
108,
12,
-49,
-42,
-109,
-113,
118,
-122,
67,
-50,
43,
-80,
113,
-113,
80,
92,
97,
25,
27,
-49,
-16
] |
The opinion of the court was delivered by
Kingman, C. J.:
The defendants in error manufactured a steam-engine for Philip Koehler, and before it left their shop took a chattel mortgage upon it for the payment of the purchase-money, with a stipulation in the mortgage, of their right to take possession of the engine whenever they might deem themselves insecure, or in default of payment, and remove the same from the mill, whether it should be attached to the realty or otherwise. Eaves, the plaintiff in error, having become the purchaser of the mill and lots under a foreclosure of a mortgage thereon made prior to the placing the engine therein, claims the engine as a part of the freehold, as against the rights of defendants in error as mortgagees. Eaves had actual and constructive notice of the existence of the mortgagp-^nd^ckúmlñff^d^ when he bought the property, The district court held that the defendants in error were entitled to the engine under their mortgage, and this decision presents the only question in the case. As a general rule, improvements on real property inure to the mortgagee as part of his security - but whether any given piece of property becomes so attached to the freehold as to-make it a part thereof, is frequently a question of great difficulty. From the very nature of things it is oftentimes most embarrassing to determine when a piece of property, personal in its original character, becomes a fixture by reason of its use in connection with the freehold. And the best guides for the determination of such questions, are, to ascertain whether the property is actually annexed to the freehold, to consider the use to which it is appropriated in connection with the freehold, and what was. the intention of the party — whether it was his purpose to make it a permanent accession to the freehold, or otherwise, “this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” Teaff v. Hewitt, 1 Ohio St., 530. Testing this case by these principles, and we have no doubt that the decision of the district court was correct. The engine when built, and at the shop of builders, was unquestionably personal property. Under the light of adjudicated cases, and having no regard to the terms of the chattel mortgage, it may well be doubted whether it ever became a part of the realty as between vendor and vendee. See Walker v. Sherman, 20 Wend., 636; Vanderpool v. Van Allen, 10 Barb., 157; Holmes v. Tremper, 20 Johns., 29; Swift v. Thompson, 9 Conn., 63; McKim and Kennedy v. Mason, 3 Md. Ch., 189; Fortmen v. Goepper, 14 Ohio St., 564. But when we consider the purpose of the parties, as evinced by the mortgage, to make the engine retain the character of a chattel, regardless of the manner of its attachment to the mill, and as the mortgage violated no principle of law, wrought no injury to the lights of any, and was in the interest of trade, we have no doubt that the engine continued to be personal property. See the cases referred to in the brief of defendants in error. It is not intended to decide that parties can by any arrangement make property either real or personal as they may choose. “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot in general be changed by the convention of the parties. Thus, it would not be competent for parties to create a personal chattel-interest in a part of the separate bricks, beams, or materials of which the walls of a house are composed. Bights by way of license might be created in such a subject, but it could not be made alienable as chattels, or subjected to the general rules by which the succession of that species of property is regula- • ted. But it is otherwise with things which being originally personal in their nature are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to, the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement, or of any special relation between the parties in interest, they would be part of the real estate.” Ford v. Cobb, 20 N. Y., 348. So-in this case, if the manner of the attachment of the engine to the mill is such as to leave the mind in doubt or uncertainty as to whether it became a part of the freehold, Ave may look to the intention of the parties as controlling. This is constantly done in cases betAveen landlord and tenant, Avhere improvements for the benefit of trade are held as personalty, which as between vendor and vendee would pass as realty. It is said that the tenant could not have intended the improvement as an accession to the freehold, and this intention is derived solely from his limited estate in the rented property. In this case the parties have declared that the engine-shall retain its character of personalty; and the facts in the case do not overcome the inference drawn from the contract. It is not an inference drawn solely from the relation of the parties, or the nature of the estate, but a positive stipulation made by the parties. The intent is not inferred from facts, or left in doubt. That intent Avas that the engine should continue personal property, and we think it retained that character; and therefore the judgment is affirmed.
All the Justices concurring.
|
[
-16,
122,
-40,
-81,
26,
-96,
42,
-40,
96,
-92,
-89,
95,
15,
-53,
20,
5,
-10,
125,
-15,
99,
85,
-77,
7,
67,
-46,
-5,
-45,
-36,
-71,
76,
-10,
71,
76,
36,
-62,
93,
-26,
-128,
69,
92,
-114,
-115,
43,
111,
-43,
64,
52,
27,
80,
78,
81,
-98,
-77,
38,
29,
-61,
10,
44,
-23,
57,
112,
-8,
-86,
12,
79,
22,
35,
36,
-108,
103,
-8,
8,
-112,
25,
5,
-24,
123,
-92,
-124,
116,
15,
-117,
9,
98,
98,
16,
41,
-17,
-20,
-104,
14,
-58,
-65,
-89,
-108,
88,
43,
43,
-65,
-97,
120,
18,
103,
118,
-18,
-99,
95,
108,
19,
-121,
-10,
-77,
-113,
114,
-104,
-126,
-18,
39,
48,
97,
-49,
-120,
92,
4,
91,
27,
-98,
-2
] |
The opinion of the court was delivered by
Valentine, J.:
This was an action to obtain a perpetual injunction to restrain the levying of a certain tax. The plaintiff in its petition below alleges that it is a corporation; that it is a taxpayer owning real estate in Wyandotte county,, subject to taxation; but it does not describe tbe property, nor allege more definitely its location. The plaintiff further alleges that the county of Wyandotte, in connection with the city of Wyandotte, is about to build a free bridge across the Kansas river in said county at the city of Wyandotte; that the county, in part payment for such bridge, is about to issue the bonds of the county to the amount of fifty thousand dollars; that for the purpose of paying the interest on said bonds, and raising a sinking fund for their final redemption, the county is about to levy a tax on all the taxable property of said county; that all the proceedings connected with the building of said bridge, the issuing of said bonds, and the levying of said tax, are irregular, illegal and void; and therefore the plaintiff prays, not that the county shall be restrained from building said bridge, not that the county shall be restrained from issuing said bonds, not that the county shall be restrained from levying said tax on the property of the plaintiff merely; but the plaintiff prays that the county shall be restrained from levying such tax on any property, whether the same belongs to the plaintiff or to some other corporation or person. The defendant demurred to this petition on the grounds, First, That the petition does not state facts sufficient to constitute a cause of action. Second, That the plaintiff has not legal capacity to sue. The court below sustained the demurrer, and the plaintiff now brings the case to this court.
The plaintiff of course .has legal capacity to sue whenever its rights are infringed, whenever a cause of action accrues in its favor. But in this case we do not think that the petition •shows either; and therefore we do not think that the petition ■states facts sufficient to constitute a cause of action. This .action is obviously not brought under chapter 79 of the laws of 1871, (pages 190 to 194,) for the plaintiff in this case is not an elector, as the plaintiff is required to be who commences an action under §§ 1 and 5 of that act; and that'act nowhere provides for the enjoining of any tax. Neither will it be claimed that this action can be maintained under the former rules of law or equity; for in a case vastly stronger for the plaintiff than this, this court held that injunction would not lie; (Burnes v. Atchison, 2 Kas., 454;) and probably injunction has never been sustained in any case so weak for that purpose ■as this case is. Indeed, we suppose it will not be claimed that this action can be maintained at all unless some statute can be found that authorizes it. The only statute supposed to authorize this kind of action is § 253 of the code, as follows:
“Sec. 253. An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same; and any number of persons whose property is affected by .a tax or assessment so levied, may unite in the petition filed to obtain such injunction.” (General Statutes, 677.)
We cannot think that this statute is intended to apply to any such case as the one at .bar. First, It has already been settled in this state that a private person cannot, by virtue of being a citizen and taxpayer merely, maintain an action against a county or its omcers where the , , in. act complained oi affects merely the interest of the public in general and not those of the private person in particular: Craft v. Jackson County, 5 Kas., 681; Bobbett v. Dresher, ante, p. 9; Turner v. Jefferson County, ante, p. 16. No private person or number of persons can assume to be the champions-of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts, simply because such private persons may be taxpayers or citizens of the county. A priváte person, in order to maintain an action against a county or its •officers must have some peculiar interest in the subject-matter of the suit. His rights must be specially affected. He must be individually injured, and not merely injured in common with the rest of the community. If it is an injury that affects the whole community the county attorney, or the attorney-general, officers who properly represent the community in the courts of justice, should commence the action; for, as Sir William Blackstone says, “It would be unreason-. able to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow citizens.” (4 Blackstone Com., 167.) "What we have said or shall say with regard to the right of a natural person to sue the county or its officers, will apply with' equal force to the plaintiff in this action, which is a corporation. Second, In this state the real party in interest must sue. He must sue for himself and cannot sue for any other . . person. It is true, under the statute that any number of persons' whose property is affected by a supposed illegal tax may unite in an action to restrain its collection; but the court adjudicates upon the rights of those only who do so unite, or whp appear as parties before it. And the court cannot restrain the collection of any tax upon any property belonging to any person who is not a party to the suit, or who does not ask that the collection thereof shall be restrained. In this action the Wyandotte and Kansas City Bridge Company is the sole plaintiff, and it has no right to ask for an injunction to restrain the levying of any tax except a tax against itself, and upon its own property. It has no right to assume to be the champion of all the other taxpayers of the county, and ask that no tax shall be levied against them. The other taxpayers may be willing to pay any tax that may be levied against them to build a free bridge, whether they are bound by law to do so or not.
But let us inquire into the peculiar, special, or individual interest which the plaintiff is supposed to have, in order to maintain this action. The plaintiff is a taxpayer now, but will it be when taxes are levied to pay the interest on said bonds? The time for levying taxes for the year 1871 had already passed before this suit was commenced, and not even the bonds had yet been issued. It is not likely that any order will be made or can be made for such a levy until the first Monday in September 1872. (Tax law, Gen. Stat., 1044, §72.) But even if the levy should be made sooner, still the interest of the plaintiff to be affected . is very uncertain. It is contingent, speculative, and imag inary. The amount is not ascertained nor ascertainable. And the danger of injury to it is remote and problematical. The bridge may at some time be built. The bonds to pay for the same may at some time be issued. The taxes to pay interest on the bonds may at some time be levied. But whether the plaintiff will, at the time of the levy, have any property subject to taxation within the boundaries of the county, no man can tell, and the petition does not attempt to disclose. Is it expected that the courts will reach into the impenetrable uncertainties of a case like this to protect a party by injunction, who may never need protection? Said statute does not contemplate any such thing. It is “persons whose property is affected by a tax or assessment so levied,” who are to be protected, and not persons whose property may be affected by a tax or assessment to be levied at some future time. TNo step has yet been taken by the county or any taxing officers towards the levying or collection of the tax complained of. The plaintiff merely fears that such a step may be taken. But fears, or even the grounds for fear in such a case, do not constitute a cause of action. The plaintiff must wait before commencing its action until some such step is taken; but if no such step is ever taken, then the plaintiff will never have a cause of action. The plaintiff will have plenty of time (several months) in which to commence its action after the county commissioners shall make the order levying the tax before any step can be taken to enforce its collection. And the plaintiff must wait for this or some other action on the part of the taxing officers. But even after the officers shall commence to levy or collect the tax, still the plaintiff will have no cause of action, no ground for an injunction to restrain the levy or the collection of the tax, unless it shall have property which will be affected by the taxi The order .and judgment of the court below are affirmed.
All the Justices concurring.
|
[
-44,
-18,
-76,
124,
-54,
-64,
48,
25,
89,
-79,
-28,
115,
73,
-54,
4,
125,
-2,
-67,
85,
122,
65,
-73,
7,
10,
-14,
-14,
-39,
-43,
-77,
-51,
-28,
-42,
76,
49,
74,
-107,
70,
66,
-107,
92,
-50,
4,
10,
-51,
80,
-56,
52,
-21,
66,
75,
49,
-116,
-13,
42,
28,
-61,
41,
44,
91,
41,
-13,
-71,
-52,
-43,
93,
23,
33,
38,
-100,
67,
-24,
42,
-104,
49,
1,
-24,
115,
-90,
-122,
-12,
101,
-39,
40,
-10,
98,
33,
-67,
-17,
-8,
-104,
14,
-41,
-99,
-90,
-110,
24,
67,
-119,
-106,
-99,
125,
18,
7,
126,
-26,
4,
-97,
108,
3,
-54,
-14,
-15,
-113,
52,
19,
3,
-1,
9,
32,
97,
-57,
81,
92,
99,
56,
27,
-113,
-100
] |
The opinion of the court was delivered by
Brewer, J.:
This case is similar in many respects to the cases of Foreman v. Carter, and Challis v. Headley and Carr, 9 Kas., 674, 684. Like them it comes here from a decision -of the district court of Atchison county, setting aside a judgment as void. Many of the same questions arise in this that were in those cases. But there are some defects in the proceedings here which render the judgment void, and compel us to affirm the decision of the district court. One of these defects only will require notice. The judgment set aside was rendered in an attachment suit. The affidavit for attachment was made by_ one Robert L. Pease, who in the affidavit swears that he is one of the plaintiffs in the action. As the pleadings and entire proceedings in the case, other than this affidavit, show that there was but one party plaintiff, and that one a corporation, there is evidently a mistake in this affidavit. Indeed, in an affidavit for publication filed some days afterwards, the same party (Robert Li. Pease) makes oath that he is the authorized agent of the plaintiff. Upon the filing of this affidavit an order of attachment was issued, real estate seized, an affidavit for publication filed, as personal service could not be had, publication made, and judgment entered by default. The judgment therefore depends for its validity upon the sufficiency of this affidavit. If that fail, the judgment must fall; for if no attachment could rightfully issue, no publication could legally be made, and the defendants were never brought into court. Section 200 of the code of 1859, Comp. Laws, p. 155, in force at the time of the commencement of this suit, authorized the issue of an order of attachment when there was filed in the clerks office an affidavit of “the plaintiff, his agent, or attorney,” etc. The proceedings in attachment are purely statutory, and only by following the provisions of the statute is there power to act. The filing of an affidavit by one of the parties authorized by the statute is essential to the validity of any order of attachment. Here the plaintiff, being a corporation, could not and did not make the affidavit; nor is there anything in the record to show that the party who did was at the time either an agent or attorney. In fact, for all the record discloses, the affidavit was a volunteer affidavit, by an unauthorized party. Upon such an affidavit no order of attachment could rightfully issue. Willis v. Lyman, 22 Texas, 268; Pool v. Webster, 3 Metc., (Ky.,) 278; Dean v. Openheimer, 25 Md., 368. It may be said that the affidavit for publication, filed a few days thereafter, showed that Pease was the agent of plaintiff. It only shows that he was then the agent. This relation once shown to exist may be presumed to continue throughout the case, and to justify his participation in the subsequent proceedings. But we know no rule by which we can make such a presumption relate backward; and hold that because he is shown to have been an agent at one time, he was such agent at a previous time. Besides, the affidavit for attachment attempts to give Pease authority for making it. He asserts that he is himself “ one of the plaintiffs.” It is not silent as to his authority, so that we might appeal to any presumption. He asserts his authority. But the petition shows he had no such authority. It is a matter of grave doubt also whether the notice of publication was sufficient, but as this disposes of the case we forbear any inquiry into that question. The order of the district court setting aside the judgment will be affirmed.
All the Justices concurring.
|
[
-80,
108,
-24,
125,
-118,
97,
50,
-102,
91,
-95,
-89,
83,
-19,
-54,
5,
127,
-13,
41,
117,
122,
103,
-73,
71,
-23,
-46,
-77,
-53,
-43,
-77,
107,
-26,
86,
77,
32,
74,
-43,
-58,
-54,
-123,
92,
-50,
-127,
-119,
-32,
-39,
-64,
48,
-13,
0,
79,
85,
-98,
-13,
42,
29,
-61,
73,
45,
-53,
-67,
65,
112,
-97,
5,
95,
6,
-79,
102,
-104,
3,
104,
46,
-112,
-79,
-127,
-24,
114,
-74,
6,
116,
107,
59,
40,
102,
98,
1,
53,
-23,
-68,
-104,
15,
-10,
-97,
-26,
-106,
25,
-21,
9,
-74,
-35,
116,
20,
-122,
-4,
-10,
5,
25,
108,
15,
-114,
-42,
-73,
-121,
50,
26,
11,
-17,
-125,
48,
33,
-51,
-96,
92,
103,
56,
-101,
-50,
-16
] |
The opinion of the court was delivered by
Valentine, J.:
On the 11th of October 1871 the,plaintiffs in the court below (defendants here,) filed their petition against the plaintiffs in error alleging that they were the owners, each in severalty, of certain real property upon Commercial street in the city of Emporia, a city of the second class; that the city had no funds; that divers persons had done macadamizing, curbing, and guttering on said Commercial street, and abutting upon plaintiffs’ lots, “ without any contract or authority of law whatever, to do the same,” and were seeking pay therefor; that the mayor and city council had levied an assessment upon plaintiffs’ said lots to pay for said work; that the city clerk had certified said assessments to the county clerk, to be placed upon the tax-roll for collection ; that the county clerk and county treasurer, defendants aforesaid, were proceeding to collect such assessments, and prayed injunction to restrain the collection of said tax. The injunction was granted. On the 3d of November the defendants filed a motion to require the plaintiffs to make their petition more definite and certain, which motion was overruled, and excepted to. We think the motion was rightfully overruled, as the defendants did not state in their motion wherein or in what particular the plaintiffs’ petition was indefinite and uncertain.
On the 9th of January 1872 the defendants filed their demurrer to the plaintiffs’ petition, assigning three several grounds, which demurrer was also overruled and excepted to. We think the demurrer was also rightfully overruled. The grounds alleged for demurrer were, 1st, that the petition did not state facts sufficient to constitute a cause of action; 2d, that there was a misjoinder of parties plaintiff; 3d, that there was a misjoinder of .parties defendant. The ground upon which it is claimed that the petition does not state facts sufficient to .constitute a cause of action is, ^ potion simply alleges that the persons who made the improvements made them. “ without any contract or authority of law whatever to do the same,” and does not allege any other sufficient reason why the said assessments are ■void. The counsel for plaintiffs in error claim that “this” allegation “is not only not a fact, but it is not a ‘statement of fact/ it is simply a feeble ‘conclusion of law/ and would not authorize a judgment for plaintiffs” below. We think however the allegation is sufficient. The allegation that said persons made the improvements “ without any contract,” is incontestably sufficient; and if the words, “of law,” had been omitted from the other part of the allegation, the whole of it would clearly have been sufficient, and these words we think may be treated as surplusage. The allegation would then read that said persons made the improvements “ without any contract or authority whatever to do the same.” Whenever it is necessary to allege the non-existence of a fact the best and only proper way to do it is to allege its non-existence in positive and direct terms. It is never proper to allege the non-existence of a fact by simply alleging the existence of other facts. The existence of these other facts may in many oases prove the non-existence of said first-mentioned fact; but to allege their existence for that purpose only, is simply to allege indirectly and inferentially the non-existence of such fact, which is never considered a proper mode of pleading. Without now determining whether the question of a misjoinder of parties plaintiff or defendant can be raised on demurrer, we would say that there was no misjoinder of parties in this case. Under our statutes any number of persons whose property is affected by an illegal tax or assessment may unite as plaintiffs in an action to enjoin the collection of such tax or assessment, although their interests may be several and not joint: Code, §253; Bridge Company v. Wyandotte Co., ante, p. 326. The county clerk and the county treasurer, under the allegations of this petition were proper parties defendant. They have authority under the statutes to put all taxes and assessments like those in controversy on the tax-roll and collect the same. (City Charter, Laws of 1871, ch. 62, §§ 17, 26, 27; Laws of 1872, ch. 100, §§ 33, 43, 44.) And in this case they were proceeding to exercise such authority. They were proceeding to commit the very injuries of which the plaintiffs in this aption complain. Whether the city of Emporia, or the persons who made the improvements, were also necessary or proper parties, is not raised by said demurrer. The defendants do not demur because of a defect of parties defendant, but they demur because of a misjoinder of parties defendant. And as the defendants did not raise the question as to whether there was a defect of parties plaintiff, or defendant, by either demurrer or answer, it must be deemed that they waived the same: Code, §89, subdiv. 4, and §91.
It is claimed that the court below erred in sustaining the plaintiffs’ demurrer to the defendants’ supplemental answer. This supplemental answer was a separate and independent pleading, and it did not deny any allegation of the plaintiffs’ petition. And the only matter \ ^ that it set up in avoidance of the allegations of the petition was the passage of a special act of the legislature entitled “An act to legalize proceedings and assessments of the mayor and couucilmen of the city of Emporia in 1871.” This act took effect March 27th, 1872; (Laws of 1872, ch. 13, page 13.) The allegations of the petition are substantially that certain persons voluntarily, and without any authority, macadamized, curbed, and guttered Commercial street in the city of Emporia, and that afterwards the city authorities levied an assessment on the adjacent or abutting lot-OAvners to pay for the same. At the time the work Avas done (according to the allegations of the petition,) neither the city of Emporia nor the lot-owners were liable to pay for the same, and the assessment against the lot-owners was of course absolutely null and void. Whether the legislature can by a special act make this assessment valid, is the question now presented to us for our consideration. The question however is not whether the legislature has the power by special act to make the city of Emporia liable for the work done, but it is whether the legislature has the power by special act to make the abutting lot-owners liable. We do not think the legislature has any such power. (Baltimore v. Horn, 26 Md., 194.) The constitution of this state provides that “The legislature shall pass no special act conferring corporate powers;” (const., art. 12, §1;) and it also provides that “all laws of a general natui-e shall have a uniform operation throughout the state;” (const., art. 2, § 17.) Now to authorize a city to macadamize, curb and gutter a street, and to assess the cost of the same against the abutting lot-owners, is certainly conferring corporate power. Any power conferred upon a corporation, and to be exercised by the corporation, is a corporate power. A power that would not be a corporate power if exercised by an individual becomes a corporate power when exercised by a corporation. The power of a city to pay for work which was done without any authority — work for which the city was, at the time it was done, (according to the plaintiffs’ petition,) under no legal or moral obligation to ever pay, is in our opinion a very high corporate power. But the power of a city to enforce the abutting lot-owners to^pay for such work, when neither the city nor the abutting lot-owners at the time the work was done were under any legal or moral obligation to ever pay for the same, is most certainly one of the very highest of corporate powers. Such a power has never been conferred upon any class of cities of the state of Kansas. In every other city of this state certain antecedent and prerequisite conditions must exist before the city has the power to make special assessments against the abutting lot-owners for street improvements. The city itself must legally authorize the improvements to be made, and become itself legally liable to pay for the same, before it can legally enforce the abutting lot-owners to pay for the same. Can the legislature by a special act confer, upon the single city of Emporia powers not possessed by any other city in the state of Kansas? We think not. (Atchison v. Bartholow, 4 Kas., 124, 141, 145,146; Wyandotte v. Wood, 5 Kas., 603; State v. Cincinnati, 20 Ohio St., 18, 36.) Could the legislature even when passing general laws for the government of cities of the second class exempt the city of Emporia from their operation? Could they prescribe a rule for a certain class of cities, and then say that one of that class should be exempted from the rule? If so, the law could hardly be said to be a general law; and it certainly could not be said to have a uniform operation throughout the state. (Darling v. Rogers, 7 Kas., 592.) It will be conceded that the legislature may in some cases pass general curative laws for corporations. It is possible also that they may in some rare cases pass special curative laws for corporations. But the present is not one of such cases. All that we now decide is, that the legislature cannot pass a special act which will cure all of such irregularities as are alleged in the plaintiffs’ petition.
It is also‘claimed that the court below erred in admitting certain evidence which tended to show the interest that the plain tiffs had in the lots upon which the assessments were made. The plaintiffs in error claim that the evidence was only secondary evidence. We perceive no error however in the ruling of the court upon this evidence. Actual possession of real ^estate has always been prima facie evidence of title to the same; (Gulf Rld. Co. v. Owen, 8 Kas., 409, and authorities there cited; 1 Phil. Ev., (3d ed.,) 452; Cowen & Hill’s Notes, No. 297;) and this is just what the evidence tended to establish. And for this purpose the evidence was original, and not secondary evidence. The evidence did not show that there was any better evidence back. Of course, title by deed must be proved by the deed; title by a ■decree of court must be proved by the decree; title founded •on any particular written instrument must be proved by such instrument. But title, without reference to whether it be by deed, decree, devise, descent, equitable estoppel, prescription, limitation, or otherwise, or whether it be a legal or an «quit-able title, may be proved prima facie by showing actual possession. But as to some of the lots it is claimed that no actual possession has been shown. This may possibly be true, but still the evidence objected to tended to prove actual possession and title, and that was clearly sufficient to authorize its admission. Said evidence was, according to the record, “to the effect that said claimants have openly and notoriously claimed said lots for four years last past; have during all that time taken persons upon said lots, and offered to sell the same to them; have •during all that time given in said lots to the assessor as their own, and paid the taxes on them. The said lots are uninclosed and no improvements have ever been made on them.” Now, it is not necessary that a person should always be actually upon real estate in order that he may be in the actual possession of the same. Nor is it necessary that he should actually reside thereon for that purpose. Neither is it necessary that there should be any improvements on the property. (Ewing v. Burnett, 11 Peters, 41, 52, 53.) There may be an actual possession of uninclosed and unimproved land. (Longworthy v. Myers, 4 Iowa, 18, 20, 21, and cases there cited.) All that is necessary to constitute an actual possession of such land is, that visible and notorious acts of ownership should be exercised over the premises; (Draper v. Shoot, 25 Mo., 197, 203; Angell on Limitations, (4th ed.,) §§397/398, and cases there cited.) The payment of taxes is always very strong evidence, prima faeie, of ownership. All visible and notorious acts of ownership may be shown to the jury for the purpose of proving ownership. Whether the evidence adduced in any given case sufficient to prove ownership or not, is a question for the jury. This kind of evidence however, as we have already .stated, is only prima faeie evidence, and must always give way to stronger evidence. In this case however it would seem that evidence, showing that the plaintiffs below had formerly paid the taxes on said lots, claiming them to be their own, ought to be competent evidence, for this action itself is an action to determine whether a certain kind of taxes are valid or not. Indeed, it would seem that such evidence ought to be competent to prove ownership in any case, and against any person who could not show a better title in himself, or in the person under which he should hold. It would seem that such evidence ought to be sufficient evidence of title as against any mere wrongdoer. Said evidence objected to undoubtedly tended to show that the plaintiffs exercised visible and notorious acts of ownership over said lots, and it was therefore competent evidence. But even if it were shown that the plaintiffs had no title to the lots, still as they were in possession of the property, exercising acts of ownership over it, and claiming it to be their own, they had an inchoate title that would in time under the statute of limitations ripen into a complete and absolute title. And evidently, while this inchoate and incomplete title to said lots is growing into a complete and absolute title, the plaintiffs ought to have a right to see that no illegal tax or assessment should be imposed upon said lots to eventually override and overthrow their own inchoate title.
It is also claimed that the court erred in excluding certain evidence offered by the defendants below to prove that the engMeer made certain estimates of the costs of the said improvements before the same were ma(je_ jn we Coui’t did err. There was no irregularity in making said estimates. The contracts were afterwards made with reference to them, and for just such work as the estimates were made, and the work was done for much less than the estimated cost thereof. It is true, that the estimates were made before any ordinance was passed requiring the improvements to be made, but this makes no difference. In fact, we think the estimates ought to be made first, as the city council could then act more intelli gently in passing the ordinance. The,estimates were made however at the request of the mayor and council, but we do not suppose that it was necessary that any request should have been made. We suppose it would be sufficient if made on the engineer’s own motion. The only thing essential is, that the estimate should be made, and this was. done. (See Gen. Stat., 169, ch. 19, § 31.) It is also true that these estimates were for the cost of curbing and guttering per lineal foot,, and the cost of macadamizing per square yard; and neither was for the cost in gross. The way the estimates were-made was probably the best way, and it was certainly a sufficient way. It was definite enough, and specific enough, for any person. It is also true that these estimates were not entered upon the records of the city council, but we know of no statute that required that they should be so entered. But if there had been such a statute, can it be supposed that a failure to record them would invalidate them? But if it be held that the court erred in excluding said evidence, still it is claimed by the defendants in error that the advertisement for bids, and all after-proceedings, are void, because the amount of said estimates was not published with said advertisement for bids. It is true that the statute requires that the amount of the estimates shall be so published; (Gen. Stat., 169, ch. 19, § 31.) And it is equally true that it was not so published in this case. But we think the statute in this respect is purely directory. It is entirely unlike statutes which require a thing to be done as^a condition precedent. For the error in excluding said evidence, the judgment of the district court is reversed, and a new tx-ial awarded.
All the Justices concurring.
|
[
-16,
110,
-12,
-3,
122,
64,
0,
-72,
73,
-95,
55,
127,
-19,
-53,
16,
113,
-14,
57,
84,
123,
-60,
-74,
3,
34,
-78,
-13,
-5,
85,
-15,
109,
-10,
-42,
76,
49,
66,
-35,
-58,
-30,
-59,
-36,
-50,
-81,
-118,
-52,
-39,
96,
52,
59,
114,
79,
113,
108,
-13,
44,
24,
-29,
105,
44,
75,
57,
99,
-71,
-84,
-123,
95,
15,
-79,
118,
-98,
67,
72,
10,
-112,
53,
1,
-24,
115,
-90,
-122,
118,
69,
-103,
8,
-26,
99,
33,
-63,
-17,
-8,
-100,
14,
-38,
-115,
-89,
-109,
89,
107,
13,
-74,
-107,
124,
80,
-121,
122,
-26,
20,
31,
44,
15,
-117,
-110,
-77,
-113,
-70,
-112,
-125,
-1,
-125,
16,
113,
-49,
122,
92,
99,
26,
-101,
15,
-104
] |
The opinion of the court was delivered by
Brewer, J.:
The same questions are in this case as in the case of the same plaintiff in error against Emil J. Sauer, decided at ¡the last term, (ante, pp. 466, 469.) Nothing further need be said therefore concerning them. There are however some additional questions in this record which will require examination. And the most important arises on the refusal of an instruction asked by the defendant Sawyer, now plaintiff in error. In the case above mentioned, Emil J. Sauer, the party injured, was a minor, (who sued by his next friend,) to recover damages for injuries to himself. This action is brought by the father to recover for the loss of the services of his minor son, and for money paid out in taking care of him during his confinement, and in accomplishing his cure. It was the undisputed testimony that both prior and subsequent to the injury the minor was in the employ of Crider & Sauer on a salary, which by the consent of the parties, and in pursuance of a contract, made by him, was received by the son. The father testified, “ My son had been working for himself and receiving his salary four or six months before he received the injury.” The son testified, “The position was got for me through my father. My father allowed me the benefit of my labor from that time to the present time. My father has allowed me to receive whatever I earn to a certain extent, when I am employed by any one. My father allows me to receive the proceeds of my own labor, and I pay my own expenses.” This instruction was asked by defendant and refused:
“That if the jury find that Emil J. Sauer, the son of the plaintiff, at the time of the injury complained of, and since he has got well, was, has been, and is working for a salary, with the knowledge and consent of the plaintiff, and while so working received to his own use, with the knowledge and consent of the plaintiff, the money therefor, and during the rest of the time paid his own expenses, that then the plaintiff cannot recover for any loss of service of said son while disabled by the injury complained of.”
An instruction embodying a contrary doctrine was given, and the jury were told that if they found that the son sustained injury through negligence of defendant the plaintiff was entitled .to recover for the loss of his son’s services. The principle upon which this action is sustainable is very different from that upon which the one brought by the son is founded. So far as the personal injury is concerned the son sustains it all, and he alone can recover damages therefor. The father’s person is uninjured; he suffers no pain of body, and has no right to recover anything because of his son’s sufferings and injury. He recovers because the injury to his son has wrought a pecuniary loss to him, and the measure of his recovery is the extent of that pecuniary loss. All that establishes.the son’s right of recovery must be shown in this action, and something additional. The son must show that he is injured, and that such injury resulted from the negligence of defendant. The father must show this, and also that such injury has wrought a pecuniary loss to himself. fThe father is under obligations to sfipport his minor children, and entitled to receive the benefits of their labor.) If the injury increases the expense of the one, or lessens the value of the other, he suffers loss, and to this extent has a legal claim for reimbursement. The mere fact that one pays the 'surgeon’s bills of a party injured gives no right of recovery, for it may be only a voluntary payment, and money thus paid cannot be recovered, no matter how great the wrong done. But where the party paying is, by virtue of the relations subsisting between him and the party injured, bound to pay such bills, any act of a third party which creates a necessity for such bills casts a legal liability upon him. The father is, as to his minor children, thus situated. Prima facie, therefore, he has a right' to recover. But circumstances may arise by which the father is released from his obligations to support, or loses or relinquishes his right to services. Whenever this is shown then the right to recover ceases. Did the testimony show that the father had lost or relinquished his right to his son’s services ? for unless it did, or at least raised such a question of fact as ought to have been settled by the jury, there was no error in the instructions given and refused. Questions as to the right of a parent to the child’s services have generally arisen and been discussed in these two classes of cases, first, where the parent has brought an action for the seduction of a daughter, and second, where after the services have been performed by the child there is a dispute as to whether parent or child has the right to recover for them. In the first class of cases the daughter, being a party consenting”, has no right of recovery,' and hence courts in their zeal to punish the offender have gone to great lengths in sustaining the parent’s right to services. Hardly anything has been sufficient to so far destroy this right as to prevent the parent’s recovery for the loss of services sustained by the seduction of the daughter. Especially has this been true in the state of New York, where see the cases of Martin v. Payne, 9 Johns., 387; Sargent v. — , 5 Cowen, 106; Clark v. Fitch, 2 Wend., 460, though a strong effort was made in the case of Bartley v. Ritchmyer, 4 N. Y., 38, to enforce the rule more stringently. On the other hand, in cases where the employer has paid the child for the services he has rendered, and the parent afterward sues for them, courts have leaned in the opposite direction, and considered comparatively slight circumstances as sufficient to show a relinquishment by the parent of all claim upon the services of his child. This has been done to protect an employer acting in good faith, and paying the party who has actually performed the services. See the cases cited by counsel for plaintiff in error. The legislature of this state have attempted to assist in this direction: Gen. Stat., 5.80, ch. 67, §4. It is easy to see that under these circumstances very different expressions and decisions will be found in the books concerning the relinquishment by the parent of his right to his child’s services. In this case no services were performed. There is no attempt to make an employee pay a second time. ^The question is,, had the father done that which released him from all obligation to take care of his son during his confinement? for the right to services goes hand in hand with the obligation to support. The father’s right to services extend to the period of majority. He may alienate or relinquish it for a while, and afterward resume it. It may be a question whether he can, unless he proceed under the apprentices’ act, make such a contract, or so act, as to destroy the rights and obligations ®f his relation beyond his power to resume them. In this case he unquestionably recognized the obligations, and proceeded to discharge them. This was done with the assent of the son; and if father and son adjust their relations upon the basis of the obligation of the parent to support, it is difficult to conceive of any good reason why a third party, who has through his negligence wrought an injury upon the child, should be allowed to. question the validity of such adjustment. We see no error in the ruling of the district court.
Again it is objected that the court erred in allowing plaintiff to show what he paid out for expenses. We think the testimony competent, and that the case cited by counsel settles that point: N. Mo. Rld. Co. v. Akers, 4 Kas., 471, 472.
Still again it is insisted that there was no evidence that the services were worth anything: the measure of damages is what such services were worth, and not what was being paid by his employers. In the absence of all other testimony •a jury is warranted in finding a party's services worth that: which his employers are paying him.
The judgment of the district court will be affirmed.
All the Justices concurring.
|
[
-16,
-6,
89,
-65,
26,
96,
42,
26,
85,
-57,
-89,
115,
-21,
-105,
5,
121,
-11,
63,
80,
122,
-41,
-77,
23,
107,
-42,
-13,
-13,
-59,
-80,
105,
-28,
85,
77,
48,
-118,
-43,
102,
-61,
-59,
-12,
-122,
4,
40,
-8,
-103,
1,
48,
122,
68,
75,
49,
-114,
-29,
42,
29,
-53,
44,
44,
90,
-71,
-48,
-7,
-102,
-123,
127,
0,
-96,
2,
-100,
5,
88,
60,
-104,
-79,
9,
-23,
114,
-76,
-122,
-12,
35,
-103,
-115,
98,
103,
34,
29,
-27,
-8,
-72,
-82,
-70,
-99,
-92,
-79,
88,
11,
9,
-65,
-97,
122,
16,
38,
126,
-22,
93,
31,
100,
3,
-113,
-44,
-71,
-17,
34,
-66,
-128,
-5,
1,
-80,
97,
-52,
-80,
93,
69,
114,
-109,
-106,
-22
] |
The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a judgment imposing liability against an insurance company under a general comprehensive liability insurance policy. The primary question is whether an exclusionary clause in the policy eliminated coverage for a fire loss of hand tools owned and used by employees of the insured. The plant of the insured was destroyed by fire. The exclusionary clause is one generally referred to as a “care, custody or control clause”.
First a brief summary of background facts should be given. The employer, Adventure Line Manufacturing Company, Inc., was engaged in government contract work making parts for bombs in Parsons, Kansas. The employer obtained a general comprehensive liability policy from appellant, The Western Casualty and Surety Company, hereinafter called the insurer or the insurance company. A fire destroyed the employer’s plant. Hand tools owned by employees valued at $12,189.91 were lost in the fire. In a jury trial the plaintiff employees obtained a judgment against the employer. The employer was defended in that action by the insurance company. Garnishment was then issued against the insurance company and in the proceedings which followed the trial court found the exclusionary clause in the policy did not exclude coverage for the loss of the employees’ tools. This appeal followed.
The general comprehensive liability insurance policy issued by the insurer provided for payment on behalf of the insured employer of all sums which the insured should become legally obligated to pay as damages because of property damage caused by accident. This was identified in the policy as coverage C.
In the first action it was established that the employer was legally obligated to pay damage to the employees for their tools damaged while in the plant building because of the accidental fire. The negligence found was poor housekeeping and failure to keep fire extinguishers on the premises in workable order.
The exclusionary clause, in pertinent part, reads as follows:
“This policy does not apply:
“(h) under coverage C to property damage to (1) property owned or occupied by or rented to the insured, or (2) . . . property used by the insured, or (3) . . . property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, . . .”
A similar exclusionary clause was considered by this court in Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681. An annotation appears in 62 A. L. R. 2d 1242 covering similar “care, custody or control” clauses appearing in liability insurance policies. Generally the cases indicate this clause is aimed at eliminating coverage in situations in which the insured is closely connected with the property by exercising some sort of control over it. In Herman v. Folkerts, 202 Kan. 116, 446 P. 2d 834, this court’s holding is in line with what seems to be the general view of the courts that what is contemplated by “in care, custody or control of insured” is possessory handling, physical custody, dominion, authority or control over the property, as distinguished from the proprietory right of control. The exclusion as to property over which the insured has the proprietory right of control appears to have been specifically covered under paragraph (h) (1) of the present exclusionary clause under “property owned or occupied by or rented to the insured”. No question of exclusion under this paragraph has been raised.
In Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 477 P. 2d 966, we pointed out:
“In contracts of adhesion, where the insurance company selects the language and the insured is ‘stuck with it’, this court has adhered to the rule that any uncertain language in an insurance policy should be construed strictly against the company and liberally in favor of the insured. . . .” (p. 249)
This rule was further refined in Buchanan v. Employers Mutual Liability Ins. Co., supra, by pointing out that when there are doubts, uncertainties or ambiguities arising from an exclusionary clause placed in a general comprehensive liability insurance policy by reason of the evidentiary facts of a particular case, the uncertainties arise by reason of language employed by the insurer company and they should be resolved in favor of the policy holder. It was there established that the facts existing at the time of the injury or damage control. The exclusionary clause must be applied, if at all, as the facts and circumstances were at the time the damage occurred. (See also Falls Sheet Metal Works v. U. S. F. & G. Co., 17 Ohio App. 2d 209, 46 Ohio Ops. 2d 304, 245 N. E. 2d 733, and Kirchner v. Hartford Accident & Indemnity Co., (Mo. App.) 440 S. W. 2d 751, 756.)
In the present case the evidence bearing upon the applicability of the "care, custody or control” exclusionary clause indicated that the employees were mechanics and maintenance men. Such laborers are generally expected to furnish certain hand tools with which they carry out their duties. This is a custom in their trade. In the case at bar the employees were required to> furnish certain minimum tools. Some brought more tools than were required. The tools were used in their work. The employer made no inventory of what tools the employees brought. The employer had supervision and control of the employees in the performance of their duties. The employees, however, retained the supervision and control over their own tools. Each employee kept his own tools in a tool box. If tools were to be used by others, permission for their use had to be obtained from the employee owner. It was a common practice to leave the boxes of tools on the plant premises. If the tools were to be removed from the premises, the tools had to be checked by the employer. This was required to prevent the employees from removing from the premises tools owned by the employer.
The fire which destroyed both the plant and the tools occurred just before noon and originated at the employer’s number six die-casting machine. There is no evidence in the record as to the physical location, use, custody or control of the employees’ tools when the fire broke out. At most the evidence would establish the tools were somewhere on the plant premises. They may or may not have been in immediate use when the fire broke out.
Under these circumstances the trial court as trier of facts determined that the hand tools were in the possession and control of the various employees and were not in the possession and control of the insured employer. The “care, custody or control” clause, under the evidentiary facts, did not exclude coverage. Judgment against the insurance company was entered. We agree with that holding.
The appellant-insurer argues that since the insured employer directed the duties of the employees and the employees’ duties required the use of these tools, it should follow that the employer was in control of both the employee and his tools. There was no dispute that the tools were on the plant premises when they were destroyed.
The difficulty encountered in this case in applying the facts to the exclusionary clause arises because the coverage extended under general comprehensive liability insurance is usually considered in the context of damage to property of third parties. Most of the cases referred to in this opinion, including those collected in 62 A. L. R. 2d 1242, do not relate to property owned by employees of the insured. The property involved in most of the cases is owned by subcontractors or unrelated third parties. As to unrelated third parties the notions usually embodied in the maxim “respondeat superior”, arising from the master and servant relationship, are not present. When the “care, custody or control clause” is examined in light of the master and servant relationship, which in certain instances makes the act of the employee also the act of the employer, the meaning of the exclusionary clause is obscure. The term “insured” as defined in the policy does not encompass an employee. Yet in the exclusionary clause when it refers to property used by a corporate insured or property in the care, custody or control of the corporate insured or property as to which the corporate insured is exercising physical control, such can only occur through the acts of the employees.
An employee, however, is a distinct person having rights in his own person and property. The exclusionary clause does not expressly exclude coverage on property owned, used or controlled by employees. If this result was intended it was not clearly expressed. It could have been. (See Morris & Co., Inc., v. Lumber Mut. Casualty Ins. Co., 163 Misc. 715, 298 N. Y. S. 227.)
That liability which is not clearly excluded from coverage under a general comprehensive liability insurance contract is presumed to have been included.
When the “care, control or custody clause” used in a general comprehensive liability policy to exclude portions of the coverage is of a generally ambiguous character such clause should be applied with common sense and practicality on the basis of the evidentiary facts. When it does not conclusively appear that the insured was exercising physical custody, dominion, authority or control over the property at the time of its injury, the question of care, control and custody should be resolved by the trier of fact. (Buchanan v. Employers Mutual Liability Ins. Co., supra.)
Therefore we conclude that the applicability of the exclusionary clause in this case was a question to be resolved by the trier of fact. Under the evidence the trial court could find the employees’ tools were not in the care, custody or control of the employer when the damage to the tools occurred.
The judgment is affirmed.
Prager, J., not participating.
|
[
-100,
124,
-36,
-116,
-103,
96,
58,
82,
69,
-91,
39,
-45,
-17,
-64,
-115,
127,
-10,
29,
81,
114,
-9,
-93,
23,
2,
-42,
-5,
-111,
-59,
-72,
75,
-10,
94,
76,
97,
78,
-43,
-26,
-118,
-51,
-100,
-54,
12,
-86,
-23,
-39,
-56,
-80,
-1,
114,
67,
17,
-97,
-13,
42,
19,
-49,
40,
42,
105,
-95,
-15,
56,
-86,
5,
127,
17,
-95,
5,
-100,
39,
-40,
6,
-112,
17,
17,
-24,
115,
54,
-42,
-12,
115,
-103,
-64,
102,
99,
34,
24,
-17,
-52,
-104,
47,
-52,
31,
-90,
-104,
120,
59,
11,
-73,
-99,
116,
20,
4,
106,
-26,
28,
95,
101,
17,
-125,
-108,
-77,
-55,
108,
-68,
-94,
-18,
-125,
34,
112,
-50,
-72,
92,
7,
123,
31,
-65,
-56
] |
The opinion of the court was delivered by
Brewer, J.:
This is a proceeding to reverse a judgment of the district court of Crawford county in a replevin suit. The case was tried before a jury, and the following verdict rendered: '
“We the jury find for the plaintiff as to the following described six steers: One red steer branded H F; One red steer, ZB; One red steer, G; One white steer, G; One red steer, 0 0; One red steer, TO; and assess their value at $300. And find his damages $27.12J. And we, the jury, find for the defendant as to the following described steers: One red steer with white belly and face branded O O; One brown steer without brand; two red steers without brand.”
Upon this verdict a simple money-judgment in favor of the plaintiff was rendered for the value of the steers and the damages. That this was improper has been settled by the decision of this court in the case of Hall v. Cohen, 6 Kas., 356. See also cases therein cited. But as there decided it is unnecessary to reverse the judgment and order a new trial. It is sufficient to direct a modification, and that the judgment be entered in the alternative for the delivery of the possession, or in case that cannot be had, for the recovery of the value.
It is objected that the verdict fails to find the value of the steers belonging to defendant, or to assess any damages for taking and withholding them. So far as the record shows no order of delivery was ever issued in this case, nor was the possession of defendant ever disturbed. The record shows simply a petition and answer, and then a trial. If then the steers were never taken from his possession, a failure to find their value has worked no prejudice; nor could any damages be assessed. But the defendant insists that he was entitled to a judgment quieting his title to the four steers, and therefore to a judgment in his favor for part of the costs. We think not. The plaintiff sues for ten head of cattle, and proves title to six. He takes judgment for the six. His failure to obtain judgment for any more, is all the relief the defendant is entitled to. If the possession of defendant had been disturbed the rule might be different. But as this case presents the question, it resembles a suit on two notes in which the plaintiff proves one and fails to prove the other. The judgment is entered in favor of the plaintiff for the amount of the note proved, and there it stops. No judgment is entered in favor of the defendant declaring the other note void, or paid, and carrying part of the costs. If the plaintiff has title to only six, then as between him and defendant, the latter has title to the other four. The rule is general, that where a plaintiff claims affirmative relief, a finding and judgment in his favor as to a portion of his claim is an adjudication against him as to the remainder, and this without any formal statement to that effect in either finding or judgment.
It is further objected that the verdict does not assess the value of each steer separately, and assesses the value of the six at a larger sum than is claimed in the petition. The petition, after describing the ten steers, alleges their value to be forty dollars each. The assessment of the verdict is three hundred dollars for six steers, or at the rate of fifty dollars each. As no amendment of the petition was made or asked, judgment should have been entered for only the amount alleged, forty dollars each, or $240 altogether, and to that extent the judgment must be modified. Our statute nowhere requires either petition, answer or verdict to state the value of the articles in controversy separately. It simply provides that the affidavit for an order of delivery' shall state such values separately as nearly as practicable. Civil code, § 177. If a party desires a finding as to the value of any particular article, doubtless he could obtain it by applying under the provisions of § 286 of the code as amended in 1870. (Laws 1870, p. 173, § 7.) But failing to apply under that section he cannot complain if the jury return the valuation in gross.
The case will be remanded to the district court with instructions to modify the judgment, so that it direct that plaintiff recover the possession of the six steers, or in case a delivery cannot be had, that he then recover the sum of two hundred and forty dollars, the value assessed, together with the damages and costs. The costs in this court will be divided.
All the Justices concurring.
|
[
-15,
-20,
-43,
-23,
8,
96,
42,
-102,
64,
-95,
54,
-45,
-23,
-62,
20,
105,
102,
13,
85,
105,
86,
-89,
23,
-31,
-109,
-13,
-110,
-57,
-71,
79,
-90,
-11,
76,
48,
-62,
-107,
100,
-30,
-63,
84,
-118,
-121,
25,
-20,
-31,
0,
56,
-69,
22,
67,
37,
-115,
-13,
44,
56,
-61,
73,
44,
123,
41,
64,
-8,
-2,
15,
15,
6,
-111,
34,
-104,
67,
-38,
46,
-104,
49,
1,
-8,
114,
-74,
-122,
84,
41,
-103,
12,
38,
102,
1,
20,
-51,
88,
-88,
47,
125,
-113,
-89,
-104,
24,
75,
35,
-74,
-99,
110,
68,
-122,
124,
-1,
5,
31,
124,
7,
-34,
-46,
-77,
-81,
60,
-104,
67,
-21,
-93,
16,
117,
-51,
-14,
93,
71,
112,
-101,
-114,
-74
] |
The opinion of the court was delivered by
Brewer, J.:
This is an original proceeding in mandamus brought in this court .by the relator to compel the defendant as auditor of the state to issue to him scrip on the basis of a salary of two thousand dollars per annum. The appropriation made by the last legislature was fifteen hundred dollars, and upon the basis of that appropriation the auditor is acting. The relator claims that under the laws regulating judicial salaries he is entitled to two thousand dollars, and insists that he should be paid at that rate, until at least the appropriation is exhausted! Upon the facts as alleged there is no dispute, and the only question presented for our determination is one of law, and that is, the amount of salary which under the statutes the relator is entitled to receive. By the legislation of 1867 four additional judicial districts were created, and the governor was authorized to appoint judges who should hold their offices until their successors were elected and qualified. Sec. 15, of ch. 52, laws 1867, p. 89, reads:
“Sec. 15. There shall be elected 'at the next general election, judges of the district court for the sixth, seventh, eighth and ninth judicial districts; such elections tobe conducted in all respects in accordance with existing laws, and such judges to have and exercise all the powers and perform all the duties which are now or may be imposed by law for [upon] judges of the district courts of this state, and who shall hold their offices for the term of four years and until their successors are elected and qualified.”
At the general election in 1867 the relator was elected judge of the seventh district, and re-elected at the general election of 1871. The salary of district judges ^ time 0p h}s election in 1867 was fifteen hundred dollars. In 1868, it was raised to two thousand dollars, and so remained until 1872, when it was again raised to twenty-five hundred dollars. Art. 3, § 13, of the constitution provides that “The justice of the supreme court and judges of the district court shall at stated times receive for their services such compensation as may be provided by law, which shall not be increased during their respective terms of office,” etc. Upon these facts alone, there would appear little question that the relator was entitled to two thousand dollars. As against these facts is this: There was no statute authorizing an election for district judges in 1871. Hence it is claimed that the attempted election was invalid, and conferred no title, and that the relator is still serving out the term to which he was elected in 1867, and entitled to only fifteen hundred dollars. Sec. 5, of art. 3, of the constitution provides that in each judicial district “there shall be elected, 7by the electors thereof, a district judge who shall hold his office for the term of four years.” Sections 3 and 5 of the election law, ch. 36, Gen. Stat., p. 428, reads:
“Sec. 3. On the Tuesday succeeding the first Monday in November 1868, and on the Tuesday succeeding the first Monday in November in every fourth-year thereafter, there shall be held a general election for the election in each judicial district of one judge of the district court,” etc.
“Sec. 5. The provisions of this act shall not apply when there are special provisions in any other statute fixing the time for the election of any of the officers above named.”
The only special statutory provision in any way pointing to an election at another time is §15 of ch. 52 of laws 1867, heretofore quoted. Was the election in 1871 a valid election? On the one hand it is claimed that the constitutional term of office is four years ; that the constitutional provision is restricting, and prevents the legislature from increasing that term either directly or indirectly, and that it is self-executing, and authorizes an election at the expiration of four years, whether there be any legislation therefor or not. On the other hand it is insisted, that the constitution is not self-executing, and that some legislation authorizing an election, prescribing place and manner, and establishing rules and regulations, must be had before any valid election can be held. It is unnecessary for us to inquire how far the absence of all legislation would affect an attempted election, for the legislature has by the election law .of 1868 (ch. 36, Gen. Stat., p. 403-428,) established all necessary rules and regulations, and provided all requisite machinery for conducting elections, ascertaining their results, and contesting the same. The constitution, art. 4, § 2, fixes the time for general elections on the Tuesday succeeding the first Monday in November of each year, so that time and place, manner and machinery, are all provided. Indeed, the only thing wanting, if anything be wanting, to make valid this election is express statutory authority therefor. The term of office is,*as we have seen, four years. This being a constitutional provision is beyond legislative change. It is a fixed quantity: Comm’rs of Leavenworth v. The State, ex rel. Latta, 5 Kas., 688. The relator’s term of office to which he was elected in 1867 commenced on the second Monday of January 1868, and terminated on the second Monday of January 1872. The constitution does not fix the day of the year for the commencement of a judicial term, but the statute does: Gen. Stat., 418, ch. 36, §58; and where the constitution is silent, we conceive the legislature has the power; People v. Weller, 11 Cal., 87; State v. Mebling, 6 Ohio St., 43. Besides, the allegation is, that relator’s term commenced in January 1868, so that even if the legislature were powerless, and the term commenced with the qualification of the party elected, the pleadings have placed the commencement in January 1868, and the constitution places the end in January 1872. Since that time the relator holds his office either by virtue of the election of 1871, or by virtue of § 12, art. 3, of the constitution, which declares that “all judicial officers shall hold their offices until their successors shall have been qualified.” If this latter view be correct, the surplus time over the four years, during which he has been holding office, is no part of the term to which he was elected. He either fills an interregnum, as it were, is a sort of temporary supply, or else is occupying a portion of some other person’s term. As the constitutional restriction on increase of salary is operative only during the term, we might stop here, for the relator’s term expired in January 1872, and from that time on, under either view, he would be entitled to $2,000 per annum. But inasmuch as an election might be held this fall (1872) if the question were left open as to the validity of that held in 1871, and unpleasant controversies arise, we deem it not inappropriate to consider the validity of that election, and place our decision of the case upon that ground. And the result of that consideration has been favorable to the validity of such election. To hold otherwise would give to the legislature power to continue any officer (save one of its own members) in office for an indefinite period. For the constitutional provision extends to all state, judicial, county, and township officers, •giving them possession of their respective offices until their successors are qualified. At the expiration of a term there arises no vacancy which can be filled by appointment. An •election must be had, or the then incumbent continues: Borton v. Buck, 8 Kas., 302. A simple omission of the legislature to act might thus give to an incumbent a life-lease of his office. While the possible abuse of a power is no ground for questioning its existence, (for power must be lodged somewhere, and there is always possibility of its abuse,) yet where grave doubts exist as to the meaning and effect of a certain constitutional provision, the balance may sometimes properly be turned by a consideration oí results. The constitution is the paramount law. It is above legislatures, and courts. It was intended as a paramount rule, to be changed only by the peo- .... . . / J r pie m their sovereign capacity. By it they have expressed their purpose, a purpose not to be thwarted by their representatives. As between the will of the people expressed in the constitution, and that expressed in the 'statute, the former always prevails. As between two constructions of the former, that which gives stability and force is preferred to that which makes it simply an expression of desire, subject to the omissions or caprices of each succeeding legislature. The manifest purpose of the constitutional provisions is to secure not merely a fixed term of office to judges, but also to the people at stated intervals the opportunity of ■changing the incumbents. Now, if the constitutional term has no force till re-enacted in the statute, the latter would seem the paramount authority; and all constructions which make the former dependent on the latter tend to belittle the permanent law. The constitutional provision is, that in each district “there shall be elected by the electors thei'eof, a district judge, who shall hold his office for‘the term of four years.” This does not apply to the first district judges alone, but establishes a permanent rule. It would seem a fair implication that such election should be held at the last general ■election prior to the commencement of such term. That would be consonant with the general rule governing all elections everywhere, and a constitution, as well as the statutes,, must be construed in the light of settled and general usage,Of course, where it speaks its words declare its meaning; but it is impossible, in the general terms in which it is couched,, to provide expressly for all possible contingencies. It must be so construed as to give force to and uphold its several provisions ; and in so construing it, it not unfrequently happens that something must be implied to give force to that which is expressed. It says the people shall elect the judges; that the term of office of district judges shall be four years; that general elections shall be held on the Tuesday succeeding the first Monday in November. Is it not a fair implication that it authorizes an election at the general election last prior to the commencement of each term ? Implied authority similar to' this is spoken of approvingly in the cases of The State, ex rel. Crawford, v. Robinson, 1 Kas., 26, and The State, ex rel. Watson, v. Cobb, 2 Kas., 54. We are aware of the difficulties attendant upon this construction, and that in some respects it savors of judicial legislation, something which all courts should be careful to avoid. But in no other way can we uphold the various provisions of the constitution, and carry into effect the will of the people clearly expressed therein. Our conclusion therefore is, that the election of 1871 for district judge was valid; that in January 1872 the relator entered upon a full term of four years, and is entitled to compensation at the rate of $2,000 per annum. The peremptory writ will therefore issue as prayed for.
Kingman, C. J., concurring.
|
[
-80,
-22,
-4,
-4,
10,
32,
19,
-104,
72,
-95,
37,
119,
-23,
27,
16,
57,
-14,
41,
117,
107,
-42,
-74,
55,
73,
-78,
-14,
-39,
-57,
-79,
110,
-20,
-35,
76,
56,
66,
-43,
102,
-62,
-57,
84,
-122,
-121,
-87,
-51,
90,
64,
52,
113,
82,
79,
53,
-2,
-13,
44,
24,
99,
77,
45,
-37,
-69,
16,
-5,
-98,
-115,
79,
0,
-111,
103,
-102,
-121,
-40,
46,
-104,
61,
-126,
-8,
123,
-90,
-122,
-44,
39,
-71,
12,
98,
98,
17,
-83,
67,
-88,
-87,
46,
-38,
-97,
-26,
-41,
89,
106,
9,
-74,
-99,
124,
0,
-121,
118,
-25,
85,
-33,
44,
23,
-114,
-26,
-77,
-113,
110,
-102,
2,
-17,
-125,
16,
97,
-52,
-78,
92,
71,
51,
17,
-121,
-72
] |
The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in -error to qniet title to a lot in the town of Holton. In his ■petition he alleged that he held the legal title, and was in peaceable possession, and that O’Brien set up an adverse interest. Upon the trial he testified that the lot was entirely vacant and unoccupied, and then offered his deeds, which were objected to on the ground that he had not shown himself in actual possession. The objection was overruled, and this is alleged as error. We see none. It was decided in Eaton v. Giles, 5 Kas., 24, that “ an action to quiet title may be brought by the holder of the legal title when he is not in possession, if the real estate for which he holds the title is vacant.” Where real estate is unoccupied and vacant the holder of the legal title has the constructive possession. It is true, when there is no actual possession the party holding title cannot proceed under § 594 of the civil code. Yet he is not therefore without remedy. He can have his title, determined and protected. See case of Eaton v. Giles, just cited. It is further insisiod that the plaintiff did not show a legal title in himself, his chain of title commencing with a deed from C. C. Whiting. It is true only two deeds are preserved in the record, but there is nothing to, show that it contains all the testimony, and we are not at liberty therefore to assume that it does, and that, the plaintiff did not prove title from government by regular chain of conveyances to himself. The judgment will be affirmed.
All the Justices concurring.
|
[
-13,
126,
-40,
62,
-6,
96,
42,
-72,
-31,
-95,
-90,
19,
47,
-61,
25,
41,
-13,
107,
113,
90,
79,
-77,
71,
-29,
-42,
-77,
-45,
-35,
-75,
-51,
-25,
-58,
76,
32,
-62,
-11,
68,
-128,
-59,
84,
-50,
5,
9,
76,
-47,
64,
52,
27,
68,
15,
81,
-97,
-13,
62,
25,
-61,
105,
40,
75,
53,
80,
-72,
-102,
13,
95,
6,
-95,
52,
-100,
67,
104,
8,
-112,
25,
4,
-8,
51,
-90,
-122,
116,
15,
-101,
40,
102,
110,
33,
125,
-17,
-96,
-72,
14,
126,
7,
-89,
16,
16,
75,
96,
-105,
-99,
116,
0,
70,
-10,
-22,
-43,
29,
108,
15,
-49,
-42,
-77,
-49,
108,
-110,
1,
-33,
3,
49,
112,
-49,
-18,
92,
103,
122,
-101,
-113,
-44
] |
The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error (defendant below) claim that there are three questions for us to decide in this case. These ^questions are as follows: First, Whether proof -of delivery by the plaintiff to the joint agent of the defendant and the Hannibal & St. Joseph Railroad Company of cheeks of the last-named company, calling for the transportation of baggage from Quincy to Kansas City, was suffi cient evidence to go to the jury to show prima facie that the defendant received the goods, etc., which the plaintiff alleged he delivered to the defendant to be transported to Junction City. Second, Whether certain specific enumerated and described articles of personal properly are passengers’ baggage, (all the facts and circumstances as to the business of the passenger, and the nature of the articles being undisputed,) is a question of law for the court, and not a question of fact for the jury. Third, Whether the plaintiff, under an allegation that he delivered goods to be carried for a reasonable reward, and issue' thereon, can change his ground upon the trial and maintain his case by proof that he was a passenger, and that the goods were his baggage to be carried as. such passenger.
I. We do not think it is necessary to decide this question. It is not in fact in the case. The court below did not anywhere rule that the delivery of said checks was “sufficient evidence to go to the jury to show prima facie that the defendant received the goods.” Nor did the court even rule that all the evidence upon that subject, taken together, was sufficient evidence to show prima facie that the defendant received said goods. The most that can be claimed is, that the court ruled that the delivery of said checks to the baggage-master of the Kansas Pacific Railway Company, at Kansas City, with the understanding and agreement that said railway company should forward the goods represented by said checks from Kansas City to Junction City, was some evidence that tended to prove that the railway company received the goods, and therefore the court ruled that the said evidence was competent to go to the jury for that purpose along with the other evidence in the case tending to prove the same thing. In this we think the court was correct. It is not necessary that evidence shall prove a thing prima facie in order that it may be admitted. If it tends to prove the thing, or if it is a link in the chain of evidence that tends to prove a thing, it may be admitted. The motion of the defendants, made before the evidence was concluded, asking the court to instruct the jury to find for the defendants on the ground that there was no evidence tending to show that the defendants ever received said goods, was rightfully overruled. The motion was made too soon. This case was tried May 25, 1871, at which time §275 of the code (Gen. Stat., 681, since amended,) was in force. Again, there was evidence tending to prove that the defendants received said goods. Taking the whole of the evidence for the plaintiff together we think there was sufficient to prove prima faeie that the railway ^company received said goods. According to the testimony •of plaintiff’s witness the railway company received thirteen ■checks for thirteen pieces or packages of goods; the company weighed them, agreed to forward them to Junction City, charged $15 extra for transporting them from Kansas City to Junction City, and not a word was said about any missing goods. There was strong evidence however on the part of the railway company tending to show that the railway company never did receive said goods. Probably the preponderance ■of the evidence was that way; and it is also probable that in fact the railway company never did receive said goods; but the fault was on the part of the jury in finding as it did, and not on the part of the court for permitting the said evidence to be received by the jury. The case was fairly submitted to the jury by the court. The charge of the court to the jury upon the subject was correct. The court charged “that unless the jury are well satisfied from the evidence that the property came into the actual possession of the defendant at Kansas City the plaintiff cannot recover.” Upon the evidence in the case, and this instruction, together with other .appropriate instructions, the jury found for the plaintiff. The court then, upon a motion for a new trial upon the ground (among other grounds) “that the verdict was not sustained by sufficient evidence,” refused to grant a new trial. The defendant is now without a remedy. We think it has been well settled in this court that where a jury has heard all the evidence in a case, and rendered their verdict thereon; and the court below has refused to set aside the verdict we cannot retry the case and render a different verdict, nor even set aside the verdict and grant a new trial provided there is sufficient evidence if uncontradicted to uphold the verdict although the weight or preponderance of the evidence may seem to be against the verdict. Blair v. Fields, 5 Kas., 58; U. P. Rly. Co. v. Coldwell, 5 Kas., 82, 84, and cases there cited; Pacific Rld. Co. v. Nash, 7 Kas., 280; Kansas Ins. Co. v. Berry, 8 Kas., 159; Abeles v. Cohen, 8 Kas., 180; School District v. Griner, 8 Kas., 224; K. P. Rly. Co. v. McCoy, 8 Kas., 538.
II. The question whether certain articles of personal property are “passengers’ baggage,” we forbear to discuss or to decide, as the question is not in the case.
III. Without analyzing either the petition or the evidence, and without critically and in detail comparing their separate parts with each other, we would say there was no such variance between the pleadings and the proof as would defeat the plaintiff’s action. (Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244.) The plaintiff not only paid for transporting his goods by purchasing passenger tickets, but he also paid extra charges for their transportation. At New York City he paid $120 extra charges for transporting the goods to Junction City, and at Junction City he paid $15 extra charges. The $15 however was afterward returned to him. The evidence does not show that it was understood by the parties that the goods were to be personal baggage ónly, or that they'were to be transported merely as personal baggage. The evidence would tend to show otherwise. It can scarcely be supposed that the agents of the railway company could be mistaken with regard to the character of the tool chest. Those extra charges were probably required as much because the goods were not merely personal baggage as because they were over the ordinary weight carried as personal baggage. The judgment of the court below must be affirmed.
All the Justices concurring.
|
[
48,
-22,
-27,
-97,
56,
96,
34,
-72,
53,
-95,
38,
115,
109,
-61,
4,
123,
-10,
63,
-48,
107,
-58,
-105,
7,
-13,
-46,
-106,
-13,
-60,
-75,
73,
100,
-42,
77,
34,
106,
-43,
102,
75,
-63,
28,
-50,
36,
-88,
-23,
-39,
-8,
36,
114,
22,
79,
113,
-114,
-13,
42,
24,
-41,
41,
62,
107,
-71,
-16,
-15,
-70,
-57,
125,
6,
-77,
36,
-99,
5,
-56,
47,
16,
53,
65,
-20,
115,
-90,
-122,
-12,
109,
-87,
-120,
98,
99,
33,
21,
-21,
-68,
-120,
47,
118,
-113,
-25,
20,
9,
-53,
45,
-106,
-35,
125,
16,
7,
-2,
-7,
5,
29,
60,
11,
-114,
-78,
-78,
-97,
36,
10,
-1,
-53,
-95,
17,
97,
-52,
-30,
92,
69,
24,
-101,
-113,
-106
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.