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'The opinion of the court was delivered by
Kingman, C. J.:
This is a proceeding to procure the reversal of an order of the district court of Cherokee county, by which John Polster was ordered to pay over to one Charles Bearow the sum of $114.55. The following facts appear: Bearow had been arrested for larceny of money from Polster, was examined and held for trial in the district court. The justice before whom the examination was had ordered the money taken from Bearow to be paid over to Polster as his property. On the trial in the district court Bearow was found not guilty, whereupon the court made the order complained .of. This is essentially a controversy between Bearow and Polster. The right to the money can only be determined when both parties are before the court, and this is true in this court as well as other courts. Bearow is not made a party to the proceeding in this court, and therefore we cannot adjudicate upon his rights. The proposition is fundamental. The petition in error must be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The second defense set forth in the defendants’ answer states facts sufficient not only to constitute a defense to the plaintiffs’ cause of action, but also ^if stated in a petition) to constitute a cause of action against the plaintiffs, whether it alleges any fraud or not. If the ■plaintiffs through their agent sold and agreed to deliver to the defendants a certain quantity of good, sound, merchantable winter apples, and then did not do so, but delivered worthless and unmerchantable apples, we think the plaintiffs are liable; and this liability may be set up by the defendants in an action brought by themselves, or in an action brought by the plaintiffs, as in this case, the action being on a draft or bill of exchange drawn by their agent in favor of the plaintiffs ■on the defendants and accepted by the defendants for the price of the apples. The foregoing statement of facts is substantially what said second defense alleges. The question of the sufficiency of said second defense was raised by the plaintiffs by objecting to the introduction of any evidence under it. The plaintiffs do not in their brief seem to raise any other question in this court concerning the introduction of the evidence in the court below. Neither do they seem to raise any question concerning the charge of the court below to the jury. In fact, they could not well do so, for their exceptions to the charge were general exceptions to the whole charge, and not special exceptions to any particular portion thereof. The main question, therefore, brought to this court is, whether the court below erred in overruling the plaintiffs’ motion for a new trial. And the main ground stated in the motion for a new trial was, that the verdict was not sustained by sufficient evidence. We think it is true, as claimed by plaintiffs, that “the payee or holder of a bill of exchange, after its acceptance, and before due, is presumed to be the holder in good faith, and in laiv stands precisely the same as a bona fide purchaser of a note before due,” and that “such an instrument in the hands of a bona fide payee cannot be defeated by fraud, false representations, or. warranties on the part'of the drawer.” But the presumption that the holder of a bill of exchange or other negotiable instrument is- a bona fide holder is only a prima faeie presumption. The presumption is never a conclusive one. It is always open to be controverted. And generally very slight evidence tending to show that the holder of such' an instrument is not a bona fide holder will throw the burden upon, him of showing that he is a bona fide holder. And if it should be shown that he is not a bona fide holder, then he holds the instrument subject to all the defenses that might be set up against it if it were still in the hands of the original holder, or that might be set up if the suit were between the original parties. In this very case it is claimed that the plaintiffs are not1 bona fide holders of the bill of exchange or draft sued on. The defendants allege that the plaintiffs themselves were the parties who sold to the defendants the apples; that they sold the apples through their agent Brown; that. Brown drew the bill of exchange in favor of the plaintiffs on the defendants; and that the plaintiffs themselves furnished and delivered to the defendants the apples. It is also claimed by defendants that even if it was not the plaintiffs who sold the apples, but Brown individually, still the plaintiffs had such an intimate connection with the transaction that they must have known all the facts, or at least they must have known enough of the facts to have put them on the inquiry as to the balance, and therefore they could not have been or become bona fide holders of the draft. We agree with the plaintiffs that “ the declarations of a person that he is the agent of another are inadmissible” as evidence to prove agency against the supposed principal, and that the fact of agency must always be proved the same as any other fact. But this proposition figures but very little in this case, for the court below never asserted a contrary doctrine, and therefore did not err with respect thereto. Now suppose there was not sufficient evidence introduced to prove that Brown was the agent of the plaintiffs in the sale of the apples, and still we think there was sufficient evidence to sustain the finding of the jury that the plaintiffs were not innocent and bona fide holders of the draft sued on. The plaintiffs knew that the draft sued on (which was for the sum of $357,) and another draft (which was for the sum of $352.24,) were given for 298 barrels of apples which were furnished by themselves to the defendants. They knew that the apples were to be “in good order and well-conditioned,” even if they did not know that they were to be good, sound, merchantable winter apples. They knew that the apples were not “in good order and well-conditioned,” for the apples were not so in fact, and the plaintiffs themselves furnished the apples directly to the defendants. All this they knew when they received the draft sued on. The plaintiffs themselves have received full payment on the $352.24 draft; but they have never yet paid Brown anything for the apples, nor have they yet become liable to pay him anything. They have parted with nothing but their damaged apples. Therefore we think they were not bona fide holders of the draft.
The verdict of the jury was for the plaintiffs for the sum of one hundred dollars, and judgment was rendered accordingly. We think the verdict should be allowed to stand; and the judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought suit in the district court alleging that he had built a house for defendant under a written contract, and seeking to foreclose a mechanic’s lien. He also caused an attachment to be issued and levied. The district court gave him a personal judgment for the balance due on the contract, but refused the foreclosure, or to grant .an order of sale of the projaerty attached. Of this he complains, and by proper motions brings the questions here. At the outset we are met by the objection of the defendant that the plaintiff ought not to have had any judgment, and therefore was not wronged by failing to obtain all he claimed. The petition alleged a contract in writing, and that it was in the possession of the defendant. This the answer denied. Upon the trial, the plaintiff testified that he made a contract in writing and that the contract was left with General Deitzler; that he had asked Deitzler for it, but did not get it. General Deitzler then testified that he did not have the contract; that it was not given to him, but to his wife, who kept it in her trunk with her jewelry, and that she was then at or near Lexington, Mo. Upon this the plaintiff was asked to state what the contract was between him and the defendant. This was objected to on the ground that the writing was_the best evidence, but the objection was overruled and parol testimony admitted of the agreement between the parties. "Was this error? “It is a well-settled principle of law, governing the introduction of testimony, that secondary evidence of the contents of written instruments is not admissible when the originals are within the control or custody of the party, or when -they are within his reach, and may be obtained with reasonable effort on his part.” Guthrie v. Merrill, 4 Kas., 192. It is hardly necessary to recite authority upon a proposition so elemental, and resting upon such clear reason. If authority were needed, text-books and reports would furnish ample. Now, the testimony fails to show that plaintiff had not himself the contract at the time he was giving parol testimony of its contents. Eor aught to the contrary in the record plaintiff may have applied to and received it from Mrs. Deitzler. He nowhere says that he has not got it, or that he is ignorant of its whereabouts. We may infer from the entire testimony that the contract was probably with Mrs. Deitzler, in Missouri; but this is by no means certain. And if it were, has the plaintiff shown such reasonable effort to obtain it, as will justify secondary evidence of its contents? It does not appear that he made any effort to obtain it from Mrs. Deitzler. He made no application to. her, caused no subpoena to be issued for her, made no attempt to take her deposition. There is some conflict between the authorities as to how far a party may rely upon absence from the state of a written instrument as a basis for secondary evidence of its contents. It has been likened to the absence of a subscribing witness, and in the following cases the question has been more or less fully considered : Townsend v. Atwater, 5 Day, 306; May’s Adm’r v. May, 1 Porter (Ala.,) 229; Lewis v. Beatty, 8 Martin, U. S., 287; Harrell v. Ward, 2 Sneed (Tenn.,) 610; Shepard v. Giddings, 22 Conn., 282; Brown v. Wood, 19 Mo., 475; Eaton v. Campbell, 7 Pick., 10; Boone v. Dyke's Legatees, 3 T. B. Mon., 530; Bailey v. Johnson, 9 Cow., 114. While q contract is in a foreign state its ’production cannot be compelled. But the question as to how it happens to be in that state may become material. Was it placed there through the instrumentality of the party seeking to introduce the secondary evidence? Is it permanently or only temporarily there? Has the custodian been applied to for the instrument, or if applied to refused to deliver? In Shep ard v. Giddings, above cited, the custodian resided in a foreign state, and refused to deliver the instrument but attached a copy to his deposition. The copy was held to be admissible, as this was the best evidence it was in the power of the party to produce. In Harrell v. Ward two subscribing witnesses 'were shown to be “now absent from the state.” Secondary evidence was held inadmissible, it not appearing why they were absent, or whether they were absent permanently or temporarily. In this case the record is silent upon all the questions suggested. For aught that appears the custodian may have left the state the day before the trial, at the instance of the plaintiff, to avoid the production of the contract, and intending to return on the day succeeding; We may not go outside the record, and appeal to our personal knowledge of the parties or witnesses, but must decide the case simply upon the record, and upon that we are constrained to say there was not such proof of diligence on the part of plaintiff as justified the admission of secondary evidence of the terms of the contract.
But it is contended by plaintiff that the exception to the introduction of this secondary evidence was not reduced to writing until after the close of the term, and now improperly appears in a case made by the plaintiff. It is true the case was made by the plaintiff. But it has been decided by this court that “if the bill of exceptions orease made, as presented to the district court by the party aggrieved, does not state all the facts, and the exceptions of both piarties on the point presented, it is the right of the other party to have such facts or exceptions inserted before the bill of exceptions or case madeps signed.” Glass Co. v. Ludlum, 8 Kas., 40. Granting time to plaintiff beyond the term to make a case, does not destroy the right of defendant to have all the facts and all the exceptions preserved. Perhaps if the term had closed when the case was signed she may not avail herself of that exception in the plaintiff’s case to obtain † reversal of the judgment. She may perhaps be debarred from any affirmative relief, but nevertheless may avail herself of the exception as a protection against further wrong. Again, it is contended that the personal judgment cannot be inquired into. “There have been no ■exceptions taken to it; the plaintiff does not seek to reverse it; and until an application is made by the defendant, in a proper way, to reverse it, it must stand; and so long as it stands, it is conclusive as to all the facts necessary to sustain it.” We •do not think the conclusion follows, which plaintiff desires. Of course, the personal judgment 'stands till the defendant •obtains a reversal. If the judgment had been rendered .against her without any testimony, it would nevertheless be •& valid judgment till she moved to set it aside. A judgment is erroneously rendered against her for part of the plaintiff’s •claim. She waives the error, content to let the judgment for that portion of the claim stand. Plaintiff now asks us to reverse the rightful ruling of the district court in favor of the defendant, because the defendant has not asked us to •disturb a wrongful ruling against her. If the defendant is •content to let the matter stand, the plaintiff ought to be. He has gotten more than under the evidence he was entitled to, .and cannot fairly make the sufferance of the defendant the basis of a still larger claim. The judgment of the district •court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced originally before a justice of the peace by Edwin Cole as plaintiff, against George H. Winsor, to recover damages to the amount of $195, claimed to have been sustained by Cole by reason of the cattle of Winsor “feeding upon, eating up, and destroying corn and squashes standing and being upon plaintiff’s premises during the month of October 1871.” The defendant made no appearance in the justice’s court. The plaintiff appeared and obtained a judgment for the full amount of his claim. Winsor then carried the case to the district court by petition in error. The district court affirmed the judgment of the justice of the peace, and thereupon defendant Winsor brought the case to this court by petition in error.
Three question are raised or discussed in the brief and argument of the plaintiff in error: First, Was the constable who served the original writ on the defendant in the justice’s court properly and legally appointed and sworn in -as a special oonstable? Second, Is it necessary that a special constable should verify his return to a writ, by oath or affidavit? Third, Was this an “action for trespass on real estate,” within the meaning of § 6 of the justice’s act?
I. We have no means of determining the first question, as the record brought to this court does not contain any evidence upon the subject. It does not even purport to contain all the proceedings of the justice which ought (without a bill of exceptions) to be made a part of the record. The bill of particulars is given in the record, with a certificate of the justice to its correctness. Then comes the summons, with a like special certificate. Then comes a portion of the other proceedings, and the judgment of the justice, with the following certificate, to-wit:
“I hereby certify that the foregoing is a full and correct abstract of a judgment rendered and execution issued by me in the .suit .above entitled.
“ Frank Wise, Justice of the Peace.”
This is all the evidence we have upon the subject. Therefore. from anything that appears in this record the special constable may have been duly and legally appointed and sworn in. There may have been a proper record made of the same at the time, and the plaintiff in error may have chosen not to take a copy of thé same to the district court. The writ was directed by the justice to Jerome Romine, special constable of Sumner county. It was served by Romine as a special constable; and in the absence of anything to the contrary we shall presume he was a special constable duly appointed and qualified..
II. It is not necessary that a special constable who has been legally appointed and qualified under § 172 of the justice’s act, (Gen. Stat., 812,) should verify his return to a writ which he has served by oath or affidavit. He may make the return in the same manner as any other constable.
III. There is nothing in the record brought to this court that shows that this was an “ action for trespass on real estate.” There is nothing in the record that shows that the cattle of the defendant were not running and being on the plaintiff’s premises by agreement of the parties. There is nothing in fact but the plaintiff’s bill of particulars that shows anything about it, and that shows among other things the following:
“,Gteorge H. Winsor to Edwin Cole, - Dr.
“To corn destroyed by cattle belonging to said Winsor during the month of October 1871, $185; to squashes destroyed as above, $10; amount due, $195. The said defendant having abou’t the last of April or first of May 1871, and at various times thereafter, promised and agreed with the said plaintiff to be responsible for and pay to the said plaintiff all damages he the said plaintiff might sustain by reason of said defendant’s cattle eating up and destroying said plaintiff’s corn.”
It -will be noticed that the agreement to pay the plaintiff for the corn eaten up and destroyed by the defendant’s cattle was long before the corn was so eaten up and destroyed.
With reference to the first and third questions raised in this case we would say, as we have said in many others that have come before this court, that before a reviewing court will reverse a judgment of an inferior court for error the error must be clearly, and affirmatively shown. The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Owsley, J.:
This is an action to recover for loss of a semitrailer by fire. Plaintiff appeals from a jury verdict in favor of the defendant. On December 9, 1968, a fire occurred at the defendant’s place of business in Parsons, Kansas. As a result of the fire defendant’s place of business was totally destroyed, as well as plaintiff’s 1967 Utility Van semitrailer which was parked for loading at the defendant’s plant.
The defendant was engaged in manufacturing antipersonnel bombs under contract with the federal government for use by the Kansas Ordnance Plant at Parsons, Kansas. The plaintiff is a common carrier and also had a contract with the federal government to transfer the bombs from defendant’s plant to the Kansas Ordnance Plant.
Several amendments were made to the plaintiff’s petition as a result of pretrial proceedings, but at the time the case was tried the petition alleged specific acts of negligence in Count I, and alleged facts in support of the doctrine of res ipsa loquitur in Count II. The petition also1 alleged plaintiff was a business invitee on defendant’s premises requiring defendant to exercise due care over plaintiff’s property. The defendant in his answer denied that plaintiff was an invitee on its premises and alleged that defendant was a gratuitous bailee, which bailment was for the exclusive benefit of the bailor. The answer also alleged that plaintiff was guilty of contributory negligence.
Pursuant to K. S. A. 60-236 (a), plaintiff filed a Request for Admissions in the following form:
“Plaintiff, Campbell Sixty-Six, requests defendant, Adventureline within 14 days after service of this request to make the following admissions for the purpose of this action only and subject to all pertinent objections to admissibility which may be interposed at trial:
“B. That each of the following statements is true.
“1. That on December 9, 1968, a Utility Van Trailer, 1967 Model, Serial No. 6T7 0571 068 VS 2 D was parked at a loading dock at the Adventureline Manufacturing Plant for the purpose of being loaded with merchandise manufactured by defendant and to be described on bills of lading after loading on said trailer as T325 BLU-26/B Metal Parts Kit Bomb Body Parts Noi NMFC 14080 UFC 6050’
“a. for shipment to the Kansas Army Ammunition Plant, Parsons, Kansas;
“b. so parked as stated with the permission, consent, and approval of the defendant;
“c. so parked as stated at the request of the defendant;
“d. pursuant to agreement between the United States Government, Campbell Sixty Six Express, Inc., and Adventureline Manufacturing Company, Inc.
“e. that while so parked and before being loaded, said trailer was totally destroyed by fire.
“2. That the fair market value of said Utility Van Trailer, Serial No. 6T7 0571 068 VS 2 D was Five Thousand, Ninety-one and 47/100 ($5,091.47) Dollars on December 9, 1968.
“3. That Frank Leslie Mitchell, was, on December 9, 1968, the operator of die cast machine number six at defendant’s plant, and at all times pertinent hereto he was acting within the scope of his employment as an agent, servant and employee of the defendant.
“4. That at the time of said fire on December 9, 1968, said Frank Leslie Mitchell:
“a. was spraying a liquid from a spray gun onto die casting machine number six;
“b. that said fire started when said liquid went into the pot on die casting machine number six;
“c. that said liquid being sprayed contains kerosene and is flammable;
“d. that said spray gun was a two stage gun which produced air or liquid depending on how the release was depressed;
“e. that to spray the liquid onto the machine the way Mr. Mitchell was doing was not a careful and safe manner of operation and was contrary to his instructions;
“/• that when said fire started said Frank Leslie Mitchell tossed said gun down onto' the floor and did not lay it down and that as a result thereof the hose attached to the gun came loose from the spray gun and die cast liquid sprayed out under pressure;
“g. that said die cast liquid sprayed out and spread the fire over a large area of the plant to die cast machines five and seven and from the floor to the ceiling.”
The Request for Admissions was partly framed from a transcript of the record in Arnold v. Western Casualty & Surety Co., 209 Kan. 80, 495 P. 2d 1007, involving the same fire. The defendant failed within the period designated by the plaintiff to file a sworn statement or written objections to the requests; thus, the admissions became binding. The defendant also made oral statements before the court admitting the truth of the statements expressed in the requests.
The record discloses that the plaintiff, after the admissions were made, sought summary judgment. Plaintiff claimed the status of its property on defendant’s premises was that of a business invitee and the court should so rule as a matter of law. Plaintiff also claimed defendant was negligent as a matter of law and that plaintiff was free from contributory negligence as a matter law. After denial of plaintiffs’ motion, the plaintiff sought a partial summary judgment, again on the basis of admissions, eliminating the issue of contributory negligence. This motion was also denied. At the close of all the evidence plaintiff moved for a directed verdict, pointing out that each issue in the case could be and should be determined as a question of law rather than as a question of fact.
On appeal plaintiff presents several specifications of error. We will consider only those specifications we deem determinative of the issues in this controversy.
We refer first to specification of error No. 2, which reads as follows:
“2. In failing to rule as a matter of law as to the relationship of the parties and the duty of care owed by defendant to plaintiff.”
Plaintiff argues that under the admitted and undisputed facts of this case a question of law was presented regarding the relationship of the parties and the duty of care required. Plaintiff argues the court should have determined as a matter of law whether the status of the plaintiff on the defendant’s premises was (1) a bailment, gratuitous, or for mutual benefit, (2) a licensee, or (3) a business visitor-invitee.
C. C. John, owner of the defendant company, testified as follows:
“Our contract with the government was for the manufacture of these products, delivery FOB our plant. The government took delivery on the items at our plant. The government furnished the transportation. In other words, we provided the merchandise and the government supplied the transportation. Campbell 66 and Manley Transfer Company negotiated contracts with the government for transportation. We had nothing to do with who would haul a particular load. Normally the transportation companies would come in and drop their trailers after we called them. ‘. . . there were times when the trucker would come in and he would wait; but most of the time they would come in at their convenience and because they didn’t want to tie up their tractors, I presume, and park the trailer and go away and leave it and come back at a later time and pick it up after it was loaded.’
“Q. Whose convenience did it serve?
“A. It served theirs, strictly theirs.
“Q. Did it serve any convenience of yours?
“A. No.
“Q. Could you tell the jury what would be the normal length of time for loading these trailers?
“A. Well, normally, they would load in the afternoon, and they would load in two or three hours, something in that neighborhood — loading it and checking it out.
“Q. Now, when they came in and left the trailer, what would they do with it? How was it left there?
“A. They would come in, back the trader up to the loading dock, open the doors, put the front wheels down on the trailer and jack it up and pull the tractor out from under it and leave it there.”
This testimony, coupled with the admissions, discloses that plaintiff’s trailer was parked on its premises with defendant’s permission, consent, approval, and invitation.
We defined a business invitee in Weil v. Smith, 205 Kan. 339, 469 P. 2d 428, as follows:
“A business invitee, or other invitee of equal status, is one who goes on another’s premises at the express or implied invitation of the owner or occupant for the benefit of the invitor, or for the mutual benefit and advantage of both invitor and invitee.” (Syl. ft 3.)
Express invitation to plaintiff is supplied by the undisputed evidence that defendant called plaintiff to furnish a trailer for loading. Implied invitation is supplied by the manner in which the business was conducted. The defendant could not fulfill its contract with the government unless truckers such as plaintiff were permitted to place their trailers in a loading position at the defendant’s dock; thus, the benefit to the defendant was supplied. We are unable to glean from the record any undisputed facts bearing on the status of plaintiff when the trailer was placed at defendant’s plant.
We are aware of the rule that courts should not encroach upon the province of a jury when the facts, though undisputed, are such that reasonable persons might draw differing inferences and arrive at opposite conclusions. (Weil v. Smith, supra.) Notwithstanding this cautionary rule, we are satisfied reasonable minds could not reach any conclusion other than plaintiff is a business invitee within the definition as above expressed.
Defendant cites Lobenstein v. Pritchett, 8 Kan. 213, Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750, and Weil v. Smith, supra, as being contrary to plaintiff’s position. In each of these decisions there were issues of fact bearing on status of the parties. We have found no issues of fact here.
We conclude the plaintiff was a business invitee as a matter of law and the defendant is liable for plaintiff’s loss if it resulted from defendant’s failure to exercise reasonable and ordinary care.
Plaintiff’s specification of error No. 5 reads:
“5. In failing to sustain plaintiff’s motion for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence.”
We will consider the court’s ruling on the motion for directed verdict at the close of the evidence. Since we have concluded as a matter of law that plaintiff was a business invitee, we must now determine whether the defendant was guilty of failing to exercise reasonable and ordinary care as a matter of law.
Again, we examine the admissions. It was there stated that Frank Leslie Mitchell, while acting in the scope of his employment as an agent, servant and employee of the defendant, was spraying a flammable liquid onto the pot on die casting machine number six which resulted in a fire. It was stated to spray the liquid onto the machine in this manner was not a careful and safe manner of operation and was contrary to his instructions. It was also stated that when the fire started Mitchell did not lay the gun down, but tossed it onto the floor, which caused the base attached to the gun to separate and die cast liquid sprayed out under pressure resulting in spreading the fire over a large area of the plant.
C. C. John testified:
“Q. And you have testified, Mr. John, that the operator of that machine was operating contrary to his instructions?
“A. That is correct.
“Q. And he was operating in an unsafe and careless manner?
“A. He was definitely not following instructions, and he was spraying a lot of stuff on this, more on this than he should have. I will concur with that statement.
“Q. And it ran down and started the fire?
“A. That is correct.”
Robert R. Evans-Lombe, an employee of defendant, testified:
“. . . The standard procedure for cleaning the platen is to blow, scratch or brush off the excess BB’s. The BB’s may be blown off with the gun that the operator has with forced air. That is the safe method of doing it. It isn’t necessary to use the die release fluid and if you do use the fluid it creates a fire hazard to a certain extent. . . .
“The die cast operator did receive some bums. I did not talk to him very much but he appeared to have been burned. He had on a sleeveless shirt, his right arm was burned. The hair was singed and it was slightly tinted.
Wesley Frank, an employee of defendant, testified:
“I did not see the fire start. I was just walking out of my office. It started on die cast machine No. 6 that was being operated by Mr. Mitchell. He was standing on the cat walk near the machine. When I stepped out the door I saw a flash which came from the bottom of the machine. When I first saw the fire they had just about conquered the fire at that point. It flashed again and went over the floor and flowing back across the floor and back up the side of the other machine. When I walked out the door Mitchell took the spray gun and threw it. There was some 15 to 40 pounds of pressure on top of the die release liquid in the hose running to the spray gun. The other hose attached to the gun was straight air. At the time of the first flash Mitchell threw the gun and bailed off the side of the cat walk. The gun was on the edge of the die. I couldn’t tell whether the hose was connected to it or not. There was no evidence of any hose being connected to it but you couldn’t see whether there was any on it.
“I saw three people trying to put out a fire with three fire extinguishers. I did not see Mitchell with a fire extinguisher. I would estimate it was three minutes from the time I saw the first flash until the fire was out of control.
“Q. In your opinion as what you saw and what you know about these machines, what caused this first flash?
“A. What caused the first flash was he got the two exchanged. You are supposed to use air to blow the BB’s out of the die, and he used the die release agent along with it. Instead of squeezing just the air, he pulled the trigger all the way. It had run off down to the pot and that’s where it flashed it up.
“Q. Is that contrary to good procedure?
“A. For that type of fluid it is.
“Q. Contrary to his instructions?
“A. Yes.
"Q. It got rid of the BB’s quicker, is that right?
“A. It got rid of the BB’s quicker.
“After the fire I saw Mitchell and he said he had got his arm burned and that it singed all the hair off of it. That was his right arm.”
Considering the admissions of defendant, together with the quoted testimony, we are satisfied that reasonable minds could reach only one conclusion that defendant through its employee was guilty of negligence which caused the fire and the loss of plaintiff’s trailer. Defendant argues the fatal fire would not have occurred if Mitchell had not thrown the gun. Defendant points out there was no admission that Mitchell was negligent in dropping the gun and whether or not this act resulted in negligence was a question of fact for the jury.
Whether or not the act of Mitchell in dropping the gun was negligent is immaterial. The act of Mitchell in dropping the gun was a natural and continuous sequence of the employee’s original act of negligence. The proximate cause of the fire was the original negligent act of Mitchell. The subsequent act of Mitchell in dropping the gun was not an efficient intervening cause of the loss. Proximate cause is defined in Shideler v. Habiger, 172 Kan. 718, 243 P. 2d 211:
“The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. (Syl. ¶ 2.)
We have no difficulty in finding as a matter of law that defendant was guilty of negligence and that such negligence was the proximate cause of the fire and the loss.
One matter remains to be considered — contributory negligence. Defendant in its answer alleged the following:
“For further answer, defendant states and alleges that plaintiff’s damages were proximately caused and contributed to by the negligence and want of care by plaintiff in that it left said trailer on defendant’s premises with its dollies down and with no tractor so that it could be moved. That after the fire started, if said trailer could have been moved, it would not have been damaged because there was more than ample time to move the same before the fire reached the area where the trailer was parked. The defendant informed plaintiff’s answering service of the fire and that the truck should be moved. That in addition, thereto, after not hearing from plaintiff, defendant requested a tractor from Manley Transfer Company, in order to move the trailer-, but when said tractor arrived, the fire had already reached the area where the trailer was parked and there was to much heat in the area to move the trailer.
“For a further defense, defendant states and alleges that plaintiff by and through its agents and employees was familiar with defendant’s plant and its method of operation, and how it manufactured its products. That plaintiff herein, by the exercise of reasonable care on its part could have known of the danger to which said semitrailer was exposed by leaving it on defendant’s premises without any tractor or other power by which it could be moved in the event for any reason it was necessary to move it, but notwithstanding, plaintiff left said trailer on said premises without any equipment to move it, and thereby plaintiff assumed the risk of said trailer being damaged.”
Even if the facts alleged were supported by the evidence, we believe plaintiff was free from contributory negligence as a matter of law. Succinctly stated, defendant claims two acts of contributory negligence: (1) removing the tractor from the trailer after placing the trailer in a loading position on defendant’s premises, and (2) failing to provide a means of contacting plaintiff.
The evidence was undisputed that it was usual procedure to remove the tractors during the loading process. No reasonable argument can be made that this act in itself constitutes contributory negligence. Nothing more appears in the record. In order to construe this act as contributory negligence we feel it was incumbent on defendant to show that plaintiff had some reason to believe his trailer was in some danger of being damaged.
We see no merit in defendant’s contention that plaintiff was contributorially negligent in failing to provide means of being contacted. In the absence of any evidence to alert plaintiff that he should be available for defendant’s call, this argument fails.
An appellate review of plaintiff’s other specifications of error is unnecessary in view of what we have said herein.
The judgment is reversed with directions to enter judgment for the plaintiff in the sum of $5,091.47, the stipulated loss herein.
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The opinion of the court was delivered by
Fontron, J.:
This is an action for compensation claimed to be due under the Workmen’s Compensation Act, hereafter referred to as the Act. The trial court denied compensation and the workman has appealed.
The claimant, Robert C. Einfeldt, formerly resided and was employed in the state of Colorado, where he developed back trouble and underwent three laminectomies and one spinal fusion. The latter operation failed to produce a union, leaving the claimant with the condition known to the medical profession as pseudoarthrosis. Mr. Einfeldt was given a rating of 7M% permanent disability by the Colorado authorities acting under the compensation law of that state.
Upon coming to Kansas in May of 1969, the claimant shortly secured employment as an attendant and mechanic in a Salina filling station operated by Leo Augustine dba Leo’s Texaco. The record shows that on September 8, 1969, Mr. Einfeldt stepped on some grease as he walked across the floor after putting a battery charger away, as a result of which he slipped and fell, striking his back on the lip of a grease lift which extended some eight inches above the floor. The present claim for compensation is an outgrowth of this fall, and claimant has joined as respondents both Mr. Augustine, the operator of the station, who was not insured, and Texaco, Inc., the lessor of the premises,, together with its insurance carrier.
In October following his fall, the claimant underwent a second spinal fusion which did not result in the desired union, and a third operation was performed in December, 1969, the results of which are not disclosed in the record. There is medical testimony, however, that claimant was totally disabled at the time his claim was heard before the workmen’s compensation examiner in April, 1971.
On respondents’ appeal from the award which the examiner entered in claimant’s favor, and which was approved by the workmen’s compensation director, the district court found that the claimant was totally disabled as a result of the September 8 accident for a period of only one week, and that any additional disability was not the result of his fall in the filling station, nor was the fall an aggravation of his pre-existing physical condition. This finding is challenged by the claimant in this appeal. The district court also concluded as a matter of law that the claimant was not engaged in hazardous employment; that Leo’s Texaco filling station was not a “factory or machine or repair shop” within the provisions of K. S. A. 44-505 and 44-508 (b), and that the respondents were not governed by the Workmen’s Compensation Act. These conclusions are likewise challenged on appeal.
We shall first turn our attention to the claimant’s contention that the filling station business of the respondent, Leo Augustine, comes within the purview of and is covered by the Workmen’s Compensation Act, and that the trial court erred in concluding otherwise. His argument boils down to this: (1) A “factory” is one of the hazardous employments to which the Act applies by virtue of its enumeration in K. S. A. 44-505; (2) a “factory” is defined in K. S.A. 1971 Supp. 44-508 (b) as being “any premises wherein power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or renovating any article or articles for the purpose of trade or gain of the business carried on therein, including expressly any . . . machine or repair shop. . . . ”, (3) a portion of the business conducted by Leo in the operation of his filling station is the mechanical repair of sick and ailing motor vehicles in which power equipment is used; (4) ergo, Leo’s Texaco filling station is a factory and hence is covered within the Act.
The trial court, however, concluded that Leo’s Texaco filling station was not a factory or machine shop within the purview of the Act, and in connection with this conclusion made tihe following finding of fact:
“The principal activities of Leo’s Texaco was the retail sale of oil, gas, tires, accessories and other merchandise; and the mechanical and repair work performed by claimant and other employees was of a minor and inconsequential nature, clearly incidental to the principal business of respondents. Only 6)2 percent of respondent’s gross income from the station for the year 1969 was attributable to labor consisting of service calls, tire repair, lubrication, washing and minor tune-up, and 93/2 percent from sales of products and merchandise.”
The evidence shows that at the time of the accident, Leo’s Texaco had two full-time and two part-time employees, their primary duties being to work the drive, i. e., wait on the trade, dispense gasoline, change the oil and lubricate and otherwise service customers’ automobiles. Only Leo and the claimant were experienced mechanics, although the other employees also performed minor repair work. The repair portion of Leo’s Texaco business consisted of minor tune-ups, such as changing plugs and points, working on shock absorbers, brakes and exhaust systems and doing tire repairs. Power equipment consisted of an air operated hoist or grease rack, an air operated tire machine, an air operated muffler gun or metal cutter and a small % inch electric drill.
basically, there is no factual dispute of consequence as to the nature or extent of the business carried on by Leo’s Texaco filling station or as to the method of the station’s operation. The focal question, as the claimant succinctly points out in his brief, is whether the respondents operate a factory within the definition of the Act.
Claimant takes the position, which is stoutly contested by the respondents, that so long as any part of the business done by a filling station consists of vehicular repairs, the station thereby becomes a factory within the meaning of the Act, and that the percentage of its income which may be attributed to labor in the making of car repairs is entirely irrelevant. The respondents point out, however, that in this case Leo’s Texaco is essentially a retail establishment; that as found by the trial court (on what we believe to be substantial competent evidence), the principal activity conducted at the filling station was the sale of gas, oil, tires and accessories, while the repair work performed was but a minor and incidental part of the overall operation.
This court has never been confronted with the exact factual situation presented by the present case. We have however, on occasion, drawn a distinction between occasional work and regular work when it came to matters relating to workmen’s compensation, and we have said that the regular work of an employer carries the implication that the employer was devoting a substantial part of his time and labor to the work as a part of his trade or business. (Giltner v. Stephens, 163 Kan. 37, 46, 180 P. 2d 288; Setter v. Wilson, 140 Kan. 447, 449, 37 P. 2d 50; Martin v. Craig, 148 Kan. 882, 84 P. 2d 853.) Although those cases are factually dissimilar from the case at bar, they generally accord with the statement found in 1 A Larson’s Workmen’s Compensation Law, § 55.21, p. 983:
“It is the major function or functions of the business which characterizes it as hazardous or nonhazardous, not isolated and insignificant features or incidents. . .
Judicial decisions having to do with the application of state compensation acts to the filling station business are rare indeed. They emanate almost entirely from our neighbor to the south, the sovereign state of Oklahoma, where the definition of a “workshop” is much the same as “factory” under our Act. In pertinent part, the Oklahoma statute reads:
“ ‘Workshop’ means any premises, yard, plant, room or place wherein machinery is employed and manual or mechanical labor is exercised by way of trade for gain or otherwise, or incidental to the process of making, altering, repairing, . . . any article, or part of article, machine or thing over which premises, room, or place the employer of the person working therein has rights of access or control.” (85 Okl. St. Ann., § 3 [11].)
It is noted that in the Oklahoma statute the term “machinery” is used in place of “power,” which is found in ours. The disparity is minimized, however, by this court’s decision in Menke v. Hauber, 99 Kan. 171, 160 Pac. 1017, which construed the word “power” as meaning “mechanical power.”
A series of Oklahoma cases has construed the Act of that state.
In Skelly Oil Company v. Waters, 348 P. 2d 320 (Okla.) the claimant was the manager of a Skelly station who had injured his back in attempting to raise the hood of a car. In the course of his work he did minor repairs such as replacing points, adjusting brakes and installing batteries, and he employed a hydraulic hoist to assist him in those operations. In an opinion denying recovery under the Oklahoma Workmens Compensation Act, the Supreme Court held that Skelly business was the sale of petroleum products and accessories to the public and that use of the hydraulic lift was but a means of providing more efficient service.
The holding of the Oregon court in State Ind. Acc. Com. v. Garreau, 200 Ore. 594, 267 P. 2d 661 is quite similar to that found in Skelly. In the Oregon case, a filling station employee was injured when an automobile fell off a jack while he was in the process of installing tire chains. The station was equipped with a hoist operated by an air compressor which drew its power from an electric motor. The hoist was used in connection with the lubrication and greasing of cars. Compensation was denied on the ground that the filling station was not a workshop.
The limits of the Skelly case were enlarged somewhat in Cross v. Brown, 363 P. 2d 935 (Okla.). The injury in this case occurred when a filling station attendant attempted to light a cigarette while repairing a leak in the gas tank of a car he was washing. Station equipment consisted of gasoline pumps, necessary tools and equipment for minor repairs, an appliance for breaking rims from tires, an electric buffer to buff inner tubes, air compressors for lifting a hoist, and a welding torch to melt lead off battery cables. The Oklahoma court held the business was not a workshop in which machinery was used.
Quite in point is the more recent case of Woods v. Perryman, 452 P. 2d 588 (Okla.), in which a filling station employee sought compensation for back injuries sustained while helping unload oil drums from a truck. The trial court entered an award based on a finding that a “repair shop” was operated in connection with the filling station. In this case the employer, in addition to operating a retail filling station for the sale of petroleum products, sold accessories and operated a front-end alignment machine. The station also had other equipment: an air operated hoist, a tire machine for changing tires, a tire balancer and a small brake lathe. Small tune-up jobs were performed, such as installing plugs and points, and tail pipes and mufflers were installed, but no major overhauling was done. Approximately 97.05% of the revenues derived from the station came from the sale of petroleum products, tires and accessories; only 2.95% came from repairing motor vehicles. Under these circumstances, the Oklahoma Supreme Court reversed the trial court, holding in effect that the employer was not engaged in hazardous employment within the meaning of the Oklahoma statute and that the filling station was not a workshop wherein machinery was employed.
Applying the rationale of the Oklahoma decisions to the facts of the present action, we are of the opinion that the trial court did not err in concluding, from the facts it found to exist, that Leo’s Texaco was not a factory within the definition set out in the Act and that its operation was not one of the hazardous occupations covered by the Act. The filling station was operated essentially as a retail sales business in which petroleum products, tires and other accessories were sold to its customers and where its customers’ cars were serviced. No body work or major repairs were accomplished. Power tools were few: a hoist, a tire machine and a muffler gun, all operated by air, and a small electric drill. The station’s income attributable to labor appears minimal — a bare 632% — and not all of that was derived from repairs.
In coming to our decision in this case, we do not imply that a filling station may never fall within the category of a “factory” as defined in the Act. Our decision goes no further than the limits set by the evidence adduced in this case and the findings of the court predicated thereon.
We have not overlooked the decision of this court in Thorp v. Victory Cab Co., 172 Kan. 384, 240 P. 2d 128, on which the claimant relies. However, we find it inapposite. The employer in that case operated a shop for the repair and servicing of its taxicabs, its trucks, the cars of its officers and the cars of other persons to whom the company was liable for damages. The shop was equipped with power machinery, (not described in the opinion), and other tools and devices suitable for the purposes mentioned. The company also operated a spray gun for painting cars. The mechanics employed in the repair shop were expected to service taxicabs on the road when they needed repairs or ran out of fuel. On one such trip the claimant was injured when he was struck by a car. This court, although remanding the case on a different point, held in effect that under the circumstances which had been shown, the repair shop operated by the cab company constituted a factory and hence was a hazardous employment within the provisions of the Act. We are not inclined to disagree with that holding, but the situation before the court in that case bears little, if any, resemblance to the circumstances recorded here.
because of the conclusion we have reached on the coverage aspect of this case we need not determine whether the evidence supports the trial court’s finding that claimant’s disability did not result from his fall at the filling station and that his pre-existing condition was not aggravated thereby.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action by the beneficiaries under a group policy of accident insurance for recovery of death benefits. Plaintiffs contend the insured’s death was occasioned by accidental bodily injury; defendant insurer denies this assertion and says it was caused directly or indirectly, wholly or partly by disease.
The trial court sustained defendant’s motion for summary judgment and plaintiffs have appealed.
Pertinent portions of the certificate of insurance are:
“Underwriters . . . agree . . . if . . . the Assured shall sustain accidental bodily injury which shall . . . occasion his death . . . Underwriters will pay . . .”
“Exclusions. This Certificate does not cover bodily injury . . . (b) caused directly or indirectly, wholly or partly ... by disease.”
The trial court had before it the deposition of Dr. C. G. Leitch, taken by defendant-appellee, together with certain exhibits referred to in the deposition, plus the death certificate of the decedent. Plaintiffs had previously indicated by way of answer to defendant’s interrogatory that they would rely on Dr. Leitch’s deposition and the exhibits to establish their claim. From these documents the following may be gleaned:
On April 25, 1966, H. O. Boring, who was employed by Kansas Gas and Electric Company as a supervisor, obtained through his employer the policy in question in the principal sum of $25,000. His medical record begins in the year 1955 with treatment by his family doctor for stomach and other minor problems. On March 9, 1967, he was admitted to the Wesley Medical Center, Wichita, for x-rays of his gall bladder, which was found to be diseased. During this period of his medical history Mr. Boring’s electrocardiograms were essentially normal. He was dismissed from the hospital March 14, 1967. That same evening he had his first myocardial infarction and he was readmitted to the hospital. He had a relatively uneventful recovery phase from his infarction and was discharged from the hospital April 4, 1967, on cumidin. His heart consultant saw him on office visits during April. Boring was suffering attacks of cholecystitis and was having occasional episodes of tightness in his chest with exercise but on followup examinations in April he continued to check out well with no signs of heart failure or further infarction. In late April nitroglycerin and probanthine were prescribed. He was hospitalized again from May 12 to May 16, 1967, for gall bladder attacks. He reentered Wesley hospital June 17, 1967, for gall bladder removal, which operation was performed without difficulty and he was discharged June 20, 1967.
Although he did not return to work Mr. Boring was active around the house; he rebuilt the water pump in his back yard, poured a three foot square concrete slab, climbed up on the roof and fixed the antenna. He was seen July 5, 1967, by his heart consultant who found he had no gastrointestinal or cardiac symptoms and was doing well. July 6, 1967, his family doctor advised him he could plan to return to work July 24 if his heart consultant released him.
On July 17, 1967, Mr. Boring was driving an automobile belonging to his employer on a Wichita street. While at an intersection his automobile was struck in the rear by another vehicle. He got out of his automobile and talked to some of the people involved in the accident. When he saw that apparently no one was badly hurt he returned to look at the damage to his car and suddenly collapsed to the ground. He was taken to nearby Wesley hospital where he was pronounced dead upon arrival. The autopsy report contained the following:
“Final Anatomic Diagnosis
Primary
“Arteriosclerotic heart disease.
“Coronary thrombosis, right coronary artery, old.
“Old myocardial infarction, posterior wall left ventricle.
“Congestion of viscera.”
The death certificate indicated the immediate cause of death to be myocardial infarction due to coronary arteriosclerosis. Mr. Boring was fifty-four years of age at the time of his death.
In his deposition Dr. Leitch, who was engaged extensively in the practice of industrial medicine but who had not examined Mr. Boring, testified hypothetically as to Boring’s condition and the cause of death. The following appears in his direct examination by appellee:
“Q. Well, Doctor, do you have an opinion as to whether or not the death of Mr. Herschel O. Boring on July 17th was caused by, and I quote, ‘Accidental bodily injury’?
“A. Yes, I do.
“Q. Well, in formulating such an opinion as to whether or not his death was caused by, ‘Accidental bodily injury’, what meaning or definition did you attach to1 die phrase, ‘Accidental bodily injury’?
“A. Well, I attached to it what we recognize in pathology and in medicine as circumstances which in themselves may produce either organic or functional abnormalities of the body capable of producing an individual’s death either directly or by influencing other already existing conditions.
“Q. Well, then, the meaning of the definition of the phrase as you have just given me, what bodily injury did Mr. Boring sustain which caused his death on July 17,1967?
“A. Well, I think that Mr. Botring sustained, as a result of the episode in which he was involved, a stress situation which caused his body to react under the influence of pressors arising out of the experience which resulted in his attempt to develop an increased coronary artery volume flow from his heart, which was already diseased, and that, as a result of that, he developed a functional situation which we recognize as acute coronary insufficiency complicated by cardiac arrest.
“Q. Well, Doctor, you do recognize that nowhere in this material which you have handed me is there any references to or any finding of, any bruises, abrasions, contusions, cuts, fractures, or any physical injury, don’t you?
“A. No, I think it is equivocated a little bit in the pathology report, but nothing definite is identified as being evident in the form of external bodily trauma.
“Q. You did accept as true, didn’t you, Dr. Eckert’s statement from the autopsy report which has been marked Defendant’s Deposition Exhibit F, ‘The body is that of an elderly white male, which is fully clothed, and shows no evidence of any injury or damage to the clothing or the body. There are no marks of trauma or any evidence of injury.’ You do accept that as true, don’t you?
“A. Yes, sir.
“Q. And you also accept as true the fact that there was no evidence in the examination of any other part of the body as to any physical injury, trauma, contusion, bruise, abrasions, or anything else, don’t you, Doctor?
“A. Yes, except they had a dead body.
“Q. Now, Doctor, what is your opinion as to whether or not Mr. Boring’s death on July 17, 1967, was caused by accidental bodily injury?
“Mr. O’Keefe: I object to this as repetitious. He has already answered it.
“A. My opinion is that Mr. Boring’s death occurring on July 17, 1967, arose as a result of bodily injury arising out of a circumstance which produced aggravation of an already existing arteriosclerotic heart disease with cardiac insufficiency and cardiac arrest.
“Q. (By Mr. Brainerd). If you would, Doctor, enumerate the medical findings upon which you base that opinion?
“A. Well, I base it upon the basis of the fact that I have a post mortem report in the case of an individual who is obviously dead, who has post mortem evidence of existing arterial disease, existing coronary artery disease, existing myocardial pathology arising out of limiting coronary sclerosis, plus the residuals of a myocardial infarction, plus the fact that a man suffered an experience in which he responded unfavorably because his heart couldn’t respond to the situation, and he developed a cardiac arrest.
“Q. Well, Doctor, not for the purpose of arguing with you, but if I understand your testimony correctly, you reached your opinion, but you recognize that there is no evidence in this record or the material you had available to you of any physical injury to Mr. Boring”s body?
“A. I base it on the fact that there is already distinct disease, there is history of an experience. Medicine bases itself upon pathological changes plus other knowledges that relate to the reaction of tissues to circumstance, and on the basis of a broad experience of my own in which, on numerous occasions, I have seen this same sort of situation, and my opinion is agreed in by many medical authorities and pathology authorities.
“Q. Now, Doctor, during the course of your testimony heretofore, you have referred — and my notes are not too good — but I think you referred to a pre-existing arterial disease, pre-existing artery disease, a pre-existing myocardial infarction, and the results of his physical condition as reflected by these medical records?
“A. Yes, sir.
“Q. In that connection, Doctor, do you have an opinion as to whether or not Mr. Boring’s death was caused, and I quote, ‘Directly or indirectly, wholly or partly, by disease’, end of quote?
“A. I think it was caused by the influence of an episode of stress superimposed upon already existing circulatory disease manifested by arteriosclerosis, coronary sclerosis and a previous myocardial infarction.
“Q. Doctor, to be sure I understand your response, do I understand that, in your opinion, the pre-existing physical condition entered into and was a part of the cause of Mr. Boring’s death on July 17, 1967?
“A. I have the opinion that the already existing disease conditions as evidenced by available records had a part in this in that the significance of their degree was precipitated by the circumstances under which this man sustained this accident, and that the accident precipitated indirectly the other direct factors which were already at work, but which were not of sufficient degree to cause a man’s death.
“A. Dr. Eckert’s final anatomical diagnosis is based upon his gross pathological findings and are recorded as arteriosclerotic heart disease, coronary thrombosis, right coronary artery, myocardial infarction, posterior wall of tire left ventricle, congestion of viscera.
“Q. Doctor, do you have an opinion, based upon your study of the material submitted to you by Mr. O’Keefe and your general medical training, as to whether or not those conditions as listed by Dr. Eckert existed prior to Mr. Boring’s death?
“A. Yes, I think these conditions existed prior to Mr. Boring’s death. His death was actually precipitated by the superimposition of a stress episode.
“Q. Again, in an effort to understand you so that I don’t confuse myself, it is your opinion that the emotional or physical stress to which Mr. Boring was subjected shortly prior to his death, and superimposed upon his previous existing physical condition resulted in his death, is that correct?
“A. That is correct, yes.”
On cross-examination by appellants Dr. Leitch gave the following testimony:
“It is not necessary that a person have some actual physical damage to his body, such as an abrasion, when that person is in an accident in order to come under stress and strain. Anger, stress and physical exertion, emotion can trigger off pathological processes in an individual’s body without any external or superficial evidence of injury and may result in the individual’s death. Every individual reacts to a particular accident differently. The pattern may be essentially the same but there are different features.”
In response to a hypothetical question embodying the history already outlined, the doctor stated his opinion within reasonable medical certainty was that Boring’s cardiac situation was dormant and stable on July 17, 1967, prior to his auto accident; that the accident precipitated an already existing cardiac disease to the extent it resulted in coronary insufficiency and cardiac arrest; it precipitated a train of symptoms superimposed upon his already existing cardiac disease which resulted in his acute coronary insufficiency and cardiac arrest or a systole.
Mr. Boring’s family physician stated in a written report he believed the emotional upset from the car accident produced undue strain and precipitated Boring’s death from the heart condition and that the accident was a contributing factor in the death. The heart consultant’s report stated the cause of death could have been either natural or related to the excitement concerned with the accident; that there is no way of determining for sure what precipitated the final event causing death. He suggested further check into the microscopic results of the postmortem examination.
The issue on appeal is whether the trial court erred in applying the extreme remedy of summary judgment upon the showing made. Generally, under K. S. A. 60-256 (c), before a summary judgment may be granted the record before the court must show conclusively that there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. We have several times elaborated on the rules governing the propriety of summary judgments and reiteration is unnecessary (see Albright v. McElroy, 207 Kan. 233, 484 P. 2d 1010).
Appellants contend the decedent’s heart disease was in a dormant condition at the time of the automobile collision and the emotional stress and strain precipitated the heart attack causing his death, which constituted accidental bodily injury within the meaning of the policy provisions.
Appellee asserts the evidence conclusively reveals death was caused wholly or partly by disease within the purview of the exclusionary clause and that emotional stress and strain cannot result in accidental bodily injury within the meaning of the policy.
For their position appellants rely on our decision in William v. Benefit Trust Life Ins. Co., 200 Kan. 51, 434 P. 2d 765, a suit to recover accident benefits resulting from a fall down a flight of steps by one afflicted with osteoarthritis in both knees. Upon first trial of the action a motion for directed verdict was sustained at the close of plaintiffs evidence. On appeal this court held the evidence to be sufficient for submission to a jury and reversed the case for a new trial (Williams v. Benefit Trust Life Ins. Co., 195 Kan. 579, 408 P. 2d 631). Upon retrial the jury found plaintiff entitled to the benefits claimed and the defendant insurer appealed. The insurance policy on which recovery was sought contained language substantially the same as that in the case at bar, both as to accidental bodily injury and the clause excluding benefits where the loss was due to disease, wholly or in part.
In the second Williams appeal this court recognized a split of authority on interpretation of this kind of policy provisos. We stated:
“There appears to be a distinct conflict of opinion between the several jurisdictions of this country as to the extent of an insurer’s liability under an accident insurance policy containing provisions similar to those quoted above, where the insured has an antecedent disease or sickness. This conflict of authority is set out in 45 C. J. S., Insurance, § 776, p. 813, in these words:
“ ‘It has been held that no recovery can be had for a death or disability, on the ground that it results solely from accidental injury, where the injury aggravates the effect of a preexisting disease or infirmity, or the disease or infirmity aggravates the effect of the injury, and both together cause the death or disability, even though it is thereby caused at a period sooner than it otherwise would have occurred. On the other hand, it has been held that where the death or disability results from an accidental injury aggravating or rendering active a dormant disease or infirmity, it will be regarded as being caused solely by the injury, so as to render insurer liable therefor, even though the death or disability might have resulted at a later period regardless of the injury, and even though the accident would not have had such an effect on a normal person.’ (Emphasis added.)
“This court has recognized the divergence of opinion in Williams v. General A. F. ir L. Assurance Corp., 144 Kan. 755, 62 P. 2d 856. In that case action was brought by a policy holder to recover benefits for an injury to his back claimed to be due under an accident policy insuring against ‘. . . effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through external, violent and accidental means . . .’ (p. 756.) The insurance company defended on the ground that the plaintiff’s back was weakened from a prior accident from which he had not recovered. In the course of its opinion, which upheld a judgment in plaintiff’s favor, the court said:
“ ‘The legal question raised is the interpretation to be given to the language of the policy “exclusively of all other causes.” On this there are two lines of authorities. One line of authorities, upon which appellant relies, construes the language used in the policy to mean that if the insured had any disease or physical ailment, from any cause, at the time of the accidental injury for which he seeks to recover under the policy, and is unable to show clearly that such disease or ailment was not reflected in some degree in the injurious results of the accident, there can be no recovery under the policy. Under these authorities it is practically impossible for any but the physically sound to recover on an accident policy containing the language used, or tantamount to that used, in the policy here involved, and they place the burden on the plaintiff to show that the full effect of the injury following the accident was independent “of any preexisting disease, or bodily infirmity, as a contributing cause thereof.” (Citing cases.)
“ ‘The other line of authorities, recognizing the fact that many persons not physically sound in every respect carry accident insurance policies, take what seems to us a more rational view and construe the language of tire policy to mean that if the accident be shown to be the cause of the injury for which the action is brought plaintiff can recover.’ (p. 757.)
“In Johnson v. Farmers and Bankers Life Ins. Co., 173 Kan. 8, 244 P. 2d 199, this court took further note of the legal dichotomy, but concluded it was not then necessary to determine which rule should be followed. On page 11 it was said:
“ ‘Appellant contends that the proper rule to be applied here is that where an accident aggravates a dormant disease and as a result the insured died at an earlier date than he otherwise would, the accident is the direct and independent cause of the insured’s death within the meaning of the double indemnity provision of the insurance policy in this case, and that his evidence made a prima facie case under the rule. Appellee contends that the rule to be applied is that where the insured is afflicted with a disease at the time of the accident, which disease proximately causes or substantially contributes to the death, such death is not within the terms of the policy.’
“We think the better reasoned rule, and the rule which, in effect, was followed in Williams v. General A. F. & L. Assurance Corp., supra, to be just this: that where an accidental injury aggravates or energizes a dormant disease or physical ailment the accident may be said to have been the proximate cause of the resulting disability within the terms and meaning of the ordinary accident insurance policy.” (pp. 54-55.)
Our holding in second Williams on this aspect was summarized thus:
“Where an accidental injury activates or aggravates a dormant disease or physical infirmity, the accident may be said to have been the proximate cause of the resulting disability within the usual provisions and ordinary meaning of a policy insuring against accident.
“In the event an insured sustains physical disability resulting from an accidental injury which aggravates or causes a dormant disease or ailment to become active, the disability will be regarded as having been caused solely by the injury, so as to render an insurer liable therefor under an accident policy, even though such disability might later have resulted regardless of the accident, and even though the accident might not have affected a normal person to the same extent.
“A dormant disease is one which is quiescent, passive, resting or static as opposed to one which is active, lively, or effective.” (Syl. f f 1, 2, 3.)
In 10 Couch on Insurance 2d (Anderson) §41:79 we find this discussion in connection with risks covered under accident insurance:
“Accident activating prior latent disease or condition — Harm covered.
“Where an accident results in a diseased condition causing total disability, the accident, and not the disease, is the exclusive cause of the disability although the disease was present in a harmless and latent form prior to the accident which activated it. Accordingly, a death caused by bodily injury accidentally sustained is within the terms of a double indemnity provision if by reason of the frailty or general weakness of the insured, a predisposition to a disease, or the presence of a disease then inactive or dormant, an accident results in a fatal termination, even if this result would not have followed if the insured person had been in normal health.” (p. 102.)
We see no reason why the foregoing rules should not be applicable to the case at bar and we hold that they are.
Appellee contends the term accidental should be given its usual ordinary meaning, that is, the meaning which common usage conveys to the ordinary layman and, viewed in this light, no accident occurred to the decedent. In Miller v. Prudential Ins. Co., 183 Kan. 667, 331 P. 2d 310, this court was concerned with the meaning of the term as used in a double indemnity insurance policy, where death of an oil field worker had resulted from a heart attack sus tained in the ordinary course of work. The fact finder held against the policy beneficiary. On appeal this court impliedly recognized that an unusual happening may constitute an accident when it said:
“. . . if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means, but if in the act which precedes the result something unforeseen or unusual occurs which produces it, then it has been produced through accidental means.
“In this case, as far as the evidence discloses, the deceased was an experienced oil field ‘roughneck’ and was performing the usual and ordinary work as such. There was no evidence of any slip, mishap, extraneous force, unusual occurrence or unforeseen development which took place at any time in the performance of the work.” (p. 670.)
In second Williams, supra, we approved an instruction which defined an accident as an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often, but not necessarily, accompanied by a manifestation of force (p, 59).
In Rankin v. United Commercial Travelers of America, 193 Kan. 248, 392 P. 2d 894, the holder of an accidental death policy died from a heart attack sustained while fighting a pasture fire. The policy provided benefits only for loss “effected solely through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident, alone and independent of all other causes.” (p. 251.)
The case was submitted to the trial court as a question of law to be decided upon certain stipulated facts including an admission that emotional strain can and does precipitate heart attacks. In reversing a judgment for the insurer this court quoted approvingly from 56 ALR 2d 816, as follows:
“ ‘There is seemingly general agreement on the proposition that if an unusual happening occurs in conjunction with exertion or exercise on the part of the insured, and this is followed by a heart attack, recovery may (assuming causation is established) be had under a policy providing benefits for the results of “accidental means,” whether the unusual happening precipitated the exertion or occurred in the course of the same.’” (pp. 256-257.)
The record here reveals an unusual external stimulus — the automobile collision — exerting that which has been characterized as emotional stress and strain upon the decedent, so as to precipitate or cause his death. Assuming that causation is factually established, we believe this fortuitous event constitutes accidental bodily injury within the meaning of the policy provisions and we so hold.
Appellee stresses the fact decedent’s body bore no outwardly visible marks of trauma or injury. Although the contention is actually disposed of by that which has already been said, such indicia have never been held requisite to a showing of accidental bodily injury. In Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, a proceeding under the workmen’s compensation act, it was held that the term “personal injury” as used in the act is to be construed as meaning any lesion or change in the physical structure of the body, causing damage or harm thereto and it is not essential that the disorder be of such character as to present external or visible signs of its existence. We see no reason for the application of any different rule here.
Finally, appellee urges that our decision in Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 440 P. 2d 548, should be dispositive of this appeal in its favor. Areas of similarity in the two cases exist but the distinguishing feature is that in Thompson the trier of the fact determined as a fact, upon medical evidence held to be sufficient, that there was no causal connection between the death of the arteriosclerotic patient and the fortuitous event relied upon as the accident. In the case at bar no determination respecting causation has been made by the finder of fact. Although their evidence may be controverted upon trial, appellants are entitled, upon the showing presented, to that determination. Consequently we must hold the trial court erred in summary disposition.
The judgment is reversed and remanded with directions for further proceedings in harmony with the views herein expressed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
This is an interlocutory appeal from a judgment of the trial court permitting the plaintiff to substitute a party defendant by amendment after the statute of limitations had run.
The issue on appeal requires a construction of K. S. A. 60-215 (c) as amended by the Supreme Court (order dated July 17, 1969).
The facts are not in dispute. On May 25, 1967, Eva Marie Marr (plaintiff-appellee) was operating her Chevrolet automobile when it was involved in an intersection collision with a truck owned and operated by Geiger Ready-Mix Company, when that truck passed through, a stop sign and struck the plaintiff’s auto broadside. Suit was filed by the plaintiff against Geiger Ready-Mix Company on October 9, 1968. The Geiger Ready-Mix Company was then located at 1411 South Second Street, Leavenworth, Kansas. The petition alleged that the collision in question had occurred, that the plaintiff had suffered grievous injury as a result thereof, and that the truck was owned by Geiger Ready-Mix Company and operated by its agents and employees.
Summons was duly issued on October 9, 1968. The return of service of summons filed October 14, 1968, set out the summons had been served on the 9th day of October, 1968, by serving Bill Munson, general manager, who was in charge of the business office of the Geiger Ready-Mix Company. Bill Munson acknowledged receipt of the summons and did not refuse to accept service.
On the 25th day of October, 1968, the Geiger Ready-Mix Company (defendant-appellant) filed its answer. The first paragraph of the answer contained a motion to dismiss because Missouri counsel had failed to associate with a Leavenworth County attorney. The second paragraph reads as follows:
“Defendant moves the Court for an Order dismissing said Petition because this Court has no jurisdiction thereof and because no summons was properly issued and served herein according to law.”
The third paragraph of the answer denied that the defendant was negligent in causing the accident and further asserted that the accident was due to the sole negligence of the plaintiff. It further set out the affirmative defense of last clear chance. Paragraph four contained a general denial.
Further court action did not take place until the 2nd day of June, 1969. During the interim period settlement negotiations were conducted between the Aetna Life Insurance Company, the defendant’s insurer, and the plaintiff’s counsel. As late as March 3, 1969, the defendant’s insurance company made an offer of settlement. Plaintiff’s counsel then received a letter dated June 2, 1969. (It will be noted this date is eight days after the two-year statute of limitations had run.) This letter notified the plaintiff that the motion to dismiss would be heard June 9, 1969, and on that date the defendant served personally upon the plaintiff’s counsel the affidavit of E. W. Geiger, Jr., which asserted for the first time that Geiger Ready-Mix Company was a sole proprietorship owned and operated by E. W. Geiger, Jr. On the same date plaintiff moved the court for an order permitting her to amend her original petition by substituting the name of E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company, for the Geiger Ready-Mix Company under the provisions of K. S. A. 60-215 (a) and (c).
The evidence introduced at the hearing on the plaintiff’s motion showed that the police report filed in compliance with the Kansas Motor Vehicle Safety Responsibility Act set out the owner of the cement truck involved in the petition as being Geiger Ready-Mix Company, address 1411 South Second Street, Leavenworth, Kansas. The evidence also disclosed police photographs taken at the scene showed the truck with the name “Geiger Ready-Mix Company” clearly written thereon.
The trial court sustained the defendant’s motion to dismiss and a motion for rehearing was subsequently filed, as well as the plaintiff’s notice of appeal.
On the 20th day of November, 1969, the motion for rehearing was heard and evidence introduced. The evidence disclosed the general manager of Geiger Ready-Mix Company received the summons and turned the same over to Mr. Geiger after noting that he had forwarded a copy to Mr. Geiger’s insurance carrier. Mr. Munson testified the Geiger Ready-Mix Company was an alias or assumed name under which Mr. Geiger did business. Mr. Geiger affirmed Mr. Munson’s testimony and further stated that he was well aware that the action had been filed. The trial court again sustained the defendant’s position, and the plaintiff at that time undertook to perfect another appeal. In the meantime the plaintiff filed a motion for reconsideration based on the 1969 amendment to 60-215 (c). The matter was taken under advisement by the court and on March 2, 1970, it set aside its previous judgment entered and granted the plaintiff’s original motion to amend her original petition by changing the name of the defendant from Geiger Ready-Mix Company to E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company.
The trial court in reversing its position on the point said in its memorandum opinion:
“The plaintiff, as the basis for her motion to reconsider, has cited to this Court an order of the Supreme Court of Kansas dated July 17, 1969, amending K. S. A. 60-215 (c). Said amendment was made effective on publication in the Kansas Reports and in K. S. A. 1969 Supplement. The defendant contends that the amendment in question is not retroactive and does not apply to this case.
“It is my opinion that the amendment to K. S. A. 60-215 (c) is procedural and is applicable to the facts of this case. Therefore, this Court finds that E. W. Geiger, Jr. has received such notice of the institution of this action that he would not be prejudiced in maintaining his defense on the merits and he knew that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
The defendant’s subsequent motion to alter, amend and set aside the judgment entered March 2, 1970, was overruled, and the trial court on April 30, 1970, affirmed its order of March 2, 1970. Subsequently the defendant was given permission to take an interlocutory appeal.
This action involves the interpretation and the application of the Kansas Code of Civil Procedure.
K. S. A. 60-102 reads:
“The provisions of this act shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding.”
In a dissenting opinion Justice Black in Ackermann v. United States, 340 U. S. 193, 95 L. Ed. 207, 71 S. Ct. 209, said concerning the foregoing rule of construction that “It does no good to have liberalizing rules ... if, after they are written, their arteries are hardened by this Court’s resort to ancient common-law concepts.” (p. 205.)
The defendant contends quite vigorously throughout the brief on appeal that the plaintiff simply committed fatal error by attempting to sue the defendant as a corporate entity, rather than as an individual doing business as a sole proprietorship. It is the defendant’s position that because of this error the plaintiff’s action should be barred by the two-year statute of limitations.
K. S. A. 60-215 (c) was enacted into Kansas law in 1963 as a part of the new Code of Civil Procedure (effective January 1, 1964). This enactment, as well as the other sections of the new Code of Civil Procedure, was patterned after the Federal Rules of Civil Procedure. (See James v. City of Wichita, 202 Kan. 222, 226, 447 P. 2d 817.)
K. S. A. 60-215 (c) as originally enacted read:
“(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of the original pleading.”
Rule No. 15 (c) of the Federal Rules of Civil Procedure (before the 1966 amendment) was identical to 60-215 (c), supra.
In Skeen v. Sisters of St. Joseph, 194 Kan. 212, 398 P. 2d 587, the court held the filing of a petition against A, reciting facts which would authorize an action to be maintained against B, will not toll the statute as to B, if B is not made a defendant until after the statute has run. The Skeen case was decided in January, 1965, without making any reference to 60-215 (c), supra. There the plaintiff simply filed an amended petition naming B as a party defendant, after the trial court sustained a motion to quash service of summons, and after the statute of limitations had run.
In Schmidt v. Nauman, 202 Kan. 131, 446 P. 2d 828, this court had the precise question here presented before it under 60-215 (c), supra, prior to the amendment, but it followed Skeen. In Nauman the petition named Clarence G. Nauman, an individual, d/b/a Nauman Lumber Company, as defendant. More than two years after the cause of action arose the plaintiff requested permission to amend the petition making C. Nauman Lumber, Inc. an additional party defendant, and the trial court granted the motion to amend. On appeal it was held the statute of limitations would not be tolled as to the corporation, if it was not made a defendant until after the statute had run. It was urged upon the court that 60-215 (c), supra, gave the trial court discretionary authority to permit the addition of the corporate defendant by amendment, but the court said:
“We do not understand K. S. A. 60-215 (c) to so apply to parties. Until such time as a person is actually made a party defendant there can be no claim or defense arising ‘out of the conduct, transaction, or occurrence set forth or attempted to be set forth’ as to him. It is the intention of the statute of limitations that a party to be bound must have a claim filed against him or attempted to be filed against him — not someone else — before the expiration of the period provided in the statute.” (p. 132.)
Prior to the 1966 amendment to Federal Rule No. 15 (c) there was a considerable split in the authority as to its proper application. Some federal courts permitted amendment as to parties under the rule, after the statute of limitations had run, and others did not. (See Meltzer v. Hotel Corporation of America, 25 F. R. D. 62 [N. D. Ohio 1959]; and contra United States v. Western Casualty & Surety Company, 359 F. 2d 521 [6th Cir. 1966].)
The 1966 amendment to Federal Rule No. 15 (c) was designed to state more clearly when an amendment changing parties, as provided in the first section of the statute, related back.
After Federal Rule No. 15 (c) was amended in 1966, the Kansas Supreme Court by order dated July 17, 1969, amended K. S. A. 60-215 (c) to read as follows:
“(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he would not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” (Emphasis added.) (K. S.A. 1971 Supp. 60-215 [c].)
The foregoing amendment was identical to the amendment made in Federal Rule No. 15 (c), except that the Federal Rule added another paragraph pertaining to the delivery or mailing of process to the United States Attorney. The amendment to 60-215 (c) was designed to bring it in line with Federal Rule No. 15 (c), as amended.
Under Federal Rule No. 15 (c) the 1966 amendment makes specific provision for the relation back of an amendment to the pleadings changing the party against whom a claim is asserted, regardless of the period of limitations, if certain conditions are met. These conditions are set forth in the amendment, and if they have been met, there is no reason why the rule should not be applied. (Wynne v. United States, 382 F. 2d 699 [10th Cir. 1967]; and Wright & Miller, Federal Practice and Procedure: Civil § 1498, and cases cited therein.)
The amendment to 60-215 (c) was adopted with full knowledge of what the federal decisions had been under the amended Federal Rule No. 15 (c), and furthermore, it was adopted with full knowledge of what the federal amendment intended to accomplish. This being the case, federal decisional law construing Federal Rule No. 15 (c), as amended in 1966, is authoritative in construing 60-215 (c), as amended.
The amendment to 60-215 (c) amplifies the rule to state more clearly when the amendment of a pleading changing the party against whom a claim is asserted, including an amendment to correct a misnomer or misdescription of a defendant, shall relate back to the date of the original pleading. (See the Advisory Com mittee’s Note to the 1966 amendment to Federal Rule 15 [c], 39 F. R.D. 82.)
It may therefore be said an amendment changing the party against whom a claim is asserted relates back, if the amendment satisfies the general requirement of 60-215 (c) that “the claim or defense asserted in the amended pleading arose out of the conduct, . . . set forth in the original pleading,” and if within the applicable period of limitations, the party brought in by amendment (1) has received such notice of the institution of the action — the notice need not be formal — that he would not be prejudiced in defending the action on the merits, and (2) knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party.
To permit the amendment under 60-215 (c), as amended, in addition to the general requirement, the new party, within the period of limitations, must receive such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and further that the new party knew or should have known that, but for a mistake concerning the identity of the proper party, he would have been brought into the proceedings earlier. (See 3 Moore’s Federal Practice [2d Ed.] § 15.15 [4.-2].)
It should be emphasized that at no point has the question of proper service of summons been called into play. This is because informal notice is sufficient under Federal Rule No. 15 (c), as amended, to bring into operation the relation back of the amendment. The rule is the same under 60-215 (c), as amended, in the Kansas Code of Civil Procedure.
Rule No. 215 (c), as amended, refers to “An amendment changing the party” and that is precisely what the plaintiff was granted leave to do by the trial court. The plaintiff amended her original petition by changing the name of the defendant from Geiger Ready-Mix Company to E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company. On the facts in this case the plaintiff sought to change the capacity in which the defendant was sued. There is no change in the parties before the court, all parties are on notice of the facts out of which the claim arose, and the doctrine of relation back does not result in prejudice to the defendant. E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Company, received notice of the institution of the action within the period of limitations and, even though informal, such notice meets the requirement of due process. He further knew or should have known, but for a mistake concerning the identity of a proper party, he would have been brought into the proceedings earlier.
The trial court specifically found these facts to exist, and the findings are supported by substantial evidence in the record. The trial court in the exercise of its power of discretion, under K. S. A. 1971 Supp. 60-215 (a), granted the plaintiff leave to amend her petition by changing the name of the party defendant, and in doing so the trial court did not err.
For a discussion of the provisions of K. S. A. 60-215 (c) prior to the 1969 amendment, see James v. City of Wichita, 202 Kan. 222, 447 P. 2d 817. While the amendment to the petition in that case did not pertain to parties and is distinguishable, the court concluded its decision by saying:
". . . The intervention of the bar of the statute of limitations is not sufficient reason to refuse the amendment in this case. To refuse amendments for this reason alone would render K. S. A. 60-215 (c) meaningless.” (p. 228.) (Emphasis added.)
The 1969 amendment to 60-215 (c) is a procedural change in the Code of Civil Procedure, and it has retroactive application to the facts in this case.
Another point should be made on the record presented. Here the defendant has actively concealed the identity of the real party in interest, E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company. This concealment is indicated from the defendant’s answer to the petition and by the defendant’s subsequent conduct. Note the appearance and the answer was made by the defendant in the name of “Geiger Ready-Mix Company.”
Under the present status of the law special appearances are no longer permissible as opposed to general appearances. Under the new code a party is no longer required to make a special appearance to contest jurisdiction. General and special appearances may now be made in one answer. In Small v. Small, 195 Kan. 531, 407 P. 2d 491, the point was made quite clear when the court said:
“The old distinction between a general and special appearance loses its significance under K. S. A. 60-212 (b) as a party may plead to the merits and at the same time contest jurisdiction over his person. The purpose of the provisions is to permit the combining of an objection to the jurisdiction with pleadings on the merits without the old ritual of first entering a special appearance. . . .” (p. 538.)
While this new provision in the code does away with the old ritual, it tends to put the plaintiff at a disadvantage. Under the old rule the defendant was required to make a special appearance and stand on that appearance. The lawsuit would not proceed until the question of jurisdiction was resolved. This is no longer the case. The defendant may answer and raise the question of jurisdiction without that matter being immediately resolved. As in this case, the effect was that the matter went unresolved until the statute of limitations had run. But the change in the new code was not made blindly, and other portions of the code were intended to compensate for the harsh result caused by K. S. A. 1971 Supp. 60-212. A study of K. S. A. 60-204, K. S. A. 60-209 and K. S. A. 1971 Supp. 60-215 as well as the general provision of K. S. A. 60-102, is illustrative.
The defendant repeatedly asserts in its brief that the Geiger Ready-Mix Company is in fact not a corporate entity but, despite this fact, the plaintiff attempted to sue the defendant as such. For this error the defendant contends the plaintiff should forfeit her otherwise meritorious cause of action. However, the very first time the defendant took an affirmative step to make this fact known to the plaintiff was on June 9, 1970, when the defendant caused to be served on the plaintiff’s counsel the affidavit of E. W. Geiger, Jr. The affidavit set out clearly and unequivocally that E. W. Geiger, Jr. was the sole proprietor of Geiger Ready-Mix Company and that the Geiger Ready-Mix Company was not on that date, or since, a corporation. On the 25th day of October, 1968, when the defendant’s answer to the plaintiff’s petition was filed pursuant to 60-212, supra, the defense asserted in paragraph two, that the “Court has no jurisdiction thereof and because no summons was properly issued and served herein according to law,” was insufficient to apprise the plaintiff that the defendant had no corporate existence as set forth in the affidavit filed on June 9, 1970. Under K. S. A. 60-209 when the defendant raises this defense in his answer to the plaintiff’s action he is required. to supply supporting particulars. K. S. A. 60-209 reads in part:
“Pleading special matters. (a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or he sued or the authority of any party to sue or he sued in a representative capacity he shall do so hy specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” (Emphasis added.)
Had the defendant complied with this statute, as required, by raising as a defense the lack of the defendant’s capacity, this case would not be before the court today. The affidavit of E. W. Geiger, Jr. quite properly should have been filed with the answer to provide the supporting particulars. However, the defendant instead chose to ignore this statute and rely on a motion to dismiss for improper issuance and service of summons as alleged in his answer. If the defendant desired to present this defense by motion, he was required to do so before pleading. (K. S. A. 60-212 [b], now K. S. A. 1971 Supp. 60-212 [&].)
Accordingly, the failure of the defendant to comply with the provisions of 60-209, supra, must be regarded as a waiver by the defendant of such defense.
The decision of this court in Haley v. Hershberger, 207 Kan. 459, 485 P. 2d 1321, at first blush would appear to be inconsistent. There the defendant in his answer pleaded lack of jurisdiction over the person of the defendant; insufficiency of process; insufficiency of service of process; etc. The court held the defendant could not be regarded as having waived the defense on lack of jurisdiction over the person of the defendant, alleging “insufficiency of process; insufficiency of service of process,” (p. 461) where the defendant participated in preliminary motions which did not constitute a defense or go to the merits of the action. The case is distinguishable, however, on the ground that K. S. A. 60-209 was not asserted by the appellant in his brief or argued to the court. The abstract and briefs on file in the state library disclose the appellee, who won the case on appeal, cited K. S. A. 60-209 (b) in his sixth defense, on the ground that the allegations of fraud were not stated with sufficient particularity as required by the statute. The only mention made in the appellee’s brief concerning 60-209, supra, concerned allegations of fraud in the answer. This was insufficient to aprise the appellate court of the significance of K. S. A. 60-209 (a), which the appellant was required to assert to make it affirmatively appear the trial court had erred.
The appellant in the instant case relies heavily upon three Kansas decisions which it is claimed were decided after the 1969 amendment to 60-215 (c), supra. They deserve consideration. These cases are Briscoe v. Getto, 204 Kan. 254, 462 P. 2d 127; Thompson Kilgariff General Insurance Agency, Inc. v. Haskell, 206 Kan. 465, 479 P. 2d 900; and Haley v. Hershberger, supra.
The first two cases involved the service of a summons upon a garnishee defendant. In Briscoe v. Getto, supra, service was attempted on an individual pursuant to K. S. A. 60-304 (a), as amended, but the service was made at the office of the garnishee defendant by serving his secretary, and in Thompson-Kilgariff General Insurance Agency, Inc. v. Haskell, supra, service was attempted on an individual pursuant to K. S. A. 61-411, but the service was made on the garnishee defendant “‘by leaving with office manager, Kay Holt.’ ” (p. 466.)
The facts giving rise to these two decisions did not call for an application of K. S. A. 1971 Supp. 60-215 (c), or K. S. A. 60-209. The decisions turned on the construction of K. S. A. 60-204, and these cases stand for the proposition that the provisions of K. S. A. 60-204 cannot be invoked to effect a valid service of process, unless there has first been substantial compliance with some method of service provided by statute.
In Haley v. Hershberger, supra, an attempt was made to serve an individual defendant at his office, but service was made by leaving a copy of the petition and summons with his secretary. The court held jurisdiction of the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance. There the trial court sustained the defendant’s motion to dismiss for lack of jurisdiction over his person because of insufficiency of process and the insufficiency of service of process. After the statute of limitations had run the plaintiff obtained personal service on the defendant by service of an alias summons. On the facts in the case the decision turned upon the validity of the service of process upon an individual which was attempted pursuant to K. S. A. 60-304 (a), as amended, and the provisions of K. S. A. 60-204. Nowhere did the facts suggest or warrant consideration of K. S. A. 1971 Supp. 60-215 (c) relating to “An amendment changing the party against whom a claim is asserted.” This section of the code was neither cited to the court nor considered in the opinion. Therefore, the case has no application to the facts here.
In view of the foregoing we conclude the trial court did not err in granting the plaintiff’s motion to amend her petition by changing the name of the defendant from Geiger Ready-Mix Company to E. W. Geiger, Jr., d/b/a Geiger Ready-Mix Concrete Company.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Mr. Edna Edwards, Jr., was convicted of the crime of aggravated battery as defined in K. S. A. 1971 Supp. 21-3414. The victim, Thomas A. Eggleston, was stabbed in the back with a paring knife by Ronald E. Martin, an associate and companion of the defendant Edwards.
Martin was convicted of aggravated robbery and of aggravated assault based upon the same acts. The events giving rise to the present charge against Edwards are set forth in State v. Martin, 208 Kan. 950, 495 P. 2d 89.
In the present appeal Edwards contends that his conviction should be set aside because the evidence failed to establish an essential element of the crime of aiding and abetting. He argues that Martin committed the act for which defendant was convicted and that under K. S. A. 1971 Supp. 21-3205 he is not liable for the crime of another unless there is .direct proof he intentionally aided and abetted Martin in the commission of the crime. The degree of proof of criminal intent to aid and abet another in a crime is the bone of contention.
The evidence in the record indicates that the defendant Edwards, Ronald E. Martin and two women were together on the morning Thomas A. Eggleston was stabbed and robbed in his home. It appears from defendant’s own testimony that he furnished the car and drove his three companions to the Eggleston home.
The two women had been to the Eggleston home two hours before. They had remained only a few minutes and then left without explanation. They reappeared at 4:30 or 5:00 o’clock that morning in the company of Edwards and Martin. Eggleston and a cab .driver by the name of Sumral were the only persons in the house when the quartet arrived. The four were apparently admitted into the house by Eggleston, who was chunk at the time. On entering the house the defendant looked at the furniture and indicated by comment “they could make a killing there.” The defendant immediately engaged the cab driver, who was a new-found friend of Eggleston, in conversation and the two withdrew from the group into another room. The cab driver tried to persuade the .defendant to leave the premises but the defendant told him the girls had been insulted by Eggleston when they were at the house two hours before.
While the defendant and the cab driver were in the next room, defendant’s companions were occupied with Eggleston a short distance away in the hallway. The cab driver heard a commotion and went to the hallway. He saw Eggleston lying on the floor bleeding from stab woúnds. Martin and the two women were standing next to him. Thereafter the victim Eggleston saw the defendant Edwards carry away a radio. He saw one of the women carry away a jewelry box containing over $200 in cash. Other personal property belonging to Eggleston, including a television set, was found missing.
The four’early morning visitors left the Eggleston home at approximately the same time. It can be inferred the Edwards car was used by the quartet in hauling the loot away. Eggleston was helped into his bedroom by the cab driver and the police were called. Additional details of the episode can be found in State v. Martin, supra.
The defendant Edwards, Ronald E. Martin and Jañet L. Williams were jointly charged in two counts of an information as principals in the crimes. The first count charged the three individuals with the aggravated robbery of Thomas A. Eggleston under K. S. A. 1971 Supp. 21-3427. The second count charged the three with aggravated battery against the person of Thomas A. Eggleston under K. S. A. 1971 Supp. 21-3414. Edwards was tried separately. He was acquitted on the charge of aggravated robbery but was convicted of aggravated battery. He has appealed from this conviction.
This is the first occasion that this court’s attention has been specifically directed to the section of the Kansas Criminal Code (L. 1969, ch. 180, effective July 1» 1970) dealing with the subject of liability for crimes of another. The code was the result of work undertaken by the Kansas Judicial Council. The council’s comments on the code appear immediately following each section of the statute. K. S. A. 1971 Supp. 21-3205, which relates to liability for crimes of another, follows the Minnesota code according to the council’s comments. This new section was intended to supersede K. S. A. 21-105 which spoke in terms of principals in the first and second degrees and accessories before the fact, even though all were liable to the same extent for a crime. See State v. Yohe, 203 Kan. 855, 457 P. 2d 12.
K. S. A. 1971 Supp. 21-3205 reads as follows:
“Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended.
“(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
The council in its comments indicates that, although the principles of liability set forth in the section do not refer to principals and accessories, no change in the substance of the former body of law was intended when the new section was drafted.
Defendant’s main contention is that sub-section (1) of this statute requires direct proof beyond a reasonable doubt of actual intention or at least foreseeability on his part for Martin to commit the aggravated battery upon the person of Thomas A. Eggleston. Defendant insists that he was merely furnishing the transportation for his companions, that he was acquitted of any participation in the robbery and that it was not foreseeable that his companion Martin would stab Eggleston in the back with a paring knife. The difficulty in accepting this reasoning stems from the faulty premise that his acquittal on the robbery charge somehow placed him in the position of being an innocent bystander in the whole affair.
An acquittal of defendant on the aggravated robbery charge does not prevent the use of evidence introduced which supports a conviction on the related crime of aiding and abetting Martin to commit the aggravated battery arising from the same set of facts. In an analogous situation this court has held that although a burglary charge may be void a conviction of larceny in connection therewith may stand if supported by substantial, competent evidence introduced at the trial. See State v. Bratcher, 105 Kan. 593, 185 Pac. 734, and State v. Baker, 197 Kan. 660, Syl. ¶ 4, 421 P. 2d 16.
There can be little doubt from the evidence that both the robbery and the battery occurred. There was direct evidence that defendant transported Martin to the scene of these crimes. The statement of the defendant, as he viewed Eggleston’s furniture, that they could make a killing and his subsequent statement to the cab driver, that the girls had been insulted, can only be interpreted as indicating some action was contemplated by him and his companions. Robbery is a crime of violence committed by threat or force. There was evidence that defendant participated in the aggravated robbery by taking a radio from the premises. From the facts it may readily be inferred that violence, if necessary, was contemplated when the four entered the house. It might also be inferred that defendant by prearrangement engaged the cab driver in conversation so as to lure him into the next room out of the immediate zone of violence. Since the four visitors left the premises together shortly after the battery occurred and while the victim lay bleeding from stab wounds, a strong inference would arise of joint participation and approval of the criminal acts. Under these circumstances the defendant can hardly be considered an innocent bystander in the whole affair.
K. S. A. 1971 Supp. 21-3205, effective July 1, 1970, which holds a person criminally responsible if he intentionally aids or abets another to commit a crime makes no change in the degree of proof of intent necessary to establish criminal responsibility. The element of intent necessary to establish and support criminal responsibility for aiding or abetting another to commit a crime may be inferred from circumstantial evidence. Cases in support thereof are State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019; State v. Turner, 193 Kan. 189, 392 P. 2d 863; and State v. Sharp, 202 Kan. 644, 451 P. 2d 137.
In Jackson this court upheld a conviction for forcible rape. The defendant did not engage in the sexual act which was the basis for his conviction. He searched the glove compartment of the victim’s automobile while the young lady was being raped in the back seat. After the rape was completed he attempted to prevent the victim from leaving the scene of the crime by tearing out the wiring of the automobile. The evidence of intention to aid and abet the rape was inferred from the acts of the defendant and the circumstances of the crime.
In Turner the defendant was convicted for first degree murder in the shooting death of John R. Keach. Turner merely accompanied his friend Loren to the Keach home, then drove around the block, parked in front of the house and waited for Loren to return to the car. Loren shot and killed Keach, pilfered the house for loot and returned to the Turner car with a bushel basket of articles taken from the house. The loot was taken in Turner’s car and later disposed of by the two participants. There was no direct evidence that the two participants intended to murder Keach or that they conspired to rob him. In the opinion this court said:
"... All participants in a crime are equally guilty, without regard to the extent of their participation. It was sufficient to charge directly those concerned with the crime, and if, in execution of a common purpose to rob, one of them did the killing, the other would be guilty of murder. [Citations omitted.]” (p. 196)
In Sharp the defendant was convicted of robbery and burglary. The acts were committed by a group of boys and it was held that although the defendant may not personally have taken the victim’s money yet the evidence of his presence and participation was sufficient to justify submission of the question of his guilt to a jury.
Certain elements necessary to complete proof of crimes are not subject to direct evidence. Elements such as criminal intent and malice depend upon a state of mind. A defendant seldom admits to criminal intent or malice. Therefore, because of the very nature of these elements, proof will generally depend upon inferences to be drawn from the acts of a defendant. Our cases support this general statement. See State v. Donohue, 197 Kan. 317, 416 P. 2d 287, and cases cited in this opinion.
The existence of criminal intent in aiding or abetting another to commit a crime may be presumed or inferred from circumstances surrounding the perpetration of the crime and is a fact question for jury determination.
The above rule is in accord with the Minnesota cases based upon the Minnesota Code from which K. S. A. 1971 Supp. 21-3205 was modeled. In State v. Bellecourt, 277 Minn. 163, 152 N. W. 2d 61, the victim of theft on a public sidewalk was struck on the head just as three persons were passing in the opposite direction. The three were walking together. No other persons were in the vicinity when the blow was struck. The victim’s money was lifted by one of the three persons. There was no direct proof that the defendant, rather than the other two, struck the blow or took the money. Under the provisions of the Minnesota Code relating to liability for crimes of another it was held:
“. . . Once a reasonable inference arises, however, from all the circumstances that defendant was a participant with two others in the commission of the crime of theft at that time and place, defendant’s guilt is sufficiently established. This inference is a fact question for jury determination, and the jury found, as it could, that he was such a participant.” (p. 165)
(See also State v. Sutton, 277 Minn. 157, 152 N. W. 2d 57, and State v. Parker, 282 Minn. 343, 164 N. W. 2d 633.)
When the trier of facts has weighed the evidence, determined the credibility of the witnesses and rendered a verdict of guilt, the verdict must stand if it is supported by substantial competent evidence. It was pointed out in State v. Shaw, 195 Kan. 677, 408 P. 2d 650, that before a verdict approved by the trial court may be set aside on appeal because of insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support a conviction.
We have reviewed the evidence in the record. The circumstances surrounding the perpetration of the crimes clearly support an inference that defendant aided and abetted in the aggravated battery of the victim with the requisite criminal intent mentioned in K. S. A. 1971 Supp. 21-3205 (1).
The judgment of conviction is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from an order denying a motion to modify a divorce decree with respect to payment of alimony not yet due.
The parties were married July 8, 1933, in Wyandotte County, Kansas. Five children were bom of the marriage, but all had reached the age of majority before the facts material to the issue came before the district court.
On May 14, 1968, the appellee, Ruth Baird, received a divorce from the appellant, Charles Baird. The divorce was not contested. The parties did, however, submit to the court a stipulation and property settlement concerning all matters involving division of their property and property rights, and permanent alimony for fhe plaintiff subject to the approval of the court.
The division of property is not an issue, and it is sufficient to say the wife was allotted all of the furniture and household effects, the home at 8501 Santa Fe Drive, Overland Park, Kansas, subject to a mortgage, and 80 acres of unimproved land near Bennett Springs, Missouri. The defendant was allotted a pick-up truck subject to a purchase money mortgage and real estate at Lake Havesau City subject to $3,100 due on the purchase price.
The stipulation for alimony provided:
“The Defendant agrees to pay and the Plaintiff agrees to accept as perma nent alimony of and from the Defendant the sum of $325.00 per month until Plaintiff remarries or is deceased as provided by the alimony laws of the State of Kansas. . . .”
The district court found that the stipulation and property settlement should be incorporated in the journal entry and decree, which recited in part:
“All sums due and payable as permanent alimony shall be paid into the office of the Clerk of the District Court of Johnson County, Kansas, and this Court shall retain permanent jurisdiction of this cause. . .
In its conclusion, the district court decreed:
“That this Court shall retain jurisdiction of this cause and of the parties herein concerned.”
On June 22, 1970, the appellant filed his motion to modify the divorce decree with respect to the payment of alimony, in which he informed the district court in substance that the alimony order was predicated solely upon his future earnings and was not in any way a part of a division of accumulated property; that the defendants income has dropped from a net of $850 to $397 per month; that appellee is the governess of a widower’s two children, she has a place to live, and food and an undetermined salary, and that the appellant has remarried and his wife is not working. The motion concluded:
“Defendant has such high blood pressure that he cannot pass a physical examination for permanent employment, and has no prospects for the future. Also, that he has had two heart attacks and he has been advised by his doctor not to overdo in any respect. This was definitely a factor in his retirement from General Motors Corporation.
“That effective June 1, 1970, the defendant was retired by action taken solely by his employer, General Motors Corporation, and upon his retirement he will receive as retirement pay the sum of $397.59 monthly. That this is his sole and only income and means of livelihood for he and his present wife.”
The appellant introduced evidence to establish the above alleged facts, and further testified his retirement will be about $380 per month and he has no other income. His necessary living expenses were about $370 per month.
The district court, after hearing the evidence, entered a memorandum decision as follows:
“Now on this 30th day of July, 1970, the Court finds that, on the basis of the present financial situation of the defendant, the alimony payments to be made by defendant should be reduced, but the Court is without power to modify a property agreement entered into by the parties and approved by the Court, without the approval of the parties, where no provision for such modification is included in such agreement.”
The movant has appealed, challenging the conclusion of the district court that there was no provision for such modification included in the settlement agreement.
We agree with the appellant that the agreement made provision for the court to modify the payment of alimony not yet due.
The law of divorce and alimony was materially changed in 1964. Up until that time, the judgment for alimony was a final judgment of the rights of the parties with respect to alimony. A court could not give itself power by its own order to make future revisions of the alimony judgment, and the parties could not confer such jurisdiction by agreement. (Conway v. Conway, 130 Kan. 848, 851, 288 Pac. 566.)
In 1964, the Legislature, among other changes in the divorce laws, enacted K. S. A. 60-1610 designating the matters which might be included in the decree. Included therein was care of minor children, division of property, maintenance, and separation agreements.
K. S. A. 1971 Supp. 60-1610 (c) provides that the decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all the circumstances and that it may make the future payments conditional or terminable under circumstances prescribed therein. Subsection (c) reads in part:
“. . . The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.” (Emphasis supplied.)
K. S. A. 1971 Supp. 60-1610 (d) provides for a decree under a separation agreement, and reads in part:
“If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree . . . Matters, settled by such an agreement . . . shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.”
In Tager v. Tager, 199 Kan. 26, 427 P. 2d 484, it was said that under 60-1610 (d) a settlement agreement providing for the pay ment of alimony was not subject to subsequent modification by tbe court except as the agreement itself may prescribe or the parties may subsequently consent.
The question immediately before us is, does the agreement by implication provide for its modification by the court?
The stipulation for alimony and property settlement specifically provides that:
“The Defendant agrees to pay and the Plaintiff agrees to accept as permanent alimony of and from the Defendant the sum of $325.00 per month until the Plaintiff remarries or is deceased as provided by the alimony laws of the State of Kansas.” (Emphasis supplied.)
As indicated, under 60-1610 (c) a court has the statutory power to modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due. The phrase “as provided by the alimony laws of the State of Kansas” must therefore refer to the general provision for alimony which consists chiefly of the power of the court to modify the amounts or other conditions for the payment of alimony.
The decree of the district court throws further light on the purpose of the above phrase. In the divorce decree, the court found:
“All sums due and payable as permanent alimony shall be paid into the office of the Clerk of the District Court of Johnson County, Kansas, and this court shall retain permanent jurisdiction of the cause. . . .”
The district court further ordered and decreed:
“That this Court shall retain jurisdiction of this cause and of the parties herein concerned. . . .”
There were no minor children over which the court had continuing jurisdiction. There was no continuing ■ jurisdiction over the decree dividing the property pursuant to the property settlement. There could be only one cause over which the district court in the divorce case could have had any continuing jurisdiction, and that was the alimony settlement. It could have no jurisdiction over the cause for property settlement. In Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994, we held:
“Alimony is a future support concept and it has no relationship to a division of property aspect.
“A trial court after entering an original decree which determines a division of property has no continuing jurisdiction of that part of the decree and no power to modify that part of tiie decree.” (Syl. ff 1, 2.)
In the opinion it was said:
“Plaintiff points out the vital changes in the -code concerning alimony, division of property, and separation agreements. The new code separates the division of property concept from that of alimony. Alimony is now purely a future support concept and it no longer retains any relationship to the division of property aspect. The court can now decree alimony to be payable until death or remarriage. Alimony may be modified, but the court cannot increase the award either in amount or by decreasing the time in which the spouse must pay the alimony.” (1. c. 90.)
See, also, Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846.
The appellee suggests that by the language used, the parties and the court were simply reserving the power of the court to enforce its judgment. We would suggest that the reservation added nothing to the power of the court to enforce its judgment — it had that inherent power. (Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409.) The district court did not retain jurisdiction to enforce the judgment. It did retain jurisdiction of the cause. Adjustment of the alimony was the only possible cause of action over which the court could retain jurisdiction. It is clear that the court’s incorporation of the separation agreement in the decree was not its unqualified approval of future payments of alimony.
We conclude the language of the separation agreement with respect to the payment of alimony, when construed with the language of the divorce decree, implies consent to a modification of the alimony award as prescribed by K. S. A. 1971 Supp. 60-1610 (c) and (d).
The judgment is reversed with directions to the district court to proceed to consider the motion to modify the alimony award on its merits.
It is so ordered.
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The opinion of the court was delivered by
Owsley, J.:
This is an action brought by the State of Kansas and the Board of Examiners in Optometry against Charles E. Doolin and Loren B. Shaw doing business as Doolin-Shaw Optical Dispensers and George S. Wallace, their employee, seeking a permanent injunction and ouster on account of defendants’ fitting contact lenses under direction of licensed physicians, which was alleged to be violative of the optometry law of the State of Kansas. The defendants prevailed and the plaintiffs appeal.
The petition in this case was filed on March 4, 1964, and alleged in substance that the defendants were violating the optometry law of the State of Kansas (K. S. A. 65-1501, et seq.) by the unlawful practice of optometry. The unlawful practice of optometry was said to consist of: (a) the examination and testing of the human eye with and without the use of drugs and medicine to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses; (b) the adaptation and fitting of lenses to the human eye; and (c) the furnishing of optometrical services and the holding out by them of an office where optometrical services are furnished.
The petition charged defendants with being “common and public nuisances to the State of Kansas and the various vicinities and neighborhoods thereof” and sought a permanent injunction against the defendants from unlawfully engaging in the practice of optometry within the State of Kansas. Upon motion by defendants, the Board of Examiners in Optometry for the State of Kansas was held to be an indispensable party to the action and was thereafter added as an additional party plaintiff.
The defendants timely filed their answer denying the allegations of the petition and also filed a counterclaim in which the right and authority of the optometrists under the optometry law of Kansas to prescribe and fit contact lenses, without first obtaining a written prescription therefor from a duly licensed physician, was questioned.
On or about April 1, 1966, the Kansas Medical Society, upon proper motion, was allowed to intervene as a defendant in the case and to file pleadings. The Kansas Medical Society adopted by reference the answer and counterclaim of the defendants and further charged that the prescription of contact lenses by optometrists was a violation of the Healing Arts Act of the State of Kansas. (K. S. A. 65-2801, et seq.)
Trial to the court commenced on October 2, 1967, and consumed eleven days terminating on October 17, 1967. Thereafter the parties submitted lengthy requests for findings of fact and conclusions of law. On August 15,1968, the court entered its memorandum opinion including 82 findings of fact and 35 conclusions of law. The court found generally for defendants and against plaintiffs on the main action and against the defendants and for the plaintiffs on the defendants’ counterclaim.
Although defendants perfected their cross-appeal, it has now been abandoned.
Generally, the development of the contact lens has proceeded from the use of glass to plastic, and has proceeded from a lens covering the entire sclera to one covering the cornea only. After the development of the corneal lens the diameter and the thickness of the lens were both reduced to make a much lighter, thinner lens which could be worn with comfort by the average contact lens patient. After the development of the microlens in 1954 the use of contact lenses quickly gained wide acceptance and use by the general public.
For many years optical dispensers were known as “opticians” and usually confined their activities to the grinding of lenses and the fitting of spectacles to the human eye upon prescription of a physician. In the latter part of the nineteenth century some of these dispensing opticians took upon themselves the additional responsibility and function of refracting human eyes to determine the amount of power correction needed by the patient. Until that time it had been assumed that the refraction of human eyes was exclusively a medical responsibility. Thus, opticians in the latter part of the nineteenth century were divided into “dispensing opticians” and “refracting opticians.”
As the “refracting opticians” extended their sphere of influence they successfully obtained legislation in various states recognizing their right to examine eyes for the purpose of determining refractive error. Around the turn of the century the “refracting opticians” took upon themselves the name of “optometrists” and in 1904 formed the American Optical Association. This in turn became the American Optometric Association in 1918.
Meanwhile, the “dispensing opticians” continued their historic functions of grinding lenses and fitting spectacles to the eyes of patients referred to them by both medical doctors and “refracting opticians.” As the field of human eye care became more and more complex and thus more specialized, the dispensing opticians secured licensing legislation in several states in the early to middle part of the twentieth century. Kansas does not have a licensing statute regulating the practice of dispensing opticians.
As the optometry laws developed in the United States, it was generally recognized that dispensing opticians could, without license, maintain their historic function of grinding and dispensing lenses. This is evident in the optometry law passed in the State of Kansas in 1923 which allows the dispensing optician to dispense ophthalmic lenses upon the prescription of an optometrist or other person legally qualified to prescribe ophthalmic lenses. (K. S. A. 65-1504b.)
Defendants are unlicensed dispensing opticians and have been engaged in that business since 1947. Prior to that time both Mr. Doolin and Mr. Shaw had years of experience as opticians with the American Optical Company. In 1947 they established then- own optical dispensing company and have been in business continuously since that date.
In the year 1958 when contact lenses were first becoming popular in the State of Kansas, defendants were requested to commence the service of contact lens fitting by the ophthalmologists and medical doctors for whom they filled prescriptions. In preparation for this service each of the defendants attended a special contact lens fitting course given by Precision-Cosmet Company in Minneapolis, Minnesota. At this course defendants were taught the use of the keratometer and trial contact lenses. Upon their return they conferred and consulted with ophthalmologists practicing in Wichita, Kansas, determined the techniques and procedures which they should use in the fitting of contact lenses and adopted, at the suggestion of the ophthalmologists, certain wearing schedules and other procedures necessary to fit contact lenses completely and adequately.
Shortly after defendants’ entry into the business of fitting contact lenses the Kansas Optometric Association, in 1959, began an investigation of defendants to determine whether or not they were practicing optometry. The association authorized its attorneys (who are the present counsel for the plaintiffs) to take whatever steps were necessary to investigate these activities, and to bring suit against any person thought to be violating the optometry law. As a result of this directive the association hired several witnesses to visit the offices of defendants to obtain contact lenses from them after first receiving a prescription for the lenses from a qualified medical doctor.
A composite of the testimony of the defendants Shaw and Wallace as to each step in the fitting process is as follows:
Doolin and Shaw and their employee Wallace begin the process of fitting contact lenses by receiving a printed form (Plaintiffs’ Exhibit No. 1) signed by a physician. On this form is a statement there are no contraindications to the wearing of contact lenses by the customer and there is a direction to Doolin and Shaw to proceed with technical measurements and return the patient to the doctor for verification of all details. The information on the form consists of that required for a spectacle lens prescription.
At the first visit, the customer meets with Doolin and Shaw for about one hour. An explanation of how the lenses are fit, with simple drawings used to illustrate the eye, is given to the customer. The fitting program is described so the customer knows the number of visits there will be before he takes the lenses home; also, checks made at different periods are explained. Next, an instrument called a keratometer is used to make measurements of the curvature of the cornea of the eye. Two readings are taken for each eye to try to arrive at the same figure. This measures the front center of the cornea and is accomplished by light reflection to focus on a series of targets inside the keratometer. This information is written on a work sheet and constitutes a starting place for selection of a trial diagnostic lens. This reading helps to determine the curvature of the diagnostic lens. Other measurements are made and the tenseness or looseness of the lids is assessed. On the basis of these observations, the trial lens is selected which approximates the curvature of the eye and the fitting process begins. The lens is selected from the trial fitting sets owned by Doolin and Shaw. The trial lens is inserted into one eye. Ideally, it should float over the cornea on a layer of tears without touching. To determine whether or not the lens is touching the cornea, fluorescein dye is introduced into the eye with a strip of paper moistened with an eye irrigating solution and impregnated with fluorescein at one end. The fluorescein mixes with tears in the eye and is activated when viewed under an ultraviolet or black light. In this manner, the tears can be viewed under the lens to determine if the lens is touch ing the cornea or floating over it as it should. The layer of tears under the lens is called the tear lens or lacrimal lens. The resulting fluorescein pattern in this test affects the determination of the base or fitting curve of the lenses ultimately selected or ordered. At this time Doolin and Shaw inform their customer whether or not he might be able to accept and adjust to contact lenses, and the customer makes a choice as to whether he wishes to start the program and order lenses from the manufacturer. If he decides to wear contact lenses, he is advised that he will be called later when the lenses are received from the manufacturer’s laboratory.
Using information from the prescription form and work sheet, the order (Plaintiffs’ Exhibit No. 2) to the manufacturer is made. A verification of all specifications is made when the lenses are received as to the diameter* base curve, width of the intermediate curve, width of the peripheral curve, the power, and the quality of the lenses overall. In the order, Doolin and Shaw have determined the base or fitting curve through use of the keratometer and the fluorescein pattern test; the power of the lens from the prescription is determined through use of a conversion table which converts spectacle lens power to contact lens power; the intermediate and peripheral curves are generally ordered from a chart; the diameter is specified as a result of their measurement of the iris. At this time three so-called delivery appointments are arranged on three consecutive days for about one hour each day.
On the first delivery appointment, the lenses are applied to the eye and the customer is advised that this is a conditioning period. He is asked to remain in a fitting room for about one hour. Periodic checks are made to see whether the lenses are remaining in place and are comfortable. Near the end of the period, if excessive tearing is not present, a fluorescein pattern test is made to check for proper fit. It also reveals any disturbance on the cornea caused by rubbing or abrasiveness of the lens. In case of touch on the cornea, the lens is altered at this time or it is decided that new lenses are to be ordered. Changes in diameter, secondary curve, or peripheral curve are made in Doolin and Shaw’s office.
At the second visit, on the next day, the customer is instructed in the handling procedure of his lenses. He practices putting them on the eye, removing them, and cleaning or preparing them. Visual assessment of the fit while the lens is on the eye is made and if needed a fluorescein pattern test is used. Sometimes the lenses are modified. At the end of this visit Doolin and Shaw still have not delivered the lenses to the customer.
The third delivery visit follows on the next day. Doolin and Shaw check the proficiency of their customer in the handling, insertion, removal, and moving of the lens from the white of the eye to the cornea. Many instructions are given at this time, plus distribution of lens care paraphernalia such as the soaking case, soaking solution, wetting solution, and a case to contain small bottles of soaking and wetting solution. Doolin and Shaw deliver the lenses to the customer if they are satisfied with his proficiency in handling them. If not, Doolin and Shaw keep the lenses. A printed wearing schedule furnished by the lens manufacturer is given to the customer. Doolin and Shaw fill in the number of hours per day that the lenses are to be worn during the first one-week wearing period. A general rule of thumb the doctors ask to be followed is that no patient should wear the lenses more than eight hours per day. During the first week Doolin and Shaw generally allow progression from two hours daily to three hours daily. The importance of returning for an appointment after the first week is stressed and the time is set for that appointment.
When the person being fitted comes back at the end of the first week’s wearing schedule, he is in the office of Doolin and Shaw for approximately thirty minutes. If he comes in with the lenses on, a fluorescein pattern test is attempted. The same test is also performed with the lens off the cornea. Doolin and Shaw look for marks or indications of marks. Recognized types of marks are stippling, dimpling and abrasion. W7hen there, is an abrasion, the customer is told not to wear the lenses for about 24 to 48 hours as the cornea is a quick healing body tissue and can generally recover within that length of time. Doolin and Shaw make an independent determination as to whether or not to send the patient back to his doctor when there is an abrasion. If that person is told to refrain from wearing the lenses for a time, he is asked to return with the lenses on and the abrasion is assessed with a fluorescein and black light test. If stippling or dimpling is seen at the end of the first week, generally new lenses are ordered. If no marks are seen during this visit Doolin and Shaw conclude their check with solicitation of subjective symptoms and complaints from their customer. Many times modifications are made in the lenses, which change the power through a change in the thickness of the tear lens next to the cornea. The individual is advised that his vision may not meet prescription standards and that Doolin and Shaw are concerned only with the proper fit on the cornea of the eye. The doctor checks the power with the lenses on after the fitting process. A power change can then be made. Another appointment is made for one week later, at the end of the second one-week wearing schedule.
During the second week of scheduled wearing, the customer tries to progress from three and five hour wearing periods to continuous seven hour times daily. If necessary, the customer may come in sooner as he could during the first scheduled week of wearing, to solve problems of excess tearing, light sensitivity, or feelings of hotness or itchiness in his eyes, and other complaints. If none develop, an examination of the lens fit is made at the pre-set appointment which concludes the second week. An inspection is made with the lens removed for stippling, dimpling or abrasion. Modifications are then made to improve tear flow under the lens. If no modifications are necessary and no problems have developed at the end of the second week of wearing time, the eye physician is called to make a final check of his patient. The appointment is made so the doctor can check the lenses at the end of a full wearing period. If Doolin and Shaw do not feel the fit is quite satisfactory or that maximum wearing time has been achieved the patient receives a new three-week schedule so maximum times - of up to eight hours can be reached. The patient must return to Doolin and Shaw after that time before proceeding to the doctor for a final check.
When a customer returns after wearing his lenses for three weeks, Doolin and Shaw follow the same procedures as they do at the end of the other weekly periods. If they are not satisfied with the fluorescein pattern test at that time, they may require the lenses to be worn a little longer before seeing the physician. The early part of the three-week period is the time when problems are most likely to develop. This visit concludes a five-week adaptation period which is the normal time for a person first learning to wear contact lenses. Individuals vary and, if observations indicate it, changes are made to make a proper fit. The person is seen until, in Doolin and Shaw’s opinion, the fit is correct; then he goes to his doctor for the final check.
One more check is made after five months. This is done after the customer has had the final doctor check.
The trial court made 117 specific findings of fact, included within 82 numbered paragraphs and subparagraphs. The plaintiffs have raised an issue with regard to approximately 20 of the court’s findings, claiming they were erroneously made as not being based on substantial competent evidence. The findings of fact objected to are summarized as follows:
In connection with the contact lens fitting procedure, the court found that the refractive power of a contact lens is determined by converting spectacle power provided by a physician into contact lens power by use of standardized charts and formulae; that defendants were sufficiently skilled to distinguish between normal and abnormal adaptive symptoms and between corneal marks caused by a contact lens itself and marks caused by foreign objects; that defendants’ function is to provide comfortably fitting contact lenses and that they are merely technicians who fit contact lenses as the agent of a referring physician according to his direction. The court also found that none of the following acts require professional medical or optometric knowledge, training or judgment or a professional knowledge of physiology, anatomy or pathology; nor do they constitute an examination of the eye to ascertain the presence or absence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises; nor do they constitute in any manner a test or examination of the eye of another to ascertain the refractive muscular or refractive pathological condition thereof:
(a) The use of a keratometer to obtain a measurement of the corneal surface of the human eye.
(b) The use of fluorescein and black light to ascertain the fit of a contact lens to the human eye.
(c) The use of a trial lens as an aid in determining the proper fit of a contact lens to the human eye.
(d) The measurement of the palpebral fissure or lid opening, the visible iris diameter, the pupillary size and tension of the lids.
(e) The conversion of spectacle lens power into contact lens power by the use of standardized charts and formulae.
(f) The teaching of insertion and removal of contact lenses.
(g) The teaching of hygienic practices in the use of contact lenses.
(h) The furnishing of wearing schedules.
(i) The modification of a wearing schedule by reducing the wearing time of the contact lenses.
(/) The modification of a contact lens by changing the peripheral curves thereof.
(k) The modification of a contact lens by changing the diameter of the contact lens.
(l) The elicitation of subjective symptoms of a contact lens customer to ascertain the fit of the contact lens.
The court also found that the acts, procedures, or things done by the defendants do not constitute measuring the refractive power of vision and do not constitute the adaptation of lenses to the human eye. The so-called “lacrimal lens” does not have practical significance in regard to refractive power because it changes constantly as the contact lens moves on the cornea of the eye, and the defendants do not consider any possible refractive power generated by the lacrimal lens. Contact lens fitting is a technical and time-consuming job and there are few medical indications for the wearing of contact lenses. Most contact lenses are prescribed for cosmetic purposes, and thus the physician would not fit contact lenses because his training, experience and time could be better utilized for the treatment of other eye problems. The defendants are technicians engaged in the business of fabricating, fitting, and supplying optical appliances to the wearers thereof and the final determination of the acceptability of optical appliances supplied by the defendants rests with a physician or optometrist. The defendants are opticians and as such are not a licensed profession in Kansas.
George F. Gsell, M. D., testified:
“. . . I’m certified by the American Board of Ophthalmology . . . I am the present president of Kansas Medical Society. I have engaged in practice of ophthalmology 32 years in Wichita.
“I prescribe contact lenses and refer patients to Doolin-Shaw Optical Dispensers for .fitting procedure. . . .
"... I put on the lens prescription their refraction and vertex distance, and state it is permissible to go ahead and do the technical aspects of fitting . . . Plaintiffs’ Exhibit I is form which constitutes my contact lens prescription. The patient is referred to Doolin-Shaw Optical Dispensers for the fitting procedures.
“I know generally the practice or procedures by Doolin and Shaw in the contact lens fitting process . . . They take a keratometer reading and certain measurements of the corneal diameter. They observe the eye. They may or may not put a trial lens on at that time to determine approximate fit. From keratometer readings they may order a preliminary lens, which is received and placed on the patients. They instruct the patient how to insert and remove the lens, explaining the normal sensation the patient will experience. They may instill fluorescein and examine the staining pattern with a light with a blue filter. It may be necessary to modify that particular lens to fit that particular cornea. They may modify that lens by grinding peripheral curves, which is nothing more than smoothing out a lens so it approximates a fit on the cornea. They have the patient wear the lens for a certain length of time, then check for symptoms and how the patient is doing. If the patient seems to be doing well and is comfortable, they have a more or less regular schedule of wearing times they peremit the patients to do. Depending upon how the patient gets along, they may modify that lens and may get another lens. When they finally have a lens which the patient seems to be wearing uncomfortably for a scheduled period of time, they refer that patient back to me. A great percentage of the time they make the appointment for the patient.
“In my opinion, the use of the keratometer to obtain the curvature of the cornea and the measurement of the palpebral fissure, the visible iris diameter, the pupillary size, or the lid tension, does not require a professional medical or optometric judgment, training or knowledge or a professional knowledge of anatomy, physiology or pathology, and does not constitute an examination of the eye to ascertain the presence or absence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises, and does not constitute in any manner a test or examination of the eye of another to ascertain the refractive muscular or pathological condition thereof.
“In my opinion, the use of fluorescein, black light and trial contact lens for that purpose, and the use of certain conversion procedures in converting spectacle lens power to contact lens power, does not require a professional medical or optometric judgment or training or a professional knowledge of anatomy, physiology or pathology; and does not constitute an examination of the eye to ascertain the presence or absence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises; and does not constitute in any manner a test or examination of the eye of another to ascertain the refractive muscular or pathological condition thereof.
“During the fitting procedure, modifications to the lenses might be made by Doolin and Shaw. They teach the patient the insertion and removal of the lenses and the care and handling of the lenses. In my opinion these things do not require a professional medical or optometric knowledge, judgment or training or a professional knowledge of anatomy, physiology or pathology, and do not constitute an examination of the eye to ascertain the presence or absence of defects or abnormal conditions which can be corrected by the use of lenses, prisms or ocular exercises, and do not constitute in any manner a test or examination of the eye of another to ascertain the refractive muscular or pathological condition thereof.
“If a patient comes to Doolin and Shaw with a slight abrasion caused by the contact lens, the patient is advised to remove the contact lens for 24 hours and return, whereupon a check is made; and if a stain or abrasion is still there, the person is referred to the doctor.
“. . . In my opinion, the fitter of the contact lens should not consider the power of the lacrimal lens during the adaptive phase. The lacrimal lens changes frequently during an adaptive period because all factors are changing.
“During the entire fitting procedure, whether a patient is in my presence or whether he is being fitted for contact lenses by Doolin and Shaw outside of my presence, I consider that patient to be my responsibility. . . .
“. . . In my opinion, Doolin and Shaw are qualified to determine the difference between the abnormal and normal conditions. They have had a lot of experience. Doolin and Shaw are competent and qualified fitters of contact lenses. . . .”
The testimony of George F. Gsell, M. D., to the extent it covers the same factual considerations, is supported by the testimony of Albert N. Lemoine, Jr., M. D., Donald O. Howard, M. D., R. D. Weaverling, O. D., Wendell D. Waldie, O. D., and Lloyd P. Warren, M. D. We have carefully examined the testimony of each of these doctors and have no hesitancy in holding that the findings of the trial court were supported by substantial competent evidence.
The plaintiffs complain that the court erred in failing to make findings of fact as requested by them. We have held that a trial court’s failure to make requested findings of fact is of no concern to this court if the findings which were made support the judgment as stated in In re Estate of Pyke, 199 Kan. 1, 427 P. 2d 67, where the court said:
“. . . In reviewing findings of fact of a district court and its refusal to make requested findings, this court does not weigh the evidence and is concerned only with the question whether the findings made are sufficient to support the judgment, and whether there is substantial evidence to support the findings made; it is not concerned with evidence which, if believed, would support contrary findings. (Citing cases.) If, upon review of the record, there is substantial competent evidence to support the findings of the district court, it is beyond the province of this court to disturb the judgment on appeal. . . .” (p.7.)
We have held on many occasions that the findings made by a trial court will not be disturbed on appeal if they are supported by substantial evidence. (Wiley v. Board of Education, 205 Kan. 585, 470 P. 2d 792.)
The plaintiffs also complain that the trial court erred in admitting certain testimony concerning defendants’ qualifications and skill in the fitting of contact lenses. None of the testimony in evidence by plaintiffs was objected to at the trial. Plaintiffs are barred from asserting this point as a grounds for reversal on appeal by virtue of the contemporaneous objection rule. (Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829.) See K. S. A. 60-404.
Having concluded that the trial court’s findings of fact are supported by substantial evidence, we turn to the question of whether or not defendants’ acts, in the fitting of contact lenses, constitute the practice of optometry under the laws of this state. In making this determination we are bound by the findings of fact of the trial court, but we may also consider the testimony of defendant Shaw and defendant Wallace, as to their procedural steps in the fitting of contact lenses.
The trial court made thirty-five conclusions of law, the most important being finding No. 21, which reads:
“The fitting of contact lenses with predetermined optical characteristics, as performed by the defendants, does not constitute the practice of optometry.”
and finding No. 23, which reads:
“The defendants, Doolin, Shaw and Wallace, in the fitting of contact lenses, are operating in the capacity of technicians under the supervision and direction of qualified physicians licensed under the Healing Arts Act and their services are performed under the supervision and by order of or referral from such physicians within the meaning of the provisions of K. S. A. 65-2872 (g).”
K. S. A. 65-1501 (L. 1923, ch. 220, § 1), defines the practice of optometry as follows:
“. . . The examination of the human eye without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms, or ocular exercises and their adaptation for the aid thereof.”
K. S. A. 65-1502 (L. 1923, ch. 220, §2), defines persons deemed to be practitioners of optometry as follows:
“That any person shall be deemed to be practicing optometry within the meaning of this act, who shall in any manner, except as in section 12 [65-1508] of this act; first, display any sign, circular, advertisement or device purporting or offering to in any manner examine eyes, test eyes, fit glasses, or setting himself or herself forth as an optometrist, optician, specialist, eyesight specialist, or refractionist, with intent to induce people to patronize himself, herself or any other person; second, who shall make in any manner a test or examination of the eye or eyes of another to ascertain the refractive muscular or pathological conditions thereof; third, who shall in any manner adapt lenses to the human eye for any purpose, either directly or indirectly.”
K. S. A. 65-1504b (L. 1939, ch. 240, § 6), states:
“It shall be unlawful for any person to dispense an ophthalmic lense or lenses without first having obtained a prescription or order therefor from a duly licensed optometrist, or other person legally permitted to test eyes and fit glasses.”
K. S. A. 65-1508 (L. 1939, ch. 240, § 3), states:
“Nothing in this act shall be construed to prevent regular physicians and surgeons who are registered with the Kansas state board of medical examination and registration, from testing eyes and fitting glasses.”
K. S. A. 65-2872 (L. 1957, ch. 343, § 72), states:
“The practice of the healing arts shall not be construed to include the following classes or persons: . . .
“(g) Persons whose professional services are performed under the supervision or by order of or referral from a practitioner who is licensed under this act.”
K. S. A. 65-2887 (L. 1957, ch. 343, § 87), provides:
“Nothing in this act shall be construed to authorize any person licensed under this act to knowingly perform any act which in any way assists an unlicensed person, firm, association or corporation (a) to make an examination of the eyes for the prescription of glasses, or (b) to perform any of the practice acts for which optometrists are licensed.”
The optometry statutes are a recognition that the practice of optometry is a privilege and is not a natural right of individuals. The optometry law was deemed necessary by the legislature, in the interest of public health, safety, and welfare to provide statutes concerning the granting of that privilege and its use, control, and regulation to the end that the public should be properly protected against unprofessional, unauthorized and unqualified practice of optometry.
There has been no helpful judicial interpretation of our optometry statutes. Decisions in other states are limited. In State Board of Optometry v. Chester, 251 Miss. 250, 169 So. 2d 468, the defendant was an unlicensed optician. The plaintiff was seeking to enjoin him from the unlawful practice of optometry in fitting and adapting contact lenses, with or without a prescription from a physician. The court held:
“As long as dispensing optician fabricates, fits, and inserts contact lenses in eyes in accordance with prescriptions of examining optometrist, ophthalmologist, oculist or physician, and requires patient to return to examining physician in order that writer of prescription may determine whether or not prescription has been properly filled and contact lenses properly measured and fitted, optician is not engaged in practice of optometry.
“As long as optician did what under prescription amounted to no more than mechanical adjustment and fitting of contact lenses under doctor's or optometrist’s supervision and control, he was practicing neither optometry nor medicine.” (Headnotes ¶¶ 1 and 2.)
We cannot discover any material difference between our statute and the Mississippi statute. Likewise, the statement of the facts in Chester are similar, if not identical, to our facts.
In High v. Ridgeway’s Opticians, 258 N. C. 626, 129 S. E. 2d 301, the State Board of Examiners in Optometry for North Carolina brought suit against the defendant optician alleging the optician was practicing optometry in fitting contact lenses.
In North Carolina, both the optometrists and opticians were licensed; however, neither of the licensing statutes directly referred to the fitting of contact lenses. The court observed:
“We think it is apparent from an examination of our statutes defining the practice of optometry and the business of a dispensing optician that the General Assembly has not expressly authorized either the optometrist or the optician to fit contact lenses to the human eye, but that the general terms of the statutes governing both are broad enough to authorize the optometrist to do so and to authorize the dispensing optician to do so upon prescription of a physician, oculist or optometrist.” (p. 629.)
The practice of optometry under the North Carolina statutes (G. S. 90-114) is defined as:
“. . . the employment of any means, other than the use of drugs, medicines, or surgery, for the measurement of the powers of vision and the adaptation of lenses for the aid thereof; . . .” (p.627.)
This definition is similar to the definition of optometry under the Kansas optometry law; yet the North Carolina Supreme Court specifically held this statute did not prevent an optician from fitting contact lenses.
One of the important factors considered in the Ridgeway opinion was the fact that the optician did nothing insofar as determining power of the human eye, and conducted no tests or examinations to determine the refractive power of the human eye. Thus, although the defendant in Ridgeway was fitting contact, lenses, he was found not to be engaged in “the adaptation of lenses” to the human eye.
The court also held that the use of the keratometer was merely technical or mechanical and stated:
“A keratometer (or ophthalmometer) is a mechanical instrument or device used for measuring the curvature of the cornea of the human eye. As we interpret the evidence, its use has no relation whatever to the methods used by medical doctors, oculists or optometrists in the measuring of the powers of vision. . . .” (p. 630.)
Finally, the court held that the fitting of contact lenses by opticians did not constitute the practice of optometry under the North Carolina statutes there involved. The court said:
“. . . In our opinion, so long as the dispensing optician fabricates, fits and inserts contact lenses in the eyes in accordance with the prescriptions of examining physicians or oculists, and requires the patient to return to the examining physician or oculist in order that the writer of the prescription may determine whether or not tire prescription has been properly filled and the contact lenses properly measured, fabricated and fitted, such optician is not engaged in the practice of optometry within the meaning of the statute.” (p. 631).
Plaintiffs contend Ridgeway is distinguishable in that dispensing opticians were licensed in North Carolina, and by statute they were authorized to “measure, adapt, fit and adjust lenses.” The fact the defendant was licensed was not given any significance in the court’s opinion. The effect of the quoted statute was not discussed in the opinion.
In State ex rel Reed v. Kuzirian, 228 Or. 619, 365 P. 2d 1046, 88 A. L. R. 2d 1284 (1961), the court held:
“The evidence does show that defendant may have had a proper function to fulfill when he assisted the doctor in fitting contact lenses within the actual personal supervision of the professional person. That does not mean by telephone or written communication but by direct personal supervision. The modification of the decree urged by the plaintiffs would deprive defendant of ■that function when it might be requested of him by the doctor. We think the decree should be amended so as to read: That except when acting under direct personal supervision of legally qualified personnel, the defendant is enjoined and prohibited from:
“‘{a) Measuring portions of the cornea of any persons whatsoever, and based upon such measurement and his judgment, determining what he deems to be the appropriate size and curvature of contact lenses suitable for use by said person.’” (p. 628.)
The Oregon statute defining the practice of optometry is basically the same as K. S. A. 65-1501. The evidence in this case revealed that there was no fixed pattern as to the division of responsibility between the various doctors and the defendant optician. The Oregon court held, under these circumstances, there should be a more direct personal supervision of this particular optician.
In Ketring v. Sturges, 372 S. W. 2d 104 (Mo. 1963), the court held that the plaintiffs, who filed an action for a declaratory judgment, were engaged in the practice of optometry. The case was tried on an agreed statement of facts on which the court commented:
“One difficulty with appellants’ position that these functions are purely mechanical arises from the agreed statement of facts in the case. As above set out, appellants have agreed that the measurement of the cornea for contact lenses is not a purely mechanical function. They agree that it also involves the exercise of judgment. Likewise, the stipulation regarding the problems and factors involved in the fitting and adjustment of contact lenses shows that these procedures are not purely mechanical.” (pp. Ill, 112.)
The factual determinations by the trial court in this case are contrary to the agreed statement in Ketring; therefore, its value as a precedent is questionable.
In Fields v. District of Columbia, 232 A. 2d 300 (Dist. Col. Ct. App. 1967), the defendant was charged with unlicensed practice of optometry and after conviction he appealed. The fitting process, as related in the opinion, appears to be the same as in this case. The court reviewed all the optometry cases cited herein and said:
“. . . Even assuming that the keratometer is a measuring and not a diagnostic instrument, appellant went beyond simple measurement of the patient’s eyes and requesting of lenses on the bases of those measurements. It was at this point that he began to adapt lenses to her eyes. Judgments had to be made for the fit of the lenses beyond the areas measured by the instrument; changes were made in their base curvatures for the purpose of fit; changes were made in their powers as based upon his deviations from the instrument’s exact readings; the sizes and optical zones of the lenses had to be judged; and the placing of curves in the lenses for the purpose of comfort (not power) had to be determined. Further, appellant inserted a colored dye into the eyes to observe tear patterns and thereby the position and effect of the lenses upon the eyes. Changes in the lenses would be based upon such observations. Without repeating the entire procedure by which appellant fitted the patient’s lenses, it is clear that this involved areas of judgment and skill necessary to the adaptation of lenses within the meaning of our optometry statute.
“The wording and purpose of our optometry statute convince us that the fitting of contact leases by the appellant was the adaptation of lenses within the meaning of that provision. Appellant’s contention that he would have referred the patient back to the prescribing doctor does not excuse his practice of optometry at the time of fitting.” (pp. 304, 306.)
The specific acts of the defendants which the plaintiffs contend constitute a violation of the statutory definition of optometry are as follows:
1. They determine the correct lens prescription and in so doing they determine the refractive error in the eye.
2. They make examinations to determine the pathological condition of the eye.
3. They adapt lenses to the eye.
The trial court made findings of fact contrary to the plaintiffs’ contentions. We believe, however, that on these points the findings were actually conclusions of law. As conclusions of law they are reviewable on appeal limited only by the findings of the trial court specifically identifiable as fact. (McMichael v. Land Co., 104 Kan. 778, 180 Pac. 777.)
We first consider whether the defendants prescribe lenses to correct refractive errors. Refraction is the deviation of light passing obliquely from one medium to another of different density. As this relates to the human eye it is the process by which light rays come to focus on the retina. A “refraction,” optometrically speaking, is taken to determine if such a focusing does take place and, if it does not, the “refraction” reveals the degree of error.
The historic function of the optometrist was refracting the human eye to determine the refractive error, if any, and to prescribe or adapt a lens to correct that error. Refraction, as herein explained, is not the function of the defendants. Refraction is solely determined by the physician in the prescription delivered to the defendants. The prescription used by the defendants in ordering contact lenses does not determine refractive error in the eyes except as determined by physicians and as modified by the use of charts and formulae approved by the physicians for use by defendants.
Plaintiffs argue that since defendants must determine the base curve, this affects the amount of tears under the contact lens which in turn may affect the power. Defendants maintain they do not take into consideration any power generated by the lacrimal lens, and there is substantial evidence to support the finding of the trial court to this effect.
Plaintiffs contend the defendants examine eyes for pathological conditions. This argument is based upon the use of the fluorescein pattern test. Although this test may result in disclosing pathological conditions of the eye, such as stippling, dimpling, or abrasion, the basic purpose of the test is to determine the fit; particularly, whether or not the contact lens is floating on the cornea or is touching the cornea. If, in the process of testing the fit by the use of this test, abnormal conditions are discovered, the patient is directed back to his physician. The pathological conditions are the responsibility of the physician, not the defendants.
Finally, plaintiffs contend that the defendants in the fitting process are “adapting” lenses to the human eye. Plaintiffs argue that the three criteria of a good fit are: (1) That lenses provide good vision, (2) that they fit comfortably, and (3) that they cause no damage, and that defendants resolve at least two of the three. Defendants strive to provide lenses that fit comfortably and cause no damage. In one sense, this could be construed to mean “adaptation” as used in the statute. The statute, however, is aimed at correcting “defects or abnormal conditions” by use of lenses. The use of the word “adaptation” must be construed in connection with the intent of the statute. In this light, “adaptation” does not refer to the fitting process, but to the correction of refractive errors caused by “defects or abnormal conditions.” These are the responsibility of the physician. The defendants do not “adapt” the lenses by determining that certain optical qualities are needed to correct refractive error.
The use of technicians to assist medical doctors is a long-standing practice. Nurses, nurses’ aides, physical therapists, X-ray technicians, laboratory technicians, prosthesis technicians, and fitters of artificial eyes are examples of the use of ancillary technicians. The right of referral by physicians is recognized by K. S. A. 65-2872 (g).
We conclude, as a matter of law, that the acts of the defendants in the contact lens fitting process, do not result in determining refractive errors, or in examining eyes for pathological conditions, or in adapting lenses within the meaning of the statutes of this state.
Our construction of the optometry statutes with reference to the contentions made by the plaintiffs is in accord with the reasoning in Chester and Ridgeway. Our conclusions, in harmony with these decisions, are influenced by the similarity of the facts and statutes involved in each of these cases with the facts and statutes involved in this case. Notwithstanding the fact we have approved and followed the rationale of Chester and Ridgeway, we cannot say these cases establish a “weight of authority” in view of the limited judicial expressions. We realize our conclusions are contrary to the Fields case. We are also in conflict with the Ketring case and the Kuzirian case, although we have pointed out distinguishing features in these two cases.
Dr. Gsell, Dr. Lemoine, Dr. Howard, and Dr. Warren each testified that they considered the patient to be their responsibility throughout the fitting process. We consider this testimony a factor in support of our conclusions beyond the reasoning in Chester and Ridgeway.
The determination of the issues herein is limited to the activities of these particular defendants as factually found by the trial court. The status of other dispensing opticians as to their compliance with the optometry laws of this state must be determined on an individual basis.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This appeal arises out of a controversy over the existence of a fire insurance policy and the beneficiaries thereunder.
The facts are not in serious dispute.
The plaintiffs, E. R. Pattison, and his wife Arlie W. Pattison, purchased a dwelling located at 108 Widigan Road in Topeka. The property was covered by a note and mortgage held by Capitol Federal Savings & Loan Association (Capitol Federal) in the amount of $18,000, which the Pattisons assumed and agreed to pay. As a part of the transaction, a policy of insurance was obtained from the State Farm Fire & Casualty Company (State Farm) in the amount of $19,000, covering the building, unscheduled personal property in the amount of $7,600, and additional living expenses in case of damages to the real estate in the amount of $3,600. There was also extensive personal liability coverage in the amount of $25,000, and medical damage and physical damage to the property of others.
The policy also had a loss payable clause in favor of the mortgagee, Capitol Federal. The effective date of the policy was April 1, 1966, and carried an endorsement designating it to be a “continuous renewal plan,” subject to cancellation for default in the annual premium payments only after ten days written notice. No contention is now made by any of the parties to this litigation that the insurance policy was not in full force and effect at all material times here involved.
The Pattisons defaulted on their payments under the note and mortgage, and Capitol Federal commenced foreclosure proceedings. A judgment of foreclosure was entered and a foreclosure sale was had at which Capitol Federal purchased the property for the sum of $18,384.81, of which $60.80 was in cash and the balance was the receipt of the judgment of $18,080.31, plus interest to the date of the sale. The foreclosure sale was confirmed by the district court on March 13, 1968, and the Pattisons were granted a six month redemption period from March 7, 1968, the date of the sale.
On April 1, 1968, the date the next premium was due, the State Farm insurance policy was returned to the agent of State Farm by an employee acting on behalf of Capitol Federal, accompanied by a request to cancel the policy as of April 1, 1968. This was done without the knowledge or consent of the Pattisons. On April 1, 1968, Capitol Federal also obtained an insurance policy on the property in controversy from Kansas City Fire & Marine Insurance Company with coverage in the amount of $19,000. On April 11, 1968, State Farm sent a letter to the Pattisons, stating:
“This letter acknowledges your resquest to cancel the above policy. The cancellation has been made, effective April 1, 1968.”
The letter was signed by the underwriter for State Farm.
At the trial, the Pattisons testified they had never received the letter and had not seen a copy until it was shown to them after the fire.
The Pattisons remained in possession of the premises under their equity of redemption. On April 23, 1968, a fire occurred which resulted in extensive damage to the property. The Pattisons called the agent of State Farm who informed them they had no insurance. They then went to their attorney who immediately tendered a premium payment which was refused by State Farm. The Pattisons then brought an action against State Farm and Capitol Federal.
The district court first proceeded to try the issue of liability. The issue as to the damages recoverable in the event plaintiffs should prevail, was reserved for a later determination. The district court’s statement of the contentions of the parties reads:
“The plaintiffs contend that the defendant Capitol Federal ordered the cancellation of the policy of insurance without notice to or authority of the plaintiffs and that the defendant State Farm’s cancellation of the policy upon the request of Capitol Federal without any authority from the plaintiffs, as owner of the policy, was not an effective cancellation. The plaintiffs further allege and contend that as a result of the fire the house was damaged in the amount of $12,730.52 and that they suffered personal property loss in the amount of $4,919. The plaintiffs further contend in this case that the State Farm Insurance Company has breached its duty by its refusal to recognize the existence of the insurance policy and to make payments thereunder and that the defendant Capitol Federal by its unauthorized order of cancellation breached its duty toward the plaintiffs and is liable to them the same as an insurer. Plaintiffs further contend that they are entitled to attorneys fees in accordance with K. S. A. 40-256 and 40-908.
“The defendant Capitol Federal contends that as the holder of the certificate of purchase after the sheriff’s sale it had a right to request cancellation of the policy of insurance since the interest of the Pattisons, the mortgagors, had been extinguished by the foreclosure sale. It denies that it breached any duty owed to the Pattisons to provide insurance coverage during the period of redemption.
“The defendant State Farm admits that it cancelled the policy at the request of Capitol Federal but that it was -within the knowledge of the plaintiffs that the policy was being cancelled and that notice of cancellation was mailed to the plaintiffs by State Farm.”
The district court stated the issues and its conclusions thereon in substance as follows:
1. The State Farm insurance policy was in effect during the redemption period after the foreclosure sale which occurred on March 7, 1968, unless it was cancelled in accordance with its provisions — the mortgagor continues to have an insurable interest in the mortgaged property after foreclosure and sale of the property until the expiration of the period of redemption.
2. State Farm did not have the right to cancel the policy of in surance at the request of Capitol Federal, without the consent of the Pattisons.
3. The State Farm insurance policy involved here was not properly cancelled prior to the date of the fire on April 23, 1968, and was therefore in full force and effect on the date when the fire occurred.
Following the court’s judgment on the issue of liability, Capitol Federal filed a cross-claim against State Farm claiming the proceeds of the policy by reason of the fire which destroyed the dwelling.
The district court then proceeded to determine the loss occurring under the policy and the claim of Capitol Federal to the proceeds from the insurance policy for damages to the real estate. It concluded:
“The Court incorporates herein the Statement of Facts and Conclusions of Law contained in the memorandum decision of October 22, 1969. On the basis of the entire record before the Court the Court finds that the fire loss suffered by plaintiffs to their personal property amounted to the sum of $3,000.00 and further that they suffered damages in the amount of $600.00 because of increased living expenses. The Court further finds that the damage to the real property resulting from the fire was in the amount of $10,000.00.
“Assuming an effective policy at the time of the fire there is no question that the plaintiffs alone are entitled to judgment for loss of the personal property and increased living expenses against the defendant State Farm in the total amount of $3,600.00. The most difficult issue in this case concerns the claim of Capitol Federal to the proceeds from the insurance policy for the fire damage to the real estate in the amount of $10,000.00. The Court has concluded that under tire peculiar facts and circumstances of this case the plaintiffs alone are entitled to the full amount of the $10,000.00 . . .”
The defendants, State Farm and Capitol Federal, have appealed. Although the two appellants have filed separate briefs, their main contentions overlap and may be considered together. It should here be noted that State Farm denies liability under the policy, but states that if it is liable thereunder, the proceeds should be paid to Capitol Federal.
Capitol Federal concedes that its points on appeal sum up the question, “Should the Pattisons or Capitol Federal be awarded the $10,000.00 for damages to the house?”
State Farm contends that only the mortgagee, the purchaser at the foreclosure sale, had a claim to the proceeds, and further, that as purchaser, Capitol Federal was not entitled to recover because of its wrongful conduct in requesting cancellation of the policy.
We first turn to Capitol Federal’s contention of its right to recover the proceeds of the policy.
Under the facts in this case, it would serve no useful purpose to engage in a lengthy discussion as to the right generally of a mortgagee and purchaser at a foreclosure sale to participate in the proceeds of a fire insurance policy, such as here under consideration. The question in this case must be determined on the particular facts involved. On the question of the right of Capitol Federal to the damages to the building from the proceeds of State Farm’s policy, the district court stated, in part:
“In the instant case there is no dispute that the defendant Capitol Federal, acting through its employee Mrs. Elaine Nash returned the State Farm policy to the State Farm agent and requested that the policy be cancelled as of April 1, 1968. Clearly Capitol Federal intended to waive whatever rights it might have under the policy either as mortgagee or as purchaser at the foreclosure sale. It was stipulated at the time of the trial that Capitol Federal purchased its own insurance coverage from the Glens Falls Insurance Company [Kansas City Fire & Marine Insurance Company] in the total amount of $19,000.00 after it attempted to cancel the State Farm policy and that this new policy was in force and effect as of April 23, 1968, the date of the fire. It was further stipulated that Capitol Federal received the sum of $6,250.00 from Glens Falls Insurance Company under its policy and that later it sold the property in the damaged condition for $15,000.00. It has further been stipulated that the property was never redeemed by the Pattisons. As pointed out heretofore, as purchaser at the sale Capitol Federal is entitled to keep the full proceeds of its insurance policy as purchaser at the foreclosure sale and the proceeds of that sale did not accrue in any way to the benefit of the Pattisons as owners of the equity of redemption. Deming v. Dickerman, supra.”
# # * * #
“Capitol Federal asserts a right to the proceeds of the State Farm Insurance policy by virtue of a provision in the original promissory note and mortgage signed by the original mortgators John F. Shumaker and JoAnn E. Shumaker which provided that ‘In the event of foreclosure of the mortgage securing this note, all right, title and interest of the undersigned in and to the insurance policies then in force shall pass to the purchaser.’ The evidence is undisputed in this case that after the foreclosure sale Capitol Federal wrongfully directed the cancellation of the policy and State Farm cancelled the policy without giving proper notice to the Pattisons as required hy the policy. Under these circumstances it would be manifest injustice to permit Capitol Federal to wrongfully take such steps and obtain its own insurance and then claim the benefit of both policies. It should be emphasized that as a result of Capitol Federal’s attempt to cancel the policy and State Farm’s wrongful cancellation of the same, the Pattisons were put in a position of being unable to redeem their home. Since they were unable to obtain the proceeds of the policy they were unable to obtain other financial assistance from other lending agencies to make it possible for them to redeem. Because of the wrongful attempt at cancellation of the policy it was the Pattisons who have been the ultimate losers in this case up to the present time. Capitol Federal Savings and Loan has been fully compensated for any loan it may have had on the property and in fact as shown by the evidence has received a total of $21,250.00 from the sale of the damaged property and from the insurance proceeds from Glens Falls Insurance Company. It simply cannot be a fair application of the law in this case to permit Capitol Federal now to collect the additional sum of $10,000.00 from State Farm Fire and Casualty Company under its policy issued to the plaintiffs.” (Emphasis supplied.)
The facts as noted by the district court are not in dispute and under such facts, we agree with its conclusion that Capitol Federal had the right to cancel, or abandon its rights, if any, as mortgagee, or as purchaser at the foreclosure sale, under the State Farm policy issued to the Pattisons, and take out new insurance covering its insurable interest in the property to the extent of the indebtedness, which it did. Capitol Federal recovered $6,250 from its insurer, the Kansas City Fire & Marine Insurance Company. It also received $15,000 from the sale of the property, or a total of $21,250 to cover its $18,000 mortgage. We can find no logical reason for giving Capitol Federal another $10,000 from the insurance policy covering the mortgagors’ interest, which it wrongfully attempted to cancel.
The district court referred to the conduct of Capitol Federal as a waiver of its right to participate in the proceeds from the State Farm policy. Whether the principle is described as equitable estoppel, quasi-estoppel, waiver, ratification, election, or as a requirement of consistency of conduct, is not very important. However Capitol Federal’s conduct is to be designated, it operates as a bar against its recovery in this case. (Nogrady v. Fourth National Bank, 136 Kan. 43, 12 P. 2d 787.)
In Browning v. Lefevre, 191 Kan. 397, 381 P. 2d 524, this court held:
“The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.” (Syl. ¶ 2.)
In Bowen, Administrator v. Lewis, 198 Kan. 706, 426 P. 2d 244, this court said:
“There are certain principles recognized which are analogous to the doctrine of estoppel and which are sometimes described as quasi-estoppel. There the conscience of a court is repelled by the assertion of rights inconsistent with a litigant’s past conduct. (Graybar Electric Company v. McClave, 91 Ariz. 223, 371 P. 2d 350; 3 A. L. R. 3d 750.)” (l. c. 712.)
See, also, Bank v. Jesch, 99 Kan. 797, 800, 163 Pac. 150, and Wilson v. Stephenson, 143 Kan. 91, 96, 97, 53 P. 2d 874.
We now turn to State Farm’s argument that,
“Plaintiffs were not entitled to recover for Are damage to the house which occurred during the period of redemption after the mortgage foreclosure sale for the reason that plaintiffs held only the bare title to the property in trust for the purchaser at the sale subject to plaintiffs’ right of redemption. . . .”
The statement relied on is not a correct statement of the law. It is well settled that the mortgagor is entitled to rents and profits accruing during the period of redemption (Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 397 P. 2d 360; Topeka Savings Association v. Beck, 199 Kan. 272, 428 P. 2d 779), and that a mortgagor and mortgagee may each separately insure his own distinct interest in the property. In New Hampshire Ins. Co. v. American Employers Ins. Co., 208 Kan. 532, 492 P. 2d 1322, it was said:
“It is well settled that a mortgagor and mortgagee have separate and distinct interests in the same property which each may insure (4 Appleman, Insurance Law and Practice, §2186; 3 Couch on Insurance, 2d, §23:35).” (1. c. 535.)
We conclude the mortgagor has an insurable interest after the foreclosure sale and during the period of redemption, which terminates with the expiration of such right — if the mortgaged property should be damaged during the period of redemption, the mortgagors’ equity of redemption might well be destroyed.
In 3 Couch on Insurance 2d, § 24:70, p. 155, the rule is stated as follows:
“The insurable interest which a mortgagor has at the time a policy is issued continues beyond default and the beginning of a foreclosure proceeding and after the mortgage foreclosure sale and during the redemption period. . . . While the right in equity to redeem the mortgaged premises exists, the mortgagor retains his insurable interest therein, even though there has been a judgment or decree of foreclosure; this, because he has an interest in the preservation of the property, since the destruction thereof would lessen the value of his equity of redemption.”
The same rule is stated in 4 Appleman, Insurance Law and Practice, §2187, pp. 107-109, as follows:
“A mortgagor may insure his equitable interest in the property, even though the instrument intended as a mortgage were in form an absolute deed. This is particularly true where the mortgagor is in possession and prior to default, but such insurable interest is held to- exist even after foreclosure is begun.
“This must, of necessity, be the rule, since the majority of courts have regarded the mortgagor’s right to redeem as an insurable interest of itself. Nor is such insurable interest lost until the period of redemption has expired. And such insurable interest during the redemption period is for the full value of the property.”
See, also, Carpenter v. Providence Washington Insurance Company, 41 U. S. 495, 10 L. Ed. 1044.
As indicated, there are two separate interests in the same property to be protected. The holder of the certificate of purchase wants the property insured to protect his investment during the period of redemption. The mortgagor wants the property kept intact during the period of redemption in order that it be worthy of redemption. These interests may be insured severally, or jointly.
The district court entered judgment in favor of the Pattisons and against State Farm for $3,000 damages to personal property, $600 for additional living expense, $10,000 for damages to real estate, and $4,750 attorney fees.
State Farm has appealed only from the judgment allowing the Pattisons to recover $10,000 for damages to real estate, and from the allowance of attorney fees. It contends the district court erroneously allowed $10,000 damages to real estate, based upon the inability of the Pattisons to redeem the property because of State Farm’s wrongful cancellation of the policy. Its main contention in this point is that there was no evidence to support the following finding and conclusion of the district court:
". . . It should be emphasized that as a result of Capitol Federal’s attempt to cancel the policy and State Farm’s wrongful cancellation of the same, the Pattisons were put in a position of being unable to redeem their home. Since they were unable to obtain the proceeds of the policy they were unable to obtain other financial assistance from other lending agencies to make it possible for them to redeem . . .”
E. R. Pattison testified that after the foreclosure proceedings, he put panelling on the inside of the house because he wanted to get a new loan. The foreclosure proceedings were admitted in evidence. They disclosed that appellees filed a motion to extend their redemption period based on their inability to redeem because of the fire and the controversy over the insurance. We cannot say that there was no evidence to support the district court’s finding.
What has been said disposes of the controversy over the allowance of attorney fees.
A careful examination of the record discloses no trial errors which would justify a reversal of the judgment, or require the granting of a new trial.
The judgment is affirmed.
Prager, J., not participating.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order terminating child support payments for two minor children, ages 9 and 7 years.
A divorce was granted and custody of the two children was awarded to the plaintiff mother on April 29, 1969. At that time the defendant father was ordered to pay $200 each month to support his two sons. On November 4, 1970, the father filed a motion asking for an order reducing the amount. He had suffered an illness and a reduction in income. On December 9, 1970, after hearing the motion, the district judge terminated all child support payments until further order.
On appeal the mother asserts the trial court abused its discretion in terminating the child support payments since the mother’s earnings were insufficient to support herself and the minor children, and the father was both willing and able to pay $25 a week for child support.
At the time of the divorce the parties were in modest circumstances. The father was an engineer earning $800 to $1,000 per month. The mother was awarded the residence and household goods and was ordered to pay outstanding mortgages. In addition she received an automobile and garden equipment, together with her personal clothing and effects. The father received the balance of property consisting of an automobile, camper trailer, utility trailer, power tools, stereo, adding machine and clock radio, together with his books, clothing and personal effects. No alimony was ordered.
When the motion to reduce support payments was heard, a substantial change in circumstances had occurred. The father had been released from the Lamed State Hospital but was still under a doctor’s care because of mental health. He no longer was employed as an engineer. He was employed as a farm hand and was earning approximately $60 per week in take home pay.
The mother was teaching school and earned $340 per month. The mortgage payments on the residence amounted to $130 per month, leaving a net figure of $210 per month with which to support herself and two minor children.
On the hearing of the motion the attorney for the father stipulated in open court as follows:
“. . . If the fact was known he [the father] has no money for support. He is willing and can, he thinks, pay twenty-five dollars a week for these children or one hundred dollars a month. We realize that is a reduction of one-half support to the plaintiff and these two children, but he simply can’t stay out of contempt otherwise, your Honor, with the present set of facts.
“We are asking the support be reduced to twenty-five dollars a week and hope he can comply. This will depend on future medical problems and what his doctor thinks should be done with him.
“I know Mrs. Wilson — we have been friends for a number of years. I think she is employed and I don’t even know if this is objectionable to her. We will just have to hear from that side of it.”
Mrs. Wilson objected to any reduction in the support payments. It was then stated by counsel for the father that the grandparents had borrowed the money to comply with the $200 per month support order and that they could no longer borrow money for that purpose. The father stated he was not disabled and was capable of working but could not pay $200 per month at that time.
Thereupon the trial judge ruled from the bench that support payments be terminated until the father becomes gainfully employed. The term “gainfully employed” was not further delineated by the judge.
We are aware of the rule that on appellate review the order of a trial court determining the amount of child support should not be disturbed absent a showing of manifest abuse of discretion. (Thompson v. Thompson, 205 Kan. 630, Syl. ¶ 1, 470 P. 2d 787.) However, judicial discretion is not without limitation for it implies action after a fair judicial consideration of the applicable law, an examination of the evidence and the application of the law to the facts found. Although discretion is the freedom to act according to judgment its exercise should be reasonable and not arbitrary. (See State v. Foren, 78 Kan. 654, 658, 97 Pac. 791, and Thompson v. Thompson, supra.) It is generally understood that although the mother and others may be supporting the children this does not suspend the obligation of the father to support his children to the extent possible in view of his income and property. (See 1 A. L. R. 3d 324, 346, and Thompson v. Thompson, supra.)
On the basis of the evidence in this record the defendant father was earning $60 per week in take home pay. He had some prospects for a higher paying job. Through his attorney the court was advised that he was willing to pay $25 per week toward the support of his children. Neither in his motion nor during the hearing did he request that support payments be terminated entirely.
We are forced to> conclude that at the hearing on the motion to reduce child support payments there was not the careful and conscientious consideration of all material factors malting it possible for the trial court to exercise sound judicial discretion in the premises. Under the facts and circumstances disclosed by the record the trial court abused its discretion in terminating child support payments entirely. The trial court’s order is reversed.
Approximately a year and a half have expired since the order terminating support was entered. We did not have the benefit of oral arguments on appeal. We are not aware of possible changes in the facts and circumstances of the parties. As stated in Thompson v. Thompson, supra, we know of no case, and appellant has cited none, in which this court has fixed the amount of support for minor children. Such an order is subject to change by the district court. The enforcement of such an order necessarily must rest with the district court.
The order of the district court terminating all child support payments on December 9, 1970, is reversed. The case is remanded to the Administrative Judge of the Eighteenth Judicial District of Kansas with directions to assign the case to a different division of the court for further proceedings as soon as compatible with due process and proper procedure.
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The opinion of the court was delivered by
Prager, J.:
The appellant Edna Edwards, Jr. was convicted of grand larceny of a Sony portable television set from a pawnshop. The record discloses that on February 28, 1970, at shortly past 11 a. m., the appellant walked into the 21st Street Pawnshop in Wichita. Jerry King, manager of the pawnshop, testified that on the day in question he observed appellant walk up to the front of the pawnshop, lay down a typewriter, wrap the electric cord around a television set, put it under his coat and leave the store. After appellant left the building King went outside, locked the door and went around to the parking lot where he observed appellant drive off in a blue-and-white Buick going north on Market street. There was another man driving the car. A customer obtained the license number of the car. King returned to the store, called the police and gave them a description of the automobile, a description of the property taken and also a description of the thief. The police stopped the vehicle and arrested appellant and John Patton. Appellant was charged with grand larceny (K. S. A. 21-533). He waived a jury and was tried and convicted by the court. He brought a timely appeal to this court.
Appellant’s first point on this appeal is that the state failed to sustain its burden of proof as to the value of the television set. Proof of a value of $50 or more was necessary in order to sustain a conviction of the offense of grand larceny. In regard to the value of the television set taken Jerry King testified that he had been manager of the 21st Street Pawnshop for a period of about two years. Prior to that time he had had experience working for himself, buying and selling television sets. The television set taken in the case at bar was admitted into evidence as state’s exhibit No. 1. Jerry King identified the set and described its features with particularity. He testified that over the past two years he had taken in three or four television sets each day at the pawnshop and that he usually sells from one to five television sets per week. He testified that he was acquainted with the fair market value of television sets and that $69.95 would be the fair market value for the television set identified as state’s exhibit No. 1. It is obvious that Jerry King was qualified to testify as an expert from his experience as a dealer in used television sets. His opinion was properly received into evidence to be considered by the court. This evidence was sufficient for the court to find that the value of the television set taken in this case was of a value of $50 or more which would make the offense grand larceny.
Appellant’s next point is that the trial court erred in permitting Detective Alvin J. Thimmesch to testify after he was specifically allowed to remain in the courtroom and hear all the testimony of other witnesses and after a request had been made by the appellant and granted by the court that all witnesses be excluded from the courtroom while other witnesses were testifying. It is clear from the record that Detective Thimmesch did not testify on the state’s case in chief but was permitted to testify only on rebuttal after appellant had testified. After the appellant moved to sequester the witnesses, the state informed the trial court that it did not contemplate utilizing Detective Thimmesch as a witness. It became necessary to use his testimony only after appellant had testified. It is the rule in this state that violation of a court’s order for separation of witnesses does not disqualify a witness from testifying in the case, and the court, within its discretion, may admit his testimony. (State v. Henderson, 205 Kan. 231, 468 P. 2d 136; State v. Smit, 184 Kan. 582, 337, P. 2d 680). Under tire circumstances here we hold that the trial court did not abuse its discretion in permitting Detective Thimmesch to testify on rebuttal.
The appellant’s last point is that the trial court erred in reviewing the written report of Detective Thimmesch in its entirety and in not permitting the appellant to fully examine the entire report before proceeding with cross-examination of Detective Thimmesch. On direct examination Detective Thimmesch testified only in regard to his conversation with the appellant. After direct examination was completed appellant moved for production of the detective’s report which he prepared after his conversation with appellant. The state objected to the state being compelled to disclose the report. The court required disclosure only of those portions of the report pertaining to appellant’s testimony and refused to require the state to disclose the balance of the report. In order to accomplish this the court examined the report in camera as provided by K. S. A. 1971 Supp. 22-3213 ( 3) and required that certain portions be disclosed. The report in its entirety is included in the record on this appeal.
The thrust of appellant’s argument is that the district court as the trier of facts sitting without a jury considered the contents of the entire report which did include portions not admitted into evidence and therefore he must have considered the contents of the entire report from the simple fact that he read it. Appellant expresses the fear that the court as trier of the facts was influenced by something in the report or by the way it was written. We have examined the full report of Detective Thimmesch and find nothing in it that would in any way be prejudicial in view of the direct evidence of guilt presented in this case on behalf of the state. We also are faced with a situation where there is nothing in the record which shows which portions of the report were furnished appellant’s counsel and which portions were withheld. Furthermore, after the court examined the report in camera, there is no evidence to show that the trial court considered the excepted portions (whatever they were) in arriving at its finding of guilty in this case. Under all the circumstances we find appellant’s contention without merit and not a valid basis for a reversal.
Since we find no error in the trial of appellant in the district court, the judgment is affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
This is an action for specific performance, brought by plaintiff in error as holder by assignment of a bond for the conveyance of a tract of land. The cause was tried by the court. The finding is general, for the defendant. A motion for a new trial was overruled, and the case comes to this court for review upon all the evidence. The bond of itself was sufficient to entitle the plaintiff to the relief sought; but the evidence showed that the bond had never been delivered. The land was sold for $350. Of this amount $175 were to be paid at the time of the making the bond, but the purchaser, not being able to raise all the money, the bond was left with a disinterested party to be retained by him until the $75 of the first payment should be paid. This money has never been paid; but Schull, to whom the bond was made, fraudulently obtained possession of it, and assigned the same to plaintiff in error. The bond is non-negotiable, and never was delivered. It was an escrow; and as a necessary consequence until delivered according to condition, or the condition is performed, it is not in law the bond of the party making it, and is, as to the obligee, and his assigns, a nullity, giving neither title in equity, nor a right of action against the obligor.
Some time after Roberts obtained possession of the land, Mullenix offered if Roberts would pay for the land, that he would make him a deed for the land. This offer was rejected upon the alleged ground that at the time Mullenix could not make a good title. Whether the title was good or not, does not appear; nor does it matter. It was not a ratification, as it was in terms just what he had agreed to do, and was rejected. It was no act. It was an offer to stand by his agreement, though not bound by law to do so. The offer refused by plaintiff' in error cannot now become the evidence of a right in him. This conclusion on this point decides the case, and renders it unnecessary to examine the other points urged in the elaborate brief of plaintiff' in error.
Though we think it plain that the contract between Schull, the obligee in the bond, and Mullenix, was rescinded, and that Roberts probably knew of it when he bought the bond, there is no ground for the application of the occupy in g-claimant law, as it does not appear that plaintiff in error is disturbed in his possession. The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
William R. Pye recovered a judgment and decree of foreclosure against James Walsh and Alfred G» Otis. Pye then caused an order of sale to be issued on said judgment and placed in the hands of the sheriff of Nemaha county. Under this order of sale the property decreed to be sold was sold to A. K. Moore.' Pye then moved the court to set aside said sale on various grounds. The court below granted the motion. The defendants below and Moore excepted to the ruling of the court, and now the defendants below and Moore seek to have the order of the court below setting aside said sale reversed. The counsel for Moore only files a brief and makes an argument for the plaintiffs in error in this court.
The plaintiff in an action has no right to have a sheriff’s sale set aside against the objections of the other parties interested in such sale except for some good and sufficient reason. While the district court may in many cases be clothed with some judicial discretion in confirming or setting aside a sheriff’s sale, yet, where the district court sets aside a sheriff’s sale, on motion t ^ 0f $ie p^uti^ and against the objections of the other parties interested therein, without any sufficient reason therefor, the order of the district court, setting aside the sale, Avill be reversed by the supreme court on petition in error.
The motion in this case ivas heard on affidavits. No oral testimony Avas introduced. Hence this court can examine the evidence and Aveigh it just as intelligently as the court beloAV could. And Avhile in such a case, if the evidence should be found to be conflicting and contradictory this court would not reverse' the order of the district-court if it Avere founded upon such evidence unless the order should clearly appear to be against the Aveight or preponderance of the evidence, yet, if the order should be founded upon such evidence and should clearly appear to be against the weight and preponderance of the evidence, this court would reverse the order for that reason alone. (See in this connection Armstrong v. Grant, 7 Kas., 297; K. P. Rly. Co. v. Butts, 7 Kas., 316, in support of this view; and contra, Waltire v. Carriger, 5 Kas., 672.) The decision of this last proposition disposes of the most of the remaining questions. The other questions are mostly questions of fact. And as the evidence with regard to nearly all the facts clearly and unmistakably preponderates in favor of .the plaintiffs in error, the supreme court must find such of the facts in their favor. The evidence clearly shows that Moore was a bona ficle purchaser at said sheriff’s sale; that he knew nothing of any instructions having been given by plaintiff’s counsel to the sheriff; that the sale was made at the time and place mentioned in the notice of sale; that the sale was conducted strictly in accordance with law; that the property was sold for more than .two-thirds of its appraised value; and that the purchase-money was duly-paid by the purchaser to the sheriff. In fact, everything connected with the sale seems to have been fair and regular. But there are two other questions requiring consideration: It is claimed by the defendant in error that the sale was rightfully set aside because a copy of the return of the appraisers was not filed in the clerk’s office before the sheriff _ _ . commenced to publish notice> of the sale. The notice was commenced to be published just seven days before the sheriff filed said return with the clerk. Sec. 554, of the civil code reads as follows: ‘‘
“Sec. 554. The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and advertise and sell such property,, agreeably to the provisions of this article.” (Gen. Stat., 716.)
It is claimed by the defendant in error that under this section the sheriff must deposit a copy of the appraisers’ return with the clerk before he can commence to advertise the property for sale. The section does not say so, and it does not mean so. It says that both shall be done forthwith,. and not that one shall be'done before the other. In this case the property was appraised on- the 1st of December 1871. The sheriff commenced to advertise the sale on the same day. He should also under said section have filed a copy of the appraisement with the clerk on the same day. But he neglected to do so, and did not file it until seven days afterward. The sale was advertised to be made, and was made, on January 2d 1872. Hence twenty-five days elapsed from the time of filing said return of the appraisement until the sale was made. This was certainly sufficient for any one who wished to bid at the sale, to ascertain what the appraisement was. Ordinarily, if a sheriff should do his duty, he would file the return of the appraisement before commencing to advertise the sale, for ordinarily he would be able to file the return on the same day that he received it; but he could not commence to advertise so soon, for ordinarily the newspaper in which he should wish to publish the advertisement would not be published on that day. This however would not always be so. It would sometimes happen that he could and would commence the publication of the notice first. If a sheriff' should receive an execution from another county he would probably commence the publication first, for generally he could do so before he would be able to deposit a copy of the return of the appraisement “with the clerk of the court from which the writ issued.” The whole of §454, is probably merely directory. For, although said section positively requires that the officer who has the writ, shall advertise and sell the property levied on, or ordered to be sold, agree.ably to the provisions of the article concerning executions, yet the legislature have unmistakably shown that they did not consider said section of itself sufficient to authorize the • court to set aside a sheriff’s sale for want of the proper .advertisement; and for that reason they enacted the following provision found in §457 of the same article, to-wit: “All ; sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable.” v(Gen. Stat., 717.) We do not think that the court below should have set aside the sale simply because the sheriff did not file the copy of the appraisement with the clerk until seven days after he commenced to advertise the notice of sale. "We have examined all the authorities referred to by counsel.
The plaintiff below (defendant in error) also claims that said sale was rightfully set aside because he claims “that the said sheriff disobeyed the instructions of plaintiff’s attorneys regarding such sale, being by such attorneys instructed to strike off said property to the plaintiff x ^ • x a£ $l;400, unless more should be bid therefor.”1 The sheriff however states positively in an affidavit made by him, and read on the hearing of said motion, that no such instructions were ever given to him. We think it is "clear from this affidavit that if any such instructions were given the sheriff did not understand them. But as the evidence seems to preponderate against the sheriff we shall assume for the purposes of this case that such instructions were given, that the sheriff understood them, and disregarded them. We shall assume for the purposes of the case that the plaintiff’s counsel instructed the sheriff that if no person bid more than $1,400 for the property the sheriff should bid it off for the plaintiff at that amount; that the sheriff understood the instructions; that he assented thereto; and that he afterwards disregarded the instructions. And upon such assumption will the disregard of said instructions invalidate the sale, or authorize the court to set aside the same? We think not. It was no fault of the purchaser, or of the defendants, that, the plaintiff was not at the sale so that he could bid personally upon the property. It was his own fault, and his own negligence. He had no more right to trust to the sheriff to bid for him than he would have had to trust to some other person if he had instructed such other person to bid for him. In fact, he did not have as much right to trust to the sheriff as he would have had to trust to some other person, for no person should be encouraged in making the sheriff an agent of his to bid for such person at the sheriff’s own sales. Such a thing may sometimes be tolerated where everything seems to be fair and regular, but it should never be encouraged. The sheriff cannot bid for any person in the capacity of sheriff. If he bids at all it must be in the capacity of agent for the person for whom he bids. If the sheriff promises to bid for some person, and then refuses to do so, he is not guilty of any official misconduct. He at most is only guilty of disregarding his duty as agent for such person. We think the plaintiff has no right to have the sale set aside for the neglect of his own agent. The rules in England with regard to sales made by masters in chancery can have but little application in this state to sales made by sheriffs. For our statutes govern all sheriff-sales made in this state. In England a sale made by a master in chancery was virtually open for the reception of bids until it was finally confirmed by the court. At least the court of chancery would always consider bids until it finally confirmed the sale. And said court always had absolute discretion as to whether the sale should be confirmed or not. These rules of the courts of chancery in England have been partially followed by the courts of chancery in New York. But even in New York it has been held that “ Where property is regularly advertised and fairly sold by a master, a sale will not be set aside and a resale directed for the benefit of parties interested in the proceeds of the sale, to protect them against the consequences of their own negligence, where they are adults and competent to protect their own rights on the sale. And where the sale is in the usual manner, and the purchase is made by a stranger to the suit, mere inadequacy of price is not a sufficient ground for depriving the vendee of the benefit of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale.” American Ins. Co. v. Oakley, 9 Paige Ch., 259. In this state where a sheriff’s sale has been fairly and regularly made; where all the requirements of the law have been complied with; where no fraud has intervened; where the property has been sold at a reasonably fair price, there is but little room left for the exercise of individual discretion in confirming or setting aside the sale, but generally if not always, the sale must be confirmed. The property in this case was sold for .$535, which was more than two-thirds of its appraised value. There is no claim that the property was appraised at less than its full value. The order of the court below must be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This case involves the construction of § 630 of the civil code as amended by ch. 87, Laws of 1870, page 177, § 21. Said amended section reads as follows:
“Sec. 630. Any mechanic or other person who shall, under contract with the owner o£ any tract or piece of land, his agent, trustee, contractor or sub-contractor, or under contract with the husband or wife of such owner,* perform labor or furnish materials for erecting, altering or repairing any building or the appurtenances of any building, or any erec-
tionor improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attached to any such building or improvement, or shall plant, or plant and grow successfully, a hedge fence, or shall build a stone fence on any such tract or piece of land, shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such labor or materials, fixtures or machinery; such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvements, or any or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, or the making of such repairs or improvements.”
' This section so far as it has any application to this case, may be read as follows: “Any person who shall under contract with the owner of any tract or piece of land * * * furnish materials for erecting * * * any building * * * shall have a lien upon the whole tract or piece of land, the buildings and appurtenances, in the manner herein provided, for the amount due to him for such * * * materials.” The question now presented under this statute is as follows: Where a vendor sells lumber on credit, without any reference to what shall be done with it, and the vendee afterwards uses the lumber in constructing a building on land belonging to himself, has the vendor a lien on said land and building of the vendee for the purchase-money which lien will be prior to the lien of a subsequent mortgagee? We think not. In fact, we do not think that he has any lien at all. In order for the vendor to obtain a lien in such a case he should sell and furnish the lumber for the building. He should sell and furnish it with the intention or understanding that it should be used in constructing the building. If he should furnish it with the understanding that it should be sold again as merchandise — if he should furnish it upon the personal credit of the vendee alone, without intending or expecting t<3 obtain any security by virtue of a mechanic’s lien, we suppose it would hardly be claimed that a mechanic’s lien would be created even though the vendee might afterward use the lumber in erecting a building. The right to the lien must be created at the time or before the material is furnished. It cannot be created afterward. It is the furnishing of the material under a contract, with the intention and understanding that it shall be used in erecting the building, that creates the lien. (See the authorities cited in the brief of counsel for plaintiffs in error.) When such lien is created, then “such lien shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings, or improvements, or any or either of them subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, or the making of such repairs or improvements.” (Laws of 1870, page 177.)
Whenever a mechanic’s lien is created fot material furnished, the right to the lien becomes a vested right at the time the material is so furnished, and it is not within the power of the legislature to afterwards ¿es^r0y right, by repealing the statute under which the right has accrued or otherwise. It is true, the legislature may shorten the time for filing the statement of the lien; (see amended § 633 of the code, laws of 1870, page 170, §24; laws of 1871, page'254, §3;) but in such a case the legislature would be bound to give a- reasonable time in which to file the statement or their act would be void.
In the case at bar there is nothing that shows that the lumber sold by the plaintiff Sells was sold with any intention or understanding that it was to be used in the building of defendants U'oak & Thomas, or in any other building. There is not even an allegation in the petition of the plaintiff Sells that the lumber was sold or furnished with any such intention or understanding. Therefore we think the court below erred in its conclusion of law and judgment, that “Elijah Sells by virtue of his said mechanic’s lien 'has and holds the first and prior lien upon said premises, in the petition of said Sells described, to the amount of his said claim, and that Sells should be first paid out of the proceeds of the property.” The Avriter of this opinion is unable to understand with any degree of certainty what was intended by or understood from the peculiar exception taken by the plaintiffs in error to the rulings of the court below concerning said lien; and counsel differ as to what its meaning was intended or understood to be. But the majority of this court is of the opinion that said exception is sufficiently definite and certain, and that it sufficiently raised the question of the validity of said supposed lien in the court below, so far as it affected the plaintiffs in error. The judgment of this court must therefore be as follows: The judgment of the court below, so far as it adjudges that the said Elijah Sells has a lien on said premises prior to the lien of Adam Weaver, and prior to the lien of the Leavenworth, Lawrence and Galveston railroad company, must be reversed; but the judgment of the court below is not in any other respect disturbed; and the cause is remanded with the order that the court below render judgment on its findings in accordance with this opinion.
All the Justices concurring, except as above stated.
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The opinion of the court was delivered by
Bjrewer, J.:
Defendant was convicted in the district court •of Franklin county of . perjury. From that conviction he appeals to this court. He complains of the instructions, and .that the verdict was not supported by the evidence. It may be doubtful whether the instructions are properly before us. They are not incorporated into any bill of exceptions. They were not excepted to. A series of some sixteen instructions, signed by the district judge, appears, which the clerk says in the transcript were given on the,trial. The certificate of the ■clerk at the close of the transcript is, that it is a copy of “all the pleadings and proceedings filed in and had by the court,” etc. In civil cases the statute seems to provide that instructions reduced to writing and signed by the judge shall, when filed, become a part of the record. Civil code, §§275, 276, p. 682. But in criminal cases it simply declares that they shall be filed among the papers of the cause. Criminal code, § 236, p. 858. But we do not decide this question, as an examination of the transcript, as it is presented, discloses aro error affecting the substantial rights of the> defeaidant. The poiart añade on the instructions is, that the court left with the jury the materiality of the alleged false testimony, when he should have decided it hianself, and instructed the jury that it was, or was not, material. That on a trial for perjury the question of the materiality of the alleged false testimony is one of law for the court, and irot oire of fact for the jury, is as a general rule, true. Whether it ever be otherwise, we car-e not to inquire; for’, coarcediarg that the court erred in submitting the question to the jury, still the error is not, in this case, one that has worked injury to the substantial rights of the defendant. The jury by their verdict in effect found that the alleged false testimony was material. An examination of the testimony shows that such finding was correct, and that the district court would have been compelled so to charge. If the court had charged that it was material, the jury would have been bound to have followed such instruction, and found accordingly. Without such instruction they have thus found. The result is the same, either way. How then has the defendant been prejudiced? It is claimed however in the brief of defendant that it was not shown that this alleged false testimony was material. The facts are these: The perjury charged was on the trial of this same defendant, on a previous charge of obtaining money by false personation and representations. That offense was charged to have been committed on the 7th day of June 1869. Defendant on that trial was sworn as a witness in his own behalf, and testified that he was not at / Ottawa, the place of the offense, on that day, but was absent in the Indian Territory from sometime in the middle of May to the first of August. Of course, if true, this proved an alibi. But it may be said any other time within the statute of limitations would have been good under the information, and it does not appear that the witnesses upon that trial fixed the time of the transaction as of the day charged in the information. But it does appear, from two witnesses on this trial, William B. Ayers and Frank Edwards, that the time was the 7th of June, and it is nowhere intimated that any other than that day was named on the former trial. The case stands thus: An information charges a certain crime at a certain place on a certain day. The defendant swears that on that day he was in a different and remote place. Prima facie that is material testimony.
It is claimed that the verdict was contrary to the evidence. Upon this only one point requires any notice. On the trial of this, the perjury case, the information charging the obtaining money by false personation was offered in evidence, and also the journal entry of the trial which recited ° that the state appeared by the county attorney^ the defendant in person and by attorneys, that an application for continuance by defendant was made and overruled, that the parties then announced themselves ready for trial, the impanneling of the jury, the trial and verdict. There was no record of arraignment, waiver, or plea. Hence it is said no issue is shown to have been made, and therefore no legal trial. We do not consider this well taken. . Suppose without plea, a trial is had, and verdict of not guilty returned: could the defendant ever be retried? Has he not been in jeopardy ? The question presented is not, whether proceeding to trial without plea is error sufficient to require the setting aside of a verdict of guilty upon motion. But the question is, does such omission make the attempted trial wholly void? Whether it be an error of which a defendant convicted, could avail himself on appeal, wq do not care to inquire; but we cannot hold that it makes -the whole proceedings of the trial a nullity. These being the only questions of importance presented, the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
But a single question is presented in this case. Is a county-seat election held by order of the county commissioners more than fifty days after the presentation of the petition therefor, a valid election? The law under which this election was held is ch. 26, of the Gen. Stat., p. 296. As preliminary to such an election a petition therefor must be presented to the county board. > This must be signed by a certain proportion of the electors. Upon the filing of such petition it is made the duty of the county board to order an election. Sec. 5 of this act declares that “The election provided for in this act shall be held within fifty days after the presentation of the petition therefor; and the county commissioners shall cause thirty days’ notice of any such election, to be given by publication,” etc. In this case the petition was presented on the 16th day of February 1872, and the election ordered, and held on the 1st day of June —106 days thereafter. Was it valid? The rule by which we must be guided in deciding this question has been already' announced by this court in the case of Jones v. The State, ex rel. Atherby, 1 Kas., 273, where it was said that “unless a fair consideration of the statute shows that the legislature intended compliance with the provision in relation to the manner to be essential to the validity of the proceeding, it is to be regarded as directory merely.” This rule was followed with approbation in the case of Gilleland v. Schuyler, 9 Kas., 569, decided at the last term. That it is within the power of the legislature to make almost any step in the proceeding an essential one, admits of no doubt. Except so far as restrained by constitutional limitations, the time, the place, and the manner of holding elections, are within its control. It has in the present instance exercised that control, and prescribed when and upon what conditions an election might be held. It is conceded that those conditions were disregarded, or at least one of them. "Was that condition an essential one? We should not expect to find in the statute any express declaration that this or that provision was essential, leaving the inference that the others were not. True, we sometimes find words of prohibition so strong and clear as virtually to amount to such a declaration. But that is not the ordinary method of legislation. Generally the legislature prescribes the different steps to be taken in the conduct of the election, and there stops. No officer may rightfully disregard any. Each provision is to him a command, and if only the officer were to suffer a neglect of any, would vitiate the result. But the public is interested, rather than the officer. In the present case it can hardly be a question of any moment to the commissioners whether the co,unty-seat be at Eldorado, or Augusta. It probably is a question of some interest and importance to the people of Butler county. It is hard, therefore, that the neglect or misconduct of an officer should work injury to the public. If the people have voted, why should the acts of their agents, be they what they may, ever defeat the result of that vote? •One obvious reason is, that in the preservation of certain forms is found protection to the purity of the election. A disregard of these forms opens the door to and invites fraud. Hence it is proper that the legislature should prescribe rules ,and forms of proceeding, a disregard of which will in some •cases vitiate the election. It is not easy always to distinguish between what is essential and what is purely directory. It' was said by the supreme court of Wisconsin in The State, ex rel. Cothren, v. Lean, 9 Wis., 292: “We understand the doctrine concerning directory statutes to be this: That where there is no substantial reason why the thing to be done might not as well be done after the time prescribed as before, no presumption that by allowing it to be so done it may work an injury or wrong, nothing in the act itself or in other acts relating to the same subject-matter indicating that the legislature did not intend that it should rather be done after the time prescribed than not to be done at all, there the courts ■assume that the intent was that if not done within the time prescribed, it might be done afterwards. But when any of these reasons intervene, then the limit is established.” It is ■an old rule that time and place are of the substance of an election. This has its exceptions and limitations. Yet when the legislature has named a day on which an election shall be held, an election on any other day is void, and confers nothing. So when the proper authorities have designated •certain places for the polls, an unnecessary removal to remote places will vitiate the election. Here the legislature has not named the day, or the month, but it has placed bounds within which it must be held, not less than thirty, that being the time of publication of notice, nor more than fifty days from the presentation of the petition. One reason of the rule above given is to avoid confusion and bring' full knowledge of the election to each voter. Proclamation by the sheriff in a general election is required as well as publication of notice in this. Yet a proclamation naming a day other than that fixed by the statutes, followed by an election at that time, would be void. Knowledge of the time of an election is not obtained simply from a proclamation or a notice. Every one is supposed to know the law. As a matter of fact there is a general wide-spread information concerning the provisions of the statutes in reference to elections. Probably as many obtain their knowledge from the statute book as' from proclama tion or notice. True, the statutes do not convey as accurate information concerning a county-seat as a general election. Yet a movement toward a county-seat election is a matter of public notoriety. A petition must be signed by a large proportion of the people. Action must be taken by the county board thereon. This gives general information. They have the statute declaring that county-seat elections must be held within fifty days after presentation of the petition. The fifty days pass; no notice is published, no time fixed. Can they not turn their attention to other matters, or must they remain on constant watch for notice of an election ? If an election can be held at any time thereafter, upon thirty days’ notice, there is a fair probability of its being held unknown to many of the voters. ' For if valid when held 106 days after presentation, it would be equally so 206 or 306-days thereafter. There is thus a presumption that by allowing such an election to stand, an injury and wrong may be done to some citizens, and therefore it comes within the scope of one of the tests laid down in the Wisconsin case above quoted. Again, if the county commissioners may wait 106 days, they may wait longer. They may watch and wait until sometime when many of the voters are absent on business or pleasure, and so deprive a large number of those interested of their choice in the matter, or until there has-been a great increase or decrease in the population, and that population then desires no agitation of the question, and no-expense of an election. This again shows a possibility of wrong and injury. And again, the county-seat question is a vexatious, annoying, deranging question. Parties arrange-business, and establish homes, with reference to the county-seat. It becomes the center of many interests. Roads are opened, and local improvements made, with reference to it. Let it once be permanently established, and many elements of growth and prosperity will gather about it. County buildings must be erected. County records are there.' Public business-is there transacted. Lawyers’ offices abound. Courts are-held. Conventions meet. Railroads seek it. Travel passes- thither. Merchants seeking the county trade, locate. Each helps the other, and all tend to mutual prosperity. The very zeal and persistence with which county-seat contests are conducted is abundant proof of the general estimation of the value of such seats. The legislature could not have been ignorant of these things, and must be supposed to have legislated concerning them. Conceding the right of every county to change its county-seat whenever the public interests demanded, it nevertheless saw the necessity of a speedy termination of any question of change. If a change was necessary, let it be made, and that speedily. If unnecessary, let it be so decided, and as speedily. For while undecided, and in controversy, all these elements of growth and prosperity are still, and the whole county suffers, as well as individual towns. "Values are unsettled; improvements stop; county commissioners are loth to add county buildings, for the people may abandon all and locate the county-seat elsewhere. The merchant waits till the question is terminated before he establishes business; and if the contest is protracted, moves on to some other county. Noplace is benefited; some are injured, and the whole county suffers. Hence the public good requires a speedy termination. In view of this, we must suppose the legislature acted. And having fixed the time within which such an election must be held, it seems to us it intended that compliance with this requirement should be essential to its validity. It may perhaps be worthy of notice, though only a slight circumstance, that the requirement of notice and the limitation of fifty days are both in the same section, and couched in the same terms of obligation. The-publication of notice comes plainly within the decision in 1 Kas., 273, as essential to the validity of the election. Does it not seem reasonable that the legislature intended that both should be essential? "We are led to the conclusion that the district court erred in its ruling, and the case will be remanded with instructions to reverse the order refusing a temporary injunction, and to proceed further in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. Defendant below, Macomber, denied the execution of the same; and the principal question at the trial was whether Macomber signed the note or not. It purported to be signed by him, and the question was whether the signature was genuine. Two letters written and signed by Macomber were introduced in evidence to show what Macomber had said about the note. Afterward a witness, W. Hadley, was examined on the part of the plaintiff. He was first shown to be an expert in the examination of signatures. Then the signature to the note and the signatures to the two letters were shown to the witness, and he was asked whether he thought they were written by the same person. The defendant objected to the question on the ground that the evidence it would elicit would be incompetent. The court overruled the objection and the defendant excepted. The witness then answered that it was his opinion that the signatures were all written by the same person. The record shows that afterward—
“ On cross-examination the witness testified: ‘ I never saw defendant write, and am not acquainted with his signature.’ The defendant then moved the court to' strike out the testimony of witness Hadley for the reason that it now appears incompetent. The court decided that it refuses to entertain the motion, and no further action of the court was had; to which refusal to entertain the motion and decision the defendant then and there excepted.”
Of course the court erred in refusing to entertain the motion. The question raised on this motion was different from the question raised on the objection to the evidence, and was raised in a different manner. On cross-examination it appeafed affirmatively that the witness had never seen the defendant write, and was not acquainted with his signature. This did not so appear on the examination in chief. This, according to some of the authorities, is a very important distinction. According to somé of the authorities such evidence is admissible where the witness is acquainted with the party’s handwriting, and is not admissible, where the party is not acquainted with the same. We have given the substance of all of witness Hadley’s testimony.. The said error of the court was however immaterial.. If the court had entertained the motion it should have overruled the same. All the signatures that the witness Hadley examined and compared were already properly in evidence for other purposes.' And, however great the conflict of authority may be upon certain questions connected with the “comparison of hands,” we think that there is no conflict of authority at the present day where the different instruments to be compared are already properly in evidence for other purposes. In such a case Prof. Greenleaf says “the comparison may be made by the jury, with or without the aid of experts.” (1 Greenleaf Ev., §578, and cases there cited.) The question however as to whether signatures can be introduced in evidence merely for the purpose of comparing them with the signature in dispute is fairly raised, in this' case in other, portions of the record. Two such signatures were introduced in evidence over the objections of the defendant. And the witness H. W. Chester, who was also an expert, was allowed, over the objection of the defendant, to express his opinion as to whether 'all the signatures were written by the same person, although he was “not sufficiently acquainted with the handwriting of the defendant to recognize it.” And the jury were also allowed, over the objections of the defendant, to examine all these, signatures for the purpose of comparing them, and determining whether the one in dispute was genuine or not. Now, as there is such a great conflict of authority upon questions connected with the “comparison of hands,” whatever we may say in-this opinion we do not wish to be understood as deciding anything not necessary to be decided in the case. We suppos^plat it may .be laid down as a general rule, that all evidence that proves or tends to prove the issue in any particular case, anything that forms a link in a chain of circumstantial evidence that proves or tends to prove such issue, is admissible, subject perhaps to some exceptions, and subject perhaps to a discretion in the court in «some cases to exclude evidence of' very remote facts or circumstances when more proximate facts or circumstances can be produced. What' we wish more particularly here to say is, that to exclude any evidence that proves or tends to prove the issue in any case is the exception, and not the rule. And we would further say that before an exception can be allowed to a general rule there must be some good reason for the exception. We suppose that it will not be claimed that the evidence in this case does not tend to prove the issue, or that it is wholly irrelevant; but it will be admitted that if it is competent it is also relevant, and tends to prove the issue. Therefore, if it is excluded it must be for some good reason. It therefore becomes necessary for us to examine the reasons given for excluding this kind of evidence. It will not be claimed that such evidence should be excluded merely because it is a comparison of hands; for all evidence of handwriting, except where the witness himself has seen the writing itself done, is, in its nature, á comparison of hands. It is the belief which the Avitness entertains upon comparing the writing in question Avith the exemplar in his mind derived from some previous knowledge, of the party’s handwriting. That evidence of this kind may be introduced in many cases, is too well established to be even questioned by any one at the^ present day. It Avill generally be conceded that comparisons may be had between writings in the following cases: where the writings to be used as specimens are admitted to be genuine, and generally Avhere no collateral issues can arise; where the different writings are already properly in evidence, or properly in the case for some other purpose; where the witness has seen the person whose signature is disputed previously write, although it has u^pi only his name;' where the witness has personal knowledge of the person’s writing from some other proper source, as from having seen writing which the person in the course of business has acknowledged to be his, or has acted on as his, etc.; where writings are of such antiquity that living witnesses cannot be had to prove them, and such writings are not so old as to prove themselves; and probably in many more cases which we might mention. The principal if not the only objections urged against this kind of evidence are as follows: 1st, The writings offered in evidence as specimens may be manufactured for the occasion; 2d, Fraud may be practiced in the selection of the writings offered in evidence ■as specimens; 3d, The other party may be surprised; he may not know what documents are to be produced, and therefore he may not be prepared to meet the inferences sought to be drawn from them; 4th, The handwriting of a person may be ■changed by age, health, habits, state of mind, position, haste, penmanship, and writing materials; 5th, The genuineness of the specimens of handwriting offered in evidence may be contested, and others successively introduced, to the infinite multiplication of collateral issues, and the subversion of justice; 6th, Juries are too illiterate, and are not competent to judge of this kind of evidence. Many of these objections can have scarcely any application in this case. First: It can hardly be supposed that a party would manufacture signatures to be used against himself. Second: When a party raises the issue himself of the genuineness of his own signature he ought to be able to •explain all his own signatures that might be introduced, and to show just how his own genuine signature should appear ■on paper. Third: He should not be surprised in such a case. He above all others should know what evidence might be introduced concerning his own signature. Fowrth: He ought to know all the changes in his own signature, and be able to explain them. Fifth: No question regarding collateral issues ■could be raised in this case, for no question was raised upon the genuineness of the signatures introduced in evidence for the purpose of comparison. Two of the signatures were rightfully introduced for other purposes, as well as for comparison, ■and upon competent evidence. The other two signatures were introduced on the testimony of the- defendant himself, he stating that they were genuine. Sixth: Our juries are selected from educated and intelligent citizens, and the rule adopted in England or elsewhere for juries that could not read writing has no application in Kansas where the juries can read writing and are able to form intelligent opinions concerning it. The question concerning a party manufacturing his own signatures, to be used in his own favor, or fraudulently selecting them in such a case, or changing his hand in any. manner, or surprising the other party in such a case by the introduction of his own signatures, is not in this case. Nor is there any question raised in this case concerning the signature of a third person not a party to the suit. Nor is there any question in this ease whether a signature, the genuineness of which is contested, or upon which a collateral issue may be raised, can be introduced in evidence for the purpose of a comparison of handwriting. Nor is there any question conceiving the power of an ignorant and illiterate jury to compare different writings. Nor is there any question raised in this case concerning the power of a party to prove by a comparison of handwriting the genuineness of a signature, the genuineness of which is not put in issue by' the pleadings. , And as none of these questions are raised in this case we do not attempt to decide them. ’We simply decide the questions in this case. Prof. Greenleaf, in speaking of the methods of proving the genuineness of a writing by comparing it with other people’s, uses the following language: “ By offering such papers to the j ury, ■with the proof of their genuineness, and then asking a witness .to testify his opinion, whether those and the disputed paper were written by the same person. This method supposes the writing to be generally that of a stranger; for if it is that of the party to the suit, and is denied by him, the witness may well derive his knowledge from the papers admitted by that party to be genuine, if such papers were not selected nor fabricated for the occasion.” (1 Greenl. Ev., § 579.) It is our opinion that all the evidence with regard to the signatures was properly admitted, and the jury properly allowed to examine all of these signatures for the purpose of comparing them, and of determining whether the one affixed to the note was genuine or not. The judgment of the court below must be affirmed.
All the Justices concurring.
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The. opinion of the court was delivered by
Valentine, J.:
It has already been decided in this court that where a defendant has been regularly served by summons, and there is a defect in the return of the officer respecting the service, the defect may at any time, even long after judgment, in furtherance of justice, be cured by amendment, so as to make the return conform to the facts: (Foreman v. Carter, 9 Kas., 674; Challiss v. Headly & Carr, 9 Kas., 684;) and to this decision we still adhere. As to one of the defendants in the present case, however, there seems to be no defect in the return of the officer respecting the service of the summons. But even if there is such a defect, still, the foregoing decision will dispose of the whole of this case. The order of the court below is reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
This case involves the single'question of whether the ten-per-cent, penalty added to taxes for non payment on the 10th day of January, becomes a part of the taxes. This was decided in the case of The State, ex rel. Farnham, v. Bowker, 4 Kas., 114, wherein the learned judge delivering the opinion of the court says, “ that the penalty became and by operation of law, was a part and parcel of the taxes due.” That decision is satisfactory, and disposes of this case. The judgment is affirmed.
All the Justices concurring.
—The foregoing opinion was filed on the 15th of November 1872, and on the 22d of January 1873 the plaintiff filed another petition in error in this court, for the review of another order of the district court. On the 23d of November 1872 the Railway Company paid to the county treasui’er of Saline county the sum of $10,883.13, being $9,893.75 original taxes, and $989.38 ten-per-cent, penalty. Said compaxxy thereupon applied to the district court of Saline comity, (the November Term thereof for 1872 being then in session,) for a perpetual injunction, as prayed for in its origixial petition, restraining the collection of all the taxes levied upon the valuaton of its property for the year 1868 in excess of the valuation of $10,000 per .mile. (The county board had illegally increased • the valuation from $10,000 per mile to $16,000 per mile, or from the aggregate of $320,000 to $512,000, thereby increasing the taxes from $9,893.75 to $17,322.25. 8 Kas., 558-561.) The defendants, the comity treasurer and sheriff, resisted plaintiff’s application for a perpetual injunction, claiming that as the Railway Company had not paid said $9,8 93.75 taxes and the ten-per-cent, penalty thereon within the time fixed by the order of the district court, (June 15th 1872,) the company had lost all right to have any portion of the taxes enjoined; and the district court overruled and denied plaintiff’s motion for such injunction, and dismissed plaintiff’s petition. The Railway Company excepted, and brought the record here for review. The case was heard at the January Term 1873, and the opinion was filed April 9th, 1873. (No briefs.)
E. W. Dennis, and McClure & Hwmplvrey, for plaintiff.
J. G. Mohler, county attorney, for defendant.
The opinion of the court was delivered, by
Valentine, J.:
This is the third time that this action has been before us; or, perhaps, more properly speaking, it is the third time that questions connected with the subject-matter of this action have been brought to this court. The action as it is now presented involves principally the construction of an order made by this court when the case was first presented to us, (K. P. Rly. Co. v. Russell and Amrine, 8 Kas., 558.) Said order reads as follows:
“The case will therefore be remanded to the district court of Saline county, with the instruction that if the plaintiff shall within such reasonable time as shall be fixed by said court pay the taxes due upon the basis of the valuátion fixed by the county clerk, to-wit, $10,000 per mile, then a perpetual injunction shall be decreed as prayed for; otherwise the judgment heretofore entered in favor of the defendants shall be affirmed.” (Opinion, 8 Kas., 565.)
In pursuance of this order the district court of Saline county made an order, that “if the plaintiff should on or before the 15th of June 1872 pay to the treasurer of Saline county the taxes due on the basis of $10,000 per mile the collection of said taxes should be perpetually enjoined.” In pursuance of these orders, and within the time limited, the Railway Company tendered to the treasurer of Saline county the full amount of the taxes as they were originally assessed on a basis of $10,000 per mile valuation, but did not .tender the ten-per-cent, penalty which had at that time accrued under the statute which requires a ten-per-cent, penalty to be added on the 10th of January of each year to all delinquent taxes. (Gen. Stat., 1045, § 79.) The company claimed that the said order of the supreme court did not require them to pay said ten-per-cent, penalty. The defendants on the contrary claimed that it did. . The question was brought to this court, and we decided that the ten-per-cent, penalty when added became a part of the taxes, and was therefore included in said order and must therefore be paid. (Ante, p. 322.) This decision was made after the 15th of June 1872, to-wit, on November 15th 1872. On the 23d of November 1872 the railway company paid all said taxes, together with the ten-per-cent, penalty, on a basis of $10,000 per mile valuation. The defendants however then claimed that the railway company had forfeited all rights that it had obtained under the orders of this court and the district court by not paying said ten-per-cent. penalty on or before the 15th of June 1872, as ordered by the court; and they further claimed that by said forfeiture on the part of the railway company the defendants obtained the right to collect certain other taxes and penalties from the railway company which had previously been declared valid by the district court but had been declared illegal and void by the supreme court. Whether the defendants can now under all these circumstances collect all these illegal and void taxes from the railway company, is the real question before us. The defendants are attempting to-collect them, and the railway company as plaintiff is seeking an injunction to restrain their collection. All the difficulty in this case has grown out of a misunderstanding of the said order of the supreme court. The order was made with the intention that it should include all legal taxes (and the penalty we think was a part of such taxes) due from the company for the year for which these taxes were levied ; and herein the plaintiff was mistaken. The order was also made in the spirit of a court of equity, with the intention that both law and justice should be speedily administered, and not with any intention of subserving a grasping disposition on the part of any person. It was not made with the intention of prohibiting either party from litigating other questions; nor was it made for the purpose of fixing enormous penalties in the form of illegal taxes upon the party who should take the time to litigate some question which might arise under the order, and a question which such party had a right to litigate. In this respect the defendants were mistaken. It was not reasonable that the railway company should be compelled to pay said penalty before it had time to have the question determined judicially and specifically whether it was bound to pay the same, or else be compelled to pay an enormous illegal tax. The time limited, for the payment of said penalty should have been some reasonable time after the question of its payment ceased to be in litigation. And although the time fixed by the district court was earlier than this, and seemed reasonable when so fixed, yet when it appeared that such time was not reasonable the district court should, in the spirit of a court of equity, have extended it. The penalty was paid in eight days after the litigation in regard to it had ceased; and this was certainly within a reasonable time.
The judgment of the court below is reversed and cause remanded with the order that the injunction prayed for by the plaintiff be granted.
All the Justices concurring.
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The opinion of the court was delivered by
Kaul, J.:
This action involves the “Medical Payments” coverage of four automobile insurance policies issued to plaintiffs-appellants by the defendant insurance companies. The appeal comes before us on an agreed statement of facts.
Sammy Simpson suffered serious injuries in an accident on October 25, 1969, while driving a 1966 Chevelle automobile registered in his name and that of his father, Richard C. Simpson. The Chevelle was covered by an automobile policy issued by defendant Farm Bureau Insurance Company, Inc., hereafter referred to as KFB, which provided for medical payments in the amount of $500.00.
At the time of the accident, Sammy’s parents owned three other vehicles. Each was insured under a separate policy issued by defendant Farm Bureau Mutual Insurance Company, Inc., hereafter referred to as Farm Bureau. Each of the three Farm Bureau policies provides medical payment coverage in the amount of $2,500.00.
According to the agreed statement of the parties, Sammy was eighteen years of age at the time of the accident, the son of plaintiffs, Richard C. and Margaret Simpson, and a resident of their household. It was further stipulated that Sammy’s medical expenses totaled $2,468.50.
After pleadings and admissions were filed, the matter was presented to the trial court on plaintiffs’ motion for partial summary judgment and defendants’ motion for summary judgment. In their motion for summary judgment defendants asked that judgment in the sum of $500.00 and costs be allowed against KFB and that judgment against Farm Bureau and Joe Boyer be denied. Judgment was entered for defendants in accord with their motion and this appeal followed.
In their brief on appeal plaintiffs state the issues in this fashion:
“The sole and only issues are the construction of the medical pay provisions identical in each policy, and whether the letter from Joe Boyer, Branch Claims Manager for Farm Bureau, to plaintiffs’ attorney was an unqualified promise to pay by Boyer and Farm Bureau as to said expenses. KFB Insurance Company is not a party to this appeal.”
The principal controversy centers around the “Medical Payments” coverage and a certain exclusion related thereto which appears in identical form in the three Farm Bureau policies.
The policies are made up in booklet form consisting of eighteen pages with the declaration as to parties, automobiles, insured, etc., affixed to a back cover page. The policies are divided into three principal sections according to subject matters. They are respectively; “Insuring Agreements”; “Exclusions”; and “Conditions.” A second contract or endorsement providing coverage for damages caused by an uninsured automobile appears in the last four pages of the policy booklet.
The heading of each section of the policies is set out in bold print in caps and each is printed in the same size type. The subject caption of each subsection appears in boldfaced type. We are concerned here with certain provisions appearing under the sections titled “Insuring Agreements” and “Exclusions.”
The medical payments coverage appears on page one in the “coverage” subsection of “Insuring Agreements’ as follows:
“Coverage C — Medical payments. To pay reasonable expenses of necessary medical, dental, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident to or for;
“(C-l) each person who sustains bodily injury, sickness or disease caused by accident while in or upon, entering into or alighting from;
“(a) the automobile described in the declarations, if the injury arises out of the use thereof by the named insured or spouse if a resident of the same household, or with the permission of either.
“(C-2) each insured who- sustains bodily injury, sickness or disease caused by accident, while in or upon, or while entering into or alighting from, or through being struck, by an automobile.”
It is readily apparent that C-l coverage is limited to injuries connected with the automobile described in the policy, while C-2 extends broad coverage to injuries connected with any automobile.
Subsection III of “Insuring Agreements” titled “Definition of Insured,” appearing on pages two and three of the policy form, defines, the word “insured as related to medical payments” in this fashion:
“(b) with respect to Coverage C-Medical Payments, the unqualified word 'insured’ includes the named insured, if an individual, his spouse or relatives of either while residents of the same household.”
The real issue is whether Sammy is limited to the $500.00 maximum medical provided under C-l of the KFB policy on theChevelle in which he is a named insured or is he also entitled to recover up to an additional $2,500.00 under the C-2 coverage of each of the three Farm Bureau policies on the three separate-vehicles owned by his parents.
The “exclusions” appear on pages six and seven, headed by the title, which is followed by the phrase, “this policy does not apply.” The specific exclusions are alphabetically labeled running from (a) through (s). The reference to the particular coverage to-which the specific exclusion applies appears in bold-faced type. The exclusions pertaining to coverage C-2 appear as (i) and (/) as follows:
“(«) under Coverage C-2, to bodily injury to or sickness, disease or death of an insured sustained while in or upon, or while entering into or alighting; from an automobile owned by any insured as defined in Insuring Agreement III, subparagraph (b);
“(/) under Coverage C-2, to bodily injury, sickness, disease or death to which coverage C-l applies.”
We are not concerned with exclusion (/) which merely provides that if an injured person is covered by C-l he cannot collect again under coverage C-2. For example, if an insured is injured in the vehicle named in the policy, he is covered under C-l, but excluded from collecting again under C-2. It is conceded that exclusion (/) has no application to the case at bar.
Plaintiffs contend there is ambiguity and confusion created by the application of exclusion (i) to coverage C-2 so as to make the policies subject to two or more constructions — one allowing coverage and one disallowing coverage and that the construction permitting recovery must be given.
The policies are prepared in a form which has become generally accepted in the insurance industry as the simplest and clearest way to define the coverage provided by the “Insuring Agreements” of a policy, i.e., first, to grant the coverage in broad terms and then to except therefrom or to carve out of the coverage ■certain specific risks which are not covered and which are specifically excluded from coverage in clearly defined “exclusions” in the policies. This is the plan followed here — broad coverage to any insured injured in any automobile is extended under C-2. Exclusion (i) operates to exclude from C-2 coverage, any insured ■who is an insured in an automobile owned by an insured.
As a relative and resident of the same household of R. C. Simpson, the insured under the Farm Bureau policies, Sammy is an insured under the definition of “insured” set out in subsection (b). Since Sammy was injured while in an automobile, it clearly appears that he would be covered under C-2. However, exclusion (i) is ■equally definite. It simply excludes coverage C-2 to bodily injury of an insured (Sammy) while in or upon an automobile owned "by an insured as likewise defined in subparagraph (b).
The purpose of the insurer is readily apparent. It is willing to make medical payments when an insured is injured while occupying a vehicle which is insured under the policy and when an insured under the policy is injured while occupying a vehicle owned by a third party. It is unwilling, however, to make medical payments to an insured who is injured in another vehicle owned By an insured but not insured under the policy.
Sammy was in the Chevelle. It was owned by Sammy and his father, both were insured under the Farm Bureau policies sued upon. Sammy, as an insured occupying an automobile owned by an insured, is excluded from coverage C-2.
The exclusion being definite must apply unless there is some ambiguity which brings into play the rule that uncertainties are determined strictly against the insurer. We fail to find such an ambiguity. It is true, as in the case of any policy of insurance, a somewhat careful reading of the entire policy is required to make its meaning clear, but upon such a reading it is apparent that no medical payments under C-2 are provided for an insured when he is in an automobile owned by an insured. It must be kept in mind, of course, that exclusion (i) specifically relates only to coverage C-2 and has nothing to do with the coverage afforded an insured under C-l. Although ambiguities in the writing of an insurance contract are to be construed in favor of the insured, such rules have no application to language which is clear in its meaning. A review of the principles of contractual construction established by this court is set out in an opinion by Chief Justice Parker in Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396. We quote a part thereof:
“. . . Unless a contrary intention is shown, words used in an insurance contract are to be given a natural and ordinary meaning that they convey to the ordinary mind.
“In the more recent case of Smith v. Mutual Benefit Health & Acc. Ass’n, 175 Kan. 68, 258 P. 2d 993, this court cited with approval Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310. In the Knouse case we said:
“. . . An insurer prepares its own contracts and it is its duty to make the meaning clear and if it fails to do so, it and not the insured, must suffer. (Liberty Life Ins. Co. v. Guthrie, supra.) Courts should not be astute to evade, rather than quick to perceive and diligent to apply the meaning of words manifestly intended by the parties (Gorman v. Fidelity & Casualty Co. of New York, 55 F. 2d 4); but where a contract is unambiguous it must be enforced according to its terms (McKellar v. Brubaker, 160 Kan. 451, 163 P. 2d 358). Where a contract is not ambiguous, the court may not make another contract for the parties; its function is to enforce the contract as made. (State Highway Construction Cases, 161 Kan. 7, 166 P. 2d 728; Watkins v. Metropolitan Life Ins. Co., 156 Kan. 27, 131 P. 2d 722; Movitz v. New York Life Ins. Co., 156 Kan. 285, 133 P. 2d 89; Gorman v. Fidelity & Casualty Co. of New York, supra.) (p. 216.)’” (p. 532.)
The problem here — as in all similar cases — is to determine whether there is any ambiguity. It is true the policies here seem to insure under coverage C-2 of the “Insuring Agreements” and to take away some of the benefits under exclusion (i). While the exclusions in the policies now before us are not on the same page as the coverages set out in the “Insuring Agreements,” they are delineated with equal prominence. The exclusions are in the same size print as the remainder of the policies and are labeled in large type “Exclusions” in the same manner as “Insuring Agreements.” An ordinary reader making the most casual inspection of the policies could not miss at least the heading “Exclusions” which is in itself a warning to the policyholder to see what is excluded. The very purpose of an exclusion clause is to exclude risks otherwise covered by general coverage clauses. It is the nature of exclusion clauses to conflict with general clauses in that the former constitute restrictions on the latter. Rather than being repugnant, exclusion clauses are a part of the entire contract and if clear, definite, and unambiguous they must be given effect. In the Farm Bureau policies in the instant case exclusion (i) clearly and definitely excluded Sammy as an insured occupying an automobile owned by an insured from coverage C-2.
In asserting ambiguity in the Farm Bureau policies, plaintiffs rely entirely on our decision in Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992. In Lavin the insurer had issued three separate policies, each with $500.00 medical payments provisions, covering three separate vehicles, to John Lavin, owner of the three vehicles. Richard Lavin, son of John, was injured while occupying a 1955 Chevrolet, one of the three vehicles. The defendant insurer paid $500.00 medical payments under the policy on the Chevrolet, which Richard was occupying, but denied medical on the other two policies. Richard, through his father, brought suit claiming ambiguity, as in the case at bar, with respect to exclusions from the medical payments coverage.
In coverage C of the Lavin policy, medical coverage was extended in essentially the same scope as that in coverages C-l and C-2 of the Farm Bureau policies in the case at bar. Exclusion (i) (2) in the Lavin policy is the exclusion parallel to (i) in the Farm Bureau policies herein. The significant difference between the two policy forms is that in the Lavin policy exclusion (i) (2) was followed by (i) (3) set out in the Lavin opinion as follows:
‘“(3) other than the named insured and a relative while occupying any vehicle not insured under Insuring Agreements I or II. . . (p. 26.)
The trial court’s ruling concerning the Lavin exclusions is set out in the opinion as follows:
‘“Exclusion (i) (2) clearly excludes plaintiff from coverage here. Exclusion (i) (3) not only does not exclude plaintiff here, but seems to reaffirm coverage to plaintiff as granted in the insuring agreement. I have spent some time checking law as to whether (1) Is a person who is excluded by any of the exclusionary provisions of a policy unable to recover, or (2) If one exclusionary clause cuts out a plaintiff but another exclusionary clause points in the other direction, is there, then ambiguity so that the doctrine of construction most favorable to the insured comes into play?’” (p. 25.)
The trial court concluded the ambiguity insufficient to restructure the policy. On appeal this court reversed but clearly indicated in the opinion that (i) (2) excluded coverage under coverage C but that (i) (3) created confusion and ambiguity, so as to require application of general rules of construction.
In the Farm Bureau policies there is no exclusion comparable to (i) (3) to create ambiguity as in the Lavin policy; thus, since C coverage would have been excluded in Lavin if the exclusion had stopped with (i) (2), as indicated in the opinion, the Lavin case actually supports the defendants in the instant case.
Plaintiffs claim a forfeiture of premium, citing Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P. 2d 34, wherein we held that where uninsured motorist coverage with respect to two automobiles owned by insured is written in a single policy and a separate premium for each automobile is charged insured for the coverage, he is entitled to double coverage since he paid a double premium.
In the case at bar only one vehicle is covered under each policy and only one premium was paid on each policy. Sammy was insured up to $2,500.00 as an insured under each Farm Bureau policy. If he had been injured while occupying any one of the three automobiles he would have received the coverage afforded by that policy; namely, $2,500.00 medical payments. There is no forfeiture of premium situation here such as that appearing in the Sturdy case.
Plaintiffs contend the exclusion contradicts the provisions of K. S. A. 1971 Supp. 40-1110 and is therefore unenforceable. Plaintiffs assert the familiar rule that where a policy is issued to an insured in compliance with the requirements of a statute, the pertinent provision of the statute must be read into the . policy and no provisions of the policy in contravention of the statute can be given effect. Plaintiffs cite Canal Insurance Co. v. Sinclair, 208 Kan. 753, 494 P. 2d 1197.
Plaintiffs fail to recognize that 40-1110 is a permissive statute providing that insurers may offer “supplemental coverages or endorsements in connection with liability policies.” The last section of the statute reads as follows:
“. . . The standard provisions as set out in article 22 of chapter 40 of the Kansas Statutes Annotated, or amendments thereto shall not be required in such endorsements.
The statute does not prescribe the extent of any supplemental coverage and thus an insurer may provide such coverage to such degree as desired.
The Canal case dealt with a policy issued and filed pursuant to requirements of the Kansas Motor Vehicle Safety Responsibility Act (K. S. A. 8-722, et seq.) which mandates provisions thereof with respect to policies filed in compliance with the Act. The Canal case is inapposite to the issue raised by plaintiffs here.
Finally, plaintiffs argue that a letter signed by Joe Boyer, agent for KFB and Farm Bureau, constituted an unqualified promise to pay the full amount of the Simpson claim. They claim this letter, addressed to plaintiffs’ attorney, binds both Farm Bureau and Boyer personally. They cite the following paragraph in a letter dated February 25, 1970.
“To answer your specific question concerning payment of medical and hospital bills, we stand ready to make payment at any time requested by the insured after the bills have exceeded the $500.00 limit of KFB policy BC-5972.”
The paragraph is the last of a seven paragraph letter in which Boyer explained his denial of coverage under the Farm Bureau policies. In the paragraph preceding that quoted above Boyer write:
“My interpretation of that exclusion would mean that medical coverage on the three policies which you have mentioned would not apply if the injuries were sustained by an insured while he was in a vehicle owned by him or a member of his household. . . .”
In context, the paragraph cited by plaintiffs can only mean that the $500.00 coverage of the KFB policy would be paid as soon as Sammy’s bills accrued to that amount. It is thus unnecessary to consider whether Farm Bureau or Boyer personally would be bound if the letter read as plaintiffs contend.
In conclusion we find the trial court did not err in construing the policy and in applying it to the undisputed facts of this case.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
Appellant was charged by information with attempted first degree robbery and assault with intent to kill. A jury convicted him of the attempted robbery charged in the first count, and under the second convicted him of the lesser included offense of endangering the life of another in violation of former K. S. A. 21-435. On appeal he alleges the trial court erred in refusing to permit his alibi witnesses to testify and in giving certain instructions.
The victims of the crimes involved were Mr. and Mrs. John Jacobs, who together operated a small appliance repair shop in the Argentine district of Kansas City. At about 3:30 p. m. on Monday, December 30, 1968, Mrs. Jacobs was tending the store while her husband was in the basement shop area working. A stranger came in who responded to Mrs. Jacobs’ greeting by opening his coat and motioning toward a gun in his belt. He then motioned toward the cash register and told her not to be nervous. Taking him at his word Mrs. Jacobs promptly fled around a partition and out the back door, calling to her husband as she went, “John, a holdup.”
That worthy, hearing the call, seized a pair of heavy pliers and came up the basement stairs, only to hear the front door chime and find an empty shop. He went out the back after his wife, and at her direction around the store to an alley. There he observed a man hurrying away from him; upon being accosted the stranger broke into a run, pulled a gun and fired over his shoulder. Mr. Jacobs gave chase and was met with yet another hasty shot. Undaunted, he continued the chase, heaving the pliers just as the door of the getaway car was opened, breaking the window of the open door. Faced with a now-leveled gun, he dove behind a car parked next to the fugitive’s, looked for something else to throw, and toyed with the idea of disabling the car by an attack on its rear-mounted engine. While he was thus engaged the engine started and the gunman drove off.
Later that week Mr. and Mrs. Jacobs each independently identified the appellant as the person involved in the foregoing episode, selecting his picture from a large selection of similar pictures. They made positive in-court identifications, as did an officer who later that day had engaged in a high speed chase with a car matching the description of the get-away car down to the broken window.
We pause to note that as the prosecuting attorney was eliciting these identifications, and during his opening statement, he repeatedly referred to the appellant as “the criminal defendant.” The identical remarks, made by the same prosecutor, were urged as error in State v. Phippen, 208 Kan. 962, 494 P. 2d 1137. Although they are not so urged here, we reiterate and emphasize what we said there — that this court cannot condone “the use of epithets which in any way might be construed in derogation of the presumption of innocence which attaches to one on trial for crime.” (208 Kan., at 964.)
At trial, after the state had rested and it was time for the defense, appellant’s counsel indicated he intended to use alibi witnesses; this was the first notice to either the court or the state of such an intention. No attempt had been made to comply with former K. S. A. 62-1341, requiring notice to tibe county attorney at least seven days before trial, nor had the court’s discretionary power under the statute been invoked to permit the notice to be served “at any time before the jury is sworn to try the action.” The reason offered for noncompliance was that the names of the potential witnesses were first made known to appellant’s counsel only after the trial had commenced. He had relied on appellant’s sister to produce witnesses, and there had been a breakdown of communications when she moved.
Under similar circumstances we have gone so far as to say that even the defendant could properly be precluded from testifying that he was elsewhere at the time of the alleged crime. State v. Rider, 194 Kan. 398, 399 P. 2d 564, Syl. ¶ 2; State v. Kelly, 203 Kan. 360, 454 P. 2d 501, Syl. ¶ 3. See also, State v. Sharp, 202 Kan. 644, 451 P. 2d 137, and cases cited. Here the court ruled that the defendant would be permitted to testify “as to what he pleases,” but that his other witnesses could not testify “in the nature of alibi.” This was all he would have been entitled to under the present code (K. S. A. 1971 Supp. 22-3218) and more than he was entitled to under the code then in effect and the authorities cited above. The ruling certainly was not reversible error.
The error claimed in the instructions was the inclusion of various definitions, those particularly objected to being of murder and manslaughter. The second count of the information, assault with intent to kill, was based on the shots fired at Mr. Jacobs. Appellant’s objection was that he was not charged with murder or manslaughter, and that a definition of those crimes might confuse the jury to his prejudice. The trial court overruled the objection, feeling that the definitions were necessary to complement the instruction on the lesser included offense of endangering the life of Mr. Jacobs— an instruction to which the appellant did not object and which was clearly called for under the evidence. See State v. Trotter, 203 Kan. 31, 453 P. 2d 93, and cases cited at page 38.
In so ruling and instructing we think the trial court was eminently correct. The statute defining the lesser offense, former K. S. A. 21-435, required that the endangerment of life must have occurred “under circumstances which would constitute murder or manslaughter if death had ensued.” To have instructed on that section without telling the jury what “circumstances would constitute murder or manslaughter” would have left them wholly at sea. We specifically approved giving such definitions in conjunction with an instruction under 21-435 in State v. Hanks, 179 Kan. 145, 148, 292 P. 2d 1096.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a judgment in favor of the defendants in an alleged wrongful death action.
In a way, it may be said the chief controversy is the absence of facts rather than a dispute over the facts.
The plaintiffs, Earl Lewis, Sr., and Lilly Lewis, brought this action seeking recovery for the death of their 16-year-old son who died as the result of a collision between an automobile and a tractor-truck on Highway 1-35 near Guthrie, Oklahoma.
Earl Lewis, Jr., plaintiffs’ decedent, left Wichita about 8:00 o’clock p. m. on January 10, 1969, with his mother’s admonition that he was not to leave Sedgwick County. At about 10:00 o’clock p. m., a reddish colored 1956 Chevrolet with the number 38 painted on it and containing four boys and two girls, one of which was plaintiffs’ decedent, stopped at the Arrow Motel in Guthrie, Oklahoma. Michael Kirk registered, stating his party was driving a 1966 Chevrolet with license number SG 16616. He paid for a room for two people. The car was in fact a 1956 Chevrolet and the license on the car was SG 174103.
The young people were in the motel for a short time. However, they took the mattress off the box springs and put it on the floor. They then put the top sheet and a blanket on the mattress, and put the bottom sheet and bedspread over the box springs. They were making beds for more than two people.
When the young people left the motel in the 1956 Chevrolet, only one taillight was on, or the taillights were so dim it was difficult to see them. As the Chevrolet started to enter the highway, the motor died, and it took ten or fifteen minutes to get it started. They then drove into a service station at Guthrie and apparently made some motor adjustments.
At about 11:00 o’clock p. m., one of the defendants, Harold Clayton Watts, was driving a tractor-trailer for the Service Provision Company, Inc., containing fresh beef, and was about five miles south of Guthrie on Highway 1-35, a four-lane highway. He was traveling south, and as he came over a rise the Chevrolet, also traveling south, was pulling off onto the shoulder of the highway. Watts continued driving in the outside lane. When he was approximately 50 to 75 feet from the Chevrolet it suddenly pulled back onto the highway directly in front of him. Mr. Watts testified:
“Well, I was driving up — I was coming up a long hill. It had kind of a drawn out curve in it. And I topped over this hill and started down it on the other side and I observed this car on the highway. He was pulling over to the shoulder of the road about the time I observed him. So, I just supposed that he was going over there to stop.
“I saw, if there was lights on this car, that they were very dim, but I could still see the bulle of the car in the road and so as I was going on, I, of course, checked the traffic behind me and there was a truck coming up close behind me and I believe it was another car behind him . . . [M]y road was clear ahead of me and I thought — I didn’t think any more about pulling over because the car was completely on the shoulder at this time . . . But, this car had not stopped to my knowledge and I supposed everything was safe, nobody would pull out in front of the truck or other traffic. I had my headlights on, but this is what happened. I glanced back in the mirror to check the traffic between — which this is a constant thing we do all the time; we want to know what is in front of us and what is behind us — and as I looked back, this car, it looked to me like maybe he was trying to make a U-tum or something. He came off the shoulder of the roadway right directly in front of my truck and I don’t even remember if I had time to apply the brakes ox not . . .”
Watts further testified:
“When I first observed the car pulling off on the shoulder, I may have taken my foot off the accelerator a bit — I don’t really remember. I know I tried to turn my truck to miss the car, but I hit it anyway. When the car pulled out in front of me, I could see mostly the side of the car, rather than the back of it. I tried to turn the truck to the left; I don’t know how far down the road after impact the car caught fire — I thought at the time I was still on the highway when the car ignited.
“The car pulled off on the shoulder; my lane of traffic was clear and I didn’t think at the time it was necessary to slow down. I didn’t know I was overweight that night, but I now know I was about 5,000 pounds overweight. I estimate my speed at impact at about 60 mph.”
The license tag SG 174103 on the Chevrolet belonged to plaintiffs’ decedent, Earl Lewis, Jr., and had been taken from a 1958 Plymouth which he owned. It is conceded the Chevrolet was being operated with young Lewis’ consent and permission although its true ownership was never established.
All six of the young people riding in the Chevrolet were killed. The highway patrol found an empty Schlitz beer can and a one-gallon jug which had contained Bali Hai wine in the wreckage of the Chevrolet. The seal had been broken on the wine jug.
Bob C. Baker was driving north on 1-35, and was the only eyewitness to the accident other than the driver of the truck. He testified:
“The truck didn’t have a chance to miss that car — it pulled right out in front of him. He tried to miss the car, the truck swerved to the left but he couldn’t miss the car. I could not swear at the time there was anyone in the car going over the embankment, but I do swear I never saw a car run down the road with no one in it. I did not know the driver of the truck. The man driving the truck did everything in his power to avoid the accident.”
The jury heard the case and returned a verdict in favor of the defendants. It also answered two special questions which were submitted by the district court at the plaintiffs’ request:
“No. 3. Do you find that die decedent was guilty of negligence? Answer: Yes. 4. If you answer No. 3 yes, what act or acts of negligence do you find against the decedent? Answer: Passenger or driver failed to observe oncoming traffic from the rear and give warning.”
The plaintiffs have appealed. The issues raised may be summarized as follows: First, should the district court have directed a verdict in favor of plaintiffs and against the defendants on the issue of liability only at the conclusion of all of the evidence, and second, was there sufficient evidence to justify submission to the jury the question of contributory negligence.
In considering a motion for a directed verdict all evidence and all inferences reasonably to be drawn therefrom must be considered in the light most favorable to the party against whom it is directed. Such evidence must be accepted as true and all unfavorable evidence disregarded. In Diaz v. Duke, 206 Kan. 650, 482 P. 2d 48, it was held:
“In determining whether as a matter of law a defendant is guilty of negligence making him liable for the injuries the plaintiff may have sustained, all of the testimony favorable to the defendant must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the district court as a matter of law.” (Syl. f 1.)
The trier of fact has the responsibility of weighing the evidence and determining what testimony will be believed. (Horton v. Montgomery Ward, 199 Kan. 245, 249, 428 P. 2d 774.)
After a careful study of the record we find no evidence of any negligence on the part of the defendant truck driver which contributed to the accident or the resulting death. Watts was traveling at a speed of 60 miles per hour. He saw the Chevrolet about 300 feet in front of him when it pulled off onto the shoulder which was twelve feet wide. The Chevrolet slowed but did not stop, and when Watts was about 50 or 75 feet from it, the driver of the car pulled out directly in front of him. There is no Oklahoma statute which required Watts to change traffic lanes under such circumstances. As we have previously stated, the only eyewitness to the collision testified:
“The truck didn’t have a chance to miss that car — it pulled right out in front of him. He tried to miss the car; the truck swerved to the left but it couldn’t miss the car.”
The turning of the Chevrolet from the shoulder onto the highway immediately in front of the truck was the proximate cause of the collision. Although it was not established which of the six persons was driving, certainly the driver of the tractor-trailer had no control over the Chevrolet.
The plaintiffs attempt to make an issue of the fact that the truck was 5,000 pounds overweight under the Oklahoma law. The truck was carrying some 48,190 pounds. There was to have been 24,000 pounds unloaded at Okmulgee, Oklahoma. The overall load, including the tractor-trailer, was 78,190 pounds. The evidence showed the legal overall load in Oklahoma was 73,000 pounds. However, an expert witness from the Wichita police department testified as to the distance it would take to move the tractor-trailer from one lane to another going 60 miles per hour. He stated that considering either the legal load or the actual load, the move would require a reaction time of 66 feet and an additional 305 feet to move the tractor-trailer from one lane to the other — a total of 371 feet.
It is readily apparent that regardless of the overload, the driver of the tractor-trailer could not have avoided the collision.
The violation of a traffic law does not establish actionable negligence as a matter of law unless it is made to appear that the violation was the proximate cause of the injury. In Applegate v. Home Oil Co., 182 Kan. 655, 324 P. 2d 203, we stated:
“. . . It is likewise settled that mere violations of traffic laws are not themselves sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the violation contributed to the collision and was a proximate cause of the injury sustained. (Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Crawford v. Miller, 163 Kan. 718, 186 P. 2d 116; Ripley v. Harper, 181 Kan. 32, 309 P. 2d 412.)” (1. c. 661.)
The defendant driver of the tractor-trailer having been guilty of no negligence which was a proximate cause of the injury, there could be no liability either on his part or that of his employer to the plaintiffs for the death of their decedent. It would serve no useful purpose to discuss the question of contributory negligence on the part of the plaintiffs’ decedent.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is the amount of interest payable on a judgment entered in a wrongful death action on November 17, 1967. The validity of the judgment alnd the order of the trial court respecting the two contending defendants was before this court in Bartlett v. Heersche, 204 Kan. 392, 462 P. 2d 763.
The plaintiffs brought an action as parents and heirs at law for the wrongful deaths of two of their minor children, who drowned in a sandpit, against the defendants as joint tortfeasors. The defendant Davis Corporation cross-claimed against its co-defendant, Marinas Heersche, d/b/a Big River Sand Company, alleging an agreement by Heersche to indemnify the Davis Corporation for any damages arising from the operation of a sandpit within the corporate limits of the city of Wichita, in which the plaintiffs’ children were drowned.
After the trial of the matter in the district court, the jury on the 17th day of May, 1967, returned its verdict in favor of the plaintiff Bartlett and against the defendants jointly in the amount of $26,-175.17, and in favor of the plaintiff Elliott and against the defendants jointly in the amount of $25,848.85.
After liability to the plaintiffs was determined by the jury, the trial court determined the controversy between the defendants, and it was not until the 17th day of November, 1967, that the journal entry of judgment was filed. Judgment was entered for the plaintiffs in accordance with the jury’s verdict and provided that interest was payable thereon at the rate of 6% per annum from November 17, 1967, together with the costs of the action.
The defendant Davis Corporation duly perfected an appeal from the judgment of November 17, 1967, and prior orders adverse to it wherein the trial court dismissed the cross-petition of the Davis corporation against the defendant Heersche. Heersche also appealed from the judgment of November 17, 1967. In that appeal to the Supreme Court the judgment against the two defendants was affirmed on December 23, 1969. However, the trial court’s order entered on November 7, 1967, dismissing the Davis Corporation’s cross-petition against Heersche was reversed. (Bartlett v. Heersche, supra.)
It is to be noted the foregoing appeal by the defendants to the Supreme Court did not raise any question concerning the interest payable on the judgment entered November 17, 1967.
After the mandate was filed, the Davis Corporation on February 9, 1970, filed a motion for summary judgment on its cross-petition against Heersche or, in the alternative, for immediate trial to the court and for an order staying execution or enforcement of the judgment against the defendants, under the provisions of K. S. A. 60-254 (b) or K. S. A. 60-262 (g). On the 20th day of February, 1970, the trial court conducted a hearing at which time it ordered that the Davis Corporation:
". . . shall pay into court the sum of $29,538.63 which represents one-half the judgment entered on behalf of plaintiffs plus interest at the rate of 6 percent per annum to and including this date, and shall pay into court the sum of $5.00 per day for each day after February 20, 1970, until paid. Such payment shall, however, not prejudice the rights of Davis Corporation in its claims against defendant, Marinas Heersche, in any way.
“The court further finds that plaintiffs may draw down monies paid in by defendants without prejudice to the claim of plaintiffs that they are entitled to interest at the rate of 8 percent per annum rather than 6 percent per annum from July 1, 1969, until the payments ordered herein are made.”
Counsel for the plaintiffs refused to approve the order made on the 20th day of February, 1970, and on March 2, 1970, the Davis Corporation filed a motion asking that the order be entered without the approval of counsel for the plaintiffs. It was subsequently entered without approval of counsel for plaintiffs on May 4, 1970.
On the 9th day of February, 1970, Heersche through his insurance earner paid the amount of his judgment into the clerk of the district court, and on the 26th day of February, 1970, the Davis Corporation paid the amount of the judgment against it into the clerk of the district court.
It was after the hearing on February 20, 1970, but prior to the time the journal entry was filed, that counsel for one of the plaintiffs filed a praecipe for execution of order for sale which indicated judgment of $61,258.67 less $29,522.64 (the amount of the payment by Heersche) and showing a judgment due of $31,736.03, almost $2,000 more than the amount of the court order pursuant to the hearing on February 20, 1970. The execution was not actually issued, but was withheld at the request of the attorney who signed the praecipe for execution. It is to be noted this increased amount took into consideration for the first time interest calculated from the 17th day of May, 1967, rather than November 17, 1967.
The plaintiffs never filed a motion asldng for relief from nor modification or amendment of the judgment dated November 17, 1967, or the order of February 20, 1970, and no appeal was taken from either of them. The plaintiffs did contend that the statute, effective July 1, 1969, increasing the interest rate from 6% per annum to 8% per annum operated to allow plaintiffs interest at the rate of 8% per annum rather than 6% per annum from July 1, 1969, until the judgments were paid. (K. S. A. 1971 Supp. 16-204.) That contention was made orally at a time when the defendants concede tifie matter was properly before the court (February 20, 1970), and it was set for hearing on May 19, 1970.
On the 12th day of October, 1970, the court ordered that interest would run until the date of April 24, 1970, the date on which the plaintiffs were first permitted to draw down from the clerk of the district court the face amount of the judgments. The court further ordered interest at the rate of 6% per annum from November 17, 1967, to July 1, 1969; and interest from July 1, 1969, to April 24, 1970, at the rate of 8% per annum.
The defendants filed their joint notice of appeal from the order of October 12, 1970, modifying the judgment entered and affirmed in the cause, and the order made and entered on February 20, 1970. The plaintiffs filed their notice of cross-appeal from the order of October 12, 1970, stating that the order denied the plaintiffs statutory interest from the date of the jury verdict on May' 17, 1967, and denied plaintiffs interest on the judgment at 8% from the date of the verdict as provided by law.
The plaintiffs have abandoned their claim for interest at the rate of 8% from May 17, 1967, to July 1, 1969, in their brief.
To avoid confusion we shall continue to refer to the parties as plaintiffs and defendants throughout this opinion.
The first three points asserted by the plaintiffs on appeal are stated in this fashion:
“1. Where a jury returns a general verdict for damages and the verdict is entered upon the appearance docket of a trial court forthwith, as provided by K. S. A. 60-258 (a), in an action in which multiple claims were presented under K. S.A. 60-213 (g), but in which the multiple claims were separated for trial pursuant to K. S. A. 60-242 (b), does the entry of the verdict upon the docket constitute the effective date of judgment for the purpose of computation of interest?
“2. Are the provisions of K. S. A. 60-254 (b) pertaining to the finality of judgments upon multiple claims applicable to the effective date of a jury verdict in the separate trial of one of the claims, where no prejudice to the disposition of the other claims is presented by the verdict in the trial of the former?
“3. Does a trial court retain jurisdiction of an action under K. S. A. 60-254 (b) where multiple claims are present until entry of judgment adjudicating all such claims?”
The foregoing questions may eventually require this court’s determination, but the failure of the plaintiffs to raise these questions on appeal from the order of November 17, 1967, when the matter was originally brought to this court, precludes their consideration. In an effort to circumvent this failure the plaintiffs assert the order of November 17, 1967, insofar as it refers to the interest to which the plaintiffs were entitled, was void, and as a nullity it may be attacked collaterally at any time. (Citing, In re Estate of Cornelison, 178 Kan. 607, 290 P. 2d 1016.) They contend that the order was void and of no effect because:
“. . . it was in contradiction of section 16-204 which provided that ‘All judgments of courts of record . . . shall bear interest from the day on which they are rendered,’ and section 60-258 which provides in pertinent part, ‘judgment upon the verdict of a jury shall be entered forthwith.’ Furthermore, plaintiffs submit that the deprivation of interest on the verdict from the date of its entry constituted a contravention of Article 18 of the Bill of Rights of the Constitution of the State of Kansas . . . and the Fourteenth Amendment to the Constitution of the United States. . . .”
We fail to see merit in this argument. The trial court construed the sections of the statute asserted by the plaintiffs when it entered judgment on November 17, 1967. It had the power to enter an erroneous judgment as well as the power to enter a correct judgment concerning the date from which interest was payable on the judgment. No appeal having been taken by the plaintiffs on the question of interest, they cannot be heard at this time to assert interest is payable from May 17, 1967. Under the circumstances the plaintiffs must be content to accept interest from the date of November 17, 1967.
The defendants contend the court erred in ordering interest to be paid until April 24, 1970.
On the 20th day of February, 1970, the court ordered paid into court that portion of the judgment and interest which had not previously been paid into court. The defendants complied on February 26, 1970, and the money was available to the plaintiffs at any time thereafter. The delay encountered in procuring an order from the court permitting the plaintiffs to draw down the funds paid into court on the judgment was attributable to the dilatory tactics of the plaintiffs.
Once a judgment debtor pays the full amount of money payable on a judgment into court, interest is not recoverable on the monies deposited in court. The general rule goes even further — when a fund of money is deposited with the court, and cannot be paid out without an order of the court, the fund will not bear interest during such time as it is within the custody of the court. (Metropolitan Water Dist. v. Adams, 32 C. 2d 620, 197 P. 2d 543; City of Barnsdall v. Curnutt, 201 Okl. 508, 207 P. 2d 320; and 47 C. J. S., Interest, § 54.) During such time neither party has use of the funds. (Beaudry v. Favreau, 99 N. H. 444, 114 A. 2d 666.)
Did the trial court apply the proper rate of interest payable on a judgment?
K. S. A. 16-204, as amended (now K. S. A. 1971 Supp. 16-204), effective July 1, 1969, states:
“All judgments of courts of this state shall bear interest from the day on which they are rendered, at the rate of eight percent (8%) per annum, except as otherwise provided.”
In material part 16-204, prior to amendment, was worded identically, except that it called for the payment of interest on judgments at the rate of 6% per annum.
A settled principle of statutory construction requires that statutes be given prospective operation only, unless contrary legislative intent is expressed clearly, or necessarily implied from the language used. (Lyon v. Wilson, 201 Kan. 768, 774, 443 P. 2d 314, and cases cited therein.) Consistent application of this rule, in respect to fact situations involving fixed rights accrued under statutes prior to amendment, requires its application here.
Nothing in the language used in 16-204, as amended, either plainly states an intention the new statute shall operate retrospectively, or by necessary implication requires such construction. On the contrary, the language that judgments shall bear interest “from the day on which they are rendered” at 8% per annum suggests that it be applied prospectively only. In other words, as we construe the statute, it is only judgments entered on July 1, 1969, and thereafter that bear interest at 8% under 16-204, as amended. The judgment entered on November 17, 1967, decreed interest payable at the rate of 6% per annum from such date in accordance with 16-204, prior to its amendment, and such judgment is not affected by the amendment.
We have been cited to no Kansas case directly in point, and our research has disclosed none. But a case in point is Sunray DX Oil Co. v. Great Lakes Carbon Corp, 476 P. 2d 329 (Okla. 1970), supplemental opinion on rehearing at page 344. After reviewing the authorities from other jurisdictions and the various theories advanced, the Oklahoma Supreme Court concluded the law of Oklahoma on the point to be as we construe 16-204, supra. For a related, but distinguishable, case on interest, see Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P. 2d 555.
An annotation on the retrospective effect of statutory interest on judgments and verdicts appears in 4 A. L. R. 2d, § 10, p. 949. The wording of the various statutes affecting interest in the cases discussed is not indicated. However, it does reveal the authorities are divided as to the retrospective effect of a change in the statutory rate of interest permitted on a judgment. (See, also, A. L. R. 2d Later Case Service Supplementing 1-6 A. L. R. 2d, at page 542.)
We conclude the plaintiffs are entitled to interest at the rate of 6% per annum on their judgments from and after November 17,1967, until February 26, 1970, when the full amount of these judgments was finally paid into court.
The judgment of the lower court is affirmed as modified.
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The opinion of the court was delivered by
Owsley, J.:
This is an action for damages caused by the misrepresentation, fraud, and deceit of the defendant. The trial court sustained a motion for summary judgment in favor of the defendant on the grounds that the plaintiffs’ causes of action were premature.
The controversy centers around Form 319A “Option Agreement— Flat Payment,” whereby each of the plaintiffs purchased property located in Wyandotte County, Kansas, from the defendant, Juanita R. Rupert, through her agent, Lloyd R. Wallace. It is conceded that each of the parties plaintiff signed the same agreement and each is in the same position. The appellant purchasers will be referred to as the plaintiffs herein and the appellee seller will be referred to as the defendant.
The parties present this appeal in accordance with Rule No. 6 (o). The agreed statement approved by the parties and approved by the court in accordance with this rule is set forth as follows:
“The defendant Juanita R. Rupert owned real estate in Blue Lane Addition. The defendant Wallace and she had an agreement whereby he would handle the sales in such addition for her and share in proceeds, so that for all intents and purposes, they may be considered owners and vendors.
“Plaintiffs Letzig and defendants executed an instrument, hereinafter set out in full, whereby such plaintiffs would pay an agreed down payment on the agreed price, and by making installments required, would be entitled to a conveyance of the property.
“Plaintiffs Young did likewise, as did plaintiffs O’Haro.
“After having made their respective down payments and installments, during which time they had possession, plaintiffs allegedly claim to have discovered that they had been induced to enter into such purchases by reliance upon misrepresentations of the defendants, to their damage, and thus this action the plaintiffs, by their respective counts of the petition, assert a cause for damages for misrepresentation.
“Defendants claim, and assert by their Motion for Summary Judgment, that suit is premature, and thereby contend that plaintiffs have no cause of action until they complete payment of the agreed price.
“The Honorable Court has adopted this view and so ruled, and dismissed the petition without prejudice, thus creating the real and primary issue: Do plaintiffs presently have a cause of action or must they either pay forthwith the balance due to avoid dismissal, or otherwise continue in due course to make and complete all tire payments to discharge the price before being entitled to their recourse to, and relief by, the Courts for their causes of action as stated.
“For purposes hereof, no issue is raised but all that plaintiffs have been, and are, current in installments required.
“Plaintiff Lee Young, now deceased, has been succeeded as a party by Frederick Cross, administrator w. w. a; and defendant Rupert, since deceased, has been succeeded by Richard Rupert, executor.
“For the reason that same bear, and may be both essential and helpful, for your determination, the Record as follows is incorporated herein by reference.”
By journal entry dated July 27, 1970, the trial court made the following finding:
“2. Defendants’ motion for the dismissal of plaintiffs’ actions, without prejudice, should be sustained as of September 14, 1970, unless plaintiffs or any one of them should elect, on or before September 14, 1970, to exercise his or their respective options by depositing the entire amount required to take up his option with the Clerk of this Court, in which event defendants’ motion for dismissal should be overruled as to such plaintiff or plaintiffs who deposit said amount and who elects to take up said option and to purchase the real estate he has under option.”
The sole and agreed question presented by the parties on appeal is whether or not the trial court erred in making this finding. It is apparent that Form 319A “Option Agreement — Flat Payment,” which is the subject of this action, has been popular for many years and has been used extensively in Wyandotte County, Kansas. The agreement has been before this court for construction on many occasions. (Dengel v. Lowder, 144 Kan. 735, 62 P. 2d 866; Rieke v. Smith, 144 Kan. 643, 62 P. 2d 889; Home Owners’ Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096; Hively v. Graff, 151 Kan. 594, 100 P. 2d 685; Stevens v. McDowell, 151 Kan. 316, 98 P. 2d 410.)
Briefly stated, in connection with plaintiff Letzig, the defendant for consideration of the sum of $100.00 gave an option until the first day of May, 1962, to Letzig, to purchase certain real estate in Wyandotte County. The option price was $4,502.37 and Letzig had the right to extend the option from month to month by paying the sum of $40.00 on the first day of each succeeding month. The agreement further provided that in the event of the exercise of the option, Letzig would be entitled to credit for the payments made to the defendant on the purchase price of the real estate. Other provisions of the contract are not necessary to decide the point on appeal.
In Stevens we properly construed this contract in the following language:
“The bench and bar of this state have long been familiar with a form of real-estate contract between two parties, whom for convenience we will name as the owner-vendor and the tenant-vendee, in which the former names a price at which he will sell the property and names a specified amount to be paid monthly, and in which he agrees to let the latter into possession upon condition that if the monthly payments are made until their aggregate sum amounts to the specified purchase price the property shall be conveyed to the latter; but if the tenant-vendee fails in his monthly payments then whatever amounts he shall have paid are to be considered merely as rent for the premises, and he shall have no interest in the property and may be removed therefrom as in forcible detainer. There are many clever, even devious, contracts to this effect, and the sum of judicial dealing with them in this and other courts may be stated to this effect: If the down payment by the tenant-vendee has been negligible, and his monthly payments have been but few or have only been paid irregularly, to the manifest loss of the owner-vendor, the contract will ordinarily be enforced according to its terms. (Roberts v. Yaw, 62 Kan. 43, 49, 61 Pac. 409; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923; Heard v. Gephart, 118 Kan. 82, 233 Pac. 1044; Rieke v. Smith, 144 Kan. 643, 62 P. 2d 889.)
“But if the monthly payments have been made with reasonable promptness and have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial payment on the purchase price, or where substantial improvements have been made by the tenant-vendee, then equity may not permit the interest of the tenant-vendee to be summarily extinguished in forcible detainer, but will deal with the situation according to equitable principles, and may require proceedings as in equitable foreclosure before the interest of the latter can be extinguished. Cases illustrating various aspects of this doctrine run through all our reports. (Courtney v. Woodworth, 9 Kan. 443; Holcomb v. Dowell, 15 Kan. 378; National Land Co. v. Perry, 23 Kan. 140; Usher v. Hollister, 58 Kan. 431, 49 Pac. 525; McCullough v. Finley, 69 Kan. 705, 707, 77 Pac. 696; Geffert v. Geffert, 98 Kan. 57, 157 Pac. 348; Yost v. Guinn, 106 Kan. 465, 188 Pac. 427; Holman v. Joslin, 110 Kan. 674, 205 Pac. 629; Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081; Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448; Home Owners’ Loan Corp. v. Jaremko, 146 Kan. 328, 69 P. 2d 1096.)
“See, also, 6 Kan. Bar Journal, 328-330.” (pp. 319, 320.)
In McWilliams v. Barnes, 172 Kan. 701, 242 P. 2d 1063, we considered the point raised in this appeal and said:
“A party defrauded in the making of a contract, who discovers the fraud after having partly performed, may continue with performance and also have his action for damages.” (Syl. ¶ 1.)
The contract involved in McWilliams, according to the records in this court, is similar to the contracts involved here. In McWilliams, the purchaser paid $1,000 down and extended the option by paying $35.00 each month thereafter. The McWilliams case appears to have decided the issue now raised by this appeal.
The defendant questions the rule established in McWilliams, claiming that a thorough reading of this case does not disclose the defendant ever called the court’s attention to the proposition that until plaintiff exercised his option he had no rights which could be, or were, damaged. We do not agree with the proposition that plaintiff cannot be damaged until he exercises his option. Also, we do not agree that the failure of the court in McWilliams to consider the proposition detracts from the establishment of the rule of law stated therein.
Defendant cites Bushey v. Coffman, 109 Kan. 652, 201 Pac. 1103, as being contrary to McWilliams. We do not construe Bushey as stating a contrary rule of law. Bushey held that a party induced by fraud to enter into a contract which has been partly performed before discovery of the fraud does not waive his cause of action based on fraud by an election to affirm the contract, complete its performance, and retain what was received under it.
We agree that purchasers’ continued compliance with the contract after discovery of the fraud does not constitute a waiver, but we do not construe Bushey as holding that the purchaser in a real estate contract must complete all installment payments before an action based on the fraud of the seller can be commenced.
The record discloses that as of February 5, 1970, plaintiff Letzig had paid $2,167.50 on the purchase price of $4,502.37. Young and O’Haro had paid like amounts on the same purchase price. In view of the record, we are justified in assuming the plaintiffs have each continued to make their monthly payments. If this is true each of the plaintiffs has paid on said purchase price the additional sum of $1,000 up to and including March 5, 1972. Since interest is deducted from payments by the terms of the agreement, plaintiffs would not be entitled to a reduction of the principal in the full amount paid.
We affirm the ruling in Stevens that when the purchaser has made payments for such a length of time that the aggregate amount of said payments constitutes the equivalent of a substantial payment of the purchase price the purchaser acquires an equitable interest in the property. We conclude that the payment of $2,167.50 on a purchase price of $4,502.37 constitutes a substantial payment justifying the claim of the purchasers that they hold an equitable interest in the property. We follow the rule in McWilliams that these plaintiffs may have their action for damages without fully performing the contract. We further hold that an action for damages cannot arise until the purchasers have acquired an equitable interest in the property in accord with the test expounded in Stevens.
This conclusion disposes of cases like Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076, and Fourth National Bank v. Hill, 181 Kan. 683, 314 P. 2d 312. These were “pure option” contracts whereby for a stated sum a person is given the right to purchase property at a stated figure for a limited time. The option holder in this arrangement acquires no equitable interest in the property which will, prior to the exercise of the option, support an action for damages.
The trial court found that before plaintiffs have a cause of action for damages based on fraud they must exercise their respective options by paying the entire amount due on the contracts. In so doing, the trial court has rewritten the agreement between the parties. We feel that the trial court by its judgment herein has required the plaintiffs to complete their payments and exercise their options when in fact it may be impossible for them to do so. If impossible, the ruling of the trial court, in effect, defeats plaintiffs’ causes of action. An action for fraud must be commenced within two years after discovery of the fraud. (K. S. A. 1971 Supp. 60-513 [3].) If plaintiffs do not have a cause of action until each of them has completed his payments, their action would be barred by limitations, since the completion of the payments may not occur under the facts in this case until more than two years after the discovery of the fraud. This exposes the unfairness of the trial court’s ruling.
We conclude that the plaintiffs’ causes of action are not premature.
The judgment is reversed.
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The opinion of the court was delivered by
Harman, C.:
This is a declaratory judgment action brought to nullify an ordinance of the city of Wichita governing the issuance of franchises for cable television systems.
The case has been here before (Community Antenna TV of Wichita, Inc. v. City of Wichita, 205 Kan. 537, 471 P. 2d 360, 41 A. L. R. 3d 374), review of which is necessary for an understanding of its present posture.
After enactment of the subject ordinance (No. 28-882) four bidders applied for a franchise. Plaintiff did not apply. Grant of a franchise was made to “the highest bidder”, as more particularly related in our prior opinion. Plaintiff, which proposed to operate a cable TV system in Wichita, then brought this action to have the ordinance declared null and void.
After full hearing the trial court ruled that the provisions of the ordinance requiring payment to the city of a percentage of die gross annual receipts of the grantee and requiring the furnishing, free of charge, of outside connections and services to all hospitals, municipal buildings and public and parochial schools within the city bore no reasonable relationship to the expense and inconvenience to be occasioned by the city. Additionally it concluded that the percentage payment requirement was purely a revenue measure. The court held both requirements void. It further ruled the ordinance was severable and that its other provisions were valid and it refused to enjoin enforcement of the remainder of the ordinance.
Plaintiff then brought the matter here. We sustained plaintiff’s position and declared the entire ordinance void and unenforceable (Community Antenna TV of Wichita, Inc. v. City of Wichita, supra.) It should be noticed no appeal was taken from the trial court’s ruling respecting the payment requirements and the ruling became final and the law of the case. We expressed agreement with that ruling (p. 543).
On August 24, 1970, pursuant to our mandate, the trial court entered an order declaring ordinance No. 28-882 void and unenforceable and permanently enjoining its enforcement.
Thereafter and on September 1, 1970, the city commission duly repealed ordinance No. 28-882. On September 8, 1970, the city commission placed on first reading another ordinance (unnumbered) governing the issuance of franchises for cable television. It is conceded that, with certain exceptions, this ordinance is virtually identical to No. 28-882. Exceptions which should be noticed at this point are: (1) The ordinance states it is enacted pursuant to the authority of K. S. A. 12-2001; (2) under the definition section the term “grantee” is stated to mean “AirCapital Cablevision, Inc.”; (3) the grantee obligates itself to pay to the city seven and one half per cent of its gross annual receipts; and (4) the provision in the old ordinance for the furnishing of free service and connection to all hospitals, schools and municipal buildings within the city is eliminated.
On September 15, 1970, the city commission placed the new proposed ordinance on second reading. On September 16, 1970, plaintiff filed its motion for citation for members of the city commission to show cause why they should not be found guilty of and punished for indirect contempt of court because of the proposed enactment of the ordinance in question, which enactment was alleged to be violative of the injunctive order issued by the trial court pursuant to this court’s mandate. Citation was issued and hearing was had upon the contempt proceeding on September 18, 1970. By order filed September 25, 1970, the trial court found the commission not guilty of contempt and dismissed the contempt proceeding. The reason for the trial court’s dismissal order was not stated but, among other things, the city urged that the proceeding was prematurely brought because the ordinance had never been adopted. No appeal has been taken from that order.
Meanwhile, and on September 21, 1970, on its own motion, the trial court entered an amended journal entry of judgment pursuant to this court’s mandate in the action directed against ordinance No. 28-882. The amended order declared that certain provisions of that ordinance were beyond the city’s enactment authority. The order enumerated the particular items and enjoined the city from their enactment by ordinance. It may be noted the items are substantially the last ten of those mentioned by number in our first opinion (Community Antenna TV of Wichita, Inc. v. City of Wichita, supra, pp. 539-540).
On September 30, 1970, the city filed its motion to modify the September 21st order. The motion specifically requested a ruling that passage of the proposed new ordinance under the authority of K. S. A. 12-2001 would not be violative of the September 21st order.
On November 19, 1970, the trial court denied the city’s motion to modify. The city has now appealed from this order and from the September 21,1970, order as well.
Each side presents several contentions as to this appeal but in view of our disposition we will mention only one.
The city seeks approval of its proposed action by virtue of the franchising authority vested in it under K. S. A. 12-2001. It emphasizes particularly that portion of the statute added by amendment in 1949 which authorized the governing body of any city to grant to any person, firm, corporation or partnership the right to use the streets in the carrying on of any business which is not prohibited by law wherein said business is primarily conducted on the streets of any city, upon certain named conditions (compare Laws 1945, Ch. 98, § 1 and Laws 1949, Ch. 119, § 1). The city recognizes the adverse impact of Manor Baking Co. v. City of Topeka, 170 Kan. 292, 225 P. 2d 89, wherein this court broadly held that the statute in question has application only to public utilities. The city urges either disapproval of that case or its distinguishability. We decline to do either.
Examination of the basis for our first holding in Community Antenna TV of Wichita, Inc. v. City of Wichita, supra, is in order. As stated in that opinion the trial court found as a fact the following:
“ ‘Community antenna television service is a commercial enterprise of nonpublic utility character.’” (p. 540.)
No issue as to this finding was raised and respecting it we 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.)
Hence, as presented by the parties, we treated the operation of a cable TV system as a purely private enterprise and, relying on former decisions involving the exercise of the police power with respect to such activity, we concluded much of the challenged ordinance dealt excessively with the management of the internal affairs of a CATV system.
Events transpiring since that appeal was decided have led us to question the approach taken. At its recently adjourned session the 1972 Kansas legislature enacted Senate Bill No. 499 which became effective March 24, 1972. This enactment declared “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.” It further directed that “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. . . .” The act authorizes cities to prescribe the payment of reasonable compensation in granting franchises for cable television service and it further states that such payments shall be generally in conformance with standards, if any, established by federal communications commission regulations or other applicable law (Laws 1972, Ch. 49).
Without in any way passing upon the validity of the application of this legislation we cannot overlook its significance as a declaration of public policy — that the furnishing of cable television service by the means specified is a private business affected with a public interest so as to require its reasonable regulation by cities in avoidance of possible detrimental consequences to the public interest.
Almost coincidental with this legislation the federal communications commission, after extended exploration, has, without completely preempting the field, significantly increased its area of regulation of cable television systems. It has promulgated new rules proposing the franchising by local authorities with minimum standards for the same to be prescribed by the commission prior to the latter’s certification of a system’s authority to broadcast. Its new rules became effective March 31, 1972 (see 37 Fed. Reg. 3252 [1972]).
These efforts at a viable dual state-federalism proclaim a public interest in the regulation of cable television systems which cannot be ignored. Agreeable to this sense, and because this proceeding remains one for declaratory judgment, we consider this an opportune time to acknowledge the present overbreadth of our prior holding, premised as it was on the proposition that cable television is a private business unaffected with a public interest (see also Capitol Cable, Inc. v. City of Topeka, 209 Kan. 152, 495 P. 2d 885).
We acknowledge that the trial court reached the right result in its first ruling and we recede from our position adopted upon the first appeal with respect to the matters there in issue.
Accordingly, we reverse the trial comb’s September 21, 1970, order which supplemented our mandate. In view of the new legislation and regulations promulgated on the entire subject, directions in connection with such reversal become inappropriate.
Judgments reversed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Kaul, J.:
This action was brought by plaintiffs-appellees to recover damages from defendant-appellant on the theory that defendant breached covenants of title in a deed for conveyance to plaintiffs. The controversy arose when it was discovered, after an exchange of one-half quarter sections of land, that defendant did not own the one-half of the quarter section which he conveyed but only 76.5 acres thereof, which was described in metes and bounds. The contract and deeds effecting the exchange were executed on January 10, 1968. In their brief plaintiffs state that upon discovery that defendant owned only part of the tract involved they immediately requested that defendant either restore the parties to their original position by mutual reconveyances of the exchanged lands, or that the balance of the tract be acquired at defendant’s expense, or that defendant pay damages to plaintiffs for the loss sustained. Defendant refused and plaintiffs filed suit.
In his answer to plaintiffs’ petition defendant admitted that he owned only the metes and bounds description set out in plaintiffs’ petition, but alleged that the facts were either known to plaintiffs or in the exercise of due care should have been known to them and that, in spite of such knowledge or access thereto, plaintiffs proceeded with the trade. Defendant further alleged that the market value of the land received by plaintiffs was in excess of the market value of the land received by him; that the parties exchanged land in gross; and that the exact acreage was of no consequence. Requests for admissions by defendant were filed, and on October 31, 1969, a pretrial conference was had. The pretrial order reflects facts agreed upon as follows:
“(2) Facts agreed upon by the parties: That plaintiffs and defendant are Reno county residents; that in the spring of 1968, plaintiffs deeded to defendant the South Half of the Southwest Quarter of section 17, Township 24 South, Range 7 West, in Reno county, Kansas; and in return, defendant deeded to plaintiffs the West Half of the Southeast Quarter of section 30, Township 23 South, Range 6 West, in Reno county, Kansas; that subsequently it was ascertained the defendant did not have merchantable title to all of the land he deeded to plaintiffs.”
Plaintiffs filed a motion for summary judgment on the issue of liability upon which the trial court ruled as follows:
“This matter comes before the court upon the plaintiffs’ motion for summary judgment with respect to the question of the defendant’s liability to plaintiffs only. Case files to date, and K. S. A. 60-236, are made a part of this memorandum opinion by reference. Arguments and admissions are presented by counsel.
“From the pleadings it is conceded that on January 10, 1968, plaintiffs entered into a written contract with the defendant whereby plaintiffs would convey by warranty deed the S % of the SW K of 17-24-6, in Reno County, Kansas, to said defendant, and in turn, said defendant would convey by warranty deed to plaintiffs the W % of the SE K of 30-23-6, in Reno County, Kansas; that said warranty deeds were so given; that subsequently it was discovered defendant did not have good and merchantable tide to all of the realty described in said deed given plaintiffs but only owned that portion as set forth in paragraph 5 of plaintiffs’ petition.
“In addition to the foregoing, the court finds that there was a partial failure of title and a breach of warranty with respect to the deed given plaintiffs by the defendant.
“Accordingly, partial summary judgment in favor of plaintiffs and against defendant with reference to all questions of liability only is hereby granted.
“This matter will be set for trial during the January 1970 term of court with reference to the matters of damages, if any.”
A jury was waived and the issue of damages was tried to the court on June 10, 1970.
The trial court filed a memorandum opinion which we quote in part as follows:
“A point to be remembered: had the defendant owned merchantable title to all of the West Half of the Southeast Quarter of Section 30, Township 23 South, Range 6 West, in Reno County, Kansas, then whether or not same contained 80 acres or 76.5 acres would have been immaterial. However, the contract and deed called for conveyance by defendant to plaintiffs of the above described land to which defendant only had partial title.
“From the evidence presented the court finds: that as of January 10, 1968, the value of the West Half of the Southeast Quarter of Section 30, Township 23 South, Range 6 West, in Reno County, Kansas, was $365.00 per acre; that according to the government survey said West Half of the Southeast Quarter of Section 30, Township 23 South, Range 6 West, in Reno County, Kansas, consists of 80 acres; and that there was a shortage of 3.5 acres in the quantity of land as described in the defendant’s deed of conveyance to the plaintiffs and the amount to which the defendant actually had merchantable title.
“Accordingly, judgment is given plaintiffs against the defendant in the sum of $1277.50, (365 per acre X 3.5 acres), with interest at 8% per annum from January 10, 1968. Costs are assessed against the defendant.”
Judgment was entered in accord with the trial court’s opinion and this appeal followed.
On appeal, as in the trial court, the main thrust of defendant’s argument is that the parties dealt in gross rather than on an acreage basis, and thus plaintiffs are not entitled to damages for a 3.5 deficiency in acreage which defendant says is inconsequential.
In his brief defendant states his position in these words:
“. . . Where it [a sale] is by the tract, the courts have, in the absence of fraud, either refused altogether to grant relief for a mistake, even though the mistake results in a large excess of deficiency, or have limited relief to situations where the deficiency is so great as to warrant the conclusion that the parties would not have contracted had the truth been known, or where the extent of the discrepancy warrants the presumption of fraud.” (citing 1 A.L.R. 2d, Anno. §6, p. 18.)
Defendant cites a number of our cases holding in accord with his position. (Pickering v. Hollabaugh, 194 Kan. 804, 401 P. 2d 891; Martin v. Ott, 114 Kan. 419, 219 Pac. 275; and Maffet v. Schaar, 89 Kan. 413, 131 Pac. 589.) The cases mentioned demonstrate the distinction between a sale on an acreage basis, as in Maffet, and a sale in gross, as described in the Martin case, or an exchange in gross, as described in the Pickering case. The law is succinctly summed up by Justice Dawson speaking for the court in Martin v. Ott, supra:
"The law on the subject is really simple. Where a farm is sold as a represented number of acres, the vendor is liable for a deficiency in the acreage. (Doner v. Deal, 104 Kan. 793, 180 Pac. 766.) Where a farm is sold in gross, that is, for a lump sum regardless of the acreage, the vendor is not liable for any deficiency in the acreage except for fraud (Kowing v. Reynolds, 113 Kan. 317, 214 Pac. 427), which exception raises a question of fact, and in this case that question has been fairly determined against the plaintiff. . . .” (p. 424.)
In the Maffet, Martin and Pickering cases, although there was a deficiency in acreage, the vendors in each instance owned all of the property described in the respective conveyances. In Maffet the total consideration was arrived at on a price per acre basis, and recovery was predicated on the fact that the vendee had contracted on the basis of a specified number of acres which did not in fact exist within the description. In Martin and Pickering the transactions were in gross, and since the vendors in each instance were seized of all the property described, recovery was denied vendees in each case — the court holding that the recital of acreage in each case was for identification purposes and not a warranty of acreage. None of the cases mentioned were actions brought for a breach of any warranty of title.
Obviously, the transaction in the instant case was an exchange in gross. However, the trouble with defendant’s position is that the rule dealing with acreage deficiencies in the case of a transfer in gross presupposes that the sale or exchange in gross transfers to the purchaser all of the description contracted for. As we held in Martin a party contracting on an acreage basis for a specified tract at an agreed price per acre is entitled to recover the difference between the purchase price and the actual acreage times the price per acre. It is equally obvious that, in the absence of fraud or mutual mistake of fact, a party who exchanges or buys in gross by described boundaries or government survey rather than on an acreage basis has no claim for damages if he receives a good title to the entire tract described, notwithstanding it contains less acreage than expected by him. So in the instant case if plaintiffs, as purchasers of the west half of the quarter section in question, had discovered it contained less than eighty acres by reason of a correction line or was a short eighty because of some other similar reason, they could not demand a proportionate refund of the purchase price for a sale in gross as long as they received title to the entire west half of the southeast quarter. Instead of the west half of the southeast described in the deed, and for which they bargained, plaintiffs received only a tract 78 rods by 160 rods by 75 rods by 160 rods situated in the west half of the southeast quarter. The paramount title of the remainder of the west half of the quarter section was admitted to be in parties other than defendant. In the deed to plaintiffs, defendant, together with the usual warranties, specifically covenanted that—
“. . . he is lawfully seized in his own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises. . . .”
When the defendant refused to restore the parties by mutual re-conveyances or to pay plaintiffs damages for their loss this action was instituted to recover damages for breach of covenant of title, or more specifically the covenant of seisin.
The guarantee of a covenant of seisin is that the grantor, at the time of the conveyance, was lawfully seized of a good, absolute and indefeasible estate of inheritance, in fee simple, and had power to convey the same. Where a grantor did not have title to a part of the land conveyed there was a breach of the covenant. (20 Am. Jur. 2d, Covenants, Conditions, Etc., §§73 and 75, pp. 638, 639; 6 Powell on Real Property, Covenant for title—Seisin, § 905, pp. 268.13-17; 7 Thompson on Real Property [1962 Replacement], Covenants of seisin, § 3178, pp. 238-243; Hilliker v. Rueger, 228 N. Y. 11, 126 N. E. 266; and Bolinger v. Brake, 57 Kan. 663, 47 Pac. 537.
The ordinary remedy for breach of a covenant of title in a conveyance of land is an action at law for damages. (20 Am. Jur. 2d, Covenants, Conditions, Etc., § 110, p. 667.)
The applicable rule is stated in these terms in 7 Thompson on Real Property [1962 Replacement], Covenants in Deeds, § 3180, p. 248:
“. . . The grantee may recover for a breach of a covenant of seisin though the seisin fails as to a part only of the land conveyed by a deed. . . .
“If at the time of the conveyance the grantee finds the land in possession of one claiming paramount title, the covenant of seisin is broken. Proof of eviction is not necessary in order to sustain an action for breach of covenant of seisin; it is sufficient to negative the covenant and prove that the grantor did not have title to the land at the time of the conveyance.” (p. 249.)
An action for damages is recognized as the remedy afforded a grantee for breach of a covenant of seisin in this state. (Wilder v. Wilhite, 190 Kan. 564, 376 p. 2d 797; Bolinger v. Brake, 57 Kan. 663, 47 Pac. 537; Scott v. Morning, 23 Kan. * 253; Scantlin v. Allison, 12 Kan. * 85; M’Kee v. Bain, 11 Kan. * 569; and Dale v. Shively, 8 Kan. * 276.) The time limitation in which such an action on a covenant of seisin may be brought is specifically prescribed in K.S.A. 1971 Supp. 60-511(2).
Defendant argues that our holding in the case of Brewer v. Schammerhorn, 183 Kan. 739, 332 P. 2d 526, requires that plaintiffs here must have relied upon a specified acreage in order to recover. The Brewer case involved conveyances of tracts from a “long” quarter section which, as a whole, contained slightly more than 163/2 acres. The original owner first conveyed the “North 80 acres precisely” thus there remained the South 83/2 acres. The owner then conveyed the remainder of the quarter section, describing it as the south one-half, together with one-half of another quarter section, included with the descriptions was the phrase “containing 160 acres, more or less’’ The successors in title to the original grantees of the long quarter became involved in a boundary dispute involving the 3.5 acres which gave rise to the litigation. Parol evidence was admitted to explain the ambiguity. On appeal this court, relying heavily on the presumption that the grantor intended to convey everything remaining, held that the deed conveying the south half took with it the extra acreage not included in the “precise North 80 acres” previously conveyed.
The Brewer case is not applicable to the issue here. It involved no breach of covenant and there was no question raised concerning a deficiency of title to the property conveyed. The controversy there involved ownership of land apparently not conveyed and the construction of an ambiguous description. There is no evidence here, such as in the Brewer case, which indicated an intention of the parties contrary to what was expressed in the deed. The only evidence bearing on the subject was the testimony of plaintiff Ernest A. Maxwell who was called as a witness by defendant. Mr. Maxwell testified that he was not familiar with the boundaries of the tract prior to the conveyance; that he was trading for the west half of the quarter section, and entered into the exchange on that basis; that he was bargaining for and would receive such tract, which was what the contract called for. As narrated in the record, he testified:
“. . . [T]hat there is a hedge row in the land, but it is not a boundary-line; that driving by the land you would naturally think that it was a boundary line; that he traded for the W/2 of that quarter section: . . .”
Defendant makes no claim that the hedge row constituted an agreed boundary line, nor was there any evidence offered to that effect. This action was neither pleaded nor tried as a boundary line dispute but as an action for breach of warranty of title and defended on the theory of an exchange of gross.
In view of what has been said the order of the trial court granting judgment to plaintiffs on the issue of liability must be affirmed.
We turn next to defendant’s complaints concerning the measure of damages adopted by the trial court.
The trial court found as follows:
“. . . [T]he measure of damages for the partial breach of a covenant of warranty in a deed is tire relative value which the part of the real estate as to which the title faüed bears to the purchase price or consideration of the whole estate. The parties are further instructed that upon the partial breach of a convenant of tide, and where the land to which the title has failed in part was conveyed in exchange for other land without a stipulated or agreed value, the plaintiffs’ recovery should be the proportionate part of the value of such other land rather than the value of the land to which title failed. For example, if the value of die portion of the land to which tide failed represented l/20th of the whole value of the entire tract conveyed to the plaintiffs, then the plaintiffs would be entided to recover a sum equal to l/20ths of the value of the land conveyed to the defendant in exchange.”
The trial court then proceeded to find from the evidence presented that the value per acre of the west one-half deeded to plaintiffs was $365.00 which was multiplied by 3.5, resulting in the judgment of $1,277.50. There was no variance in the per acre value of the 3.5 acres.
There was evidence to support the findings and we believe the proper measure of damages was applied with respect to a partial breach of the covenant of seisin. The applicable rule is set forth in 20 Am. Jur. 2d, Covenants, Conditions, Etc., § 144, p. 701:
“. . . Thus, in the case of a partial breach of a covenant of warranty by reason of a failure of tide to a portion of the estate conveyed resulting in eviction from that portion of the premises, the measure of damages is the relative value which the part as to which fire title failed bears to the purchase price or consideration of the whole estate. A similar rule applies where the action is based upon the covenant of seisin or right to convey; in such case the covenantee recovers pro tanto only. . . .” (pp. 702-703.)
See, also, 21 C. J. S., Covenants, §142 (2), p. 1012; 61 A. L. R., Anno., p. 95 [See Vol. 4 (Perm. Ed.) Supplemental Decisions, p. 190]; and 100 A. L. R., Anno. p. 1200.
The rule stated is followed in this jurisdiction. In the early case of Dale v. Shively, 8 Kan. * 276, the court dealt specifically with a breach of covenant of seisin. At page * 279 we find this statement:
“As to the measure of damages: The consideration money, with interest, is the extent to which the damages can, under any circumstances, be recovered upon this covenant, upon a total breach; but where there is a partial breach, the grantee may recover pro tanto. . . .”
Although there was testimony that the lands exchanged were of approximately equal value, notwithstanding the deficiency of 3.5 acres in the tract deeded them, plaintiffs were entitled to the benefit of their bargain and they bargained for the land described in the deed. This was not an action for the breach of a contract to exchange land. The contract had long since been performed. The lands had been described, the deeds executed and delivered and possession transferred, all in accord with the provisions of the contract. When the deficiency of defendant’s title was discovered there was no remedy left to plaintiffs except an action on the covenants of the deed.
We have carefully examined authorities cited by defendant on the measure of damages and the application thereof. The cases cited by defendant deal with the measure of damages as applied to actions for breach of contract or widi actions where the deficiency was a shortage of the acreage represented to be within the land described, not with a situation where the grantor did not own what was conveyed as in the instant case.
Finally, defendant complains concerning the trial court’s allowance of interest at eight percent per annum from the date of the contract, January 10, 1968. Defendant makes a two-pronged attack on the trial court’s ruling. Defendant claims first that damages were unliquidated and totally unascertainable prior to trial and thus no interest prior to judgment should have been allowed. Second, defendant argues that if interest prior to judgment is allowed then the rate can only be six percent for that period. We believe both contentions have merit. With respect to defendant’s second contention, K. S. A. 16-201 provides in substance that the legal rate of interest shall be six percent per annum, when no other interest is agreed upon. Prior to July 1969, K. S. A. 16-204 provided that all judgments shall bear interest at the rate of six percent per annum from the date rendered. Effective July 1, 1969, K. S. A. 16-204 [now 1971 Supp], was amended to provide for eight percent. We have held the amendment to have only prospective application. (See Bartlett v. Heersche, 209 Kan. 369, 496 P. 2d 1314.) K. S. A. 16-201 was not amended, thus in no event could more than six percent per annum be allowed prior to the date of judgment on June 10,1970.
Turning next to defendant’s argument on his first point with respect to the allowance of interest. We are cognizant that the basic measure of damages generally adopted for a breach of covenants of warranty in a suit by grantee against grantor, is the value of the land at the time of the conveyance, which is the consideration agreed upon by the parties, with interest and costs. (7 Thompson on Real Property, [1962 Replacement], Covenants in Deeds, § 3182, pp. 255-256; and Stebbins v. Wolf, 33 Kan. 765, 7 Pac. 542.) The transaction in the instant case, however, was an exchange of lands. There was no value or consideration fixed by the parties in either the contract or deeds; neither is there any evidence that the parties at any time during negotiations fixed a value for the lands either on a lump sum or per acre basis. In other words, the claim of plaintiffs was not only unliquidated but as a practical matter it was unascertainable prior to determination at trial.
Under the particular facts and circumstances appearing in the instant case, we hold that the allowance of interest from the date of the deed, January 10, 1968, to the date of the judgment, June 10, 1970, should be deleted from the judgment which is in all respects affirmed.
Fontron, J., concurs in the result.
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The opinion of the court was delivered by
Prager, J.:
This appeal involves two consolidated actions seeking to recover damages for loss of earnings and wrongful death arising out of an automobile collision which occurred on August 8, 1968. On that day in the afternoon Frank Mott was killed when the tractor he was driving was struck in the rear by a car driven by Dorris Mitchell, the Barber County social welfare director. One of these actions is brought by Helen Mott as Executor of the estate of Frank Mott to recover damages under the survival act; the other action is brought by Helen Mott on behalf of herself and the other heirs of Frank Mott to recover damages under the wrongful death'act. The State Department of Social Welfare of the State of Kansas, the Board of County Commissioners of Barber County and the County Social Welfare Board were joined as parties defendant in the case along with Dorris Mitchell. In the original petition the insurance carriers for the State of Kansas and for Barber County were also named as defendants but by agreement of the parties they were stricken from the action.
The State Department of Social Welfare filed a motion for summary judgment. A similar motion was filed by the Board of Commissioners of Barber County on behalf of the county and the Barber County Social Welfare Board. The district court sustained both motions. This appeal is from the order of the district court sustaining each of the motions for summary judgment.
The questions presented on this appeal do not involve issues of negligence, contributory negligence or damages. Specifically, what we are concerned with is whether or not the State Department of Social Welfare or the Board of Commissioners of Barber County or the Barber County Social Welfare Board are liable to the plaintiffs on the theory of respondant superior, assuming the driver of the automobile, Dorris Mitchell, is liable to the plaintiffs.
In order to establish an evidentiary record as a basis for a ruling on the motions for summary judgment, the parties entered into a written stipulation as to the facts. For purposes of summary judgment the following facts are assumed to be true: At the time of the accident Dorris Mitchell was Director of Social Welfare of Barber County, Kansas, and she was engaged in carrying out her duties as director when the accident occurred. She owned the vehicle and received mileage pursuant to statute when driving her automobile on social welfare business. This mileage is paid from the Barber County social welfare fund which is derived from federal, state and county sources. The Great American Insurance policy insuring state employees and the Hartford Insurance policy insuring county employees were furnished to the court to be used as part of the evidentiary record on the motions. In addition to these stipulated matters it was agreed that the discovery deposition of Dorris Mitchell and the exhibits attached thereto could be considered by the court.
The deposition of Dorris Mitchell showed that she was appointed as director by the Barber County Social Welfare Board but that her appointment had been approved by the state department. Miss Mitchell testified that she was a state civil service employee with a designation of Welfare Director Class 1. She is paid with a voucher which is paid from the county welfare fund. Miss Mitchell testified that her Barber County supervisor was chairman of the county welfare board but that all problems have to be cleared through the field representative of the state department. There are various representatives from the state department in different fields of service such as child welfare, division of the blind, and vocational rehabilitation. In regard to Miss Mitchell’s destination on the afternoon of the accident she testified that she was going to see an adoptive family, the O’Learys, to take their adoption papers which she had received from the State Department of Social Welfare and in addition she was going to see another lady about a wheelchair. These were the two cases she was working on at the time. She stated that she left her office at Medicine Lodge to go to Kiowa on these cases at about 3 or 3:30 p. m. Miss Mitchell stated categorically in her deposition that at the time of the accident she was on official busi ness for the State Department of Social Welfare and also for the Barber County welfare department. In regard to her relationship with the state department and the county welfare department she testified that as director of social welfare of Barber County she is under all the rules and regulations of the State Department of Social Welfare and has to carry out its policies that are established by law. As to control by the state department she testified that this is a gray territory because county directors of social welfare are employed under the civil service statutes and they have to abide by all of its rules and regulations. If she has any problems she discusses them with the state department field representative. All actions have to be cleared through the field representative. If she has a question she is advised by the state department how to handle it. If county welfare directors don’t handle matters that away, the state department will have a hearing and the state department decides if the county does “this or that or whatever it is.” In connection with the deposition testimony of Miss Mitchell certain exhibits were introduced into evidence. Deposition exhibit No. 1 consisted of copies of state welfare department personnel forms pertaining to Dorris Mitchell at various stages of her career with the state department. Deposition exhibit Nos. 2, 3 and 4 were state department administrative regulations pertaining to county welfare personnel. Deposition exhibit No. 5 was the consent to adoption form that Miss Mitchell was taking to the O’Leary family at the request of the state department at the time the accident occurred. Deposition exhibit No. 6 was a certified copy of a petition for allowance of demand filed by the State Department of Social Welfare in the probate court of Barber County. This petition states that the County Board of Social Welfare of Barber County is a subordinate agency of the State Department of Social Welfare. The petition for allowance of demand seeks to recover against an estate of a decedent for assistance paid by the county board to the decedent during his lifetime. Deposition exhibit No. 7 was a letter dated August 6, 1968, from the state director of child welfare services to Dorris Mitchell as county director requesting her to deliver the original of the consent to adoption to Mr. and Mrs. O’Leary. The evidentiary matters discussed heretofore constitute the factual record on the basis of which the motions for summary judgment were determined by the district court.
At the time of the collision Dorris Mitchell carried personal liability insurance on her automobile which was limited to the amount of $10,000. The State of Kansas carried automobile liability insurance covering all state agencies including the State Department of Social Welfare. The applicable state policy was issued by the Great American Company and is in the total amount of $50,000 liability as to each person injured. At the time of the accident Barber County had obtained insurance from the Hartford Insurance Group providing insurance protection for the county and its employees in the amount of $25,000 liability as to each person. The claims contained in the two consolidated actions were in the total amount of $214,149.14. The basic issue to be determined on this appeal is whether Dorris Mitchell as Barber County Social Welfare Director was at the time of the collision an agent or employee of the State Department of Social Welfare or of Barber County so as to bring the plaintiffs within the umbrella of protection provided by the liability insurance policies issued by Great American and by the Hartford Insurance Group.
We first turn to the question whether or not Dorris Mitchell as County Welfare Director was an agent or employee of the State Department of Social Welfare at the time of the collision so as to bring her within the insurance coverage provided by Great American. Prior to 1957 the doctrine of governmental immunity insulated state agencies from liability for the tortious acts of their agents or employees where the agent or employee was engaged in an activity of a governmental nature. In 1957 the state legislature first enacted statutes which authorized the purchase of liability insurance where state motor vehicles were involved. In 1963 the statutes were amended to then present form. They were in effect at the time of the collision in the case at bar.
We should first direct our attention to the specific statutes which control tihe decision in this case. The statutes involved here are K. S. A. 74-4701, 74-4707, 74-4708 and 74-4709. These statutes provide as follows:
“74-4701. Definitions. As used in this act:
“(a) ‘State agency’ means any state office or officer, department, board, commission, institution, bureau or any agency, division or unit within any office, department, board, or other state authority. [Emphasis added.]
“74-4707. Purchase of motor vehicle liability insurance by state agencies; coverage, limitation. Every state agency shall purchase motor vehicle liability insurance for the protection and benefit of the state agency and the officers, agents and employees of the state agency responsible for the operation of vehicles owned, operated, maintained or controlled hy the said agency, and of persons while riding in or upon, entering or alighting from such vehicles. The motor vehicle liability insurance policy so purchased shall provide coverage to a limit, exclusive of interests and costs, of not less than twenty-five thousand dollars ($25,000) because of bodily injury to, or death of, one person in any one accident and, subject to the said limit for one person, to a limit of not less than fifty thousand dollars ($50,000) because of bodily injury to, or death of, two or more persons in any one accident, and, if the accident has resulted in injury to, or destruction of property to a limit of not less than five thousand dollars ($5,000) because of injury to, or destruction of, property of others in any one accident. The insurance purchased as provided for in this act shall be limited to the kinds of insurance hereinabove set out. [Emphasis added.]
“74-4708. Same; waiver of immunity, extent. The state agency securing insurance as hereinbefore required thereby waives its governmental immunity from liability for any damage by reason of death or injury to person or property proximately caused by the negligent operation of any motor vehicle by an officer or employee of such state agency when acting within the scope of his authority or within the course of his employment. Such immunity shall be waived only to the extent of the amount of insurance so obtained. [Emphasis added.]
“74-4709. Same; type of contract; coverage; waiver of defense of immunity. The contract of insurance purchased pursuant to this act must be one issued by some insurance company or association authorized to transact such business in the state of Kansas and must by its terms adequately insure such state agency, its officers, agents and employees under standard policies of insurance approved by the state insurance commissioner for the type of coverage provided for in section 2 [74-4707] of this act for any damages by reason of death, or injury to person or property, proximately caused by the negligent operation of any motor vehicle by an officer or employee of such state agency when acting within the scope of his authority or within the course of his employment. Any company or association which enters into a contract of insurance as above described with a state agency by such act waives any defense based upon the governmental immunity of the state agency and its officers, agents and employees.” [Emphasis added.]
The appellee State Department of Social Welfare takes the position that Dorris Mitchell was not an agent or employee of the state department acting within the scope of her duties at the time the accident occurred. It is contended that the county welfare board, although a subordinate agency of the State Department of Social Welfare, is really an independent county board and there is nothing in the statute which shows the intent of the legislature to make employees of the county board employees of the State Board of Social Welfare. Specifically, it is urged that in Kansas a county welfare director is hired by the county board of social welfare, is paid from county welfare funds and is therefore an employee of the county board of social welfare. The appellee further takes the position that the statutes heretofore cited were intended to provide insurance coverage only for motor vehicles owned by the state agency and that the statute is not broad enough to afford insurance protection for an automobile owned by an individual state employee receiving mileage for its use when performing state duties. The state department and its insurance carrier further contend that the insurance policy issued by Great American by its specific terms insures only state owned automobiles and did not cover the automobile owned and driven by Miss Mitchell in this case.
The trial court in its memorandum decision found that Miss Mitchell was not an employee of the state department at the time of the collision. The undisputed evidence was that at the time of the accident Miss Mitchell was on her way to Kiowa for the purpose of delivering to a family a consent for adoption at the request and on behalf of the state department. The court held that the bare request of the state department to Miss Mitchell to deliver the consent to the adoptive family and her compliance therewith did not clearly establish the legal relationship of principal and agent by which liability could be placed on the state department. The trial court also held that, conceding Miss Mitchell was an agent or employee of the state department, the Great American insurance policy was not applicable since her automobile was not at the time of the collision an “automobile owned, operated, maintained or controlled” by the state department.
On this point we hold that the trial court was in error in finding that Dorris Mitchell as county director of social welfare at the time of the collision was not an agent or employee of the State Department of Social Welfare and that her automobile was not protected by the Great American liability insurance policy. The evidence is undisputed that at the time of the collision Dorris Mitchell was the director of the Barber County Board of Social Welfare and that at the time of the collision she was acting in the scope of her employment and for its benefit. She was delivering an adoption paper at the specific request of the State Department of Social Welfare. At the time of the collision Dorris Mitchell was a state civil service employee. In her work she was supervised at all times by a field representative from the state department. Her appointment as county welfare director was subject to approval by the state department.
We hold that the legal relationship between Dorris Mitchell as county welfare director and the State Department of Social Welfare is controlled by our decision in Dellinger v. Harper County Social Welfare Board, 155 Kan. 207, 124 P. 2d 513. In Dellinger we held that a county social welfare board is not an independent governmental entity but is a subordinate agency of the State Department of Social Welfare. The county social welfare board exercises its powers and duties according to the rules and regulations prescribed by the state board. It falls within the definition of “state agency” as contained in K. S. A. 74-4701 cited above. In that statute a state agency is defined as “any state office or officer, department, board, commission, institution, bureau or any agency, division or unit within any office, department, board or other state authority.” In view of Dellinger it could not reasonably be denied that a county welfare board is an agency, division or unit within the State Department of Social Welfare. Hence it must follow that since Dorris Mitchell was an agent or employee of the Barber County Board of Social Welfare she was by that fact itself an agent or employee of the State Department of Social Welfare within the meaning of K. S. A. 74-4701, et seq.
The next question to be determined is whether the personal automobile of Dorris Mitchell was a motor vehicle within the provisions of K. S. A. 74-4707, 74-4708 and 74-4709. K. S. A. 74-4707 requires every state agency to purchase automobile liability insurance for the protection and benefit of the state agency and the officers, agents and employees of the state agency responsible for the operation of vehicles “owned, operated, maintained or controlled by the state agency.” In the first place it should be noted that the statute is not restricted in its application to vehicles owned by the state agency. It also covers motor vehicles operated, maintained or controlled by the state agency. The application of the statute to1 any motor vehicles operated by state agents and employees acting within the scope of their authority is clearly shown when we examine the language in K. S. A. 74-4708 and 74-4709. Logically all of these statutes must be read together. K. S. A. 74-4708 provides that the state agency waives governmental immunity from liability for any damages caused “by the negligent operation of any motor vehicle by an officer or employee of such state agency when acting within the scope of his authority or within the course of his employment.” [Emphasis added.] Likewise, K. S. A. 74-4709 declares that the contract of insurance to be obtained by the state agency must insure the state agency and its agents and employees for any damages proximately caused “by the negligent operation of any motor vehicle by an officer or employee of such agency when acting within the scope of his authority or within the course of his employment.” [Emphasis added.] The purpose of the statute is to provide insurance protection not only for the state agency itself but also for its employees. and for the traveling public who might be injured as a result of the negligent driving of state employees. Also the state department as an artificial being does not drive its motor vehicles; it must of necessity operate motor vehicles through its individual agents and employees. Under the undisputed facts in the case at bar it is clear that at the time of the collision Dorris Mitchell was an agent and employee of the State Department of Social Welfare and was operating a motor vehicle within the scope of her authority and within the course of her employment. The statutes cited above were clearly applicable and required state insurance coverage for Dorris Mitchell at the time of the collision in this case.
We next consider the question of whether or not the Great American insurance policy provided the statutory coverage to Dorris Mitchell in the case at bar. We hold that it did. Although the Great American policy does not specifically state that it provides liability insurance for non-owned motor vehicles of the state, an endorsement on the policy specifically refers to K. S. A. 74-4701 and 74-4707 to K. S. A. 74-4713 inclusive and declares that the insurance policy is to comply with those sections. Even if that endorsement were not included in the policy, the.Great American policy must still provide the coverage required by K. S. A. 74-4709. In our recent decision in Canal Insurance Co. v. Sinclair, 208 Kan. 753, 494 P. 2d 1197, we held that where a policy of insurance is issued to an insured in compliance with the requirements of a statute, the pertinent provision of the statute must be read into the policy and no provisions of the policy in contravention of the statute can be given effect. Since the Great American policy was provided in compliance with the requirements of K. S. A. 74-4707 to 74-4713 inclusive, the provisions of those statutes are to be read into the policy and it must follow that the Great American policy in this case provided insurance protection for Dorris Mitchell at the time the fatal accident occurred.
Did the trial court err in sustaining the motion for summary judgment filed on behalf of the Barber County Social Welfare Board? We hold that that motion was properly sustained by the trial court. We specifically held in Dellinger v. Harper County Social Welfare Board, supra, that a county social welfare board lacks the capacity to sue or to be sued. Hence it was not a proper party defendant in this case.
We turn now to a more difficult question. Was Dorris Mitchell an agent or employee of Barber County acting within the scope of her authority and for its benefit at the time of the collision? The trial court held that a county welfare director as an agent or employee of the county board of social welfare is also an agent or employee of the county and hence protected by county automobile liability insurance under the provisions of K. S. A. 12-2601, et seq. Prior to 1955 the municipalities of this state including counties had governmental immunity which protected them from motor vehicle tort liability. In that year the legislature enacted permissive legislation making it possible for the governing bodies of municipalities to purchase motor vehicle liability insurance to protect itself and its employees. Since Barber County purchased motor vehicle liability insurance for its employees it becomes important to determine whether or not Dorris Mitchell as Barber County Social Welfare Director was an employee of the county at the time of the collision in this case. We hold that Miss Mitchell as Barber County Social Welfare Director was not an employee of Barber County and that Barber County as such is not responsible for her negligent driving on the theory of respondeat superior. Hence the Hartford Insurance policy does not provide insurance coverage for Dorris Mitchell in this case.
We have held heretofore in this opinion that a county social welfare board is a subordinate agency of the State Department of Social Welfare. Under the provisions of K. S. A. 39-711 it is declared that the county social welfare board shall be the board of county commissioners of each county. The powers and duties of the county social welfare board are comprehensively regulated and controlled by the Kansas statutes and by rules and regulations promulgated by the State Department of Social Welfare. When all of the various statutes and rules and regulations are considered together we be Iieve the conclusion to be inescapable that the county social welfare board is an agency of the state of Kansas not an agency of the county. K. S. A. 39-701 declares the public policy of the state to be to provide for an effective uniform system of welfare throughout the state to assist the counties in the financing of welfare work. The powers and duties of the state board are set forth in K. S. A. 1971 Supp. 39-708. Some of the provisions of this statute should be noted. The State Board of Social Welfare is given the power and duty to develop state welfare plans in cooperation with the federal government. The state department determines the general policies relating to all forms of social welfare of Kansas. The state board prescribes the standards of qualifications for the employees of the state and county boards. The state board supervises all social welfare activities of the county boards and the rules and regulations made by the state board are binding upon the county boards. Work projects and training programs are administered by the county board as the state board may direct. The state board is given the power to designate county boards or their employees as agents of the state board in the administration of property of any kind, including money given, advanced or granted to the state of Kansas for social welfare works. The county welfare board does not have the power to make contracts for welfare purposes. K. S. A. 1971 Supp. 39-708 (7c) provides that all contracts shall be made in the name of “the state board of social welfare of Kansas,” and in such name the state board may sue and be sued on such contracts. In subsection “y” of the statute the state board is given the power to develop a system of centralized payment of all or part of county welfare expenditures. When this is done welfare disbursements are made from the state social welfare fund rather than from the county welfare fund.
K. S. A. 1971 Supp. 39-713 sets forth the powers and duties of the county welfare board. The county welfare board is given the power to determine policy to a limited extent and to make rules and regulations, none of which may be inconsistent with state laws and the rules and regulations of the state board. In every subsection where power is granted to the county board it is “subject to the rules and regulations of the state board of social welfare.” Subsection “f of this statute provides that the county board shall prepare and submit to the state board a county welfare budget. The state board is required to examine the budget and to approve the same or make recommendations and requirements as it shall deem advisable. The decision of the state board is final since the county board is required to correct the budget in accordance with the directions of the state board. Once the budget has been corrected the county board of social welfare is required to submit the same as corrected to the board of county commissioners. The statute declares it to be the duty of the county commissioners to make such levies on the taxable property of the county as is necessary to raise the funds required by the county welfare budget. We think it important to note the distinction made between the county welfare board and the board of county commissioners as separate entities in K. S. A. 1971 Supp. 39-713. It is obvious that the county welfare board is not acting in the same capacity as the county commissioners in welfare matters in view of the specific language of this statute.
The distinction is clearly made in other statutory provisions. Generally employees of the county welfare board are paid out of the county welfare fund. Under K. S. A. 1971 Supp. 39-713 (m) investigators of welfare, although appointed by the county board of social welfare, are paid compensation prescribed by the board of county commissioners and are paid from the county general fund. Welfare funds are handled differently than county monies. All disbursements from the county welfare fund must be made upon claims signed by the county welfare director and approved by the county welfare board. We think it also significant that claims against a decedent’s estate for welfare assistance provided by a county welfare board are brought by the State Department of Social Welfare rather than by the board of commissioners of the county. (Erwin v. Leonard, 166 Kan. 630, 203 P. 2d 207.)
Regulations of the state department also emphasize the true nature of the county welfare board as an agency of the state rather than as an agency of the county. In K. A. R. 30-17-1 county social welfare boards are authorized to execute written contracts with the governing body of a political subdivision (including counties) for building or floor space in which to maintain the county welfare department. Rent may be paid out of the county welfare fund to the county treasurer for the use of such space in a courthouse. As pointed out heretofore, the contract for space must be made in the name of the State Department of Social Welfare. (K. S. A. 1971 Supp. 39-708 (&).) Obviously the county welfare board is a different entity from the county for it is inconceivable that an agency could contract with itself. K. A. R. 30-17-2 provides that supplies and equipment purchased for the maintenance and operation of the county welfare department are to be paid from the county welfare fund and the title of such supplies and equipment is placed in the county social welfare board, not in the board of county commissioners.
In regard to the director of the county welfare department although he is appointed by the county welfare board the appointment is rigidly controlled by state board regulations K. A. R. 30-8-1 through 30-8-6. Increases in salaries of county welfare employees are controlled by state board regulation K. A. R. 30-8-9. The standards for caseloads and case supervisors are controlled by state department regulation K. A. R. 30-8-10. An appointment of any employee by a county board of social welfare not in compliance with civil service and state department rules and regulations will result in the withholding of state and federal participation in salary expense. (K. A. R. 30-8-11.) County welfare employees are subject to dismissal pursuant to state department regulations K. A. R. 30-8-13 and K. A. R. 30-8-14. Even the legal holidays for county welfare employees are specifically regulated by K. A. R. 30-8-15.
A thorough consideration of all of these statutes and state department regulations can lead to but one conclusion. The county welfare department is an arm of the State Department of Social Welfare and is not a department of the county. We hold that at the time of the automobile accident in this case Dorris Mitchell, as Barber County Social Welfare Director, was not a county employee responsible to the board of county commissioners of Barber County. Hence Barber County is not liable for her negligent driving on the theory of respondeat superior. The trial court was correct in sustaining the motion for summary judgment filed on behalf of the Board of County Commissioners of Barber County.
For the reasons set forth above the judgment of the trial court is affirmed insofar as it sustained the motion for summary judgment of the Board of County Commissioners of Barber County filed on behalf of itself and the Barber County Board of Social Welfare and entered judgment in their favor. The judgment of the trial court is reversed as to its order sustaining the motion for summary judgment filed on behalf of the defendant State Department of Social Welfare. The case is reversed and remanded to the trial court court for further proceedings not inconsistent with this opinion.
Schroeder, J., dissents from Syllabus ¶ 5 and the corresponding portions of the opinion.
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The opinion of the court was delivered by
Fontron, J.:
This is a consolidated appeal from judgments entered in two lawsuits, both of which stem from controversies arising between members of the family of the decedent, Wilbur M. Winsor, often referred to herein as Wilbur. The executors named in the will of Mr. Winsor, being two of his six children, instituted both actions, one against the testator’s daughter, Sarah E. Powell, the other against Sarah and her husband, Leslie A. Powell. Both actions involve rights in personal property titled either in the names of Wilbur and Sarah as joint tenants, or Wilbur and Leslie as joint tenants.
The cases were tried jointly to the court, which, after an extensive hearing, entered judgment in favor of the executors against Mrs. Powell, or Sarah, in the one case and in favor of Leslie and Sarah in the other. The losers in each case were dissatisfied and, accordingly, Sarah appealed from the judgment entered against her while the executors appealed from the judgment against them in their case against Leslie and Sarah.
Wilbur Winsor was a long time farmer and rancher of this state who amassed considerable wealth during his lifetime. In 1899 he was married to Bird Winsor who died April 12, 1955, at which time Wilbur was 79 years of age. Six children were born to that union, three sons, Glenn, Orville, and John and three daughters, Gretchen Runyon, Sarah Powell, and Mabel Molzen.
The monastic life was not long for Wilbur and on October 9, 1955, he took unto himself a second wife, Ella. This happy event brought little joy to the Winsor children and a certain coolness developed toward Ella on their part, although relations grew somewhat more normal later on.
On April 9, 1967, Wilbur died testate and two of his children, John Winsor and Mabel Molzen, were appointed executors of his estate. At Wilbur’s death Sarah’s brothers and sisters discovered that Wilbur’s stock in the Marion National Bank was held in joint tenancy with his son-in-law, Leslie, and all the rest of his personal property including bank accounts, savings and loan accounts, mutual fund shares and even the Kansas title to a 1962 Chevrolet car was held in the names of Wilbur and his daughter, Sarah, as joint tenants with right of survivorship. When this intelligence came to light, great was the consternation in the Winsor family and within a few months the present actions were commenced.
The petition filed against Sarah alleges that a close personal confidential relationship existed between Wilbur and Sarah at all material times; that on March 14, 1963, Sarah received a power of attorney from Wilbur and thereafter managed her father’s property as a fiduciary; that Sarah furnished no consideration for any of the personal property held by Wilbur and herself as joint tenants; that Wilbur did not intend to make a gift of the property to Sarah but that the property was transferred and conveyed to Sarah as trustee to be held in trust for the benefit of Wilbur’s heirs and the beneficiaries under his will; that any gift or transfer was obtained by undue influence; that Sarah was estopped to claim title to the property; and that Wilbur was incompetent when he transferred the property to Sarah and himself in joint tenancy. The prayer of the petition asked that Mr. Winsor’s estate be declared the sole owner of said personal property; that Sarah be declared to hold the property in trust for the estate; that she be required to deliver the property to the executors of the estate and to account for the income thereform.
In a memorandum decision the trial court entered general findings of fact followed by certain conclusions in which the following were included:
“1. The court finds that the contracts which on their face purport to create a ‘joint tenancy’ between Wilbur M. Winsor and Sarah E. Powell did in fact create a trust for the benefit of all the children of Wilbur M. Winsor.
“2. The court finds that the intention of Wilbur M. Winsor at the time of the creation of the contracts was for the purpose stated in conclusion No. 1 above.
“8. The court finds that the intention of the parties or party to the contract is paramount, and the ‘joint tenancy phrase’ must be considered in the light of all the evidence. The mere words when attacked cannot be self-supporting.
“9. The court finds that Wilbur M. Winsor did not, by the execution of any of the contracts to Sarah E. Powell, intend an inter vivos gift.
“11. The court cannot accept plaintiffs’ theory of undue influence accruing to the benefit of the defendant Sarah E. Powell alone. The court finds undue influence was exerted prior to the contracts by Sarah E. Powell for the benefit of all the children and to the detriment of Wilbur M. Winsor’s second wife, Ella Rutherford Winsor.
“12. The court finds that Wilbur M. Winsor was not mentally incapacitated at any time pertinent to this decision.”
The following order was entered in the case against Sarah:
“The court finds for the plaintiff against the defendant Sarah E. Powell in Case No. 13,914, and orders that the defendant assign, transfer, and deliver the property in question to the plaintiffs herein, and that at said time the defendant be required to file an accounting as to all income, proceeds, and accretions therefrom.”
To avoid confusion we shall discuss the appeal in each case separately and will first turn our attention to Sarah’s appeal from the judgment which was entered against her. In doing so we will refer to Sarah either by name or as defendant.
Sarah phrases her first point on appeal in this fashion:
“The court erred in purporting to exercise jurisdiction to enter a judgment on issues not raised in either the pleadings or the pretrial order.”
Her argument is that the plaintiffs predicated their action on the theory of a trust for the benefit of Wilbur’s estate while the court found it was for the benefit of Wilbur’s children.
The point is not well taken. The petition filed against Sarah alleges in paragraph nine that any property transferred to Sarah was transferred to her as trustee only, to be held in trust for the heirs of Wilbur M. Winsor and the beneficiaries under his will. The beneficiaries under Wilbur’s will were the six Winsor children. The petition clearly raises the issue of a trust for Wilbur’s children.
Moreover, the plaintiffs requested a finding of fact that Wilbur’s intent in transferring his property in joint tenancy to himself and Sarah was to enable Sarah to manage the property during his lifetime and, on his death, to divide the same among his six children and his widow. Again, in the trial brief furnished the court, the plaintiffs contended that the transfer was in trust for the benefit of the beneficiaries under Wilbur’s will.
It is true that in its pretrial order defining the issues to be determined, the trial court referred to the alleged trust as being for the benefit of the estate of Wilbur M. Winsor.
We take note of the discrepancy but do not regard it as being significant. The ultimate and central issue for determination was whether Sarah held the property impressed with a trust. That was clearly indicated in both the petition and the pretrial order, as well as in the proceedings during trial. Sarah could not well have labored under any misapprehension as to the plaintiffs’ contention that the property she held was impressed with a trust which would redound to the general benefit of Wilbur’s children, who were the named beneficiaries in the will. This issue runs throughout the entire case and was tried with a vengeance on both sides of the table. In Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 440 P. 2d 548, this court held that where the parties have submitted their case on all the issues, they are held to have consented that such issues be decided notwithstanding that an issue so decided may technically have been outside the literal scope of the pretrial order. See, also, Gard, Kansas Code of Civil Procedure, §60-215 (b), pp. 82, 83.
The defendant next assails the trial court’s power to enter Judgment purporting to create a trust which by its terms, so it is said, would have been a fraud upon Wilbur’s widow, Ella. In this connection, the defendant argues that the trust completely ignores the rights of the widow and deprives her of any inheritance. We have some difficulty in understanding the rationale of this argument.' Wilbur had the right, as held by this court in prior decisions, to dispose of his personal property during his lifetime as he might see fit, without regard to his wife. (See Small v. Small, 56 Kan. 1, 16, 42 Pac. 323; Ackers v. First National Bank of Topeka, 192 Kan. 319, 328, 387 P. 2d 840.)
But even if it be assumed that the conveyances to Sarah were motivated by a design to place the property beyond Ella’s reach, and the record might well support such a postulate, she is not before us complaining of any fraud which may have been perpetrated upon her or upon her rights. The record reveals that about the time the instant action was filed, Ella filed suit against both Sarah and the executors of Wilbur’s estate for the purpose of requiring Sarah to deliver to the executors one-half the property Sarah held in joint tenancy with Wilbur. However, that action is shown to have been dismissed without prejudice some six months later by stipulation and agreement of all parties, and Ella is not now challenging the judgment entered in the court below.
The defendant launches a third attack going to jurisdiction, namely, that judgment was entered for the benefit of persons not parties to the action.
As defense counsel points out, the general rule is that a judgment may not be rendered for or against one who is not a party to the action or who did not intervene therein. (46 Am. Jur. 2d, Judgments, § 87, p. 373.) This rule however is not without its exceptions. (Kansas Physicians’ Service v. Employers Liability Assurance Corp., 196 Kan. 204, 409 P. 2d 991.)
It is well to keep in mind that three of the Winsor children have been before the court since the inception of this litigation. Two of them, John Winsor and Mabel Molzen are plaintiffs, maintaining the action against Sarah as co-executors of their father’s estate. The third child appearing in court is Sarah, herself, the defendant. It is true that John and Mabel appear throughout the litigation as co-executors. Nonetheless we believe they would personally be bound by whatever judgment is finally rendered in this case. Such appears to have been admitted by Sarah’s counsel when, on opposing a motion by the remaining Winsor children to intervene, counsel said “that being here as co-executors they [John and Mabel] are within the personal jurisdiction of the court. It is immaterial that they have purported to conduct this litigation only as co-executors.”
There can be little doubt that John and Mabel, in maintaining this action against Sarah, were actively serving and acting in the interests of the other three children as well as their own. Moreover, we are inclined to believe the other three were not inactive themselves. At the commencement of the trial, defense counsel made this revealing comment:
“. . . The other members of the family are the plaintiffs in this proceeding here or at least are collaborating with the co-executors as plaintiffs.
In the Restatement of the Law, Judgments, § 84, p. 390, we find the following principle set forth. We deem it pertinent here:
“A person who is not a party but who controls an action, individually or in co-operation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.”
Furthermore, we think it may safely be said that Sarah would in nowise be precluded from asserting whatever defenses she might have to the charges leveled against her, simply because three of the beneficiaries of the purported trust were not named as parties plaintiff. In Rullman v. Rullanm, 81 Kan. 521, 106 Pac. 52, it was said by this court:
“The defendant has a right to insist that an action against him shall be brought by the real party in interest, as the statute provides, but the purpose of the statute has been attained if the defendant is not shut out from defenses and counterclaims and will be fully protected by the judgment from any further liability on the same cause.” (Syl. ¶ 3.)
The case of Lessert v. Krebs, 108 Kan. 752, 196 Pac. 1070, serves to point out that under certain conditions a judgment may be entered for one who nominally is not a party. The facts of that case are somewhat difficult to capsulize. It will be sufficient to say that it was a replevin action in which judgment was ultimately entered in favor of one who paid off the plaintiff’s mortgage after suit was started but who1 was never made a party to the action. In upholding the judgment on appeal, this court said:
“It is claimed that because Ella Plomondon [who paid the mortgage] was never made party to1 the action judgment could not be rendered in her favor. She could have been made a party, and, on her application, probably would have been substituted for the plaintiff. If it were right and proper that judgment be rendered in her favor had she been a party, the court could and probably did consider her as such. Being entitled to subrogation to the rights of the plaintiff, there was no reversible error in rendering judgment in her favor.” (p. 754.)
We might add at this point that the three other Winsor children attempted to intervene in this case after the judgment was entered and before notice of appeal was filed, and their motion is still pending in district court.
We believe the defendant’s challenge to jurisdiction must be rejected and we shall proceed to consider what, in our opinion, is the hard core of this lawsuit, i. e. whether or not Sarah as the sur viving joint tenant holds title to Wilbur’s property as trustee for all of the Winsor children.
The doctrine of joint tenancy has been recognized in this state for a good many years. (Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647.) It applies to personal as well as to real property. (In re Estate of Biege, 183 Kan. 352, 327 P. 2d 872.) Much judicial thought and attention has recently been bestowed by this court upon the doctrine as it relates to personal property. (Miller v. Higgins, 188 Kan. 736, 366 P. 2d 257; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139; In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443; Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723; Edwards v. Ledford, 201 Kan. 518, 441 P. 2d 834; In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286; Agrelius v. Mohesky, 208 Kan. 790, 494 P. 2d 1095.) Our decisions have dealt mainly with joint bank and savings accounts, but we are aware of no rule which would exclude mutual fund shares from the doctrine. In 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 10, pp. 101, 102, we find the statement:
“It is generally recognized that a joint tenancy in corporate stock may be created by the surrender of the certificate and its reissuance to the holder and another as joint tenants. . . .”
From the cases cited, and the list is by no means exhaustive, certain rules have emerged which are presently recognized in this jurisdiction; that a joint tenancy relationship stems from a contractual arrangement which confers equivalent legal rights and obligations upon the parties concerned; that the relationship is governed by principles of contract law; that the all-important factor in the establishment of a valid joint tenancy relationship is the clarity with which the grantor’s intent is expressed at the time the transaction is initiated; that where the intent to create a joint tenancy is clearly manifested a joint tenancy may be created by a transfer to persons as joint tenants from an owner or a joint owner to himself and one or more persons as joint tenants (see K. S. A. 58-501 [a]); that where, in a written grant or agreement, the magic words “as joint tenants with "rights of survivorship” are used, the grantor’s intention is clearly manifested and, in the absence of fraud or mutual mistake, parol evidence is not admissible to explain or vary the terms of the instrument.
Specifically calling our attention to the Simonich and Smith cases, Sarah argues, in effect, that her father’s intention to create a joint tenancy is clearly expressed by his use of the so-called “magic words”; that there is no ambiguity in the instruments creating the several joint tenancies; and that parol evidence was not admissible to explain or vary the provisions thereof.
We have no quarrel, in general, with Sarah’s diagnosis of the Simonich and Smith opinions. In both cases the magic words were used and we held them sufficient to manifest the intention to create a joint tenancy. However, those decisions do not dispose of the problem which, as we see it, confronts us here. Although Sarah, as the surviving joint tenant, may possess title to the property conveyed, we believe the essential question is whether the circumstances surrounding this case are such as to impress a trust upon the property to which she holds the legal title.
The problem is not without its complications. Nevertheless, the Rial court concluded that a trust relaüonship existed between Sarah and her brothers and sisters, and we believe its conclusion in this regard is born out by the record. As we view them, the rules which relate to Rusts are applicable when property is Rtled in joint tenancy as well as when property is otherwise held. We are not persuaded that ownership in joint tenancy is incompaüble with the legal concepts which govern the field of Rusts, or that joint tenancy ownership was ever intended as a device to cloak injustice or to excuse overreaching. Such is the rationale underlying our opinion in the recent case of Grubb, Administrator v. Grubb, 208 Kan. 484, 493 P. 2d 189, where we applied the docRine of consRuctive trusts in relationship to funds held in joint tenancy bank accounts.
It is not clear from the record whether the Rial court intended to find that an express Rust had been established, or whether the Rust was consRuctive in character. However, we find it unnecessary to determine that particular point, for we deem the evidence sufficient to establish that Wilbur intended Sarah should hold the property for the benefit of the Winsor children; that Sarah so understood, and accepted the title on that basis; and that subsequently, and after Wilbur’s death, Sarah repudiated her obligation. Under such circumstances it would appear that, at the very least, the seeds of a constructive or resulting trust were sown. (Witmer v. Estate of Brosius, 184 Kan. 273, 336 P. 2d 455.)
The record clearly indicates that Wilbur intended to Reat his children alike. That intent is manifested by frequent statements made by Wilbur himself, as well as by the contents of his will, which he never revoked. Moreover, it is disclosed by the record that Wilbur had said, at one time, that he believed he had matters arranged so his property would be passed to his children and — at that particular time — to Ella. He is shown as having said, in this connection, that “Sadie’s all right (referring to Sarah). She’ll do the right thing.”
Wilbur’s intention is further born out by Sarah’s own statements that the children were to share equally in their fathers property. Assertions to this effect were made at the very time Sarah was taking pains to conceal the fact of her joint ownership. An episode occurring in the office of the Winsor family lawyer is revealing. In reporting on her stewardship of Wilbur’s affairs while acting under his power of attorney, Sarah prevailed upon the attorney to exclude from her accounting the fact that she held the mutual shares in joint tenancy, her plea being there was enough trouble among the six of them as it was. At the very same time Sarah asserted that she was not claiming ownership; that it all belonged to the kids; and that she was to divide it with the other kids. Even after her father’s death, Sarah obliquely recognized an obligation in this respect when, at a family meeting, she said she would divide the property with some but not all of her brothers and sisters. This recognition, however, appears to have been of short duration.
It is true that in transferring his property into joint tenancy, Wilbur used none of the terms commonly associated with trusts, but the circumstances in their totality show his intention that the properties be held for the benefit of his children. In Andrews v. Hochmuth, 253 Or. 313, 454 P. 2d 636, it was said:
“No particular form of words is required to create a trust, and whether one exists is to be ascertained from the intention of the party as manifested by the words used and the surrounding circumstances. . . .” (p. 317.)
(See, also, In re Estate of Dieter, 172 Kan. 359, 239 P. 2d 954.)
Sarah’s declarations evidence her personal understanding of Wilbur’s intention. Her statements and actions also indicate her acceptance of the property on the basis of that understanding. The record reflects an incident in which Sarah, after “considerable persuasion” prevailed upon her father to transfer some savings accounts into joint tenancy ownership by advancing the argument that he would want his children to have the money rather than Ella. In Restatement of the Law, Second, Trusts, § 24, Mode of Manifestation of Intention, p. 67, the rule is discussed:
“(1) Except as otherwise provided by statute, the manifestation of intention to create a trust may be made by written or spoken words or by conduct.
“. . . Acts prior to and subsequent to, as well as acts contemporaneous with the manifestation which it is claimed creates a trust, may be relevant in determining the settlor’s intention to create a trust.”
The following illustration is set out on page 68:
“1. A, the owner of certain bonds, declares that he holds the bonds ‘for the use of B’ or ‘for the benefit of B.’ In the absence of evidence of a contrary intention, A holds the bonds in trust for B.”
No contrary intent on the part of Mr. Winsor may be inferred in this case. Neither did Sarah ever publicly manifest a different intention until after her father was gone. Until that time she continued to acknowledge, so far as her siblings were concerned, that her father’s property was to go to all his children.
Where the effect of a conveyance of property becomes an issue, the grantor’s intention is of significance. In Restatement of the Law, Property, § lid, p. 31, the rule is stated:
“In determining whether a conveyance is, or is not, effective, and if effective, just what its effect is, the intent of the conveyor is always an important, and often the decisive factor. . . .”
In Voelkel et al. v. Tohulka et al., 236 Ind. 588, 141 N. E. 2d 344, 70 A. L. R. 2d 1349, we find a good many similarities to the picture presented in the instant case. In that lawsuit a soldier named his sister as beneficiary in his policy of insurance, relying on her agreement that in case of his death she would divide the proceeds among his brothers and sisters. When the insured was later killed in action the sister, much like the defendant here, had a change of heart and refused to “divvy up.” In deciding that the recalcitrant sister held the insurance proceeds as trustee, the Indiana court said:
“. . . An orally expressed trust may be created in personal property held and owned by a person, at any time by the mere declaration that it is so held. No formal words are necessary if the intentions as well as the terms are plain. . . .” (pp. 601, 602.)
But the defendant insists that parol evidence was not admissible to show Wilbur’s intention or to vary the terms of the several joint tenancy instruments, and she cites the Smith and Simonich opinions, among others. However, we have been careful to point out that the parol evidence rule is applicable where joint tenancies are created, in the absence of fraud or mutual mistake. No breach of a confidential relationship made its appearance in either the Smith or Simonich cases, and herein lies a substantial distinction. The trial court found that Sarah had exerted undue influence. That finding implies the existence of a confidential or fiduciary relationship between Sarah and her father — an implication which we believe is sustained by the evidence. The existence of such a relationship required the exercise of the utmost good faith on the part of Sarah.
Not only do portions of the evidence already detailed suggest a devious design on the defendant’s part, but her repudiation of the understanding on the basis of which she acquired her title infers a tortuous scheme for obtaining the property.
In Jarkieh v. Badagliacco, 75 C. A. 2d 505, 170 P. 2d 994, a case in which joint tenancy bank accounts were involved, the appellate court said:
“. . . It is elementary law that upon proof of a transfer made in reliance upon an oral agreement to hold in trust, and upon proof of the subsequent repudiation of this agreement, the trier of fact may infer that the maker of the promise had the intention not to perform at the time the promise was made. That is actual fraud. . . . The subsequent repudiation relates back to the original promise. . . (pp. 508, 509.)
In the Jarkieh case the California court also iterates the rule that even though a writing purports to make an absolute transfer, extrinsic evidence may be offered of a collateral agreement to hold the property as security or in trust. (Estate of Gaines, 15 Cal. 2d 255, 100 P. 2d 1055; 9 Wigmore on Evidence, Third Edition, § 2437; Klusmire v. Dixon, 150 Kan. 871, 96 P. 2d 634.) In Roseman v. Nienaber, 100 Kan. 174, 166 Pac. 491, this court has said:
“. . . The parol evidence rule does not exclude proof of the true consideration of written instruments. The situation of the parties and the circumstances under which written instruments are executed and delivered may be shown by parol in aid of interpretation. . . .” (p. 176.)
Further discussion would add nothing further of value to this already protracted opinion in Sarah’s case, and we affirm the judgment entered therein.
We now turn to the case against both Leslie A. Powell and Sarah. The record reflects that shortly after Mr. Winsor’s death, three certificates (one representing a small stock dividend) for a total of 20 shares of stock in the Marion National Bank were found to be in the names of “W. M. Winsor and/or Leslie A. Powell, as joint tenants with right of survivorship and not as tenants in common.” These were turned over to Mr. Powell and he later had them transferred to himself and Sarah in joint tenancy.
As to the stock certificates the trial court entered the following finding:
“The court finds that the stock certificates in the Marion National Bank were an inter vivos gift to Leslie A. Powell created by joint tenancy, and were so intended by the donor Wilbur M. Winsor; that delivery of said inter vivos gift was constructive and acceptance implied by virtue of its beneficial nature to the donee.”
Pursuant to this finding, judgment was entered in favor of Leslie and Sarah as to the bank stock.
The plaintiffs challenge this judgment as being unsupported by the evidence. They argued there was no delivery, actual or constructive.
In summary, the evidence discloses through the testimony of Mr. Kreuter, who was president of the bank, that in 1956 Mr. Winsor brought the certificates to him at the bank and asked him to make them into joint tenant ownership; that Kreuter then typed on the certificates the additional words “and/or Leslie A. Powell as joint tenants with right of survivorship.” New certificates were not issued at the time, but the record indicates that the certificates were placed in a safety deposit box standing in the joint names of Wilbur and Sarah and in which some of Mr. Powell’s securities were also kept.
We believe the evidence is sufficient to support the court’s conclusions as well as the judgment entered in favor of Leslie and his wife. Mr. Powell was a business man in Marion. There is evidence that on a former occasion Mr. Winsor had talked to Leslie about his becoming owner of the stock and said he would like to turn it over to him so that he might be a director. Although Leslie did not accompany his father-in-law to the bank on the occasion when Wilbur directed Mr. Kreuter to add Leslie’s name to the certificates, and although Leslie did not recall Wilbur ever telling him that he had put the stock in his name, his consent to the gift may be presumed in the absence of evidence to the contrary. (Mahoney v. Martin, 72 Kan. 406, 410, 83 Pac. 982.
For a gift to be effective there must have been a delivery, but the delivery may be constructive as well as manual. (Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878.) Mr. Powell contends, citing authorities, that Wilbur, having placed his stock in joint tenancy, surrendered his exclusive possession and control thereof and nothing more remained to make the gift complete; that each co-owner had an equal right to possession and that the pos session of one was the possession of the other as well, i. e., that Wilbur’s possession was Leslie’s also. (Bunt v. Fairbanks, 81 S. D. 255, 134 N. W. 2d 1; Frey v. Wubbena, 26 Ill. 2d 62, 185 N. E. 2d 850.)
We are inclined to the view that Wilbur, in having his banker make out the certificates to Leslie and himself, as joint tenants, and having them placed in a deposit box to which both Wilbur and Leslie’s wife had keys, and in which some securities belonging to Leslie were kept, may be deemed to have made a constructive delivery of the stock and that the trial court was justified in upholding the transfer as a gift. (Agrelius v. Mohesy, supra.)
In concluding that the judgment entered on behalf of Mr. and Mrs. Powell is supported by sufficient competent evidence, we might say there is no evidence of a confidential relationship between Mr. Winsor and Mr. Powell, and no suggestion of overreaching on the latter’s part.
The trial court’s judgment is affirmed in each case.
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The opinion of the court was delivered by
Foth, C.:
This is an automobile collision case in which the jury returned a verdict for the plaintiff and the defendant appeals. Two grounds are urged for reversal: (1) that plaintiff was guilty of contributory negligence as a matter of law; and (2) that the jury was guilty of misconduct for which the trial court should have ordered a new trial.
Appellant concedes that if he is to prevail on his first contention, encompassing his motions for a directed verdict at the conclusion of plaintiff’s case and at the close of all the evidence, we must find that any reasonable man, looking at the evidence concerning plaintiff’s conduct in the light most favorable to her, would conclude that she was negligent. Baze v. Groff, 205 Kan. 736, 473 P. 2d 59; Schenck v. Thompson, 201 Kan. 608, 443 P. 2d 298; Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P. 2d 124; Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272, Syl ¶ 4. The contention requires a brief review of the evidence.
The collision in question occurred at approximately 6:30 a. m., November 23, 1968, at the “T” intersection of Central and Tracy Streets in Wichita, Kansas. Central is a four-lane east-west street, and Tracy is a two-lane sandy street extending south from Central. The morning was foggy and the street was wet. Plaintiff was driving east, and had slowed to less than 25 miles per hour because she had previously slipped; the speed limit was 35. According to her testimony, she first observed the defendant’s flat-bed truck approaching about one-half block away with another vehicle beside it, so that there were four headlights approaching. Defendant’s truck made a left turn to the south onto Tracy Street, cutting the southeast quadrant of the intersection. (Later measurements showed it passed within two feet of the curb at the southeast corner.) Plaintiff applied her brakes and turned to the left to avoid the truck. Her car slid and the right windshield post and right side of her car collided with the right rear corner of the truck bed. Her car came to rest thirty-six feet past the east curb line of Tracy, with its left front corner slightly into the center east-bound lane. Defendant’s truck stopped about forty feet south of Central on Tracy.
Defendant testified that he was traveling west on Central when he began his left turn. He signaled the ton by hand since the truck had no automatic turn signal, and withdrew his left arm when he commenced the turn since it took two hands to ton the truck. He subsequently pled guilty to making an illegal left turn.
The testimony of the driver of a vehicle which had been going west on Central next to the defendant’s truck just before it turned, and that of the investigating officer, basically corroborated the foregoing abbreviated narrative.
The only factual dispute is over where the impact took place. Plaintiff’s testimony was that she steered to the left, went into the center lane, and would have crossed the center line if there had not been another vehicle approaching. This is contradicted, defendant says, by testimony of the third driver that he didn’t see her leave the curb lane, and by the physical evidence tending to show that defendant’s truck had almost cleared the intersection at the time of impact. From this defendant infers that plaintiff must either have been going too fast or have failed to keep the required lookout; otherwise, he argues, she could have turned in time to avoid the collision.
The jury might well have drawn such an inference, and we have no doubt they were urged to do so. The trial court, however, in ruling on defendant’s motions was required to draw any possible inferences favorable to plaintiff. Those might be that plaintiff, confronted with an unexpected, quartering turn in front of her, did all that could reasonably be expected of her when she braked and turned left; after that the slippery street took over and the collision resulted. Since under the possible inferences we suggest she would be free of negligence, the trial court properly submitted the question to the jury.
Defendant’s second point, his allegation of “jury misconduct,” is based on a transaction reflected in the following statement made just after the jury had returned its verdict:
“The Court: I think I ought to put on the record the question submitted by the jury. I have advised both counsel of it. Mr. Dimon [the bailiff] informed me this afternoon that the jury wanted to know whether or not attorney fees could be added to damages, and Mr. Dimon was advised to tell the jury that damages were limited to those in the instructions.”
It appears that the jury commenced its deliberations about 11:00 a. m., the exchange between court and jury occurred about 2:15 p. m., and the verdict was returned about 4:00 p. m.
From this inquiry alone, defendant would have us conclude that the jury ignored the court’s instructions and improperly included some element of attorney fees in its award of damages. There is simply nothing in the record to support such a conclusion beyond this single exchange. He relies on Dunn v. White, 206 Kan. 278, 479 P. 2d 215, where we upheld the granting of a new trial by the trial court after post-trial testimony from seven of the twelve jurors which clearly showed that the amount of damages had been adjusted by the jury to compensate for plaintiff’s attorney fees, and that it might also have been influenced by the probable presence of insurance. The record here falls far short of any such showing.
To bolster this contention he.also suggests that the verdict was excessive. The record shows, in addition to medical bills: painful injuries to her neck, hand and arm of a continuing nature; a three-month wage loss; a transfer to a lower paying job, probably permanently; and the enforced cessation of her accustomed bowling, rollerskating and water-skiing. We cannot say the jury exceeded the bounds of reason in awarding her $6750 for her total damages, and certainly not that the amount gives rise to a presumption of misconduct.
As a final element of his “misconduct” argument defendant points to the undoubted violation of (now 1971 Supp.) K. S. A. 60-248 (e) which occurred when the trial court sent his message back to the jury room with the bailiff, without notice to the parties or counsel. We recently reviewed the problems posed by such ill-advised communications in Howard v. Miller, 207 Kan. 246, 485 P. 2d 199, where we observed:
“Since territorial days we have continuously had statutes providing that communication between court and jury as to the law in the case shall take place in the presence of, or after notice to, the parties or their counsel. Despite this plain injunction against private communication between judge and jury, our reports reflect many instances of its disregard, which practice has always been held to be erroneous. See, e. g., Joseph v. National Bank, 17 Kan. 256, 262, (1876).
“Our cases on the subject appear to fall in two categories. First, in instances in which the facts were fully disclosed and all that was communicated by the judge to the jury was set forth in the record, and it affirmatively appeared no prejudice resulted from the communication, the irregularity was held not to be reversible error. . . .
“The second category of cases is comprised of those in which it was impossible to know whether prejudice resulted from the error and a new trial was therefore ordered. . . .” (pp. 249-50.)
This case, in our view, clearly falls in the first, “no prejudice” category. What was done appears in the record; the court did not give a further instruction but advised the jury they should be bound by those already given. As defendant says in his brief, he “does not contend that the trial court’s answer was incorrect,” but only that if he had known of the inquiry he might have had some further instruction to suggest. His only showing of possible prejudice is that the incident may have contributed in some way to the alleged misconduct on the part of the jury — a concept we have previously rejected. We therefore conclude that the trial court did not err in refusing to grant a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Thomas Frye, was convicted of aggravated robbery in violation of K. S. A. 1971 Supp. 21-3427 and appeals from the conviction and sentence. He will be referred to herein either as the defendant, or Frye.
On July 19, 1970, three characters bearing firearms and wearing clown makeup on their faces appeared at Friedman Auto Supply in Kansas City, Kansas, and proceeded to commit a robbery. This is the second case resulting from the Friedman robbery to reach our court. (See State v. Sanders, 209 Kan. 231, 495 P. 2d 1023.)
The defendant was identified by some of the victims in the store as one of the three robbers. The lawless trio fled the scene of their crime as the police began to arrive and the defendant was identified as having taken a shot at the officers in the course of his leaving. A few minutes later police officers discovered Frye running from behind a church in the general area of the crime, carrying a brown paper bag in his hand and with the handle of a pistol sticking out of his pocket. The defendant was thereupon apprehended and searched. The paper sack was found to contain $24 in bills and the pistol turned out to be a .38 Smith & Wesson, fully loaded except for one empty shell in the chamber.
The defendant first contends the arrest and search were unlawful as being made without probable cause. This position is without merit. Frye was discovered in flight, with a lethal weapon protruding from his pocket and with clown makeup on his face. There was probable cause in good measure for officers to place Frye under arrest and to conduct a search of his person.
The defendant complains he was not represented by counsel at a lineup. Whether he was represented or not, no prejudice has been shown. No evidence concerning a lineup was admitted or even offered at the trial.
A complaint is made that bail was set in an unreasonable amount, i.e., $10,000. The record reflects that the defendant originally made bond, but was surrendered by his bondsman when he missed a court date set in a Wichita case. The defendant has no legitimate cause to complain of the amount of the bond under these circumstances.
Other matters alleged to be trial errors are too trivial to require comment.
A more serious challenge is directed against the sentence. The record reflects that Frye was originally sentenced to the custody of the state director of penal institutions for a term of not less than five nor more than fifteen years. The journal entry discloses that on the following day the trial court on its own motion set the sentence aside as being erroneous and sentenced the defendant to the state director of penal institutions for a term of not less than ten years nor more than life imprisonment.
The defendant was convicted of aggravated robbery. This offense is defined as a Class B felony by K. S. A. 1971 Supp. 21-3427. Authorized terms of imprisonment for various classes of felonies are found set out in K. S. A. 1971 Supp. 21-4501. With respect to Class B felonies the statute provides in subparagraph (b) as follows:
“Class B, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than five (5) years nor more than fifteen (15) years and the maximum of which shall be life;”
It will be noted that the minimum term of imprisonment shall be fixed by the court, while the maximum shall be life.
K. S. A. 1971 Supp. 21-4603 (1) (e) provides in pertinent part:
“The court in committing a defendant to the custody of the state director of penal institutions shall not fix a maximum term of imprisonment, but the maximum term provided by law shall apply in each case . . .”
As pointed out, K. S. A. 21-4501(Z?) provides the court shall fix the minimum term of imprisonment at not less than 5 nor more than 15 years. It is thus apparent that the 5-year minimum term fixed by the court in pronouncing its original sentence was within statutory limitations. It would appear, however, that the maximum of 15 years fixed by the court in tire first sentence was not within its competence to assess in view both of the statutory provision that the maximum shall be life (K. S. A. 1971 Supp. 21-4501 [b]) and of the further fiat of K. S. A. 21-4603 (1) (e) that the court shall not fix a maximum term of imprisonment but the maximum set by law shall apply in every case.
We view the sentence first imposed by the trial court as establishing a valid minimum. The maximum term of imprisonment, however, the trial court had no authority to set, for it was established by the statute — to “apply in each case.” Accordingly, the court’s attempt in the first sentence to set a maximum term at variance with the express statutory command was ineffective, and we regard it as being mere surplusage.
Is the first sentence pronounced a void sentence? We believe not. It contains a valid minimum term pronounced by the court in compliance with the law, and the statute itself sets a valid maximum. We view our decision in State v. Gaunt, 98 Kan. 186, 157 Pac. 447, as dispositive of the question. That case arose under the indeterminate sentence act which essentially provided at that time that a person convicted of felony (other than murder or treason) be sentenced to the penitentiary for a term not to exceed the maximum nor less than the minimum provided by law. Gaunt was convicted of third degree manslaughter, the penalty for which was confinement at hard labor for a term not exceeding three years or imprisonment in the county jail for not less than three months. The defendant was sentenced for a term of not exceeding three years. By statutory provision a sentence for confinement at hard labor may not be less than one year. In upholding the sentence as being valid this court said: “The judgment of the court recited the maximum limit and the law supplies the minimum.” So here, the sentence first imposed by the trial court established the minimum within statutory limits and the law supplied the maximum.
The question thus becomes whether the trial court may increase the penalty first imposed by increasing the minimum term of imprisonment the day following pronouncement. We believe a negative response is indicated.
We view the issue as being controlled by former decisions of this court. In Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586, Parks entered a plea of guilty to a forgery charge and was sentenced to a term of not to exceed twenty years under the provisions of the Habitual Criminal Act. Three days later, while still being held in jail, Mr. Parks was returned to court where additional prior convictions were established. The court then set the sentence aside and sentenced Mr. Parks to life imprisonment. Parks later filed a habeas corpus proceeding. On appeal from an order denying the writ, this court held that the first sentence was effective when rendered and the second sentence was void. We also held, however, that the defendant was not entitled to his release because the maximum time of the first sentence, which was a valid sentence, had not yet expired.
A later case, Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527, adopted the rationale of Parks. Here the defendant was sentenced to a term of not less than five nor more than fifteen years for grand larcny. He was taken to the county jail and two days later, having broken all the windows in the jail, was returned into court. At this time the state introduced evidence of a prior conviction, of which it had knowledge all along. Thereupon, the court set aside the original sentence and resentenced the defendant for a term of not less than ten nor more than thirty years. In original habeas corpus proceedings before this court it was held that the second sentence was void but that the original sentence was valid and must stand.
A later expression is found in Veronee v. State, 193 Kan. 681, 396 P. 2d 360, where the defendant was given two sentences of not less than five years each on charges of burglary, the sentences to run concurrently. While in jail awaiting transfer to the reformatory, the defendant escaped. On being captured, he was returned into court and the two sentences were modified to run consecutively. On appeal, this court held that the consecutive sentences were void but the concurrent sentences were valid.
In the recent case of State v. Lyon, 207 Kan. 378, 485 P. 2d 332, under somewhat different circumstances, this court held:
“Where a valid sentence has been pronounced in a criminal case and has been put into execution, the trial court is without authority to set such sentence aside and impose a new sentence.” (Syl. f 3.)
While the record does not expressly so state, we think it may be presumed that Mr. Frye was in custody of the sheriff following pronouncement of the first sentence; that he was being held in jail awaiting transfer to the penitentiary; and that his sentence had commenced to run before he was resentenced. He was clearly an indigent person and was represented by appointed counsel; he had been surrendered by his bail sometime before trial; and there is no suggestion that he made bond thereafter. In State v. Dearman, 199 Kan. 357, 430 P. 2d 285, this court said that a defendant commences to serve his sentence the moment he is taken into custody following sentence by the court. See, also, State v. Tillman, 208 Kan. 954, 494 P. 2d 1178.
Accordingly, it is our opinion that under the circumstances of this case the trial court was without authority to increase the minimum term of Frye’s original sentence tire day after it was imposed.
We find no prejudicial trial errors and the conviction must be upheld. We hold the second sentence to be void but we uphold the first sentence as being valid with the exception of the maximum term imposed. The trial court is directed to modify the first sentence by deleting therefrom as surplusage the portion which reads “nor more than 15 years.” As so modified, the judgment of the court below is affirmed.
IN THE SUPREME COURT OF THE STATE OF KANSAS
(Bar Docket No. 4263)
In the matter of the Complaint made against Robert H. Royer by the State Board of Law Examiners.
ORDER OF CENSURE
Whereas, in a proceeding conducted by the State Board of Law Examiners to inquire into complaints of alleged professional misconduct by Robert H. Royer, and
Whereas, following a full hearing as to such complaints the State Board of Law Examiners found that said Robert H. Royer was guilty of violating Canon No. 29 of the Canons of Professional Ethics (198 Kan. xxii), and
Whereas, the State Board of Law Examiners has made a written recommendation to this court that said Robert H. Royer be disciplined by “Public Censure” as provided by Rule No. 205 (m) (2), (205 Kan. Ixii), and
Whereas, the said Robert H. Royer, pursuant to subdivision (n) of Rule No. 205, above, has in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and
Whereas, upon consideration of the record and being fully advised in the premises, the court accepts the recommendation of the State Board of Law Examiners and the acceptance thereof.
It is, therefore by the court Considered, Ordered and Adjudged that the said Robert H. Royer be, and he is hereby Censured by this court and that he pay the costs of the proceeding. It is further ordered that this Order of Censure be published in the official Kansas Reports.
By order of the court, dated this 5th day of May, 1972.
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The opinion of the court was delivered by
Fromme, J.:
The question to be answered in this appeal is whether Section 2 of an ordinance of the City of Lyons, Kansas, which prohibits any person, while in a vehicle upon the public ways and streets of that city, from drinking cereal malt beverage or from having in his possession an open container of cereal malt beverage is constitutionally permissible.
The defendants, Monty Suttle and Tim Newman, were arrested on separate occasions in the early morning hours by the police in Lyons, Kansas. They were separately charged and convicted in the municipal court of violating Section 2 of ordinance No. 1247. The two convictions were appealed to the District Court of Rice County. Separate trials de novo to the court resulted in acquittals for both defendants. The question of the constitutionality of the ordinance on which the acquittals were based was reserved by the City of Lyons and this appeal followed.
Ordinance No. 1247 of the City of Lyons in pertinent part provides:
“Section 2. Any person who shall drink or consume cereal malt beverages or have in his possession an open container of cereal malt beverages while in any vehicle upon the public highways, roads, streets, alleys, sidewalks, parks or any other municipally owned or public facility, shall upon conviction thereof be deemed guilty of a misdemeanor and shall be punished as hereinafter provided.”
The uncontradicted evidence introduced or stipulated in both of the cases established that each defendant was arrested while transporting an open container of cereal malt beverage in a motor vehicle upon the streets of the City of Lyons, Kansas. Disregarding the evidence the district judge found each of the defendants not guilty. The reason given by the judge for the acquittals was as follows:
“. . . because oí lack of constitutionality of City Ordinance No. 1247 of the City of Lyons, Kansas, for the reason that said ordinance is simply an ordinance to enable the arrest of undesirable persons because they are undesirable, not because they have done something contrary to the public interest.”
At the outset we note the record is wholly devoid of evidence bearing upon the habits, character or undesirability of either of the defendants. We have difficulty in understanding the basis which the district court gave for its holding. The defendants below did not appear on appeal and we have no guidance from them.
The acquittals by the court are premised upon the statement that the ordinance is unconstitutional because it is simply an ordinance to enable the arrest of undesirable persons because they are undesirable. As previously pointed out the statement is wholly without a basis in the evidence. However, such a statement might indicate reliance by the judge on recent cases from the United States Supreme Court striking down certain vagrancy ordinances. One of these cases is Papachristou v. City of Jacksonville, 405 U. S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839. In Papachristou the high court referred to the vagrancy ordinance as a net making it easy to roundup so-called undesirables. These vagrancy ordinance cases are not in point here. The ordinances in those cases are held to be constitutionally impermissible because of ambiguity and vagueness in the description of persons affected. In Papachristou the ordinance attempted to permit the arrest of rogues, vagabonds, dissolute persons, beggars, gamblers, jugglers, drunkards, night walkers, thieves, pilferers, lewd persons, wanderers, loafers and persons neglecting all lawful business. In holding the ordinance unconstitutionally vague the high court stated the ordinance failed to give a person of ordinary intelligence fair notice of what specific behavior was forbidden and it encouraged arbitrary and erratic arrests and convictions.
No similar charge could be upheld against the present section of the ordinance for the acts prohibited are clearly set forth in ordinance No. 1247. Any person of ordinary intelligence can understand what conduct is forbidden, i.e., a person (whether undesirable or not) while in a vehicle upon the public ways or streets, shall not drink cereal malt beverages and such person shall not have in his possession an open container of cereal malt beverage. The present ordinance is not vague under the federal cases. It is not vague under the Kansas law set forth in State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A. L. R. 2d 750.
The holding by the district court might also indicate it felt the present ordinance was not a proper exercise of the police power by the city governing body. The appellant in its brief speaks to that question, so we will primarily address ourselves to that area of constitutional law.
What are the boundaries for a valid exercise of the police power by a municipality in the area of constitutional law?
In Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, the boundaries to be considered are defined as follows:
“Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are com mitted in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.” (p. 302)
One additional limiting factor on the exercise of the police power by a municipality may arise by reason of state pre-emption by means of legislative fiat. State pre-emption in the area of consumption of alcoholic liquor was discussed but found not to exist in Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 733, 495 P. 2d 524. There we noted the pre-emptive clause contained in the Liquor Control Act (K. S. A. 41-208) contained no reference whatever to the consumption of alcoholic liquor. In Blue Star Supper Club we said:
“In concluding that the regulation and control of the consumption of alcoholic liquor is not an area exclusively reserved by the state we believe it is significant that when the legislature adopted K. S. A. 1971 Supp. 41-2631 as a component part of the Private Club Act, and forbade therein the enactment of any ordinance conflicting with the act, it did not include a preemptive provision. . . (p. 735)
An examination of the provisions of the Cereal Malt Beverage Act (K. S. A. 41-2701 et seq.) discloses no pre-emptive clause of any kind in that act. We conclude that control of the consumption of cereal malt beverages is not an area of concern exclusively reserved by the state.
Now let us inquire as to whether the consumption of cereal malt beverages, regardless of the percentage of alcoholic content, bears a substantial relation to the public health, safety, morals and general welfare of the public.
Beverages with some alcoholic content have long been considered of such a nature and effect that laws regulating sales and consumption have been passed and enforced. In the Intoxicating-Liquor Cases, 25 Kan. 751 (1881), various concoctions with varying alcoholic content, such as McLean’s cordial, tolu and wild cherry and prickly-ash bitters, were discussed. It was held that whether their manufacture and sale was illegal under the prohibitory law depended upon whether their primary use was for beverage purposes. In Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, it was thought that the tendency of cider to ferment was sufficient to justify regulation of sales of that beverage. In the case of In re Jahn, Petitioner, 55 Kan. 694, 41 Pac. 956, sales and consumption of hot-tea which contained 2% or less alcohol by weight was restricted.
At the present time Kansas has two separate laws directed toward regulation and control of beverages with an alcoholic content. The first is the Kansas Liquor Control Act (K. S. A. 41-101 et seq.) which applies to beverages including beer with an alcoholic content of more than 3.2% by weight.
A provision in the Kansas Liquor Control Act makes it unlawful for any person to transport in any vehicle upon a public highway, street or alley any alcoholic liquor except in the original package which shall not have been opened. Opened containers may be transported if placed in a locked outside compartment not accessible to the driver and passengers. (K. S. A. 41-804.) However, in the absence of a pre-emptive clause, 41-804 does not prevent a municipality from adopting a similar ordinance so long as the ordinance does not conflict with the state law. As previously held in Blue Star Supper Club the regulation and control of the consumption of such beverage alcohol is not an area exclusively reserved by the state.
In City of Garden City v. Miller, 181 Kan. 360, 311 P 2d 306, it was pointed out:
“The fact that the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject by ordinance. [Citations omitted.] A municipality may legislate on the same subject so long as the municipal ordinance does not conflict with the state law [Citations omitted.], and if there is no conflict, both laws may stand. . . .”
(p. 366)
(See also Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P. 2d 183; and Blue Star Supper Club, Inc. v. City of Wichita, supra.)
The second state law directed toward control over beverages with an alcoholic content is the Cereal Malt Beverage Act (K. S. A. 41-2701, et seq.) which applies to cereal malt beverages containing no more than 3.2% of alcohol by weight. This act contains no state prohibition against the transportation of such beverages in opened containers. The act does provide for licensing and regulating the sale of the beverage at retail on a city or county level. Under the provisions of the act the governing body of the city may prescribe hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed. The act prohibits persons under eighteen years of age from buying or drinking any of such beverages in or about the licensed premises. (See K. S. A. 41-2704 as amended.)
We see no conflict in the provisions of these two legislative acts (K. S. A. 41-101 et seq., and K. S. A. 41-2701 et seq.) and the city-ordinance with which we are presently concerned.
The state laws which exist in this area of concern adequately attest to the fact that regulations pertaining to transportation of open containers and consumption of beverages containing alcohol are generally considered to be within a proper exercise of the police power. (See also Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877; and State v. Logan, 198 Kan. 211, 424 P. 2d 565.) We see no reason why municipalities may not regulate and limit the transportation and consumption of cereal malt beverages on city streets if such regulation does not conflict with existing state laws.
The present ordinance should be accorded a presumption of validity. (State ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; Moore v. City of Pratt, 148 Kan. 53, 79 P. 2d 871; Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, 311 P. 2d 1004.) When an ordinance is not oppressive or unreasonable it is the duty of a court to hold it valid, provided it does not conflict with the limitations placed upon the municipality by the constitution or laws of the state.
It must be kept in mind that courts cannot set aside ordinances unless they are unconstitutional, ultra vires, and under certain conditions unreasonable. If there is room for fair debate the court will not substitute its own judgment of reasonableness for that of the legislative body charged with the primary duty and responsibility of determining the question of reasonableness. In considering a police power ordinance the court merely considers whether the object of the ordinance is a proper one and whether the means adopted to accomplish that object are appropriate. (16 Am. Jur. 2d, Constitutional Law, § 278.)
This court can take judicial notice of the problems created by drinking beverages containing alcohol while driving a motor vehicle. If alcohol is consumed in sufficient quantities a person loses some of his normal powers of coordination and perception. This may affect a driver’s ability to perceive and react to traffic conditions which confront him during ordinary driving. “Driving while under the influence” is listed on the accident reports of this state as a contributing cause of many serious vehicular accidents. The present ordinance appears to be directed toward reducing the incidence of vehicular accidents contributed to by drinking cereal malt beverages while driving.
Various regulations governing the use of highways by the motoring public to protect the public safety and welfare have been held to be a proper exercise of the police power. In Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200, it was said:
“The use and ownership of motor vehicles generally have been considered proper areas of concern for the exercise of the police power. Various laws restricting rights arising from the use and ownership of motor vehicles have been found constitutionally permissible.” (pp. 599, 600)
We believe the object of this police power ordinance is a proper one and that the means adopted to accomplish that object are appropriate. We believe the district court should not have substituted its own judgment of reasonableness for that of the city governing body.
We also feel the trial court misconstrued the meaning of the word, unconstitutional. Unconstitutional, as understood and applied by the courts, means that the ordinance assailed is in conflict with some provisions of the constitution or law and not that it is considered unwise, conflicts with generally accepted policy or is contrary to sound principles. (See United States v. American Brewing Co. (Pa.) 1 F. 2d 1001 (E. D. Pa. 1924); and Ketterer v. Lederer, 269 F. 153 (E. D. Pa. 1920.)
A Pennsylvania court expressed a legally accepted meaning for the term “unconstitutional” in this manner:
“Whatever else may be said of legislation, it is not unconstitutional in the legal meaning of that term as used in America, unless the legislation be in conflict with a provision of our written Constitution. In other words, the enactments of our Legislatures and of Congress are not unconstitutional merely because unwise, or in conflict with sound principles of legislation, but because the statutory enactment conflicts with a constitutional provision. . . .” (Pennsylvania Co. for Ins. on Lives, etc. v. Lederer, 292 F. 629 (E. D. Pa. 1921) at p. 632.)
In summary, the consumption of beverages containing alcohol and the use of the streets by motorists have long been the subjects of regulation under the police power. These subjects bear a real and substantial relation to the public safety and welfare. Section 2 of ordinance No. 1247 of the City of Lyons is a proper exercise of the police power. Neither the state Liquor Control Act nor the state Cereal Malt Beverage Act contain a pre-emptive clause which would preclude the adoption of the present section of the ordi nance. We find no conflict between Section 2 of the ordinance and any state laws dealing with these subjects. We are not able to say that Section 2 of the ordinance is unreasonable without substituting our judgment for the judgment of the city governing body which is charged with the primary duty and responsibility of determining the question of reasonableness. Section 2 of ordinance No. 1247 of the City of Lyons is not unconstitutional for any of the reasons discussed herein.
Accordingly the appeal is sustained .
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Per Curiam:
This is an appeal from the lower court’s judgment in a suit on a promissory note. For convenience we will refer to the Mission State Bank & Trust Company as appellant, and C. D. Hargadine as appellee.
The appellee and a business associate, C. E. Misemer, were the majority stockholders, officers and directors of several corporations including Future Homes, Inc. By early 1966, the appellant had extended credit to these several corporations through Future Homes, Inc. in an amount exceeding $150,000. Future Homes, Inc. requested an additional $10,000 in credit from appellant early in 1966.
Appellant was unwilling to extend additional credit to Future Homes, Inc., but would lend the $10,000 to appellee and Misemer personally.
On April 7, 1966, C. D. Hargadine and Dorthea M. Hargadine, husband and wife, and C. E. Misemer and Irma Misemer, husband and wife, signed a $10,000 promissory note at the Mission State Bank & Trust Company. The proceeds were placed in a Future Homes, Inc. checking account.
Shortly after the Misemers and the Hargadines borrowed the $10,000, appellee entered into an agreement with C. E. Misemer whereby appellee assigned all of his stock in the various corporations to C. E. Misemer in consideration for a certain amount of cash and a promise by Misemer that he would obtain a release for appellee from all of the Future Homes, Inc. and other corporate obligations that appellee had signed in a corporate capacity or had personally guaranteed.
On or about April 28, 1966, an attorney employed to document the agreement brought a letter to the Mission State Bank & Trust Company and requested Paul Marcum, Sr., chairman of the board of the Mission State Bank & Trust Company, to approve the letter which set forth the understanding between Misemer and the appellee. In material part the letter stated:
“. . . One of the considerations for Mr. Hargadine to so assign his stock interest is that he be released from his personal responsibility and guarantee of any and all bank obligations and bank notes including any such obligations and notes at the Mission State Bank of Future Homes, Inc., Holiday Investments, Inc., Inland Distributors, Inc., Future Homes Purchasing, Inc., and Three Keys, Inc.”
Pursuant to request in the letter Mr. Marcum approved and confirmed it on behalf of the Mission State Bank by affixing his signature as chairman of the board.
In September, 1968, C. E. Misemer, Irma Misemer, Future Homes, Inc., and several other corporations owned by C. E. Misemer, filed bankruptcy petitions in the United States District Court for the District of Kansas. C. E. Misemer and Irma Misemer listed the $10,000 note to the Mission State Bank in their personal schedules as an unsecured debt. Future Homes, Inc. did not list the $10,000 in its schedule of liabilities.
Thereafter, the appellant made demand on appellee and his wife for payment of the note. They refused and the appellant filed suit.
After answering appellant’s petition, appellee moved for summary judgment alleging he had been released by virtue of the letter dated April 28,1966, and approved by Paul Marcum, Sr.
The trial court sustained appellee’s motion, ruling the release in question was clear and unambiguous. We are also of the opinion the release is unambiguous. (Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541; and Thurman v. Trim, 206 Kan. 118, 477 P. 2d 579.) The trial court committed no error in sustaining appellee’s motion for summary judgment.
The trial court also sustained a motion for summary judgment made by the Mission State Bank & Trust Company against Dorthea M. Hargadine. From that judgment, Mrs. Hargadine has cross- appealed. Mrs. Hargadine alleges there existed an oral release by the Mission State Bank & Trust Company which was intended to excuse her from liability on the note.
A careful review of the affidavits and depositions in the record leads us to conclude that the existence of an oral release pertaining to Mrs. Hargadine was a genuine question of fact which could not be determined on summary judgment. (Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976.)
The judgment as to appellee, C. D. Hargadine, is affirmed. The judgment as to Dorthea M. Hargadine is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error commenced an action before a justice of the peace in Lyon county against the plaintiff in error. The defendant moved to dismiss the action for the reason that the bill of particulars did not state facts sufficient to constitute a cause of action, and _ _ ; for the further reason that the plaintiff’s only remedy was by proceedings on his own motion to-have the land condemned, and compel the company to pay the damages awarded. The justice sustained the motion, whereupon the plaintiff took the case to the district court on error and that court reversed the judgment of the justice. The plaintiff in error brings the case to this court, for review. The same points are presented here as were made before the justice. The alleged defect in the bill of particulars is, that there is no allegation therein that the Eailroad Company had not appropriated the right of way through defendant’s land by proper legal proceedings before the same was entered upon. It may well be doubted whether under our constitution such an averment is necessary in any case. It is conceded that many authorities sustain the position of plaintiff in error on this point; but we have seen but one under a constitutional provision requiring compensation to be first made or tendered before any right of way can be obtained, and that is the Cleveland & Pittsburg Rld. Co. v. Stackhouse, 10 Ohio St., 567; and in that case it seemá much stress was placed upon-the statement in the petition that the Eailroad^Company had appropriated the land, and that the law' authorized such appropriation, and at the same time provided for a just compensation to the owner. There is nothing in either count of' the bill of particulars in this case that indicates that the company had appropriated the land. On the contrary, it is stated that they unlawfully broke and entered the plaintiff’s premises. But however the rule may be on this point, the second count is good, for even if the company had by proper proceedings taken and paid for the right of way across plaintiff’s land, it had no right to dig up plaintiff’s clay and carry it away. A condemnation gives no such rights; therefore this count is good.
The remaining question is a more important, but less embarrassing one. The constitution provides that no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the ^ ^ ^ ig done the corporation gets no rights, and is a trespasser if it goes upon another’s land for the purpose of building and operating its road. It gets absolutely no rights. This is so plain that the language of the constitution is the strongest argument that can be used. Now it is claimed that § 87, ch. 74, laws of 1870, by giving to the owner of any land through which a railroad may be built the right to have the land condemned and appraised, and damages assessed therefor, has given an adequate remedy which is necessarily exclusive in its character ; and to this point many authorities are cited. It is not deemed essential to examine them. It may be observed that the law referred to does not in terms declare that the course therein provided is exclusive; nor does it do so by implication. No new right is created by the statute, and a remedy provided to secure it. The right existed before the statute. The owner of land had, to secure his rights, such remedy as the law affords to any injured person. The legislature gave him another remedy, but did not take away those already possessed. The new remedy may be satisfactory, if the land-owner chooses to waive his rights to prior compensation. Otherwise it would be grossly inadequate. Even when damages are ascertained in this way the owner who resorts to it must ran his risk of ever getting his money. He may take this course if he chooses to take all the risks; but he is not obliged to do so. He is not compelled to waive his rights to prior compensation ; nor can the legislature or the courts do away with the safeguards that the constitution has thrown around private property, to preserve it from the grasp of corporations. The legislature has not done so in the section referred to, construed as it ought to be. The court can but say, that until compensation is made or deposited the corporation gets no right of way, and is but a trespasser. In Indiana it is held that ejectment lies; and it is difficult to see how this conclusion can be escaped. (Graham v. The C. I. C. Rld. co., 27 Ind., 260.) The judgment of the district court is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff in error took and carried away the ties of defendants in error from land belonging to neither party. Is the plaintiff in error liable for treble damages under our statute? Gen. Stat., 1095, ch. 113, §1. This must be decided by a construction of the statute solely, for the statutes in Illinois and Michigan are so different in their phraseology that the decisions in those states, to which we have been referred, throw no light on the point. In Missouri the statute, so far as this question is concerned, is similar to our own, but there appears to be no decisions on this point— though it is'observable that all the reported cases are brought in the name of the owner of the land, which is an indication of some value, as showing the view of the law taken by the profession in that state. The recovery for the injuries provided for by the first clause of .the section referred to, could only be by the owner of the land, as it is only the real' estate that is injured. The same is true of the third clause of the section. And to a certain extent it is true of the second and fourth clauses; for taking timber growing upon land is an injury to the real estate, for which the owner of the real estate injured must bring the action. But timber, rails, or wood, being on the land, is not necessarily a part of the realty. It ■depends upon its use and the purpose of its being there. It is the “party injured” that is to recover the treble damages. Now if the land of B. is entered upon, and the timber of A., being thereon, is taken by a trespasser, both parties are injured, the first by the unlawful breaking of-his close, and the second by the loss of his property. Which shall recover the treble damages? But one can. The statute is uncertain ■on this point. The whole section must be construed together, .and such a construction given as will bear test of every probable application. A case, will likely arise where the owner .of the land, and the owner of the property, both, will claim the treble damages. Both cannot have them, because the statute authorizes but one recovery. We think it will best harmonize the whole section to hold that the owner of the land is entitled to recoyer in this one instance, as he certainly is in all the other cases provided for in the statute. This was probably what the legislature intended in the law. It does not follow, as argued by defendant in error, that when it is held that the action must be in the name of the owner, that such ruling necessarily means the owner in fee simple. That point can be decided when it arises. The other errors suggested would not authorize a reversal, if they actually exist. The judgment must be modified so as to give judgment only for the amount found by the verdict.
Brewer, J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
There is certainly no error apparent upon the record in this case sufficient to require or even authorize a reversal of the judgment therein. The evidence of the witness Hyatt, given on cross-examination,'concerning a statement made by a Mr. White to himself, may not have been proper evidence on cross-examination, but still it could not in the least have prejudiced the substantial rights of the plaintiff in error. And therefore if any error at all was committed, the error was wholly immaterial. The instruction asked for by plaintiff in error, and refused by the court, does not seem to be good law. But if it were, none of the instructions that were given are embodied in the record, hence we cannot tell whether such instruction had not already been given to the jury in the other instructions. No passion or prejudice is shown to have existed on the part of the jury. The verdict seems to be sustained by sufficient evidence, and is not contrary to law.. And the judgment is in favor of the proper party, and against the proper party. The judgment must therefore be affirmed.
Since the foregoing opinion was written, but before it was announced, the plaintiffs in error filed a brief. They had filed none before. After examining their brief, and re-examining the record, we do not think it is necessary to change our opinion. The only point made in the brief is, that the verdict is not sustained by sufficient evidence. That point is already covered by the opinion. We think the verdict is sustained by sufficient evidence, as the case is presented to this court; and in determining whether the verdict is sustained by sufficient evidence we examine all the evidence whether introduced by the plaintiff or defendant. For the practice of this court in a case of this kind, see K. P. Rly. Co. v. Montelle, ante, p. 119, and cases there cited. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Guy C. Hobart sold certain real estate and personal property to Albert Miller, the plaintiff in error, for the sum of $1,550, the real estate being valued at $1,050, and the personal property at $500. The ágreement between them was as follows: Hobart on his part was, to execute to Miller a deed for the land; Miller on his part was to pay Hobart $50 down, and execute to him three promissory notes for $500 each, and was to execute to Hobart a mortgage on the land to secure the payment of the three promissory notes. All this was done in accordance with the agreement of the parties, except that in executing the mortgage the name of Hobart was once used in the place of Miller, and Miller’s name was three times used instead of Hobart’s. In every other respect the original agreement of the parties was fully carried out; and in every other respect the mortgage was correct, and in due form. The names of Miller and Hobart were each used twice in said mortgage correctly, and the mortgage was executed by the proper person, and in due form. Two of the promissory notes were paid when they became due. The other note and the supposed mortgage were assigned to E. M. Davis, the defendant in error, (who was plaintiff below.) Davis sued Miller on the note and supposed mortgage, and prayed for a judgment on the note and for a decree that the supposed mortgage should be reformed and foreclosed. The action was tried by the court, without a jury, on an agreed statement of facts, and the prayer of the plaintiff below was granted. It is agreed by the parties, that the supposed mortgage was drawn up defectively through a mutual mistake of the parties; that it was intended that a proper mortgage should be drawn up and executed, and it was supposed that such a one had been drawn up and executed; but how the mistake occurred in drawing the mortgage is not definitely shown. If it was a mistake purely of law we suppose the mistake cannot be corrected by a court of equity; and if the parties had a clear conception of every word they used in the mortgage, but mistook the legal effect of the instrument, we suppose it was purely a mistake of law. We do not however wish here to assert or admit that no mistake of law can ever be corrected by a court of equity. There may possibly be some cases where such mistakes can be corrected: McNaughton v. Partridge, 11 Ohio, 223; Evarts v. Strode, 11 Ohio, 480; Clayton v. Freet, 10 Ohio St., 544; Ormsby v. Longsworth, 11 Ohio St., 653, 666; Green v. Morris, 1 Beasly, (N. J.,) 165; Mortimer v. Pritchard, 1 Bailey Ch., (S. C.,) 505; Lucas v. Lucas, 30 Georgia, 191, 202; Clayton v. Bussey, 30 Georgia, 946; Longhurst v. Star Ins. Co., 19 Iowa, 369; Brew v. Clarke, Cook, (Tenn.,) 374. But if the mistake in this case was a mistake .purely of fact, or if it was a mistake partly of law and partly of fact, then we suppose that there can be but little doubt but that the mistake may be corrected, and the mortgage reformed. And if the parties to the instrument were mistaken in facts, it makes no difference whether the person who drew the instrument was mistaken in law or in fact, or was not mistaken at all. In the case of Hunt v. Bansmanier’s Adm’r, 1 Peters, 13, the supreme court of the United States use the following language: “ Where an instrument is drawn and executed which professes or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement.” See also, Scales v. Ashbrook, 1 Metc., (Ky.,) 358; Canedy v. Marcey, 13 Gray, 373. Every person is presumed to know the law; and unless the facts of a case show affirmatively that a party has manifestly mistaken the law, it will be presumed that any mistake which has occurred was a mistake purely of fact. The courts will not presume against the evidence, or without evidence, that some person has been ignorant of the law, or has been mistaken with regard to the law, when the presumptions of the law are all the other way. This principle holds with overwhelming force where the law is plain, where it has long been established, and where it is-generally, if not universally and actually, as well as presumptively known by every adult person of sound mind within the commonwealth. In such a case it will always be presumed, if not against strong evidence, that something else besides a mistake of law has intervened to produce the result. The fact that the law is so well and universally understood by all the people is in such a case strong evidence that no mistake of law has occurred, and that some other ground exists upon which a court of equity may grant the proper relief: 1 Story Eq. Jur., §§ 128, 138e, 138/, and note 1, and § 138<y In the present case the name of Hobart was once inserted in said mortgage as grantor where the name of Miller should have been inserted, and the name of Miller was three times inserted in said mortgage as grantee where the name of Hobart should have been inserted. Now can it be supposed that any person could mistake the law so as to suppose a grantor to be a grantee, or a grantee to be a grantor? Such a thing can hardly be imagined as possible. But it is easy enough to suppose that a person drawing a mortgage might carelessly and inadvertently insert the name of the grantee where the name of the grantor should be, and insert the name of the grantor where the name of the grantee should be. And this was probably the fact in the present case. At least, taking the record as it is presented to us, we must presume that such was .the case. If so, the mistake was one of fact, and not of law. But even if the person drawing the mortgage intentionally inserted the names wrongfully in the mortgage, still, as the parties who executed the mortgage did so in ignorance of any such intention, their mistake was one of fact, and not one of law.
It seems to be claimed by counsel for plaintiff in error that an instrument must be valid and binding upon the parties in order to be reformed. This is certainly not correct. It is true, that the original agreement must be one that the parties may legally make. It is equally true that the agreement that the parties attempt to put in writing must be one that they could legally enforce if it were such as they intended to make it. But it is not true that the instrument when made shall in every case express a legal and valid contract or agreement. It has been held that a written contract which through mistake is made to appear upon its face to be usurious, and therefore void under the statutes of the state where made, may be corrected and reformed in equity so as to conform the instrument to the real agreement of the parties, and then enforced: Mortimer v. Pritchard, 1 Bailey Eq., (S. C.,) 505. It has also been held that a blank bond, dated and signed, but not showing who the obligee was, nor even showing who the obligor was except by the signature, with scarcely any of the blanks filled, and therefore void at law, might nevertheless be corrected and enforced in equity: Gray v. Rumph, 2 Hill Ch., (S. C.,) 6. In Iowa it has been held that-where an intended deed for a town lot was void because the deed gave the number of the lot and block only, and did not state in what town the lot and block were situated, the error could be corrected in equity: Stewart v. Brand, 23 Iowa, 477. In Connecticut it has been held that a bond void because through accident or mistake no seal was attached to it may nevertheless be made good in equity: Montville v. Houghton, 7 Conn., 543. And in the same state it has been held that equity will relieve and supply the defect where a deed is void because not subscribed by a sufficient number of witnesses: Smith v. Chapman, 4 Conn., 344; Watson v. Wells, 5 Conn., 468; Carter v. Champion, 8 Conn., 549. In Maryland it has been held that where a promissory note, or “single bill” as there termed, was void at law because of the omission through mistake of th'e word “ dollars,” equity would supply the defect, and make the note valid: Newcomer v. Kline, 2 Gill & Johnson, 457. It has often been held where a deed of conveyance has been made which should by previous agreement include certain lands, but which from accident or mistake does not include them, and is therefore void as to such lands, equity will correct the mistake and insert such lands in the deed: White v. Wilson, 6 Blackf., 448; De Remer v. Cantillon, 4 Johns. Ch., 85; Tilton v. Tilton, 9 N. H., 385. And for omissions being supplied, see Stanley v. Goodrich, 18 Wis., 505; Williams v. Hatch, 38 Ala., 338. In the case of Kennard v. George, 44 N. H, 440, 445, George and wife bought a farm of Mace Kennard, furnishing the purchase-money, and the parties agreeing to give to him a valid security for his money, but instead of doing so they gave him through mistake as to the legal effect of the instrument a note and mortgage executed by the wife of George, she being a married woman, which note and mortgage were therefore under the laws of New Hampshire void. It was nevertheless held that the court could correct the mistake and grant the proper relief. In Kentucky, where the title to land is conveyed there is under their statutes no vendor’s lien secured “ unless it be expressly stated in the deed what part of the consideration remains unpaid.” (2 Stant. Rev. Stat., 230, § 26.) But where the Reed does show what part of the consideration remains unpaid the vendor has alien therefor on the land equivalent to a mortgage lien in Kansas. Under the Kentucky statutes a deed was executed for certain land, and two promissory notes given for the purchase-money remaining unpaid; but through mistake the deed did not show how much of the purchase-money remained unpaid. The vendor therefore had no written lien at all. His written mortgage was not merely void, but he had none at all. The court nevertheless held that the deed could be reformed, a written mortgage thereby being virtually created, and the lien enforced: Worley v. Tuggle, 4 Bush., (Ky.,) 168. The case of Scales v. Ashbrook, 1 Metc., (Ky.,) 358, has some points of resemblance to the case at bar. In that case Marshall and Ashbrook borrowed some money of Scales to pay a debt for which they were both liable, and executed their joint and several promissory note to Scales for the same. Some time afterward Marshall and Ashbrook agreed with Scales to take up their note and give him a bill of exchange in payment therefor, on which Ashbrooh was to remain liable to Scales.But by mistake and ignorance as to the order in which parties to such paper are held to be liable, Scales was made the-drawer and Ashbrook the payee and indorser, whereby, instead of Ashbrook remaining liable to Scales on said bill, Scales became a/nd was liable to Ashbrooh. The court held that in such a case equity would grant the proper relief, and would compel Ashbrook to pay Scales the amount of the bill. Man)1' other illustrations might be given if it were thought necessary. Courts cannot of course make contracts for parties, but they can reform written instruments so as to make such written instruments express the real contracts of the parties. Contracts affecting real estate must of course under the statute of frauds be in writing. But there are many cases where the statute enacted to prevent frauds by requiring contracts to be in writing does not apply so as to enable a party to commit a fraud, and this is one of such cases. The judgment of the-court below must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This proceeding in the district court was on an appeal from the board of county commissioners on proceedings for the condemnation of land for the right of way for the Missouri, Kansas, and Texas Rai lway Company. The plaintiffs in error the railway company, who were defendants below, claim that “ The court below erred in not permitting the witness Heylmun to answer the following question put to him by the defendants below: £ W ould the damages have keen less if there had been proper culverts, and crossings constructed from the improvements to majn body of the land, north of the railroad?”’ Heylmun was a witness for the defendants in error. He had already testified in chief, and this question was put to him on his cross-examination by the railway company. He hgd already given his opinion concerning the value of the land before and after the railroad was constructed through it. His opinion was, that the land was less valuable afterward than before; that the construction of the railroad through his land depreciated the value thereof about ten dollars per acre. And among the reasons that he gave why the land was. less valuable, on account of the railroad, were the following: First, he stated that there was an insufficient culvert constructed; second, he stated that the railroad was so constructed through the land as to leave the buildings and other improve ments on one side of the road, and the main body of the land on the other side. The other evidence had previously shown that there were two cuts made through the farm, each eight or ten feet deep. After all this evidence, and much more, was given, the question above quoted was asked on cross-examination-; and we think the court should have permitted it to be answered. Great latitude should generally be allowed on cross-examination.
In assessing damages done to land by reason of the appropriation of a right of way through it for a railroad, th’e commissioners or iury may always take into conj j j j sideration all incidental loss, inconvenience, and damages, present and prospective, which may be known, or may reasonably be exjiected to result from the construction and operation of the road in a legal and proper manner; and in doing so they may always take into consideration the exact condition in which the road may be at the time when they make the assessment. The judgment of the court below must be reversed.
All the Justices concurring.
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The opinion of the court Avas delivered by
Kingman, C. J.:
It Avas clearly demonstrated in the case ■of Washburn College v. Comm’rs of Shawnee County, 8 Kas., 344, that it Avas the use and not the OAvnership of property, that determines AAdrether property is exempt from taxation under §1 of art. 11 of the constitution. Therefore the only question to be decided in this case is, whether the property occupied by the plaintiff in error as a -residence is exempt from taxation; and on this point avo have no doubt. The ■exalted station, the great ability and usefulness, as Avell as the ■eminent piety of the plaintiff in error, form no reason why the court should depart from the plain letter of the law, as we read it. It is only property that is used “ exclusively>! for religious and other designated purposes, that is exempt. In this case the property is used as any other dwelling; and the use is' not distinguishable from that of the residence of any other Christian pastor, or Christian gentleman. It is clear that it is not the purpose of the section referred to, to relieve such property from the burden of taxation. The court below therefore correctly refused an injunction in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This1 action was commenced an'tried before a justice of thé peace. The verdict and judgment were for Histed, the plaintiff below. The defendant Hawley then appealed to the district court. Trial was again had,, this time by the coxirt without a jury, and the finding, and. judgment were again for the plaintiff below. The defendant as plaintiff in error now brings the case to this court. The-case was tried in the .district court on the bills of particulars filed in the justice’s court. No question was raised in either court, or by either party, as to the sufficiency of the bills of particulars. None of the evidence introduced on the trial is preserved in the record. No special findings were made by the court below, but a general fi nding only was made for the plaintiff. No motion was made for a new trial on any ground. No objection was made to either the finding or the judgment. And not an exception was taken by either party to any ruling of the court below. No question was presented to the court' below except questions of fact. These were presented by the pleadings, and were determined on the evidence. And as none of the evidence is brought to this court how it is expected that we shall review the action of the district court we can hardly imagine. The bill of particulars of the defendant 'below (plaintiff in error) ivas a general denial, and a plea of the statute of limitations. This raised questions of fact only, and upon a trial upon the merits of the action the facts were found against the defendant below'. But possibly may be claimed that plaintiff’s bill of particulars showed upon its face that the .plaintiff’s cause of action Avas barred by the statute of limitations. If it did why did not the defendant raise the question in the court below ? Answering to the merits did not raise any such question. There are many defects to AArhich a pleading may be subject Avhich may be cured by trial on the merits, verdict, or finding, and the judgment of the court. For what is defectively stated in the pleading is presumed to have been duly proved on the trial. This is one of that class of defects. No court of last resort,, that Ave are aware of, has ever yet reversed a judgment of an! inferior court because a pleading shoAved upon its face that the cause of action therein stated was barred by the statute of limitations, unless the question Avas first fairly raised and acted upon in the court beloAV. In this case Ave must jjresume that the plaintiff’s cause of action was not in fact barred; Ave must presume that the evidence showed that it .Avas not in fact-barred; and therefore if the defendant beloAV had at any time raised said question the plaintiff could (if necessary) have amended his bill of particulars so as to sIioav that the cause •of action Avas not barred. Even after judgment, if the defendant. had raised the question, the plaintiff could have amended his bill of particulars so as to make it correspond with the facts proved. (See §139 of the civil code.) It has already been decided in this court that when a cause has been tided upon its merits in the district court this court Avill not consider a question, raised for the first time in the supreme court, whether the plaintiff's pleading shows upon its face that the cause of action therein alleged is barred by the statute of limitations; (Greer v. Adams, 6 Kas., 203;) 'and to this decision we still adhere. It can hardly be claimed however that the plaintiff's bill of particulars in this case shows affirmatively upon its face that the plaintiff's cause of action was' barred. It shows when certain services were performed, but compensation for services does not always become due when the services are performed. That depends upon the contract of the parties. Also, there were two payments made on the plaintiff's claim which, from the bill of particulars, seems to have been made on the whole claim of the plaintiff on the first item as well as on the last. The last payment is not dated, and that may have been made at a time when it would have taken the whole claim out of the statute. The last item charged in the plaintiff's bill of particulars is dated November 1869. Now if the plaintiff's claim was a running account, and it does not appear definitely whether it was or not, this last item would have prevented the whole of the plaintiff’s claim from being barred when this suit was commenced. But how much must a plaintiff state in his bill of particulars in a justice’s court? Must the bill of particulars show affirmatively and definitely that the claim is not barred? Must it show that said claim was a running account, or that the payment thereon was made at a time when it would take the claim out of the statute? Must it show that the defendant was absent from the state, or concealed herself, etc., so that the statute would not run? Must it show that the defendant promised to pay the claim in writing within three years before the commencement of the suit? Must it be as specific, as definite, and certain, and as full and complete in its statement of facts, as a petition in the district court? "We do not propose to answer any of these questions at the present time. The judgment of the court below must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error is the surviving partner of the firm of Sawyer & Ficldin, who were proprietors of a stage-coach line between Chetopa and Baxter Springs. Emil J. Sauer the defendant in error, a minor, who sues by his next friend, while a passenger in one of the coaches of’ Sawyer & Ficklin was injured, and brought his action in the district court to recover damages therefor. Verdict and judgment were in his favor for $3,500. To reverse this plaintiff in error brings the record here.
The main questions arise on the instructions. Objection is made to the first instruction given at the instance of the plaintiff. This instruction embodies a statement of the general duties and obligations of stage-coach proprietors, and is conceded by counsel to state them correctly. The _ , . . . _ J objection is, that, being so full and general it touches upon matters not in issue, and was therefore calculated to mislead the jury and induce them to consider matters foreign to the case. We do not think it open to that objection. The scope of inquiry under the petition seems to us wider than counsel state, and we do not find anything which was likely to have turned the thoughts of the jury away from the issues. The purpose of an instruction is to assist the jury in correctly applying the law to the facts of the case; and it not unfrequently happens that a general statement of the rights .and obligations of the parties to a transaction assists materially to a clear understanding of the particular obligation claimed to have been violated. It may well have had that effect in this case. At any rate, we cannot see how it prejudiced the •plaintiff in error, and that is as far as it is necessary for us to inquire.
The third instruction given at the instance of plaintiff and the refusal to give instructions of an opposite character are also alleged as error. That instruction is as follows:
“That if they believe from the evidence that Emil J. Sauer, while a passenger on defendant’s stage-coach was injured on .account of the negligence of defendant by the employment of a known drunken driver, that they the jury are not confined in fixing the damages proven, but will be justified in giving .exemplary damages.” •
In Wiley v. Keokuk, 6 Kas., 94, it was decided that “whenever the elements of fraud, malice, gross negligence, or oppression' mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages.” It is needless to re- . examine the question here. That decision settles the correctness .of this instruction; for it hardly admits of doubt that the .employment by a stage-coach proprietor of a known drunk.ard, and entrusting to his care the lives and limbs of passengers, is the grossest of negligence. The traveling .community have a right to expect that the drivers of coaches, like the engineers of locomotives, are men not only competent, but of sobriety; and whenever a known drunkard is placed in such positions of trust, the party so placing him should pay smartly for such reckless indifference, to human life. But it is claimed by counsel that there is not enough in the testimony to warrant such an instruction. There was abundant testimony, and from many witnesses, showing the intoxication ■ of the driver at the time of the accident. One witness testified that he roused him out of a drunken sleep at the time ■ the stage started, and but a short time before the accident, . and helped him on to the driver’s box, he being too drunk to get up without help. There was some testimony, though not abundant or positive, yet drawn from the defendant’s witnesses, showing the use of liquor by the driver at other times, and tending to show intoxication on his part. Proof of actual knowledge by the proprietor is unnecessary. Proof of drunkenness so habitual as to be generally known in the community, is sufficient to raise a presumption of knowledge on his part. And while we think the testimony fails to show habitual drunkenness of the driver, or actual or presumptive knowledge thereof by defendant, yet it tends in that direction , sufficiently to justify the court in laying down the law in reference thereto. The question was raised as to the right to award punitive damages, and it was proper for the court to lay down the rule respecting them.
The next question arises on the second instruction given by the court of its own motion, and the refusal to give several . embodying in slightly different statements an opposite doctrine. That instruction is as follows: ■
“ If the jury believe from the evidence that the plaintiff’s negligence contributed to the injury complained of, he cannot recover. But if such negligence was only slight, or the remote . cause of the injury, he may still recover, notwithstanding such r slight negligence or remote cause.”
It is a general rule that where the negligence of the plaintiff contributes to the injury he cannot recover. Where there is miltual fault the law will not try to determine which is the more to blame. Yet all that is required of the plaintiff is ordinary care and prudence. He is not called upon for the exercise of extraordinary diligence .and care in averting the consequences of defendant’s negli gence. Of course, what is ordinary prudence varies with the situation and surroundings. That which is ordinary prudence under some circumstances will be gross carelessness in others, so that no specific acts can be named as indicating the degree of care to be exercised. It is enough that the party does that' which ordiuarily prudent men would do under like circumstances. The rule in reference to this question is thus stated, in Shearman & Redfield on Negligence, § 29: “ Where the negligence of the plaintiff is relied upon to defeat his recovery he must have been guilty of at least ordinary negligence. His failure to take great care is no defense to the action.” See also, Ernst v. Hudson River Railroad Co., 35 N. Y., 9; Johnson v. Hud. River Rld. Co., 20 N. Y., 76; Beers v. Housatonic Rld. Co., 19 Conn., 566. It is true, some of the New York decisions say that any negligence on the part of the plaintiff will defeat a recovery; but these courts reject the idea of degrees of negligence, and hold that if one does that which ordinarily prudent men would have done, he is guilty of no negligence, so that they in fact announce no different doctrine. In this state we recognize the different degrees of negligence, and therefore the instruction is in this respect properly worded. U. P. Rly. Co. v. Rollins, 5 Kas., 167. The law does not regard the remote causes of an injury. It is enough to determine the proximate causes. “ The plaintiff’s fault must also proximately contribute to his injury, in order to constitute any ground of defense.” Shear. & Redf. on Neg., § 33; Isbell v. N. Y. & N. H. Rld. Co., 27 Conn., 293; Richmond v. Sac. Val. Rld. Co., 18 Cal., 351; U. P. Rly. Co. v. Rollins, 5 Kas., 167. Indeed, the instruction seems but to state the law as laid down in this last case, and a reference to that decision was really all that was necessary to dispose of this objection.
Several objections were raised to the admission of testimony, but none of them seem to us of sufficient importance to justify a reversal of the judgment. It is claimed that the verdict was excessive. It was for $3,500. The plaintiff’s leg was broken, with a compound fracture of the tibia. He was con fined to his bed for thirteen weeks, and afterwards was on crutches for a month or two. He suffered a great deal of pain during his confinement, and occasionally since. We do not feel warranted in disturbing the judgment on this ground. The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
We do not think that it is necessary to consider the preliminary questions raised by the plaintiff in error, for a decision of the main question involved in the case will dispose of the whole case finally. The main questions involved are precisely the same as those decided in the case of Going v. Orns, 8 Kas., 85, to which we refer. (See also Monroe v. May, 9 Kas., 466; Deering v. Boyle, 8 Kas., 525, and Wicks v. Mitchell, 9 Kas., 80, as deciding kindred questions.) A married woman may purchase personal property,, with her own money, from her husband, and if a subsequent creditor of her husband should cause such property to be seized in execution to pay her husband’s debts, she may replevy the property from the officer. The judgment of the court below is reversed, and cause remanded with the order that judgment be rendered on the agreed statement of facts for the plaintiff and against the defendant.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
Where a chattel mortgage for a horse owned and kept in the county where the mortgage is executed describes the horse as follows, to-wit: “ One dark bay horse, fifteen hands high, heavy made) with black mane, tail and legs, (the closer to the hoofs the blacker the legs;) star in the forehead on a level with the eyes, and ranging upwards; stripe on the nose extending to both lips; a little white streak on the withers, and a little sunk just behind the withers;” and where the mortgage is in every other respect valid, and in due form, and properly filed in the register’s office, the mortgage is not void for any uncertainty in the description of the horse. Nor is it necessary that a chattel mortgage, for a horse shall be made to show where the horse is situated at the time the mortgage is executed provided the horse is otherwise sufficiently described.
We think the evidence brought to this court amply sustains the verdict of the jury. But there is another reason why we could not say that the verdict is against the evidence. The record does not show that all the evidence has been brought to this court.
The judgment of the district court is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought suit to foreclose a mechanic’s lien. Judgment was entered for defendants. Plaintiff claims that this was contrary to the evidence, but as ^ recor(j faiis f¡0 g^y that all the evidence is before us, how can we know that it was? See opinion in case of Smith v. Gill decided at the present term, (ante, p. 74,) and cases there cited. It is however insisted that upon the record it appears that certain facts were admitted, and that upon such admitted facts the plaintiff was entitled to a judgment, no matter what other facts might have'appeared in evidence. If the admissions went to all the material questions in the case, there would be great force in this claim, for where a party admits a fact he will not be per- . 1 ^ , _, mittecl to offer testimony tending to disprove it; nor to avail himself of any such testimony if any there be in the case, but will be concluded by his admissions. But where there is a single material question not admitted but disputed, and upon which the party complaining holds the affirmative, and the record does not show that it contains all the evidence bearing upon that question, we cannot disturb the judgment.
It may be that that single question was the one upon which the court below decided the case, and that if a]j the testimony 'bearing upon it were before us, it would be perfectly clear that the court decided correctly. It is to be presumed that the decision was correct; and before error will be affirmed it must be shown. Applying this rule to this case and we shall be compelled to affirm the judgment. Plaintiff claimed that he sold the lumber, for which he filed the lien, directly to the defendants. They claimed that they made a contract with one McEall to build a stable, and that McFall was to furnish all the material and do all the work; that they had paid him in Piull except about $80, which they claimed as damages, an(j that McEall bought the lumber of plaintiff. It was admitted that the lumber went into the stable of defendants, that the title to the lots, on which this stable stood, was in one of the defendants, and that the other defendant was authorized to contract for the building. Of course it was a vital question whether the sale was made to defendants or to McEall; for if made to McFall he alone would be responsible, and even a promise by defendants to pay, would be a promise to pay the debt of another, and if not in writing, void. Upon this vital question not only was there no admission, but there was some conflicting testimony; and for all the record discloses there may have been a great deal more.
It is also insisted that a new trial should have been granted on account of newly-discovered testimony, and a couple of affidavits were presented tending to show such testimony, but without all the evidence we are unable to see that this was
not merely cumulative, and not at all likely to have changed the result. Of course therefore we cannot say that there was any error in overruling the motion for a new trial. Upon the record as it stands it appears that defendants have paid to their contractor substantially all that they agreed to pay for the building. Before they should be compelled to pay a second time, and to another party, it should be made plain that they have placed themselves under some legal obligation. This the record does not show, and the judgment will be affirmed.
All the Justices concurring.
Upon the filing of the foregoing opinion the plaintiff in error filed a motion for a rehearing. This motion was duly heard, and on the 15th of October was denied. On this motion denying a rehearing the opinion of the court was delivered by
Brewer, J.:
The decision in this case was made, and the opinion filed, on the 16th of August last. The main ground upon which the judgment of the district court was affirmed, was a failure in the record to show that all the testimony was preserved. Since that decision a motion for rehearing has been made, and on that motion a stipulation of the attorneys of both parties is filed, to the effect that the record does contain all the testimony offered ón the trial in the district court. This of course changes the nature of the case as it stands before this court; but unfortunately for plaintiff „ . 1 ^ ftrK 111 error onv changes the necessity of affinnanee from one principle to another. Upon the testimony in the record the district court found for defendants. Upon at least one material question there was conflicting testimony, and that is, whether the lumber was sold by plaintiff to defendants, or to one McFall, their contractor. As was said in the former opinion: “Of course it was a vital question whether the sale was made to defendants or to McFall, for if made to McFall, he alone would be responsible, and even a promise by defendants to pay, would be a promise to pay the debt of another, and if not in writing, void. Upon this vital question not only was there no admission, but there was some conflicting testimony; and for all the record discloses there may have been a great deal more.” Under the stipulation this last assertion must be omitted, but the others remain unchanged. Upon this question the testimony seems to preponderate in favor of the plaintiff; but still the rule is well settled, that the finding of fact of a district court will not be set aside in this court unless it is clearly against the weight of the evidence. Rose v. Williams, 5 Kas., 488. A mere apparent preponderance is insufficient. We shall be compelled to overrule the motion for a rehearing, because upon the testimony the district court found for defendants, and there is some unimpeached testimony to sustain the findings.
All the Justices concurring.
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The opinion of the court was delivered by
Brewek, J.:
Defendant in error, Childs, brought his action in the district court of Miami county to foreclose a mortgage. •The answer admitted the execution of the note and mortgage, ■and plead payment. This was the only issue for trial. The jury found for the plaintiff, and for the amount of their verdict judgment was rendered and an order made for the sale of the real estate. As error in the proceedings of the district court it is insisted, first, that “the judgment cuts off the equity of redemption in ten days after the close ^ tlie term,” whereas by the law in force at the time of the execution of the mortgage, October 12th 1867, the judgment-debtor had two years to redeem. This is a mistake. The decree contains no order of foreclosure of the equity of redemption. There is a judgment for money, and an order of sale of the mortgaged property, and nothing smore. The ordinary clause barring and foreclosing all par ties from and after the sale, is omitted. Whether the equity be indeed cut off depends not on the form of the decree, but upon the law determining the effect of the sale. If a sale under such a mortgage is without redemption, then the purchaser would be entitled to a deed; if with redemption, then only to a certificate; and whether the purchaser be entitled to a deed or certificate, and whether there be a right to redeem or not, axe questions which the district court has not attempted by this decree to settle. A sale must be ordered, whether- there be redemption or not. If the debtor was entitled to redemption, it is enough to say that the court has not attempted to deprive him of this right. The decision in Lender v. Caldwell, 4 Kas., 339, is wholly inapplicable. There the decree contained a formal order barring and foreclosing all right and equity of redemption.
Again, it is objected that there was error.in ordering the sale of all the property mortgaged, as more than half the original debt had been paid; and it is insisted that the order should have been for the sale of only so much as was necessary to pay the judgment and costs. All ^he pr0per¿y was pledged as security for the debt. Until all the debt was paid the entire property was chargeable. There is nothing in the record to show the present value of the property. The whole of it may not sell at sheriff’s sale for enough to pay the judgment. How then can we say that the error, if error there were, has wrought any prejudice to the plaintiffs in error? But there was no error. No application was made to the district court to direct the order in which the property should be sold, or to regulate in any respect the manner of the sale. The order was to sell in satisfaction of the judgment and costs. When the judgment and costs were satisfied the order had spent its force. The sheriff had no further right to sell.
Again, it is insisted that there was error in renden' ng a judgment for money against Mrs. Kirby. She did not sign the note, but simply joined with her husband in the mortgage. This point is well taken. She made no promise to pay, but simply relinquished her rights in certain propgrty. it is per husband’s debt, not hers. No personal judgment against her was therefore proper.
It is claimed also that the motion for a new trial on the ground of newly-discovered evidence should have been sustained. The affidavits used on the motion are in the record, but the evidence on the trial is not preserved. For aught then that appears the testimony may have been purely cumulative. Larrimore v. Williams, 30 Ind., 18.
These being all the questions raised, the case will be remanded to the district court with the instruction to set aside the personal judgment for money against Mrs. H. R. Kirby. In all other respects the judgment and decree will be affirmed. The costs in this court will be divided.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The following are the material facts in this case. In November 1864, Madison Mills and wife executed a mortgage to William H. Ralston, administrator, and Lucinda McCracken, administratrix, of the estate of Nelson McCracken, deceased. A portion of the money secured thereby remaining unpaid. On the 14th of March 1871a suit was commenced in the district court of Leavenworth county to foreclose this mortgage. Personal service was had on both Mills and his wife. They filed no answer, and on the 19th of May 1871 a decree was entered. The petition prayed for a decree barring and foreclosing all the defendants of and from any right and equity’of redemption, and other right whatever, from and after the sale, and so the decree was entered. Three special executions were successively issued upon such decree, and upon the third, one tract of land was sold to Mathew Ryan, This sale took place on the 6th of April 1872, nearly a year after the decree. Ryan paid one hundred dollars down. On the 12th of April 1872 the plaintiffs Ralston and Mrs. Mc-Cracken filed their motion to confirm the sale., On the 13th Ryan filed the following motion:
[Title.] “And now comes Mathew Ryan, the bidder at the sheriff’s sale made in pursuance of the decree in the above entitled cause, and moves the court that the sale made by the sheriff of Leavenworth county, in the said cause, be confirmed by the court, and said sheriff be ordered and required upon the immediate payment of the amount of his said bid, which is now here tendered in court, to make, execute, acknowledge, and deliver to said Mathew Ryan, a deed for the premises so sold to him, in pursuance of said decree. . G. & F., Atty’s for Mathew Ryan.”
On the call of this motion the plaintiffs, ■ and Madison Mills, the principal defendant, who now for the first time appeared in court, objected to the healing unless the moneys still unpaid on the bid were first paid to the sheriff. This was immediately done. The record then reads: “And thereupon the plaintiffs and said defendant Madison Mills object only to so much of said motion as asks that a deed for the land sold herein be made, executed and delivered to said Mathew Ryan by said sheriff.” The district court sustained the motion, confirmed the sale, and ordered a deed. No motion was made to correct the decree, which, so far as the record shows, still remains as originally entered. Did the district court err in ordering a deed? This is the single question presented for our consideration. At the date of the execution of the mortgage the law authorized a redemption at any time within two years from the date of sale. (Comp, Laws 1862, p. 769, ch. 171.) In 1868, Gen. Stat., p. 893, ch. 85, § 1, a law was passed providing that the redemption act should “not apply to any suit or action prosecuted in any court, when the plaintiff is the executor or administrator of the estate of any deceased person,” and authorizing a sale and deed without any redemption. It is claimed that this law applies to the present case, that it is constitutional, and that therefore the decree was properly entered barring redemption. There may be some question as to its applicability, for though the plaintiffs describe themselves in the caption and body of the petition as administrator and administratrix, there is no distinct allegation that they are such, or that they sue in their representative capacity. Still we should probably have little trouble with this question. There is graver doubt as to the constitutionality of this law when applied to notes and mortgages entered into before its passage. On the one hand it is claimed that the law in existence at the time of a contract enters into and forms a part of the contract, and that a substantial change of such law would operate as a modification of the old and the making of a new contract, which neither legislatures nor courts can do. On the other, it is said that this is a unilateral contract, the payee and mortgagee having performed his part, and the only obligation being that of the payor and the mortgagor, that he will pay so much money at such a time, or in default forfeit the mortgaged property; that the matter of redemption is purely of the remedy; and that any legislation concerning the remedy, which does not lessen the ability of the creditor to enforce payment, is within the power of the legislature and does not conflict with art. 1, § 10, clause 1, of the federal constitution which forbids any state to pass a law “impairing the obligation of contracts.” Much might be said upon both sides of this question, and it is one of no little interest and importance. It is unnecessary for us however to enter into any examination of it, as upon another ground it seems to us the ruling of the district court should be affirmed. The decree barred redemption. The sale was made under that decree. An examina tion of the petition would have shown the defendants what was claimed; of the decree, what was ordered. Three special executions were issued. Nearly a year elapsed before the sale. The defendants might reasonably be presumed to know the terms of -the decree. The record shows affirmatively that they did know prior to the confirmation. Yet no motion was made to change or correct it. It remains as it was entered. The purchaser at a sheriff’s sale looks to the decree for the measure of interest and title he will acquire by his purchase. He knows he can get no more interest than the defendant possesses and the decree' orders sold. But he bids, rightfully expecting to obtain all that. It is that interest which the sheriff offers; it is that he bids for; it is that which is struck down to him; and it is that which, if the sale be confirmed, he should then receive. That Eyan’s title would, as against Mills, have been perféct, if the sale had been confirmed and deed made, seems hardly to admit of question. When a court of .general jurisdiction has jurisdiction of the person and subject-matter, an erroneous ruling, even upon a question of law, will not avoid a title obtained under its decree. In Wheaton v. Sexton’s Lessee, 4 Wheaton, 506, the court says: “The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal.” In Voorhees v. The Bank of the U. S., 10 Peters, 469, the same tribunal uses this language: “The purchaser is not bound to look beyond the decree when executed by a conveyance, if the facts necessary to give jurisdiction appear upon the face of the proceedings, nor to look further back than the order of the court.” See also Thompson v. Tolaire, 2 Peters, 168. But the deed was not made when Mills appeared in court, and the objection here is to the order for a deed. A sale in chancery is not complete till the sale is confirmed. In ordinary sales by auction, or by private agreement, the contract is complete when the agreement is signed; but a different rule prevails in sales before a master. In such cases “the purchaser is not considered as entitled to the benefit of his con tract till the master’s report of the purchaser’s bidding is absolutely confirmed.” 2 Dan. Ch., 1271. See also Kaufman v. Walker, 9 Md., 229; Tooley v. Kane, 1 Smedes & M. Ch., 518. Hence the authorities cited fail of exact application to this case, or perhaps more correctly some facts are ■wanting, which are necessary to make the rule therein stated fully applicable and decisive. Yet the omission is more than supplied by the acts of Mills, one of plaintiffs in error. He appeared on the motion to confirm the sale, and objected to any hearing until the purchase-price had been paid to the sheriff, and when that was done consented to the confirmation of the sale. True, he objected to the order for a deed. But consider the effect of his consent to a confirmation. The proceedings on the sale were regular; the plaintiffs, defendants, and purchaser agreed in seeking a confirmation. The confirmation then followed as a matter of course. The decree barred redemption. The sale followed the decree. All the interest of ,the mortgagors, (not an interest subject to the right to possess and redeem for two years,) was offered by the sheriff, and was bid for by the purchaser. The confirmation closed that sale. The sale as made, was the sale confirmed, and that by consent. The legal effect of that confirmation was to give the party a right to a deed, and the defendant could not, by objecting to a deed, deprive the purchaser of a right which flows from the confirmation. It is said that this carries the consent of the defendant to a point beyond that to which he intended it should go, and that the limit he intended is clearly indicated by his objecting to a deed. It is plain he wished only the confirmation of a sale of an interest subject to possession and redemption; but the trouble is, no such sale was made. It may be, that by consent of plaintiffs, defendant, mid purchaser the decree might have been modified, and the sale confirmed as of an estate subject to redemption. But nothing of the kind was done. Plaintiffs and purchaser, were seeking a confirmation of the sale made, and might not have cared for a confirmation of a different one. This is not in the nature of a contract in which unless the minds of the parties agree there is no contract. The order and decree of a court is not simply the record of an agreement. It establishes rights founded upon past transactions. The law, and not the will of the parties, determines its effect. For instance: A. brings suit against B. B. enters his appearance, and consents to judgment, but objects to the judgment being a lien on his realty in the county. The judgment is entered, A. making no consent. The lien would follow. The law attaches it to the judgment. Just so here. The confirmation of a sale under a decree barring redemption entitles the purchaser to a deed. Neither plaintiffs nor purchaser made any consent. They asked affirmative relief, relief they were entitled to under a decree. They asked confirmation of a sale. The defendant consented to it. It was ordered. Then followed the right to a deed, a right resting upon decree, sale, and confirmation. The judgment of the district court must be'affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kaul, J.:
This is an interlocutory appeal by the state pursuant to K. S. A. 1971 Supp. 22-3603 from an order of the trial court suppressing certain evidence after an evidentiary hearing under the provisions of K. S. A. 1971 Supp. 22-3216 ( 2). The central issue involves the warrantless search of a private club and the seizure of gambling equipment, which is claimed by the state to have been reasonable and authorized by the provisions of K. S. A. 1971 Supp. Chapter 41, Article 26 “Licensing and Regulation of Clubs” — hereafter referred to as the Private Club Act. Defendant, on the other hand, contends the act authorizes only an entry and search for liquor violations; and thus an entry and search for gambling equipment and the subsequent seizure thereof is unlawful.
The information filed in the district court by the attorney general on November 23, 1971, charged the defendant with two counts of gambling offenses. Count one alleged an offense of setting up gambling devices consisting of five slot machines in violation of K. S. A. 1971 Supp. 21-4304 (e), a class E felony under the provisions of the statute. Count two charged defendant with possession of the five slot machines in violation of K. S. A. 1971 Supp. 21-4307, a class B misdemeanor.
The charges stem from a warrantless entry and search of the American Legion Club in Great Bend on the night of October 2, 1971. The defendant was manager of the club and on duty at the time. At his direction the door to the club was opened by a mem ber, Willis Weigel, for the initial entrance of a party of four officers led by special agent Earl Maudlin of the Kansas Rureau of Investigation. It is undisputed that all of the officers involved fall within the category of “peace officers” as the term is used in section 41-2613 of the Private Club Act.
In its memorandum decision the trial court described the entrance in this fashion:
“Their ringing at the locked door of entry was answered by a man authorized to see who was there. When he opened the door, the team leader did not ask permission to enter, but gave his name, said he was ‘with the K. B. I. and this is a raid.’ Without waiting for response, he and his team members rushed into the club. The doorman said he was pushed aside, but this is disputed. The leader said they walked ‘faster than we would walk down the street.’ Witnesses to the ‘walk’ had varying descriptions from ‘rushed on,’ to ‘real fast,’ to ‘wouldn’t say running but letting no grass grow under their feet,’ and to ‘like a trot.’
“The doorman advised this defendant that ‘It’s a raid, it’s the K. B. I.’ The defendant then cooperated with the leader. He testified that he felt compelled to do so. . . .”
After entering tibe club premises the officers proceeded rapidly through the front room, described as a cocktail lounge, and entered a second room, described as a game room. Defendant was asked to unlock several locked closet doors in the game room. Defendant had to go back to the cash register to secure keys. Defendants unlocked what he described as “a roll-up curtain steel door” which revealed the subject slot machines which were then seized by the officers.
The provisions of the act critical to this appeal are found in K. S. A. 1971 Supp 41-2613 which reads:
“The right of immediate entry and inspection at any time of any premises licensed as a club under this act, or of any premises subject to the control of any club licensed under this act by any duly authorized officer or agent of the director, or by any peace officer, shall be a condition on which every club license shall be issued, and the application for, and acceptance of, any club license hereunder shall conclusively be deemed to be the consent of the applicant and licensee to such immediate entry and inspection. Such consent shall not be revocable during the term of the license. Refusal of such entry shah be grounds for revocation of the license.” (Emphasis supplied.)
Following the filing of the information the defendant filed a motion to suppress all of the evidence seized. The gist of the grounds for suppression were alleged as follows:
“2. That this motion is filed to enforce the constitutional protection against illegal search and seizure as provided in the Kansas Constitution, Bill of Rights, Section 15, and the U. S. Constitution, 14th Amendment which applies since Mapp v. Ohio, 367 U. S. 643, which denies the admission of illegally seized evidence.
“3. Defendant shows, in support of this motion, that all evidence upon which counts one and two are based was secured as a result of an unlawful search and seizure, all without benefit of a Search Warrant, all contrary to, and in total disregard for the statutory provisions set out in Article 25 — Search and Seizure — K. S. A. (1970 Supp.) 22-2501 through 2513; also in violation of the constitutional guarantees set out in part (2) above.”
Defendant further alleged that the avowed purpose of the entry was to “conduct a raid to find gambling equipment” which defendant claims is not contemplated by K. S. A. 1971 Supp. 41-2613, authorizing warrantless entry of a private club. Defendant alleged that if the statute does in fact authorize peace officers to conduct such a raid and to search and seize without the benefit of a search warrant, the statute is unconstitutional being in conflict with the Fourteenth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights to the Constitution of the State of Kansas.
The trial court heard the testimony of several peace officers, who were involved, and that of defendant and several club members, who were present, concerning the circumstances surrounding the entry of the peace officers and the ensuing search of the club premises.
Following the hearing, the trial court filed a comprehensive memorandum decision in which all of the evidence was reviewed and basic findings of fact relative to the search were set out and enumerated. In substance the trial court found eight officers at one time or another took part in the search of the club; that none of the officers had been instructed that the raid was a liquor violation inspection, nor were any of them knowledgeable concerning liquor violations of the Private Club Act; that all eight officers considered that they were just to conduct a gambling raid; that they expected to find gambling equipment; that no search warrant was obtained even though judicial personnel were readily available for the issuance of a search warrant; and that one could have been obtained without working any substantial inconvenience to the officers. The trial court further found that the simultaneous entry by four of the law officers constituted a show of force; that the lack of resistance by the club doorman and defendant con stituted only peaceful submission to a law force and did not amount to permission to enter, and that “The entry was coercive.”
The trial court concluded that the warrantless search was not authorized by the private club entry and inspection statute and that if the statute did authorize an entry and search, such as that shown by the evidence in this case, it would be unconstitutional as measured by both the Federal and Kansas Constitutions. The trial court cited and discussed many state and federal cases which it relied upon in arriving at the conclusions announced.
Prefatory to a discussion of the precise issues on appeal, it should be noted that while the Private Club Act has been examined by this court in several previous cases, the questions presented herein are of first impression. Nevertheless, we believe some prior expressions of this court relating to the act are pertinent in establishing a proper concept for consideration of the issues presented.
At the outset, it should be kept in mind that the statutes providing for the licensing and regulation of clubs, which we refer to as “The Private Club Act”, when enacted in 1965, were incorporated into the “Kansas Liquor Control Act,” enacted in 1949, which now appears as K. S. A. Chapter 41. The legislative history of the Private Club Act, in the context of the Kansas Liquor Control Act, is documented in the case of Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877, wherein challenges of certain provisions of the act relating to classification of clubs were rejected by this court. We shall not repeat historical background related in the Tri-State opinion, but we believe what was said therein, concerning the purpose and thrust of the act and the authority of the legislature in connection therewith, to be extremely relevant to issues confronting us herein. With respect to these matters we had this to say in Tri-State:
“The express purpose of the Act is to define and regulate places where alcoholic liquor might he lawfully consumed in the state. The subject matter being one attendant with danger to the state, the legislature could authorize or prohibit its consumption under such conditions as it deemed essential to impose so as to limit its evil propensities to the utmost degree. (State v. Nossaman, 107 Kan. 715, 193 Pac. 347.) It is elementary law that the people may exercise all governmental powers not surrendered by them to the federal government and which they have not restrained themselves by the provisions of their own state Constitution. While Article 15, Section 10 of the Kansas Constitution is authorizing in nature, it restrains the legislature in its power to tolerate only, not in its power to suppress. It clearly does not abridge or limit the power of the legislature to determine the extent or places or conditions to which, or upon which, alcoholic liquor may be consumed in the state. No right to determine the extent to which alcoholic liquor may be consumed was reserved to the plaintiffs, and they must abide by the regulations adopted by the legislature. What the legislature may entirely withhold, it may grant upon such terms as it may see fit. Any conditions which in its wisdom it may deem necessary to impose, must be met and endured. In other words, the legislature was empowered to prohibit the consumption of alcoholic liquor in licensed class A and class B clubs; it had the power to permit the consumption of alcoholic liquor in both types of clubs upon such conditions as it saw fit to impose, or to permit its consumption in one type club and entirely prohibit its consumption in the other. Whether as a matter of policy the legislature ought to have- enacted the Act it did, this court has no right to say. That it had the power, under the law, to do so, this court cannot, under the law, do otherwise than declare.” (p. 761.) (Emphasis supplied.)
Other expressions of this court reflecting the broad scope of legislative authority in regulating all facets of the use and consumption of intoxicating liquor may be found in State v. Logan, 198 Kan. 211, 424 P. 2d 565; State, ex rel., v. Mermis, 187 Kan. 611, 358 P. 2d 936; Murphy v. Curtis, 184 Kan. 291, 336 P. 2d 411; and State v. Payne, 183 Kan. 396, 327 P. 2d 1071, wherein we said:
“It has been repeatedly held that under the 21st Amendment a state may absolutely prohibit the manufacture, transportation, importation, sale or possession of alcoholic liquors irrespective of when or where produced or obtained, or the use to which they are to be put, and may adopt measures reasonably appropriate to effectuate those inhibitions and exercise full police authority in respect to them, unfettered by the due process clause, the equal protection clause or the commerce clause, (citing cases.)” (P. 403.)
We believe the contentions of the parties on appeal may be fairly summarized in this fashion: (1) Does the term “inspection” as used in 41-2613 encompass a “gambling raid”, the sole purpose of which was to search for gambling equipment? (2) Is a consent or submission to the authority of peace officers, as shown by the evidence in this case, within the contemplation of the “consent” provisions of 41-2613 and, if so, then does the act offend against constitutional safeguards of Section 15 of the Kansas Bill of Rights and Article 4 of the Bill of Rights of the Constitution of the United States? Diligent counsel for both the state and defendant present persuasive arguments in support of their respective positions.
Much of the trial court’s consideration, and a substantial portion of the briefs by both parties, is devoted to the proposition whether the entry and search herein amounted to an “inspection”, as that term is used in the Private Club Act, or a general exploratory search for gambling equipment. Any question concerning this matter has been entirely removed from this case by the attorney general’s candid announcement at oral argument that “this was a preplanned gambling raid in response to complaints of gambling received by his office.” Thus, assuming for the moment that the entry by the officers was at least permissive rather than forcible, the issue for our determination is narrowed to the questions whether the pertinent provisions of the Private Club Act authorize a search for gambling equipment and, if so, are such provisions unconstitutional.
The defendant takes the position that the term “inspection” contemplates only an inspection for liquor violations and does not encompass “gambling raid” — the admitted purpose of the intrusion by the officers in this case. The state, on the other hand, contends that “inspection” contemplates a search or investigation of the premises for any violation of the act and that by reason of related sections of the act, any gambling offense is a violation thereof.
In considering the issue joined by the parties in this regard, we are compelled by familiar rules of statutory construction to interpret the entry and inspection provisions of 41-2613 in the light of all other provisions of the act giving effect to every provision of the act if possible and to determine the intent of the legislature from consideration of the entire act. (Wilcox v. Billings, 200 Kan. 654, 438 P. 2d 108; In re Estate of Diebolt, 187 Kan. 2, 353 P. 2d 803; and State v. Logan, supra.)
Bearing on this point, in dealing with construction of various provisions of the Liquor Control Act, we held in State v. Sumner, 169 Kan. 516, 219 P. 2d 438:
“In order to ascertain the legislative intent courts are not permitted to consider only a certain isolated part or parts, of an act but are required to consider and construe together all parts thereof in pari materia.
“It is the duty of courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.
“When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.” (Syl. 1,2 and 3.)
See, also, State v. Payne, 183 Kan. 396, 327 P. 2d 1071.
In the grounds specified for the suspension or revocation of a club license in K. S. A. 1971 Supp. 41-2611, subsection (e) provides as follows:
“For violation on the club premises of any provision of the laws of this state, or of the United States, pertaining to the (i) sale of intoxicating liquors or beverages or alcoholic liquors (ii) or any crime involving a ‘morals charge as defined in section 10 (b) [41-2610 (b) ] of this act;”
K. S.A. 1971 Supp. 41-2610 (b) specifically includes gambling among the other “morals charges” enumerated. The legislature further emphasized what it apparently deemed to be the reprehensible relationship between a licensed private club and gambling by specifying that—
“. . . [T]he purchase and display in the licensed premises by the licensee club, its managing officers or any employee, of a federal wagering occupational stamp issued by the United States treasury department or the purchase and display in the licensed premises by the licensee club, its managing officers or any employee, of a federal coin operated gambling device stamp for the club premises issued by the United States treasury department. . . .” (41-2611 [/])
Apparently, the trial court was persuaded by the argument of defendant’s counsel that “inspection” as used in the statute does not encompass an investigation and search such as was undertaken by the officers in the instant case. Diligent counsel cite a number of state and federal cases in support of defendant’s position on this point and it must be conceded the cases cited construe the particular statutory enactments involved in harmony with the theory advanced by defendant. The statutes in the cases referred to, however, are generally limited in scope to inspections for violations of regulations directly relating to the administrative supervision of the business or enterprise involved. We are obliged to consider the provisions of our own Private Club Act and the broad spectrum of offenses which are designated as violations thereof. To give the term “inspection” as used in our act the narrow construction sought by defendant would work to make many of the enforcement provisions of the act meaningless and would fly in the face of what we believe to have been the scope of the act contemplated by the legislature. Reading our act as a whole, in particular the use of the term “any peace officer” and the specification of many criminal activities in addition to liquor violations, as being in violation of the act, leads unalterably to the conclusion that "inspection” was meant to encompass a complete investigation and search of the licensed premises for any of the activities specifically proscribed as being in violation of the act. The power to inspect is a necessary incident of the power to regu late, if inspection were to be deemed anything less than search, the regulatory provisions of the act would be emasculated.
When confronted with an argument that the right to search entails more authority than the right to inspect in Oklahoma Alcoholic Beverage Con. Bd. v. McCulley (Okla. 1962), 377 P. 2d 568, the Supreme Court of Oklahoma had this to say:
“It is attempted to draw a distinction between the right to inspect and the right to search. We are of the opinion that this is mere guibbling. If it were not so, why would the legislature have provided that it would be unnecessary to have a search warrant to inspect the premises. . . .” (p. 570.)
See, also, Silber v. Bloodgood, 177 Wis. 608, 188 N. W. 84; and Nick Plainos v. The State, 131 Texas Crim. Rep. 516, 100 S. W. 2d 367.
The legislature saw fit to specify gambling as violative of the Private Club Act and further provided that the acceptance of a license should be conclusively deemed to be consent to immediate entry and inspection by any peace officer for all evidence of violations of the act. Whether, as a matter of policy, the legislature should have imposed such harsh regulations upon a private club, which accepted a license to dispense intoxicating liquor, is not for this court to say. This court is not made the critic of the legislature by the constitution, but rather by command, our function is made that of guardian of the constitution, and every legislative act that comes before this court is surrounded with presumption of constitutionality. All doubts of invalidity must be resolved in favor of the law. It is not our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. (Tri-State Hotel Co. v. Londerholm, supra; Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363; and Gilbert v. Mathews, 186 Kan. 672, 352 P. 2d 58.)
As previously indicated, this court has repeatedly found all facets of the regulation of intoxicating liquor to be within the scope of the state’s police power and that the only limitations upon the exercise of that power are that regulations must have reference in fact to the welfare of society. In the instant case the declaration that gambling, as related to the operation of a private club, is mimical to the welfare of society is a proper exercise of the state’s police power.
We are convinced by reading the provisions of 41-2613 in the context of the entire Private Club Act that an entry and search by peace officers for gambling is contemplated and authorized; thus the characterization of the entry and search here as a “gambling raid” is of no legal consequence. A search for gambling violations, under the terms of the act, falls in no different classification than a search for liquor violations or any other proscribed activities.
It must be conceded that our Private Club Act, by including various criminal activities unrelated directly to the regulation of intoxicating liquor as being violative, is broader in scope than the Liquor Control Acts of most states. However, we are cited no cases which we believe would serve as a basis for holding such treatment unconstitutional. In view of the broad authority in supervising the regulation of intoxicating liquor, long vested in the legislature of the state; we have no hesitancy in affirming the constitutionality of the provisions of the Private Club Act as interpreted herein.
In the case of Nick Plainos v. The State, 131 Texas Crim. Rep. 516, 100 S. W. 2d 367, the Texas Court of Criminal Appeals commented as follows:
“. . . No case has been found which holds that a statute is unreasonable which requires one licensed to deal in such liquors to submit to an inspection of his licensed premises. . . .” (pp. 517,518.)
The broad power of Congress in designing powers of inspection under federal liquor laws was noted in the recent case of Colonnade Corp. v. United States, 397 U. S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774, wherein it was said:
“. . . We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. . . .” (p. 77.)
We next consider the contentions of defendant that the “consent” to the initial entrance and secondarily the “consent” by defendant in unlocking the inner closet of the club premises, wherein the subject slot machines were discovered, was in each instance something less than the consent constitutionally required to validate a warrantless search and seizure.
At this juncture we pause to emphasize that in this case we are dealing with an administrative entry and inspection of premises licensed under the Private Club Act — a part of the Kansas Liquor Control Act.
The evidence concerning the initial entrance is developed by the testimony of Willis Weigel, who opened the door, special agent Maudlin and several other witnesses who observed the entrance.
When Wiegel opened the north door of the cocktail lounge, in response to the request of defendant, he saw the officers at the south door. Weigel motioned to the officers to come to the north door, his testimony appears as follows:
“Q. What happened when these gentlemen reached the door, did they show you an identification card?
“A. I had hold of the door, opening it, and they came walking up to the door, and one of them flashed a card and says, ‘K. B. I., it is a raid/ and they all just rushed on by. One of them shoved me aside, and they came right in the door. I didn’t have a chance to ask for anything.”
Special agent Maudlin, who was the first to enter, denied physical contact with Weigel. Maudlin described the entry in this manner: “I identified myself and he stepped back, and we went through the door.” Maudlin testified that the officers proceeded at a rapid pace, that they were not interested in liquor violations but were looking for gambling devices.
The trial court did not find the entry to be “forcible” but rather labeled it as “coercive” — apparently reasoning that the entry was not affirmatively consented to by either Weigel or defendant and that the simultaneous entry by four law officers constituted such a show of force that the lack of resistance by Weigel constituted only peaceful submission to a law force with apparent power to do as it willed. We can understand the trial court’s reasoning in using the term “coercive” in evaluating the entry described. While the manner in which the officers entered the club premises cannot be considered as example of exemplary police conduct; nevertheless, we are unable to find that the entry here offends the concept of consent deemed to be conclusively given for immediate entry by any peace officer upon the acceptance of a private club license.
Although there is some dispute as to physical contact between Weigel and Maudlin, the most that can be said of it is that Weigel either stepped aside or was brushed aside by Maudlin, as the officers passed through the doorway. Weigel was not forced or manhandled out of the doorway, nor did he say anything that could be construed as negating consent to entrance by the officers. We believe the entry here can best be described as an acquiescence with or submission to lawful authority which we believe falls within the realm of the consent to immediate entry as a condition of licensing, as contemplated by the legislature. Mr. Weigel could have elected to slam the door or block the doorway with his person at the risk of license revocation. The hard choice left to him may well be considered “coercive” but this is a risk undertaken by the acceptance of a license to operate as a private club. Consent to enter, by the terms of 41-2613, is to be measured against a refusal. Consent to enter was given by the statute, affirmative consent by Weigel was unnecessary, as will be shown later. There is no evidence of anything said or done by Weigel that could be construed as a refusal necessitating an entry by force on the part of the officers. The door was not forced, it was voluntarily opened by Weigel. He did not attempt to block the doorway or resist entrance by the officers. Measurement of consent in terms of an “intentional relinquishment or abandonment of a known right or privilege” ordinarily required to justify a warrantless search is not essential where consent is expressly given by the acceptance of a private club license. Cases bearing on the point will be discussed in conjunction with our consideration of defendant’s consent in unlocking the slot machine compartment.
Lieutenant Derrell L. Schooler, a member of the raiding party, accompanied by defendant Dailey searched the game room. The discovery of the slot machines was described by defendant in his testimony as follows:
“Q. Now, you testified that later, in response to a request, you opened certain items in the game room?
“A. Yes, sir.
“Q. What did you open?
“A. Opened the roll-down curtains, or metal curtains, just like a garage door — it isn’t a garage door, but it it is a — I would refer to it as a rollup curtain steel door.
“Q. That was locked?
“A. Yes, sir.
“Q. And I think you testified you had to go to' the cash register and get the key for that?
“A. True.
“Q. Did you refuse to open that?
“A. No, sir.
“Q. Opened it at their request?
“A. Yes, sir.
“Q. And behind that I think you said there were four slot machines?
“A. That’s right, sir.
“Q. At any time did you refuse to' talk to them or ask them to leave the club?
“A. No, sir.
“Q. At any time did you refuse to open any item they asked you to open?
“A. No, sir.
"Q. At any time did you advise them that you did not wish to talk to them, that you wished to talk to an attorney?
“A. No, sir.
“Q. In fact, you were very cooperative, were you not?
“A. Well, it was the KBI, and it is the law, and it says right on the liquor license you can’t refuse an officer, a peace officer, and I try to comply with the rule.
“Q. You treated them like you have any other officers that have been in that club?
“A. That is true.”
The trial court characterized defendant’s lack of resistance as constituting only peaceful submission to the authority of an officer as distinguished from an understanding and intentional waiver of a constitutional right. Based upon this reasoning the trial court concluded that “defendant’s Fourth Amendment rights and his rights under Article Fifteen of the Kansas Bill of Rights were violated by this search.’’
A problem confronting the trial court, as well as this court on review, arises from the fact that the state elected to prosecute defendant Dailey for gambling offenses under the criminal code, rather than proceeding under one of the several enforcement procedures provided by the Private Club Act. Our task is further complicated by the fact that the search and seizure here must not only be measured by the safeguards of Section Fifteen of our Kansas Bill of Rights, but also, by reason of the mandate of Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A. L. R. 2d 933, reh. den. 368 U. S. 871, 7 L. Ed. 2d 72, 82 S. Ct. 23; and Ker v. California, 374 U. S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623, against the ins and outs of federal rules pertaining to search and seizure since the decisions referred to imposed upon state prosecutions the mandate of federal interpretations of the Fourth Amendment to the Constitution of the United States. (State v. Wood, 190 Kan. 778, 378 P. 2d 536.)
Since our reports are devoid of comparable cases dealing with administrative inspections, the trial court relied primarily on federal decisions. We must do likewise on appeal.
The trial court in its decision and the defendant on appeal relied heavily on the cases of Colonnade Corp. v. United States, supra; See v. City of Seattle, 387 U. S. 541, 18 L. Ed 2d 943, 87 S. Ct. 1737; and Camara v. Municipal Court, 387 U. S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727, all of which deal with administrative entries and inspections.
Colonnade involved a federally licensed intoxicating liquor dealer, who refused entry to a locked room wherein illegally bottled liquor was kept. A government agent broke the lock and seized the liquor. A divided court upheld Colonnade’s suit to obtain the return of the seized liquor and to suppress it as evidence. The thrust of the majority holding in Colonnade is that since Congress had selected a standard making it an offense for a licensee to refuse admittance to an inspector a forcible entry (breaking the lock) could not be condoned. In the case at bar, the lock was not broken, defendant testified that he willingly went to the cash register, obtained the key and unlocked the slot machine compartment.
The Camara and See cases involved refusals of warrantless administrative entries into respectively; a private apartment and a commercial warehouse. The premises in neither case was licensed, thus consent to entrance and inspection by acceptance of a license was not a factor in either decision.
Subsequent to the oral argument in this appeal the three foregoing cases have been superseded with respect to administrative entry and inspection of licensed premises by the recent pronouncement concerning the subj'ect in United States v. Biswell [May 15, 1972], 40 U. S. Law Week, p. 4489, _ U. S. _, 32 L. Ed. 2d 87, 92 S. Ct. 1593.
Biswell had a federal license under the Federal Gun Control Act (18 U. S. C. § 923 [g]) for dealing in sporting rifles, etc., but did not have a license required by the act for dealers in gangster type weapons — sawed-off rifles, machine guns, etc. Biswell was visited by a U. S. Treasury Department agent who requested inpection of Biswell’s gun storerooms. Biswell inquired if the agent had a warrant. The agent replied “no” but advised Biswell the Gun Control Act authorized the inspection and showed Biswell a copy of the law. Biswell examined the copy of the law and replied: ‘Well, that’s what it says so I guess it’s okay.” Biswell then unlocked the storeroom and the agent found two sawed-off rifles, which Biswell was not licensed to possess. Biswell was indicted, his motion to suppress was denied and he was convicted. He appealed to the Tenth Circuit Court of Appeals (United States v. Biswell, 442 F. 2d 1189) claiming that his acquiescence in the search was not voluntary. The Circuit Court of Appeals, relying largely on Colonnade, See, and Bumper v. North Carolina, 391 U. S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788, reversed the conviction holding that entry without a warrant and without the owner’s permission was unconstitutional and that the evidence seized must be suppressed.
On certiorari, the United States Supreme Court reversed and speaking through Justice White said:
“Here, the search was not accompanied by an unauthorized force, and if the target of the inspection had been a federally licensed liquor dealer, it is clear under Colonnade that the Fourth Amendment would not bar a seizure of illicit liquor. When the officers asked to inspect respondent’s locked storeroom, they were merely asserting their statutory right, and respondent was on notice as to their identity and the legal basis for their action. Respondent’s submission to lawful authority and his decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder’s acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry or a forcible entry. In neither case does the lawfulness of the search depend on consent; in both, there is lawful authority independent of the will of the householder who might, other things being equal, prefer no search at all. . . .” (40 U. S. Law Week, pp 4490-4491.)
Futher in the opinion this statement appears:
“. . . When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection. . . .” (40 U. S. Law Week, p. 4491.)
Defendant Dailey, as did Biswell, unlocked the slot machine compartment because he thought it was necessary under the provisions of the Private Club Act. Weigel’s conduct at the initial entrance was found by the trial court to be submission to lawful authority, similar conduct of Biswell was given the same label.
There is no contention here that defendant did not stand in the same position as a licensee.
In the case at bar, the officers were merely asserting their statutory right, both Weigel and defendant were on notice as to the officers’ identity and the legal basis for their action. As in Biswell, the consent given by the licensee in accepting a license under the act established lawful authority independent of the will of the licensee. Thus, affirmative consent is not required; acquiescence or cooperative submission, as in this case, is sufficient. This is not to say that officers can use any appreciable force to gain entry when confronted with a refusal, which is an option of a licensee. The act affords the remedy of license revocation in such a circumstance.
It should be noted that the trial court did not have the benefit of the opinion in Biswell at the time it rendered judgment herein.
For the reasons stated we hold that the submission of Weigel and the willing cooperation of defendant constituted consent within the contemplation of 41-2613, supra; that the search was not forcible and that the seizure of the subject slot machines was reasonable and lawful.
By the provisions of 41-2611 (e) and 41-2610 (b) gambling is specified as a violation of the act. Gambling is also a crime under the Kansas Criminal Code if the particular activity is within the definitions of K. S. A. 1971 Supp. 21-4302, et seq. In fact, reference to the criminal code is necessary in order to ascertain whether an activity is gambling under the Private Club Act. For the purposes of this case, it is undisputed that slot machines are gambling devices per se. As previously noted, the defendant is charged with gambling offenses undér the criminal code, rather than with violations of the Private Club Act under K. S. A. 1971 Supp. 41-2633. However, the consent of defendant is effective with respect to the lawfulness of the search and seizure, whether the prosecution be under the criminal code or the Private Club Act. (See Clark v. State, [Texas Crim. App., 1969], 445 S. W. 2d 516, and cases cited therein.) The lawfulness of the search and the seizure of the gambling evidence is the only issue presented in this appeal — on the ground the supression of the evidence involved was erroneous. What other aspects of the evidence, if any, concerning its admissibility in the prosecution of defendant are not before us for determination.
The appeal is sustained and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Fromme, J.:
This is a direct appeal. The defendant, Freddie E. Scott, was tried by a jury and found guilty on three counts of robbery in the first degree. (K. S. A. 21-527) His crimes consisted of robbing a retail establishment called brothers Inc. on March 18, 1970, a service station called Denny Klepper Service Station on March 22, 1970, and a retail liquor store called Van Curen Liquor Store on March 27, 1970. He carried a hand gun and obtained money in each robbery.
We have examined the record and briefs and find that the five points presented do not justify reversal of the convictions.
Defendant contends the instructions were erroneous because the state was not required to prove the amount of property taken was in excess of $50.00. The value of property taken from one who is robbed is not an essential element of the offense of first degree robbery, as defined in K. S. A. 21-527, so long as that which was taken is property. (Scoggins v. State, 203 Kan. 489, Syl. ¶ 1, 454 P. 2d 550.)
Next it is contended the trial court erred in permitting a person who wore a hearing aid to sit as a juror in the case. During the voir dire the juror was asked if he was able to hear “pretty well”. He replied, “Oh, I have to have a hearing aid.” There is no showing that defense counsel sought to have the person excused and the record does not reflect that the person had any difficulty in hearing all proceedings. No disqualification is shown in the record. When a person’s qualification to sit as juror is not raised until after the verdict it comes too late. (State v. Dodson, 207 Kan. 437 439, 485 P. 2d 1010; State v. McCombs, 163 Kan. 225, 228, 181 P. 2d 473.)
Defendant contends there was no substantial evidence to identify him as the robber in each of these three robberies. The record indicates otherwise. Eye witnesses present during each robbery personally identified the defendant as the robber. These identifying witnesses were Mr. Araujo in the Brother’s retail store robbery, Messrs. Parks, Shank and Baker in the Denny Klepper Service Station robbery and Mr. Gamble in the Van Curen Liquor Store robbery. In addition the defendant was photographed in the act of robbery by a hidden camera in the Van Curen Liquor Store. Defendant contends his convictions should be reversed because the Miranda warning was not immediately given to him when he was arrested. On arriving at the police station a request was made to fill out a general information sheet. Defendant complied. This information sheet was not used in the trial of the case. It was used to complete a record of those in jail. The sanction to be imposed by the trial court for failure to warn a defendant of his constitutional rights as required by Miranda is the exclusion from evidence of the statements and admissions made by defendant. The appellant cannot complain of statements or admissions made by him which were not used as evidence against him in the trial court. (Daugherty v. State, 204 Kan. 604, 605, 464 P. 2d 221.)
The final contention of defendant is that he was in jail on the-day the Van Curen Liquor Store was robbed on March 27, 1970, and could not have committed that robbery. The record does not disclose whether the defense of alibi was properly raised and pre sented to the jury. The record discloses, by defendant’s own testimony, that defendant was not arrested until Saturday. The Van Curen Liquor Store was robbed on Friday, March 27, 1970. In any event the jury determined the question.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
On September 25, 1970, the appellant was convicted by a jury on three counts of grand larceny. He has appealed, alleging he was denied his constitutional right to a speedy trial as provided by the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution, and that the district court erred in overruling his motion for discharge pursuant to K. S. A. 1971 Supp. 22-3402 ( 2). The facts are not in dispute, and a summary of those necessary for a just determination of the case follows.
On October 30, 1968, an Information was filed by the state of Kansas charging the appellant with three counts of grand larceny. On January 6, 1969, he failed to appear at the call of the criminal docket of the Johnson district court; his bond was forfeited, and a bench warrant was issued. Subsequently, he was taken into custody and arraigned by the district court on February 24, 1970. He was again released on bail.
The appellant’s case was set for trial on August 20, 1970, along with several other cases. One of the cases set ahead of the appellant’s case went to trial and as a result the appellant’s case was “bumped” from the docket, and continued by the court for trial on August 24, 1970.
On August 24, 1970, 181 days after his arraignment, the case was called to trial by the district court at which time the appellant made a motion for discharge pursuant to K. S. A. 1971 Supp. 22-3402 (2), contending he had not been afforded a trial within 180 days following his arraignment. The state moved that the trial be continued until September 17, 1970, alleging that three witnesses were unavailable; that it was experiencing difficulties in rearranging for the attendance of those witnesses — one witness was outside the state and two witnesses were incarcerated in penal institutions. Both motions were taken under advisement by the district court, and on September 8, 1970, it overruled appellant’s motion and continued the case for trial to September 24, 1970. The appellant’s appearance bond was continued in effect.
The case proceeded to trial on September 24, 1970, and on September 25, 1970, the jury returned a verdict finding the ap pellant guilty as charged on all three counts of grand larceny. Subsequently, a motion for new trial or arrest of judgment was overruled by the district court.
In 1970, the Legislature enacted the new Code of Criminal Procedure, which became effective on July 1, 1970. The new act was intended to provide for the just determination of every criminal proceeding, and is to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. (K. S. A. 1971 Supp. 22-2103.) Section 22-3402 contains a new definition of the term “speedy trial,” as used in Section 10 of the Bill of Rights of the Kansas Constitution. The purpose of the statute is to implement the constitutional guaranty of speedy trial. The new definition shortened the limitations for trial and are expressed in days after arraignment, rather than court terms after the filing of the indictment or information. The new statute, K. S. A. 1971 Supp. 22-3402 reads in part:
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, he shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
# # # #
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety days, and the trial is commenced within one hundred twenty days from the original trial date;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty days may be ordered upon this ground.”
The appellant argues that he timely asserted his right to a speedy trial by moving for discharge on August 24, 1970, as he had not been brought to trial within 180 days as provided by 22-3402 ( 2). As indicated, the trial setting on August 24, 1970, was 181 days after the appellant’s arraignment on February 24, 1970. In addition, he contends that if the district court properly continued his trial from August 24, 1970, to September 24, 1970, that such a continuance was more than authorized by 22-3402 ( 3) (d), as it was 31 days rather than 30 days.
It is clear from the language of K. S. A. 1971 Supp. 22-4602 (1) that the Legislature intended to give the accused the election to proceed under the repealed Code, or the newly enacted Code of Criminal Procedure. That section reads:
"(1) The trial of any prosecution commenced prior to the effective date of this chapter, and proceedings incidental thereto, shall be governed by this chapter unless the defendant elects to be proceeded against under the law in force at the time the prosecution was commenced. Such election shall be made by the defendant in open court or in writing at or prior to the time of commencement of trial.”
The record shows the appellant did not elect to be prosecuted under the repealed Code, but chose instead the procedural safeguards of the Code effective July 1, 1970. We conclude that K. S. A. 1971 Supp. 22-3402 applies to the appellant rather than K. S. A. 62-1432, the old provision, as asserted by the state.
The appellant’s case was set for trial on August 20, 1970, 177 days after arraignment. The case was “bumped” from the docket on that date because another case set before it went to trial. The court continued the case and rescheduled the trial on August 24, 1970, which was 181 days after arraignment. The state was entitled to one continuance because of caseload problems (22-3402 [3] [d]), and we conclude the first continuance, from August 20, to August 24, was fully warranted and authorized by the provisions of 22-3402 ( 3) (d).
On August 24, the state, prior to trial and before the first continuance expired on August 24, moved for continuance of the case until September 17, stating that material evidence (three witnesses) was unavailable. The state made proper showing that it had made a reasonable effort to procure the three witnesses, and that there were reasonable grounds to believe such evidence would be available at the later date. This court is of the opinion the state was entitled to its requested continuance to September 17, and the continuance was not in derogation of the 90 day period prescribed in 22-3402 (3) (c) authorizing a continuance by the state where material evidence is not available, but can be obtained. The district court properly granted the continuance pursuant to the statute until September 24, and did not err in overruling the appellant’s motion for discharge.
Cases cannot be simply run through trial one after another in line as they are reached. Such a procedure would require continued attendance in court of defendants, counsel, and witnesses. We take judicial notice of the records of the judicial administrator of this state that the criminal dockets of some of our district courts are heavy and that where a group of cases are normally set for trial on a given date, it is the adopted procedure to set more cases for trial on that date than can be handled. This insures the court that it will have cases to try on the date set for trial. Those cases which are not reached on a given date are set over to the next available trial date, the only available alternative without rescheduling all other pending trials. It is arguable that a case may be continuously “bumped” from the trial docket and a period of delay could result. The solution is to place continued cases at the head of the list on a later date, which gives reasonable assurance against another continuance. See, State v. Aspinwall, 173 Kan. 699, 252 P. 2d 841, Syl. ¶ 1. See, also, Note 108 U. Pa. L. Rev. 414, 415, f. n. 5 (1960). However, that is not the case here.
Moreover, the American Bar Association’s Standards for Criminal Justice, Approved Draft, 1968, relating to speedy trial recognize the exigencies of court delay and the necessity for a continuance on behalf of the state because of the unavailability of evidence material to the state’s case under circumstances where the state has exercised due diligence to obtain the evidence. See section 2, 3, Excluded periods, and the Commentaries which follow. (pp. 25-29.)
Turning to the appellant’s contention that his right to a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States and Section 10 of the Bill of Rights of the Constitution of Kansas, has been denied, it must be recognized that K. S. A. 1971 Supp. 22-3402 ( 2) supplements and implements Section 10 of the Bill of Rights and constitutes a legislative definition of what is, under the circumstances, a reasonable time to bring an accused to trial. (State v. Hess, 180 Kan. 472, 304 P. 2d 474; State v. Goetz, 187 Kan. 117, 353 P. 2d 816; State v. Williams, 187 Kan. 629, 360 P. 2d 11; Brimer v. State, 195 Kan. 107, 402 P. 2d 789.) It necessarily follows that if this court cannot conclude there has been a delay in bringing the appellant to trial within the context of the statute (K. S. A. 22-3402 [2]), it likewise follows that it cannot conclude the constitutional right to a speedy trial as guaranteed by the Sixth Amendment and Section 10 of tire Bill of Rights has been violated. We hold the appellant was provided a speedy trial within the intent and purpose of K. S. A. 1971 Supp. 22-3402. (2), and there has been no violation of his constitutional guaranty to a speedy trial.
This court is of the opinion the appellant is not entitled to the relief he now seeks. A liberal construction of the Code of Criminal Procedure does not provide relief under the facts and circumstances of this case.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.;
The plaintiff, Eugene Brown, is a finish carpenter by trade, the term implying that he does — or did — interior finishing work, such as installing cabinets, doors, windows, paneling and other interior trim. He was also the insured in a health and accident insurance policy issued by the defendant insurance company, hereafter referred to as Continental, or defendant, under the terms of which policy he was entitled to certain benefits should he become permanently disabled from performing the duties of his occupation.
On August 23, 1969, Mr. Brown received injuries to his back in an automobile accident occurring near Grove, Oklahoma. Subsequently he filed a claim against Continental for benefits alleged to be due under the policy. The company denied liability and the present action was thereupon commenced to recover the monthly benefits due and to become due under the policy. By stipulation the cause was submitted to a jury upon special questions designed to determine the periods, if any, of plaintiff’s disability. The jury answered the questions favorably to the plaintiff and judgment was entered thereon in the aggregate amount of the payments then due, plus interest. From this judgment Continental has appealed.
Several points are raised on appeal but the defendant’s primary thrust centers on the meaning of total occupational disability and the proper interpretation of the policy provisions in such regard.
The policy issued to the plaintiff provides for payment of monthly disability benefits “When as the result of sickness . . . or as the result of injury . . . the Insured is totally disabled and continuously prevented from performing each and every occupation or employment for wage or profit for which he is reasonably qualified by reason of education, training or experience . . . provided, that for a period not to exceed the first 24 months of such disability the Insured shall be deemed totally disabled if he is unable to perform each and every duty pertaining to his occupation as the result of such injury or sickness." (Emphasis added.) In this appeal we are concerned only with the proviso.
In response to the special questions submitted to it, the jury found that plaintiff was totally disabled to perform his duties as a finish carpenter within the meaning of the policy for a period of twelve months preceding the date of its verdict, and the judgment entered by the court in favor of Mr. Brown .was predicated on this finding.
The defendant’s argument in the area of total disability is divided into two sections. First, it is contended that the trial court erred in submitting its instructions on total disability and second, it is said the jury’s finding of total .disability is not supported by the evidence.
Instruction No. 11 covers the subject of total disability and reads as follows:
“You are instructed that it will be your duty to determine from the evidence and the law as given you in these instructions whether or not the plaintiff has been so totally disabled as to be unable to perform his duties as a finish carpenter, and if he has been so totally disabled, the period or periods for which he is or has been so totally disabled. Your criterion for determining whether he is or was totally disabled to perform his duties as a finish carpenter is whether or not his disability was such as to render him substantially unable to perform in the usual and customary way a substantial and material portion of the duties of a finish carpenter.”
We experience some difficulty in following Continental’s argument that this particular instruction is erroneous as a matter of law. After conceding that in a majority of jurisdictions, at least, the phrase “total disability” as used in health and accident policies does not mean a condition of total helplessness, the defendant proceeds to assert that the trial court, in its instruction, “has substituted a definition of partial disability for the required definition of total disability in the policy provisions.”
In our view this argument has little to recommend it. The test laid down in the instruction represents what we understand to be the predominant rule in this country, i. e., that under total disability clauses similar in material respects to the clause before us, total disability can be said to exist where the insured is unable to perform the material and substantial duties of his occupation in the normal and customary way. We find the rule stated in Couch on Insurance, 2d, § 53:67, in this language:
“A policy which relates disability to the inability to work at one’s usual occupation does not require a total helplessness of the insured even though the policy be broadly drawn to require an inability to perform ‘any and every duty.’ To the contrary, it is sufficient that the insured cannot perform all the substantial and material acts necessary to the prosecution of his business or occupation in a customary and usual manner. That is, it is ordinarily held that if the insured cannot perform substantially the normal tasks involved in his usual employment the insured has sustained a total disability.”
This court has given expression to the same principle in Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 711, 366 P. 2d 219, where we said:
“. . . An insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. . . .”
In Scharbach v. Continental Casualty Company, 83 Idaho 589, 366 P. 2d 826, the policy of insurance provided for total disability payments if the insured was wholly and continuously disabled and prevented from engaging in “each and every duty” pertaining to his occupation. In an action to recover benefits due under the policy, the Supreme Court of Idaho had this to say:
“The test is whether the insured was by reason of his sickness prevented from doing all the substantial acts required of him in carrying on his occupation covered by the policy. . . .” (p.596.)
A frequently cited affirmation of the rule is found in Lorber v. Aetna Life Insurance Company, 207 So. 2d 305 (Fla.), where the policy under consideration provided for disability payments where the insured was “unable to perform every duty pertaining to his occupation.” In the course of its opinion, the Florida court stated:
“. . . In accordance with the usual rule, a liberal construction is given to such provisions in order to protect the policyholder. There is almost unanimous authority for the interpretation of the provision quoted to provide that:
“ ‘If the insured is unable to perform his material duties pertaining to his usual and customary occupation in substantially the same manner as before, he may recover. If he is able to do1 substantially all the acts material to his business and there are only a few immaterial things which he cannot do, the rule is otherwise, but if there is any material, important, or substantial act which he cannot fulfill, recovery must be allowed.’ See Dennis v. Business Men’s Assurance Company of America, La. 1965, 175 So. 2d 431; Struble v. Occidental Life Insurance Co. of California, 1963, 265 Minn. 26, 120 N. W. 2d 609; cases cited in IA, Appleman, Insurance Law and Practice, § 671, p. 601 note 5.” (pp. 308, 309.)
In Columbia Casualty Co. v. McHargue, 246 Ky. 93, 54 S. W. 2d 617, the policy provided payments for accidental injuries which should wholly disable and prevent the insured from performing any and every duty pertaining to his occupation. In construing this provision, the Kentucky court said:
“. . . If the insured was prevented from transacting any substantial, material, or important part of his business or doing or performing any substantial, material, or important thing or duty customarily done or performed in his occupation, he is totally disabled. . . .” (p. 95.)
The woods of legal precedent are full of like pronouncements, but the foregoing citations will suffice to make the point.
In support of its appellate position, Continental cites Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, wherein this court was concerned with the construction of a disability policy which contained the words “any and every kind of business pertaining to his occupation.” In the course of its opinion, the court indicated that “partial disability” would not suffice to permit recovery under the express terms of the policy. The language used by the court in that case must be considered against the factual background presented. It is important also to note that the final conclusion reached by the court in its opinion on rehearing (72 Kan. 306, 82 Pac. 1099) was that it could not be said that the jury’s finding of disability was unsupported by the evidence. Viewed in such perspective, we do not consider the Barms case as being in disagreement with our more recent pronouncement in Wolfe.
We perceive no reason to be critical of the trial court’s language in defining the test to be used in determining total occupational disability within the framework of Continental’s policy. The challenged instruction cannot be said to be erroneous as a matter of law, as the defendant asserts.
Secondly, we are obliged to reject the defendant’s contention that the jury’s finding of total disability, as the term has been defined herein, is unsupported by the evidence. The defendant itself introduced no evidence, being content to cross-examine the witnesses called by the opposition. Plaintiff’s evidence, briefly sum marized, disclosed that Mr. Brown was self employed at the time of his accident, subcontracting finish carpenter work from other contractors; that he worked on every job himself, and employed one or more men to assist him; that they all worked together, as a team; that his work on each of his jobs required a great deal of lifting, the loading and unloading of boards, placing them on the saw, and cutting and putting them in place; and that power tools used, weighing up to 300 pounds, had to be moved daily. The evidence further showed that prior to his accident the plaintiff made a full hand but because of back injuries resulting from the accident he was no longer able to do the lifting and other heavy labor required of a finish carpenter, although he made numerous attempts to go back to that type of work; that he was required to hire more and more employees, but even so was unable to finish some of the jobs he contracted. Eventually the plaintiff had to acquire a partner to assist him in his work, and at the time of trial he had entirely ceased contracting jobs as a finish carpenter and was confining himself to supervisory endeavors only.
Dr. Eugene E. Kaufman, an orthopedic surgeon practicing in Wichita, attended the plaintiff subsequent to the accident. In his medical report accompanying the plaintiff’s claim filed with Continental, Dr. Kaufman stated that plaintiff might do supervisory work but no heavy labor or carpenter work. Dr. Kaufman testified by deposition that he didn’t think plaintiff would have any trouble doing light work but anything that involved a lot of lifting, bending, stooping, working in awkward positions and things like that would tend to aggravate his problems. Dr. G. E. Moots, who was licensed to practice osteopathy and surgery in Oklahoma and other states, and who owned his own hospital in Pryor, Oklahoma, testified in some detail concerning his examination of Mr. Brown and expressed the opinion that he was “totally disabled as concerns performing the duties of a finish carpenter.”
The jury’s finding of total disability, when tested by the standard heretofore discussed, is well within the limits of the evidence. There is substantial evidence that Mr. Brown made diligent efforts to engage in finish carpentry after his accident but that on each occasion his back gave way and his attempts ended in painful failure. He is to be commended for his efforts to continue in his trade — not faulted therefor. We have often said that where findings are supported by substantial competent evidence they will not be set aside on appeal, and this well worn principle is appropriate to apply in this case. (See 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §§ 495, 507.)
A second point raised by Continental relates to a policy provision that indemnity will not be paid for any period of disability during which the insured is not under the regular care and attendance of a currently licensed physician or surgeon. In this connection the trial court. instructed the jury that it was not necessary for an insured to continue to go regularly to a physician or surgeon after reaching such a condition of recovery that further medical attention would be of little or no use and would basically be futile. Defense counsel objected to use of the word “futile”, suggesting that “static” would be a better term to employ. A similar objection was interposed to use of the word “futile” in an instruction on burden of proof and in one of the special questions. All objections appear to have been semantic in nature and of minor import.
The defendant now argues that use of the phrase “basically futile” invites a finding that treatment would be futile, and that repetitious use of the phrase unduly emphasized plaintiff’s theory that “he was under medical treatment from March to September” (during which time plaintiff did not see a doctor). We believe these points are not properly here for review. In the first place they were not advanced as grounds of objection at the trial. K. S. A. 60-251 (b) provides in effect that no party may assign as error the giving of any instruction unless he objects thereto before the jury retires, stating the matter to which he objects and the grounds of his objection, unless the instruction be clearly erroneous.
The case law in this jurisdiction is to the same effect. In Sanford v. Smith, 196 Kan. 538, 413 P. 2d 95, this court held:
“A party may not assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection, unless the instruction is clearly erroneous.” (Syl. f 1.)
See, also, Bott v. Wendler, 203 Kan. 212, 223, 453 P. 2d 100.
The instruction given by the court is not clearly erroneous. It correctly states the law as laid down by this court in Hodgson v. Mutual Benefit H. & A. Ass'n, 153 Kan. 511, 112 P. 2d 121:
“Where the holder of an insurance policy is otherwise entitled to benefits therein provided for ‘total permanent disability/ and the policy contains a provision requiring regular attendance of a physician, such provisions will not be enforced where it is shown by competent and substantial evidence that such attendance would be futile and no helpful purpose would be served thereby.” (Syl. f 4.)
We might add that Dr. Kaufman testified he last saw plaintiff March 4,1970, at which time he did not think medical treatment was going to help him a great deal or that there was much he could do for him. The jury found that further treatment would have been of slight use and basically futile, and this finding has not been challenged as lacking evidentiary support.
At the close of plaintiff’s evidence, the defendant announced it would not offer any evidence. At this point the plaintiff moved for a directed verdict. The court reserved its ruling on the motion and submitted the matter to the tender mercies of the jury. After receiving the jury’s special verdict in favor of the plaintiff, the trial court resurrected the motion and made certain rulings with respect thereto which, in effect, sustained the plaintiff’s position. However, we think it is clear from the journal entry that judgment was actually entered on the jury’s answers to the special questions submitted to it, and we find no reason to explore the various rulings made on the motion for directed verdict.
On plaintiff’s application, the trial court made an allowance of attorney’s fees under the provisions of K. S. A. 1971 Supp. 40-256, and this is alleged as error. The material portion of the statute reads:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company ... if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs. . . .”
We have often said that whether fees are to be allowed under this statute depends on the facts and circumstances of each particular case and that attorney fees are allowable only where the insurer has refused without just cause or excuse to pay in accordance with the terms of its policy. (Parker v. Continental Casualty Co., 191 Kan. 674, 684, 383 P. 2d 937; Service v. Pyramid Life Ins. Co., 201 Kan. 196, 220, 440 P. 2d 944; Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 793, 457 P. 2d 34; Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 491 P. 2d 917.)
Continental vigorously contends that its refusal to pay the plaintiff’s claim was predicated on just cause and excuse. The trial court concluded otherwise and we are not disposed to disturb its judgment in such respect.
At the hearing on plaintiff’s application for allowance of fees, which was held outside the jury’s presence, the trial court heard the testimony of two Continental employees, Melvin Stewart and Thomas Cox, the former being the company’s adjuster who rejected the claim. Mr. Stewart’s testimony was somewhat equivocal, but we believe it is clear that his rejection of the claim was based solely on Dr. Kaufman’s medical report (made under date of 12-29-69) without attempting to make any further investigation or inquiry. The doctor’s report shows the following:
“[P]atient not totally disabled while under my care partial disab 8-27-69 to May do supervisory work — no heavy labor — or carpenter work”
Mr. Stewart admitted that he knew Mr. Rrown to be a carpenter by occupation and considered him as such when passing on his disability claim. He also acknowledged, after a good deal of quibbling, that if the doctor said a carpenter cannot do carpenter work he would be disabled under the occupational portion of the policy.
Mr. Cox, who was Stewart’s immediate supervisor, testified in effect that subsequent to the present action being filed he reviewed the plaintiff’s claim after receiving a telephone call, (apparently from one of its agents), and formed the opinion there were sufficient grounds for requesting a clarification of the conflicting statements given by Dr. Kaufman as to disability; and that he thought the adjuster acted too quickly in denying the claim without asking for further medical information. When asked what the words “not able to do carpenter work” meant to him, Mr. Cox responded that standing alone those words would mean that claimant was totally disabled as to his occupation.
This court, too, is of the opinion that plaintiff’s claim was too hastily and peremptorily denied. Mr. Stewart acknowledged receiving calls both from Mr. Rrown and from his counsel concerning the company’s denial of the disability claim. Obviously these calls went unheeded, for it was stipulated that no one on behalf of Continental attempted to get any clarification from Dr. Kaufman.
The circumstances made known to Continental by Dr. Kaufman’s report were of themselves such as to require more than a simple armchair perusal of the report; we believe they required a good-faith effort to secure additional medical information. Surely, in the eyes of the law, “just cause or excuse” signifies more than passive inaction in the face of a medical report which, though it might be ambiguous, strongly suggests that an insured under an occupational disability policy, is wholly disabled from performing the functions of his occupation. In Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P. 2d 756, we phrased the test which should be applied in these words:
“. . . The question is, how did the matter appear ... [to the insurance company] as judged by a reasonable and prudent man seeking to determine the facts of the controversy which it was his duty in good faith to investigate.”
This passage was quoted with approval in the recent case of Lord v. State Automobile & Casualty Underwriters, supra, and in commenting on the citation we said:
“We thus again recognized that an insurance company is not required to pay a claim while a bonafide question of liability exists. But at the same time we recognized that the company has a duty to make a good faith investigation of the facts before finally refusing to pay. We have here absolutely no effort, either on the part of the insurance company or its counsel, to investigate (much less fin good faith’) the merits of the . . . claim prior to the final refusal to pay. . . .” (p. 234.)
We believe that under the circumstances confronting it, the defendant failed in its duty to conduct a good-faith investigation of the plaintiff’s claim of disability. In our judgment, the trial court was justified in concluding that just cause or excuse did not exist and that a fee should be allowed.
The fee allowed was $3250. In arriving at that figure, the court gave consideration to the detailed time sheet prepared and introduced by plaintiff’s counsel which showed the total hours spent in preparation and trial of the action. This computation did not include time spent in going over instructions or in oral argument on the final day of trial. Neither did it include services performed in connection with the hearing on defendant’s motion for new trial.
We are unable to say the fee fixed by the court is excessive or unreasonable in view of the time spent, the amounts involved and the results attained. The reasonable value of attorney’s fees rests within the sound judicial discretion of the trial judge who, as an expert in the area of attorney’s fees, may draw upon his own knowledge and expertise in evaluating their worth. (Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 676, 443 P. 2d 681; Service v. Pyramid Life Ins. Co., supra.) We find no abuse of discretion so far as the fee is concerned.
In view of the present requirements of K. S. A. 1971 Supp. 40-256, a reasonable fee will be set for services performed on appeal to be taxed as costs in this court.
Finally, the defendant complains of an order requiring it to produce Messrs. Cox and Stewart at the trial. The record is quite scanty on this point but it reflects that both gentlemen, who lived in Kansas City, Mo., were listed as witnesses in the pretrial order —Cox as a witness for plaintiff and Stewart for the defendant.
It further appears from the record that plaintiff’s counsel, Mr. Scott, was not advised that these gentlemen would not appear voluntarily until he received a call from Continental’s attorney three or four days before trial that they would not respond to a subpoena. Mr. Cox, who was listed by the plaintiff as a witness, had previously advised plaintiff’s counsel that he would attend the trial even though he did not have to come from out-of-state. It was only after Mr. Scott received the call from opposing counsel that he went before Judge Howard Kline, the administrative judge of the 18th Judicial District, and procured the order. Both Cox and Stewart were served with subpoenas after their arrival in Wichita, and were tendered mileage and witness fees.
The defendant admits in its brief “that the court could order this action under its contempt power” but submits that it was an abuse of discretion to make the order “at the trial’s beginning.” We find no abuse of judicial discretion. The witnesses were corporate employees whom the plaintiff had good reason to expect would be produced at the trial. Obviously it was too late to depose them when plaintiff first learned they would not attend.
Moreover, the trial court limited their testimony to the question of allowance of attorney’s fees and neither witness testified before the jury. The record reflects that defense counsel stated before the court that he had no objection to their testifying “if it is not before the jury” although he objected to “their being here in the first place.”
We are cited to no authority to support defendant’s claim of prejudicial error on this point, and we know of none.
The judgment of the comb below is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
This is an action for personal injuries resulting from a fall while plaintiff was a business invitee on the premises of the defendant.
After the plaintiff presented her evidence and rested, the defendant moved for a directed verdict, claiming that plaintiffs evidence failed to establish that defendant was guilty of negligence and did establish that plaintiff was guilty of contributory negligence. The court ruled, after hearing the plaintiff’s evidence, that negligence of the defendant was a fact question for the jury. The court also ruled that plaintiff was guilty of contributory negligence as a matter of law. The plaintiff appeals from the latter ruling.
The plaintiff had shopped regularly for a number of years at the defendant’s market. The market and adjacent parking facilities were maintained and operated for the retail sale of foods.
A parcel pickup lane was situated and maintained by defendant on the east side of the market. Traffic in the pickup lane was routed one way, south to north. The lane paralleled the east side of the building and was somewhat wider than the width of one car. The pickup lane at one time prior to the plaintiff’s accident was defined by a row of orange-colored plastic cylindrical markers approximately thirty inches in height. The markers functioned to separate the parcel pickup lane from a main traffic avenue to the parking lot. The traffic avenue paralleled the parcel pickup lane and accommodated two lanes of traffic which provided ingress and egress to the two primary parking areas for the shopping center.
At the time plaintiff’s injuries were sustained some of the plastic markers were standing upright, but some of them had been knocked over. Plaintiff was generally aware of the market’s parking and entrance facilities and was aware that some of the plastic markers had been knocked down in the past, but was not aware of the existence of the metal bases.
When plaintiff entered the food market on the night she was injured she did not notice the pickup lane markers. After making purchases she exited defendant’s market at approximately 9:00 p. m. from the north door on the east side of the building. She was carrying a sack of groceries in her right arm. In order, to reach her car plaintiff had to traverse the width of both the pickup lane and the traffic avenue. A car was parked in the pickup lane and plaintiff had to cross in front of it. She paused momentarily in front of the parked car to observe traffic and to allow a north bound car in the traffic avenue to pass. After the car passed she stepped forward without observing the area immediately in front of her feet. As she did so she caught her left foot on the metal base and fell.
The metal base was about six inches around and anchored into the cement. On the inside of these anchors or fittings was a place for a plastic tube approximately thirty inches in height and three to four inches in diameter. Plaintiffs Exhibit “A” was introduced in evidence showing the condition of the bases without plastic tubes.
The plaintiff’s brief is limited to the issue of contributory negligence. The defendant’s brief is aimed at supporting the trial court’s ruling on contributory negligence, but also briefs the question of whether or not the defendant was guilty of any act of negligence.
We are unable to consider the issue of whether the defendant was negligent since no cross-appeal was filed by die defendant. We are controlled by K. S. A. 60-2103 (h), which provides:
“(h) When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty (20) days after the notice of appeal has been served upon him and filed with the clerk of the trial court, give notice of his cross-appeal.”
This statute has been considered in James v. City of Pittsburg, 195 Kan. 462, 407 P. 2d 503, and in Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771. In each of these cases we held that the failure of appellee to cross-appeal from an adverse ruling by the trial court precludes this court from considering the propriety of such a ruling. The statute is clear and its effect here is to eliminate from our consideration the trial court’s determination that defendant’s negligence was a question of fact for the jury’s determination.
In view of this, we have one issue — whether the trial court ruled correctly in its finding that the plaintiff was contributorially negligent as a matter of law.
The defendant contends the plaintiff was aware of the parking facilities and the entrance facilities and that she knew the pickup lane was outlined by orange-colored, cone-shaped markers, and that the markers had been knocked off or knocked over prior to her accident. This knowledge, together with her admission that she did not look for the markers prior to her fall, convicted her of contributory negligence as a matter of law.
The plaintiff contends reasonable men might have found that the dangers inherent in crossing the traffic avenue justified plaintiff in diverting her attention from the ground immediately in front of her feet. Plaintiff points out that: (1) She was carrying a sack of groceries, (2) she had to cross not only the pickup lane but also a main traffic avenue in the adjacent parking lot, (3) it was night, and (4) she had to pass in front of a car which partially blocked her view of cars traveling north in the traffic avenue. Under these circumstances, plaintiff argues she was justified in not focusing her attention on the area in front of her feet.
The plaintiff also contends reasonable men might have found that, due to the legal relationship between plaintiff and defendant, plaintiff was justified in paying little or no attention to the area immediately in front of her feet. Plaintiff argues since she was a business invitee a duty rested on defendant to keep his premises in a reasonably safe condition, and plaintiff had a right to rely on this duty. In view of this and the fact plaintiff did not notice the condition of the markers when she entered the store, plaintiff contends, absent knowledge of past negligence, that she did not have reasonable cause to anticipate the defendant’s negligence on this occasion. Plaintiff also argues that mere knowledge of the condition of the markers will not support a finding of contributory negligence as a matter of law since the law requires a full appreciation of the risk involved.
The fate of this appeal depends on the application of the rule stated in Schenck v. Thompson, 201 Kan. 608, 443 P. 2d 298. We said:
“Ordinarily, the existence of contributory negligence is a question of fact, it being for the jury to determine from the circumstances of each particular case whether the conduct of a party was such as would be expected of a reasonably prudent person. Only when the plaintiff’s conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person, may the question of contributory negligence be taken from the jury and determined by the court. In ascertaining whether as a matter of law plaintiff is contributorily [sic] negligent, precluding recovery, the evidence and all inferences that may reasonably be drawn therefrom must be accepted as true and considered in the light most favorable to the plaintiff. If the facts viewed in that manner be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. This is true, although the evidence is weak and inconclusive.” (p. 612.)
In George v. Ayesh, 179 Kan. 324, 295 P. 2d 660, at page 327, we said that a plaintiff was bound to use “ordinary care for his own safety and is not to be excused for not seeing that which was in plain view to be seen.” In Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 485 P. 2d 1309, we said that a plaintiff must use reasonable care and must anticipate and avoid display appliances normally used in a store. In Buck v. Miller Amusement Co., 166 Kan. 205, 200 P. 2d 286, we stated that a plaintiff is not guilty of negligence who does not look for danger where there is no reason to apprehend any danger. In Little v. Butner, 186 Kan. 75, 348 P. 2d 1022, we pointed out that a customer entering a store must make reasonable use of his own faculties for his own protection, but that he had a right to assume that the floor of the store was suitable and safe to walk upon and he was not required to expect the defendant store owner would violate his legal duty and produce a dangerous condition on the floor upon which he invited the plaintiff to walk. We also held in Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591, that a plaintiff who was carrying a tray of doughnuts in front of her could not be expected to be watching the floor at each and every step.
A statement of the law as to the effect of knowledge of danger is found in Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482, where it was said:
“Mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger & comprehension of some risk. Moreover, knowledge of th'e offending instrumentality does not constitute negligence as a matter of law.” (Syl. ¶ 3.)
The record discloses that the plaintiff, prior to the evening of her fall, had knowledge of the existence of the orange, cone-shaped markers which outlined the pickup lane. The problem then arises as to whether this knowledge required plaintiff as a reasonably prudent person to watch where she was stepping on the evening of her fall. We believe the determination of this issue is a question of fact. We held in Nave that knowledge of an offending instrumentality does not constitute negligence as a matter of law. This case also pointed out that in order to preclude a plaintiff from recovery there must be a full appreciation of the risk involved. The record in this case discloses plaintiff had some knowledge of the condition of the defendant’s premises, but it does not disclose any facts upon which plaintiff can be charged with knowing that a danger existed obvious enough that her action on the night she fell resulted in contributory negligence as a matter of law. The plaintiff fell when her foot struck one of the metal bases as distinguished from the orange, cone-shaped markers. Plaintiff’s testimony as to prior knowledge was limited to the presence of the orange, cone-shaped markers. She testified that she was not aware of the existence of the metal bases. As we view the record, plaintiff did not admit prior knowledge of the existence of the instrumentality which caused her injury. It is not necessary to extend this decision to discuss other arguments made by plaintiff since the foregoing disposes of the single issue presented herein.
We are charged with granting to plaintiff all inferences which may reasonably be drawn from the evidence and to consider these inferences most favorably to the plaintiff. So viewed, we believe reasonable minds might reach different conclusions from the evidence as disclosed in the record before us.
The issue of contributory negligence should have been submitted to the jury.
The judgment is reversed.
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The opinion of the court was delivered by
Fontron, J.:
This is an action by the plaintiff, Inland Industries, Inc., to enjoin the defendants, Teamsters & Chauffeurs Local Union No. 541, a labor organization, and its agents, servants or employees, from picketing the plaintiff’s two hot mix asphalt plants in Kansas City, Kansas. The trial court denied the injunction and the plaintiff has appealed. The defendants have filed a cross appeal from the trial court’s order staying judgment pending appeal and setting bond in the amount of $1000. We shall refer to the parties either as plaintiff and defendants or as Inland Industries, and Teamsters.
The essential facts are not seriously disputed. Inland Industries is engaged in producing hot mix asphalt for sale to other contractors and for its own use in paving or surfacing streets, highways, parking lots and airports. Its stock is owned entirely by Daniel E. Scherrer, a Kansas City contractor and business man, who also owns 100% of the stock in Inland Hauling Company, Inc., sometimes herein referred to as Inland Hauling. The business of the latter company is hauling asphalt and rock for various paving contractors, and some 95% of its business is done with the plaintiff. Approximately 52% of plaintiffs hauling costs are paid to Inland Hauling. Both companies office at 6834 Kaw Drive, Kansas City, Kansas.
The plaintiff, Inland industries, is a member of the Heavy Constructors Association of the greater Kansas City area, and as such it operates under a union contract with Teamsters, which is also a member of the association. Inland Hauling Company, on the other hand, has no contract with Teamsters although its drivers are members of the Teamsters Union. On August 5, 1970, Teamsters placed pickets at the asphalt plants of Inland Industries with placards reading “Inland Hauling Co. ON STRIKE, Teamsters L. U. 541.” This action had a chilling effect on plaintiff’s business and the present action for injunction was initiated the following day.
Plaintiff’s petition alleged the placing of pickets at its asphalt plants carrying banners proclaiming that Inland Hauling had no contract with the union; that Teamsters had no controversy with Inland Industries; and that the picketing of plaintiff by Teamsters because of its dispute with Inland Hauling was unlawful, improper and contrary to the provisions of 29 U. S. C. A. § 158 (b) (7 )(c). Plaintiff’s prayer was for an injunction under the provisions of K. S. A. 60-904. A few days later an amended petition was filed similar in content to the original but alleging that “the situation concerned was not involved with the National Labor Relations Act for the reason that the acts complained of are neither protected or prohibited by Federal law.” A restraining order was issued when the case was first filed.
On August 14, 1970, the defendants filed a motion to dismiss and dissolve the restraining order on the grounds generally that the conduct complained of was either an unfair labor practice prohibited by § 8 (b) of the National Labor Relations Act (properly titled as the Labor Management Relations Act and hereinafter called the Act) or was protected activity under § 7 of said Act; that the subject matter of Inland Industries’ complaint had been pre-empted by Congress through enactment of the aforesaid Act; and that exclusive jurisdiction was vested in the National Labor Relations Board (hereafter referred to as the Board).
The case was heard September 8, 1970, and on September 18 the trial court made the following findings:
“(1) That plaintiff herein is a neutral employer’ within the meaning of the NMR Act of 1947, as amended.
“(2) That the unlawful picketing involved herein by defendants is a violation of Section 8 (b) (4) of said Act.
“(3) That violations of said Act have been pre-empted by the Congress and exclusive jurisdiction over said violations have been vested in the NLRB.
“(4) That the subject case is distinguished from Cooperative Refinery Assn. vs. Williams, 185 Kan. 410, for the reason that in the Coop Case at Page 420, the Court points out that there was nothing in the evidence to indicate that the neutral employer was doing business with the primary employer.
“(5) That defendant’s Motion to Dissolve and Dismiss is sustained, and that the Restraining Order heretofore entered is ordered dissolved and the cause dismissed. Costs are taxed vs. plaintiff.”
As we understand it, the basic issue in dispute is whether the federal government has pre-empted the area in which the controversy lies, so that action by the state is precluded. On the one hand, Inland Industries contends that the activity engaged in by Teamsters in picketing the property of a neutral employer, is neither protected nor prohibited by the Act and hence is subject to action on the state level as being in violation of K. S. A. 44-809, which reads as follows:
“It shall be unlawful for any person
“(13) To picket beyond the area of the industry within which a labor dispute arises.”
In support of this contention the plaintiff relies chiefly on Cooperative Refinery Ass’n. v. Williams, 185 Kan. 410, 345 P. 2d 709, the decision in which will be discussed in more detail later in this opinion.
On the other hand, Teamsters maintains that Inland Industries is an employer subject to the Act and that the activity o£ which Inland Industries complains has been removed by Congressional action from the field of state regulation.
Thus the issues are joined so far as the plaintiff’s appeal is concerned.
This court has duly recognized that Congress has in great part pre-empted the field of controversies arising between labor and management which affect interstate commerce, and that it has vested exclusive jurisdiction to determine such disputes in the National Labor Relations Board. (Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110; Texas Const. Co. v. H & P. E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160; Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349.)
We should say at this point it is conceded that plaintiff’s business operations are interstate in scope and affect interstate commerce and, further, that they meet the Board’s jurisdictional limits. Thus, Inland Industries’ contention is narrowed down to this: Does the picketing engaged in by Teamsters constitute either a protected or an unfair labor practice within the purport of the Labor Management Relations Act, thereby foreclosing action by state agencies?
We are inclined to agree with the trial court in its finding that the picketing as alleged would be in violation of § 8 (h) (4) of the Act. (29 U. S. C. A. §158 [&].) This section of the Act provides in pertinent part:
“(h) [I]t shall be an unfair labor practice for a labor organization or its agents—
“(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: . . .” (p. 327.)
In San Diego Unions v. Garmon, 359 U. S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773, the federal Supreme Court made it abundantly clear that when an activity is debatably subject to the provisions of § 8 of the Act, defining unfair labor practices, that state courts must defer to the exclusive jurisdiction of the Board. On pages 244, 245, the court says:
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. . . .
“At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board. (Citing cases.)”
From our examination of the record we believe it arguable, at least, that the placing of pickets at Inland Industries’ two asphalt plants was an unfair labor practice constituting a prohibited activity within the meaning and contemplation of § 8 (b) (4).
Inland Industries was found by the trial court to be a “neutral employer.” This designation infers that it was wholly unconcerned with and not involved in Teamsters’ dispute with Inland Hauling, the primary employer. (J. G. Roy & Sons Co. v. National Labor Relations Bd., 251 F. 2d 771; Truck Drivers & H. Local U. 728 v. Empire State Express, 293 F. 2d 414.) Thus it is entirely arguable that the placement of pickets at Inland Industries’ plants would constitute an unfair labor practice, or secondary boycott, falling under the ban of § 8 (b) (4) of the Act.
However, it is not within the competence of a state tribunal to determine whether or not Teamsters’ activity would be an unfair labor practice prohibited by § 8 (b) (4). If it is arguable, as we believe it is, that the activity falls within the prohibition of the Act, Congress has seen to it that the determination of that question lies within the board’s broad bosom. Any action by the state in such respect is a complete “no-no.” The United States Supreme Court has been very emphatic in elucidating this point of view. (San Diego Unions v. Garmon, supra; Garner v. Teamsters Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161.)
As we have previously mentioned, Inland Industries has placed great reliance on Cooperative Refinery Ass’n. v. Williams, supra. The trial court distinguished Williams on the ground there was no evidence to indicate that the neutral employer in that case was doing business with the primary employer. We believe the distinction is a valid one. On page 420 of the opinion this court said:
“. . . [TJhere is nothing in the evidence which indicates that the Association was doing business with CCA [the primary employer]. The neutral employer must be doing some business with the primary employer or there is no violation of section 8 (b) (4). Retail Fruit & Veg. Clerks U. v. National Labor Rel. Bd., supra.)”
It is clear from the record in the present case that a close business relationship existed between Inland Industries and Inland Hauling. More than 95% of Inland Hauling’s gross receipts were derived from business done with Inland Industries. Inland Hauling took care of over 50% of Inland Industries’ hauling requirements. The trucking was done from Inland Industries’ plants to the company’s job sites. The two corporations operated out of a common office. No similar situation was shown to exist in the Williams case and this court arrived at the conclusion that the picketing did not have, as its object, the inducement or encouragement of the neutral employees to engage in a concerted refusal to work for the neutral employer or to handle the primary employer’s products so that the neutral employer would cease doing business with the primary employer.
The defendants, in their brief, question the trial court’s finding that Inland Industries is a neutral employer within the meaning of the Act, and they have submitted authorities on that point. The plaintiff has responded to the challenge by supplying citations of its own. We find it unnecessary, however, to engage in any inquiry into this area. In the first place the defendants have not cross appealed from that finding and, hence, the finding is not subject to review. (Autry v. Walk I. G. A. Foodliner, Inc., 209 Kan. 424, 497 P. 2d 303.)
In James v. City of Pittsburg, 195 Kan. 462, 407 P. 2d 503, we held:
“One who is an appellee is not entitled to present adverse rulings for review unless he has filed a cross-appeal pursuant to K. S. A. 60-2103 (h).” (Syl. f 1.)
Secondly, whether plaintiff is or is not a neutral employer is of small consequence so far as federal pre-emption is concerned in view of the trial court’s finding that Teamsters’ picketing would be in violation of §8 (b) (4), thus precluding state action.
The defendants’ cross-appeal remains to be considered. The trial court entered a stay order pending appeal and set the amount of bond at $1000. In so doing the court commented that any final order as defined in K. S. A. 60-2102 was an appealable order and that K. S. A. 60-2103 (d) gives an appellant the right to a stay upon providing a supersedeas bond.
The defendants contend the trial court lacked jurisdiction to enter such an order, which in effect gave continued force to the initial restraining order. The defendant argues that the court, after finding that Congress had pre-empted the field and that exclusive jurisdiction was vested in the NLRB, had no authority thereafter to take further action in the case or to enter any further orders.
We are inclined to agree with the defendants’ position. Having once decided that it had been stripped of jurisdiction by federal ukase, the trial court was bereft of authority to enter additional orders. This is not to imply that tire plaintiff may not take an appeal under K. S. A. 60-2102, but only that the trial court was not empowered to enter any orders staying judgment pending appeal or fixing the amount of a supersedeas bond.
Our recent case of Hornaman v. Vaughan, 191 Kan. 42, 379 P. 2d 257, illustrates the point. The facts of that case were somewhat involved and need not be repeated, but the principle involved was stated in this fashion:
“. . . [S]ince the trial court had no jurisdiction over the plaintiffs or the subject matter, it had no power or authority to make any orders governing the annual election of the association members, or the future actions of the managing officers. . . .” (p. 52.)
The Supreme Court of Michigan in a recent case, Fox v. Board of Regents, 375 Mich. 238, 134 N. W. 2d 146, phrased the rule in this fashion:
“When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void.” (p. 242.)
Support is also found in American Const. Fire Assur. Co. v. O’Malley, 342 Mo. 139, 113 S. W. 2d 795; Lehman v. Lehman, 312 Mich. 102, 19 N. W. 2d 502.
For the reasons stated the judgment of the court below is affirmed as to the appeal and reversed as to the cross appeal.
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The opinion of the court was delivered by
Owsley, J.:
Our opinion in this case was filed May 6, 1972, and is reported in Autry v. Walls I. G. A. Foodliner, Inc., 209 Kan. 424, 497 P. 2d 303.
The appellee has filed a motion for rehearing. The motion has been considered and is hereby denied.
The motion questions the ruling of the court in Syllabus ¶ 1 and the corresponding portion of the opinion. On reflection we agree with appellee’s contention and find Syllabus ¶ 1 and the corresponding portion of the opinion should be and is hereby deleted and withdrawn. We note that appellant joins appellee in its efforts to correct this portion of the opinion.
In our original opinion we held that in order to review the question of whether or not appellee was guilty of negligence as a matter of law a cross-appeal was necessary. We now hold that under these circumstances it is not necessary to file a cross-appeal. This makes the issue of appellee’s negligence reviewable.
The trial court concluded the appellee’s negligence was an issue to be submitted to the jury. We agree with the trial court. Under the facts disclosed by the record we cannot say appellee was free of negligence as a matter of law.
It is therefore ordered that Syllabus ¶ 1 and the corresponding portion of the opinion is deleted. The decision is adhered to in all other respects.
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The opinion of the court was delivered by
Fatzer, C. J.:
The single issue presented is whether the motion of the appellant, Richard G. Meyer, to modify and to set aside as a fraud upon the appellant, the district court’s decree and judgment of September 16, 1960, granting the appellee, Adielaide Meyer, custody of the minor children of the parties and awarding child support, was filed within a reasonable time as required by K. S. A. 60-260 (b). The district court concluded it was not, and the appellant perfected this appeal. We affirm.
On April 19, 1960, the appellant commenced an action for divorce against the appellee in the district court of Shawnee County. The petition alleged adultery as the grounds upon which the divorce was sought, and that on July 27, 1957, one child, a daughter, was bom to the marriage. The appellee cross-claimed for divorce and alleged that a second child, a son, was born to the marriage on March 27, 1960. By reply, the appellant denied paternity of the second child, placing the issue of the sons paternity directly in issue in the lawsuit.
On August 31, 1960, the divorce action came on for trial before the Honorable Dean McElhenny, judge of the district court. The appellant appeared in person and with his attorney. The appellee did not appear, but was represented by counsel. The appellant presented his evidence and rested. The court granted the appellant a divorce on the grounds of extreme cruelty, and ordered him to pay the costs of the action. The journal entry of the divorce decree was filed September 9,1960.
Subsequently, and on September 16, 1960, the order here in question was entered by the district court, granting the appellee custody of minor children of the parties, ordering the appellant to pay $75 per month for the support of the minor children, and awarding the appellee attorney fees.
No appeal was perfected from the divorce decree, or from the order and decree of September 16,1960.
The order of September 16, 1960, is of paramount importance in this appeal, and is set out in full:
“Now on this 16th day of September, 1960, the same being one of the regular judicial days of the September, 1960, term of said court, there comes regularly on for hearing defendant’s motion for custody of the minor children of the parties and allowance of a reasonable sum for the support of said minor children and for a reasonable sum with which to pay defendant’s attorneys for their services. The plaintiff appears in person and by his attorney, L. J. Grant, and defendant appears in person and by her attorney, Wayne E. Hundley.
“Whereupon, the court upon examination of the files, the hearing of evidence and being duly and fully advised in the premises finds that the defendant should be awarded the custody of the minor children of the parties; that the plaintiff should be ordered to pay to the defendant for the support of the minor children the sum of Seventy-five Dollars ($75.00) each month commencing forthwith and until the further order of this court; and the court further finds that defendant should be allowed the sum of Fifty Dollars ($50.00) to apply on her attorneys fee.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED, AND DECREED that defendant be awarded custody of the minor children of the parties; that the plaintiff be and he is hereby ordered to pay to the defendant the sum of Seventy-five Dollars ($75.00) each and every month commencing forthwith and until the further order of this court for the support of the minor children of the parties.
“It is Further By the Court Considered, Ordered, Adjudged and Decreed that the plaintiff be and he is hereby ordered to pay to defendant’s attorney, Wayne E. Hundley, the sum of Fifty Dollars ($50.00) to apply on the said Wayne E. Hundley’s attorney fee.” (Emphasis supplied.)
The record shows the appellant made two child support payments in 1960, following the entering of the divorce decree.
Present counsel for the parties conceded in oral argument before this court that the journal entry of September 16, 1960, was consented to and signed by counsel representing the appellant and by counsel representing the appellee on that date.
Thereafter, the matter remained dormant until January 29, 1970, when the apellant filed his motion pursuant to K. S. A. 60-260 (b) (6), to modify and to set aside in part the decree and judgment of September 16, 1960, awarding custody of the minor children and ordering payment of child support. The intervening period between tile order and the motion was nine years and four months.
The appellant’s motion alleged in substance that if his evidence were heard on his motion, it would establish that his first knowledge of the order of September 16, 1960, was in a nonsupport criminal action filed against him in the city court of Kansas City, Wyandotte County, at the instance of the appellee seeking child support, presumably pursuant to G. S. 1949, 21-442 (now repealed); that at the hearing on the merits of the nonsupport complaint, the appellee admitted the second child was not fathered by the appellant; that in said action, the appellee acquiesced in and accepted an order of the city court of Kansas City in the amount of $10 per week for the first child, and no payments were to be made for the second child; that appellant made payments to the appellee pursuant to that order until July 27, 1963, when his letter was returned; that there was no contact between the parties until September 6, 1968, when the appellee commenced an action against the appellant in the district court of Wyandotte County, to reduce to judgment child support payments due and unpaid under the Shawnee district court’s order of September 16, 1960; that at a hearing on the merits of that action, the appellant’s testimony was unrefuted that he was released from the state penitentiary on September 12, 1959, to find the appellee had been living with his father to whom she is now married, and that the child in issue — the second child — was born six and a half months after his release from the penitentiary; that the district court of Wyandotte County granted appellant relief on the modification agreement of the parties before the city court to the time of the filing of the action (September 6, 1968), and entered judgment in the amount of $10 per week for a period of five years preceding September 8, 1968; and for the sum of $75 per month pursuant to the order of the Shawnee district court subsequent to that date, and that any sum accrued under the Shawnee district court’s order prior to September 6, 1963, was barred. The Wyandotte district court further concluded the Shawnee district court had continuing jurisdiction over the custody and support order, and it was the proper court in which to challenge the order of September 16, 1960, and to modify or set the same aside.
The appellant’s motion further alleged the issue of paternity of the second child had never been determined in an adversary proceeding known to him and that if the appellee so represented him to be the father of her child the same was untrue, and was a fraud upon the appellant and the court. The appellant requested time for discovery, to require appellee’s answer concerning the son’s birth or be cited for contempt, and that the order of September 16, 1960, be set aside and modified pursuant to 60-260 (b) (6).
On May 5, 1970, the district court ruled as a matter of law the appellant was not entitled to relief under the facts and circumstances, and overruled the appellant’s motion. The pertinent portion of the district court’s memorandum decision reads:
“There can be no question from a review of this file that the divorce was heard and granted on the 31st day of August, 1960, and that on September 16, 1960, both parties appeared with their attorney, and the court awarded the custody of the minor children of the parties to the defendant, and the plaintiff was ordered to pay the sum of $75.00 per month as support for said minor children.
“This order leaves no doubt in the court’s mind that Judge McElhenny found the plaintiff to be the father of both children herein. To permit a party, ten years later, to come into court and challenge the paternity of a child, under circumstances such as this, would make final judicial determination in these cases impossible, and would leave the courts at the mercy of parties who would agree on the hearing date to a determination and then years later change their minds.
“Counsel are well aware that a vast majority of our cases are worked out by the parties and their counsel outside the presence of the Court, and that there is no formal hearing on same, and this is encouraged; otherwise the docket would be bogged down even heavier than they are now.
“To permit one to come into court ten years later and challenge whatever was done at that time, on the basis of fraud, has no precedent, as far as I know, in law.
“If this plaintiff had been of the opinion that the court order of September 16, 1960, was unjust to him, he should have either appealed same, or if he felt he was defrauded within one year from that date he should have come in and asked that it be set aside for that reason, none of which were done.
“It is my judgment that while the result of this matter may not seem fair to the plaintiff, the overriding consideration must be the determination of litigation at some point.
“The plaintiff herein is certainly guilty of laches in not bringing this matter before the court in a more timely manner.
“The court does retain jurisdiction to determine the amount of child support, and the court is of the opinion that the amount awarded by Judge Mc-Elhenny is perfectly adequate under these circumstances, and is overruling the motion of the defendant to increase child support.”
The appellant has raised two issues on appeal. First, he contends he was denied a hearing in support of his motion to modify, and that he was therefore denied due process under the Sixth Amendment to the United States Constitution. Second, that the district court erred in overruling the motion to modify, pursuant to K. S. A. 60-260 (h) (6) for numerous compelling reasons.
The appellant cites the recent case of Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239, in support of his first contention. We are of the opinion the Rydd case is not in point. However, the court recognizes once again that parties have a right to be heard through counsel on motions addressed to the court involving an issue in the controversy. (Railroad Co. v. Cattle Co., 59 Kan. 111, 113, 52 Pac. 71.) See, also, Dickinson v. Beal, 10 Kan. App. 233, 62 Pac. 724. Included within the scope of that right is an opportunity for counsel to analyze facts and present his theory as to the applicable law on questions involved in the case. The right to be heard is of public consequence as well as private concern as advocacy is an effective aid in rendering justice. (Richa v. Wichita Precision Tool Co, 190 Kan. 138, 373 P. 2d 201, and cases cited; Rydd v. State Board of Health, supra; Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 473 P. 2d 72; Collins v. Kansas Milling Co., 207 Kan. 617, 485 P. 2d 1343.)
A district court may have a hearing on a motion to vacate or modify a judgment in chambers, without the necessity and expense of an actual “fullblown” court hearing. (In re Rex, 70 Kan. 221, 78 Pac. 404; Taylor v. Woodbury, 86 Kan. 236, 120 Pac. 367.) In the case at bar, the record affirmatively shows the appellant was afforded an opportunity to present his reasons and theory of applicable law to the district court as to whether his motion to modify and set aside the order and decree of September 16, 1960, was filed within a reasonable time as required by 60-260 (b). Counsel for both parties were present at the conference in the district court’s chambers on the propriety of the motion, and counsel orally presented argument and also filed written briefs in support of his theory on that issue. At that time, the issue before the court was whether the motion was filed within a reasonable time. That was a question of law. Where the issue to be decided is a matter of law, it follows that factual questions in dispute are not relevant to a solution of that issue and there would be no necessity to take testimony. In short, under the facts and circumstances, the appellant was not denied his right to present his case to the district court, but in fact was afforded every opportunity necessary to a decision of the case. Under the circumstances we cannot conclude the appellant was denied his right to be heard when the record clearly indicates compelling facts to the contrary. We find no merit in the appellant’s first contention.
Turning to the appellant’s second contention that the district court erred in concluding no relief could be afforded him pursuant to 60-260 (b) (6) under the circumstances, we quote the pertinent portion of the statute:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final j'udgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under section 60-259 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the j'udgment is void; (5) the j'udgment has been satisfied, released, or discharged, or a prior j'udgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall he made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. . . .” (Emphasis supplied.)
We first note the instant appeal brings up for our review only the order denying the motion for relief from the decree of September 16, 1960, and not the decree itself. The district court had jurisdiction of the parties and the subject matter of divorce, and its decree of that date was not void. This court has uniformly held that the modification of a judgment is within the sound discretion of the district court. (Bateman v. Preisser, 123 Kan. 217, 254 Pac. 1028; First National Bank of Topeka v. Hiatt, 201 Kan. 50, 439 P. 2d 373; Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544; Wichita City Teachers Credit Union v. Rider, 203 Kan. 552, 456 P. 2d 42.)
As we said in Neagle v. Brooks, supra:
“We have no precedent of our own for K. S. A. 60-260 (b) (6) but we may look to federal authority for its construction and application since it was lifted from rule 60 (b) of the Federal Rules of Civil Procedure. Such a motion is addressed to the sound discretion of the trial court, and upon appeal its action is reviewable only for abuse of discretion (see Erick Rios Bridoux v. Eastern Air Lines, 214 F. 2d 207 [CA, DC]). In 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Ed., we find the following:
“ ‘The rule [rule 60 (h)] was not intended as an alternative method of appellate review, nor as a means of circumventing time limits on appeal, except where compelling considerations of justice require that course. . . . The rule is not intended to provide a procedure by which to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal. . . .’ (§ 1322.)
“ ‘Relief from a final judgment, order or other proceeding rests in the sound discretion of the court guided by accepted legal principles. . . . Equitable principles may be a guide in administering relief.
“ ‘The Advisory Committee [on the Rules of Civil Procedure] has referred to “the teaching of experience that courts will not permit technicalities to prevent them from remedying injustice.” Laudable as is the goal of remedying injustice Rule 60 (b) requires the courts to strike a balance between that goal and the desire to achieve finality in litigation. The cases show that the courts have exercised their discretion under that rule with a scrupulous regard for the aims of finality. Thus they have held that the motion must be made within a “reasonable time.” . . . ‘The courts have been unyielding in requiring that a party show good reason for his failure to take appropriate action sooner . . .’ (§ 1323.)
“ ‘This broad language [of rule 60 (b) (6) authorizing relief for “any other reason justifying relief from the operation of the judgment”] gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. . . .’ (§ 1329.)
“In Consolidated Gas & Equipment Co. of America v. Carver, 257 F. 2d 111 (CA 10), we find this: ‘The rule [60 (&)] is neither a substitute for appeal nor a conduit through which to channel a collateral attack upon a judgment of a court of competent jurisdiction.’ (p. 114.)” (1. c. 327, 328.) (Emphasis supplied.)
See, also, First National Bank of Topeka v. Hiatt, supra, p. 55.
The appellant contends the district court abused its discretion in denying his motion because it failed to afford him an opportunity to present evidence concerning disputed factual issues: (1) it failed to determine the second child’s paternity, (2) the appellee’s fraud in asserting appellant’s paternity, (3) the acquiescence of the appellee and her alleged admission of appellant’s nonpaternity in criminal nonsupport proceedings in Kansas City, and (4) the appellee’s refusal to testify to facts surrounding the birth of the son.
The obvious answer to the point is that the district court concluded the motion was not timely filed, and decided the issue as a matter of law. Thereafter, the appellant possessed no right to introduce evidence in support of his motion — he was simply guilty of laches in failing to file his motion for relief within a reasonable time. (60-260 [&].) While he alleged the first notice he had of the September, 1960, decree was in the criminal nonsupport proceeding in Kansas City in May, 1961, it is clear he had ample time within the first year after the order was entered to seek the relief he now seeks nine years later. Moreover, there is a finding in the record that he made two child support payments in 1960, following the rendition of the divorce decree, which strongly indicates he was not only aware of the order when it was entered but complied with it to that limited extent. Be that as it may, we cannot conclude from a review of the record the district court abused its discretion in overruling the motion to modify. In Neagle, supra, this court concluded that two years was not a “reasonable time” within the meaning of K. S. A. 60-260 (b) (6), and said:
“Appellant’s motion for relief was not made until more than two years after she had notice of the entry of the adverse judgment. Under the circumstances it can hardly be said to have been made within a reasonable time, as required, and the trial court so ruled. We cannot disagree . . .” (l.c. 329.)
Prior to the adoption of the present Code of Civil Procedure, this court had occasion to discuss the merits of a motion to vacate filed nine years after final judgment in O’Flanagan v. Case, 41 Kan. 183, 21 Pac. 96. There, the appellant was not present at a hearing on the matter originally decided, but was represented by counsel. The opinion makes it clear the plaintiff had consented through her attorney to the judgment. The court held she was guilty of laches in failing to raise the issue until nine years after the judgment, and that by her own action she was estopped by laches from recovering, and so here. See, also, Allison v. Whitaker, 81 Kan. 706, 106 Pac. 1050, concluding that the appellant was estopped by laches for failure to file his motion to set aside a judgment until three years after its rendition.
Moreover, where a judgment is agreed to by the parties, it has the same binding effect as any other judgment. (Union Pac. Rly. Co. v. McCarty, 8 Kan. 125; Baldwin v. Baldwin, 150 Kan. 807, 96 P. 2d 614.) Further, it is a matter of decided law in this state that parties are bound by admissions, appearances, and actions of their counsel acting on their behalf. (In re Estate of Carrell, 183 Kan. 491, 327 P. 2d 883; Dick v. Drainage District No. 2, 187 Kan. 520, 358 P. 2d 744; Anderson v. Thomas, 184 Kan. 240, 336 P. 2d 821.) In this respect, we note the appellant neither alleged nor here contends his counsel of record in 1960, had no authority to appear for him with respect to any proceedings in the case. Where an attorney at law appears for another it will be presumed, in the absence of a showing to the contrary, that he had authority to appear. (O’Flanagan v. Case, supra.)
Lastly, it should be pointed out there is a presumption of law of the regularity, validity, and verity of judicial proceedings, and that such proceedings are regular and completed in a solemn judicious manner, 'and absent some showing to the contrary by clear and convincing evidence, a journal entry of judgment entered in a matter is final and conclusive with regard to the issues decided. (Stock v. Union Pacific Railroad Co., 183 Kan. 659, 331 P. 2d 549; State v. Hess, 178 Kan. 452, 289 P. 2d 759; City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849.)
In view of the foregoing, we conclude the district court did not abuse its discretion, nor did it err in overruling the appellant’s motion for modification of a judgment rendered nine years prior to the filing of the motion.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The City of Newton brings this action to recover taxes paid under protest on city-owned real estate. Judgment was entered in favor of the city for a portion of the taxes so paid and the defendants, the Board of County Commissioners of Harvey County, Kansas, and the County Commissioners, County Clerk, County Assessor and County Treasurer of Harvey County have appealed. The plaintiff will be referred to throughout this opinion as the city, and the defendants, when necessary, as the county.
Four tracts or parcels of real estate are involved. The first tract was purchased by the city in 1964 as a site for a water tower. This property was later traded to the Board of Education of U. S. D. 373, and the projected water tower was never erected on the site. The remaining three tracts, denominated the Fourth Street site, the Broadway site and the Norton site, were acquired either by purchase or through condemnation proceedings on various dates from March 12,1963 to December 22,1965.
Before relating the judgment entered by the trial court for the city, it may prove helpful to summarize the applicable statutes. The predecessor of K. S. A. 14-1001 (G. S. 1949, 14-1001) provided, so far as material to this case, that all lands, houses, moneys, debts due the city and property and assets of every description belonging to a city of the second class should be exempt from taxation. In 1963 the Kansas Legislature amended the predecessor statute (G. S. 1949, 14-1001) by adding a proviso that if any of such lands, houses or other property or assets be leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise, such property so leased, loaned or otherwise made available should not be exempt from taxation for and during the term or terms thereof. The amendment became effective as of June 30, 1963, and the statute as amended became K. S. A. 14-1001.
In entering judgment against the county, the trial court first concluded that prior to July 1, 1963 — the effective date of the amending proviso — ownership was the sole test for exemption, regardless of use. The city was therefore given judgment for all the taxes it paid for the period prior to July 1, 1963, no matter how the property had been used. Secondly, the court concluded that from and after July 1, 1963, ownership was still the criterion except for such periods of time as the property was leased, loaned or otherwise made available for commercial purposes. Accordingly, the city received judgment for taxes paid on the properties for the period after July 1, 1963, except for the time said properties were used for private, business or commercial purposes. Since the Fourth Street and Norton sites were occupied by commercial enterprises for part of the time subsequent to July 1, 1963, the trial court carefully apportioned the taxes paid on those two sites on a comparable basis. No question appears to be raised concerning the accuracy of the apportionment.
We believe the trial court was eminently correct in its construction of the applicable law, and in the judgment it entered.
In City of Harper v. Fink, 148 Kan. 278, 80 P. 2d 1080, this court held that under G. S. 1935, 14-1001, which for purposes of this case was identical to K. S. A. 14-1001 before the 1963 amendment, the sole test for determining the exempt status of real estate belonging to a city of the second class was the ownership of the property and not the use to which it was put.
After the 1963 amendment was adopted, the ownership of city property was no longer the sole criterion for exemption, inasmuch as an exception was spelled out in case the property was loaned, leased or otherwise made available for commercial purposes. In Board of Park Commissioners v. Board of County Commissioners, 206 Kan. 438, 444, 480 P. 2d 81, we considered a counterpart of K. S. A. 14-1001 which pertained to cities of the first class (K. S. A. 13-1406). In that case we said that where city-owned property was leased or otherwise made available for commercial use it lost its exempt status; but otherwise it continued to be exempt.
It may not be amiss to add that K. S. A. 14-1001, along with 13-1406 and 15-1101 (pertaining to first and third class cities) was repealed by the legislature in 1969. (L. 1969, Ch. 429, § 3.) In the same act the legislature amended 79-201 to read as follows:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation:
“Sixth. All property used exclusively by the state or any municipality or political subdivision of the state: . . .”
The present case arose before 14-1001 was repealed and before 79-201 Sixth was amended. Consequently, we are not required to construe the latter or to define its terms.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This action was initiated by plaintiff-appellee, Ralph W. Fouts, d/b/a Fouts Plumbing & Heating Company, to foreclose a mechanic’s lien. The principle controversy, however, arises from cross-petitions between defendants-appellees, George E. Sybrant and Betty J. Sybrant, and defendant-appellant, Armstrong Commercial Laundry Distributing Company, a/k/a Armstrong-Maytag Laundry Distributing Company. These parties will be referred to hereafter as Sybrants or appellees and Armstrong or appellant, respectively.
Since the most serious issue on appeal concerns the trial court’s denial of Armstrong’s request for a continuance; it is necessary to review the history of the litigation.
The dispute arose from an arrangement whereby Sybrants were to furnish and remodel a building owned by them and Armstrong was to furnish laundry equipment to establish a self-operating laundry to be leased for the mutual benefit of both parties.
In 1966 Sybrants acquired the property involved which had been used for many years as a filling station. They had in mind improving it for use as some type of retail outlet. Before they had made any definite plans, Sybrants were approached by Fred Washington, who introduced himself as an agent of Armstrong. Washington presented a proposition for converting the property into a self-service laundry. Mr. Sybrant testified that he told Washington he knew nothing about the laundry business, but that Washington said Armstrong had looked over the site and thought it was excellent for its purposes. Sybrant restated his lack of knowledge about the laundry business; that he knew of similar businesses within the city which had not been successful, and that he doubted the wisdom of the enterprise.
According to Sybrant, Washington responded by stating that his company handled Maytag products throughout the area and had had extensive experience in this type of enterprise; that the location was excellent for such a facility; and further that he had a man, Don Clapsaddle — a building contractor, who had had considerable experience in constructing similar facilities for the Armstrong Company, and that he was an expert in this type of work.
Sybrant advised Washington that he would not be interested in the project unless he was assured of a long-term lease. Negotiations continued for some time and finally culminated in the exe cution of a lease between Armstrong and Sybrant, and a building agreement between Sybrant and Clapsaddle. The building agreement was attached to and made a part of the lease by the terms thereof. The building agreement specifically provided for the use of Armstrong blueprints, and an Armstrong ceiling and, further; that the remodeling work and materials should be approved by Fred Washington, as well as Sybrant. The lease and the agreement were executed on July 8, 1966. Under the terms of the building contract, Sybrant was obligated to pay Clapsaddle $3800 upon completion of the work in a workmanlike manner.
Armstrong’s operating headquarters were located in Oklahoma City. Clapsaddle worked out of either Claremore or Collinsville, Oklahoma.
Work commenced in the summer of 1966. Difficulties were soon encountered. Sybrants claimed that Clapsaddle negligently failed to perform the contract as agreed; that he caused some of the building walls to collapse; that the roof was substantially damaged in an attempt by Clapsaddle to modify it in order to accommodate a large circulating cooler required by the Armstrong specifications; and that as a result of Clapsaddle’s poor workmanship tibe building was structurally weakened.
Clapsaddle failed to pay several subcontractors and material men and as a result this litigation was initiated by Fouts filing an action to foreclose a mechanic’s lien on July 20, 1967.
The Fouts’s petition named as defendants tihe Sybrants, Armstrong, Clapsaddle, Shutlers (mortgagees of the premises), Clarks, who had become tenants, and several other lien holders.
On August 28, 1967, Armstrong filed an answer to plaintiff’s petition. Armstrong’s answer was signed by Rose McAllister and Charles W. Stubbs, neither of whom were Kansas attorneys.
On August 31, 1967, Sybrants filed their answer to Fouts’s petition and a cross-claim against Armstrong and Clapsaddle.
On March 12, 1968, various parties appeared by their attorneys, but neither Clapsaddle nor Armstrong appeared. The record discloses an order of the court made on that date dismissing with prejudice the petition of plaintiff against all parties except Clap-saddle and Armstrong, and also the cross-petitions and cross-claims between other defendants. The last paragraph of the order reads:
“It is Further Ordered and Adjudged, that the plaintiff and the defendants, Sybrant, proceed further herein upon plaintiff’s petition and upon said de fendants’ cross-claim against the defendants, Clapsaddle and Armstrong Commercial Laundry Distributing Company.”
At this point in the chronology of the litigation (March 12, 1968) there remained in the action plaintiff’s petition against Clapsaddle and Armstrong and Sybrants’ cross-claim against Clapsaddle and Armstrong. The record next shows an order of March 25, 1968, striking the matter from the trial docket upon the agreement of the parties. The firm of Janicke, Herlocker and Bishop, of Win-field, appeared as Kansas counsel for the first time representing Armstrong.
On April 8, 1968, Armstrong filed an answer to Sybrants’ cross-claim in the form of a general denial and as an affirmative defense alleged that damages suffered by Sybrants resulted from Sybrants’ own negligence. Armstrong also filed a cross-claim which alleged that under the lease George Sybrant agreed to1 pay one-half the cost of carpeting, which he had failed to pay, and,was therefore indebted to Armstrong in the amount of $788.62.
On June 3, 1968, the case was set for trial on September 23, 1968, when it was again stricken from the assignment calendar at the request of Armstrong’s Kansas counsel.
On April 16, 1969, the case was again set for trial, but was apparently continued because of negotiations for settlement.
On May 16, 1969, the firm of Janicke, Herlocker and Bishop filed a notice and made oral application to withdraw as counsel for Armstrong. The court entered an order approving the withdrawal of counsel and found that notice thereof had been served upon Armstrong and all other counsel of record.
Under Rule No. 122 ( 205 Kan. L) of this court and the local rules of the District Court of Cowley County, terms of court open on the second Monday in January and March and the first Monday in June and October of each year at which time the entire docket is called for assignment. In this case nothing appears of record from May 16, 1969, until January 12, 1970, when the case was assigned for trial on January 20,1970.
On January 15, 1970, Charles W. Stubbs, of Oklahoma City, counsel for Armstrong received notice of the setting from the Clerk of the Court. On the same day Mr. Stubbs arranged with Thomas D. Herlocker, of Winfield, to become associated as Kansas counsel for Armstrong.
On January 16, 1970, Mr. Herlocker filed a motion for a con tinuance of the trial stating that Oklahoma counsel was unable to attend court on January 20, 1970, and that counsel was unable to notify all witnesses and have them in court for trial on January 20. The motion was heard by consent on January 19, 1970. Counsel for Sybrants appeared and opposed the motion. The court reset the trial for January 21, ruling as follows:
“The Court: Gentlemen, it appears to the Court that upon the withdrawal of Mr. Bishop of Janicke, Herlocker and Bishop on May 16, 1969, that Mr. Stubhs did not from then on make any attempt to obtain any knowledge concerning the status of Case 33757 in Cowley County, Kansas; made no attempt to have local counsel at any of the intervening terms between May 16, 1969, and the setting of this case on the opening day of the January Term, 1970, and the Court feels that it’s the responsibility of not only local counsel but out of state counsel to comply with the rules of the Court, and more specifically with the rules of the Supreme Court of this state which has established certain term days for the Court to call dockets. This case has been on file since July 20, 1967, which is more than enough time to have done something about the status of it. The Court would, however, reset it for — from tomorrow morning until 1:30 January 21st in order to give you time to inform your counsel in Oklahoma City that it would be set for that date. As a matter of fact, the record does not even reflect that Mr. Stubbs even made any comment or anything else at the time Mr. Bishop withdrew in May of ’69. There’s no correspondence that the Court finds from Mr. Stubbs or anyone purporting to represent Mr. Stubbs from the time that the order allowing the withdrawal of local counsel was filed and allowed. You may go off the record.”
When the case was called for trial at 1:30 on Tuesday, January 21, Mr. Herlocker appeared and orally renewed his motion for continuance. Mr. Herlocker stated that he had received a letter from Mr. Stubbs to the effect that Washington, who was desired as a witness for Armstrong, “was caught in the weather and could not be reached. He has not been contacted.” Mr. Herlocker read other excerpts from Mr. Stubbs’ letter concerning a case set for trial on January 28 in Oklahoma City, in which Mr. Stubbs was counsel, and also that Mr. Stubbs was scheduled to take depositions and was scheduled for pretrial on January 23. No affidavits or names of witnesses other than Washington were produced or mentioned either by Mr. Herlocker or in excerpts from the Stubbs letter read by Mr. Herlocker.
The trial court overruled the final motion for continuance and the case was called for trial the afternoon of January 21 as scheduled. Mr. Herlocker announced that he was not prepared to participate in the trial and was attending only “as a spectator.” Sybrants presented their evidence and the trial court entered judgment in their favor in the amount of $5000.00 against Clapsaddle and Armstrong jointly and against Armstrong alone in the amount of $250. The court also entered judgment in favor of Fouts against Clapsaddle and Armstrong in the amount of $245.
Armstrong filed a motion for a new trial which was set for evidentiary hearing on February 10, 1970; at which time Mr. Stubbs appeared for the first time. He was presented to the court by Mr. Herlocker, and as a member of the Oklahoma Bar in good standing. Mr. Stubbs was admitted to practice for this case.
After what appears from the record to have been a rather lengthy hearing the motion for a new trial was overruled and this appeal was perfected.
On appeal it is strenuously argued that the trial court erred in refusing a continuance and in denying Armstrong an opportunity to present evidence.
It has long been settled law that the granting or refusal of a continuance rests within the sound judicial discretion of the trial court and its judgment will not be disturbed on appeal in the absence of a clear showing of abuse. (Vols. 1-3 Hatcher’s Kansas Digest [Rev. Ed. Perm. Supp.], Continuance, § 1.) This rule is now embodied in K. S. A. 60-240 which fully governs a trial court’s authority in the assignment of cases for trial, calendar control and granting of continuances at any stage of the proceedings. (Pacific Indemnity Co. v. Berge, 205 Kan. 755, 473 P. 2d 48; and Scott v. Keyse, 200 Kan. 625, 438 P. 2d 112.)
As the appellees point out, this court has seldom disturbed a trial court’s ruling on a matter for continuance. Appellant cites one Kansas case. (In re Estate of Bump, 171 Kan. 442, 233 P. 2d 478.) The judgment in that case, however, was not reversed on the ground of abuse of discretion, but because it was held to be a void judgment. In Bump the appeal was from a district court’s judgment affirming a probate court’s judgment entered by the probate court when, after an indefinite continuance, petitioners appeared and obtained an order and judgment construing a will without notice of any land to the adverse party.
Our decisions indicate that district courts have broad discretion in matters concerning the assignment of cases for trial and the granting of continuance. (White v. Southern Kansas Stage Lines Co., 136 Kan. 51, 12 P. 2d 713; and Powder Co. v. Bilby, 104 Kan. 769, 180 Pac. 735.) This is a necessity in order that district courts may manage their dockets. While a trial court’s discretion is necessarily broad in this area, it is not without limitations and is subject to review. (Roberts v. Sinkey, 136 Kan. 292, 15 P. 2d 427.) We view with grave concern the denial of a continuance where the effect for all practical purposes deprives a party of his day in court. In ruling on a motion for continuance under such conditions a court must consider all circumstances, particularly such matters as the applicant’s good faith, his showing of diligence, and the timetable of the lawsuit. Discretion is to be exercised in a sound and legal manner and not arbitrarily or capriciously.
Appellant’s first pleading in this case was filed on August 28, 1967, by nonresident (Oklahoma) counsel without associate Kansas counsel contrary to K. S. A. 7-104 and Rule No. 109 (205 Kan. xli.) of this court. Appellant’s Oklahoma counsel appeared in person before the court for the first time two and one-half years later at the hearing on a motion for a new trial on February 12, 1970. When the case was first assigned for trial on March 4, 1968, the firm of Janicke, Herlocker and Bishop apparently became associated with Oklahoma counsel. Mr. Bishop appeared and was successful in having the trial assigned for March 25, 1968, stricken. On May 16, 1969, the Janicker firm filed a withdrawal which was allowed by the court after finding notice was had on all counsel of record. Appellant made no effort to secure Kansas associate counsel until the notice of assignment was received in January, 1970. On this point, appellant’s counsel, Mr. Stubbs, stated in his brief that he heard nothing about the case after September, 1968, notwithstanding the trial court’s finding on May 16, 1969, that notice of withdrawal had been served on Mr. Stubbs. Appellees’ counsel points out that on the hearing of the motion for a new trial, Mr. Stubbs, in response to a direct question by the court admitted receipt of the notice of withdrawal. On its face the record shows lack of diligence on the part of appellant’s Oklahoma counsel.
The history of the instant case vividly demonstrates the purpose of K. S. A. 7-104 and the importance of compliance therewith by a litigant represented by counsel from another state. Members in good standing of the bar of other states are, of course, welcome to appear before the courts, tribunals and agencies of this state, but association with Kansas counsel as provided for in 7-104 and for the reasons stated therein is absolutely essential. (see, also, Supreme Court Rule No. 9 [205 Kan. XXXIII]; Thornburg v. McClelland, 186 Kan. 20, 348 P. 2d 617; Taylor v. Taylor, 185 Kan. 324, 342 P. 2d 190; and White v. Southern Kansas Stage Lines Co., supra.)
Turning again to the motion for continuance filed by appellant on January 16, 1970, it merely alleged that Oklahoma counsel would be “unable to attend court on January 20, 1970, because of previous court commitments,” and that counsel was unable to notify all witnesses and have them in court in time for trial. There were no affidavits of counsel, party or witnesses filed in support of the motion. The nature or whereabouts of counsel’s previous court commitments were not explained or specified and no reason given for counsel’s inability to notify witnesses. No proof was offered of due diligence or on the unavailability of witnesses.
We find the general rule stated in 17 Am. Jur. 2d., Continuance, §12:
“In considering applications for a continuance and in inquiring into the grounds thereof, courts generally do not view the absence of counsel with much favor, and, as in any other case, the granting or refusing of the motion rests primarily in the sound discretion of the court, whose ruling will seldom be disturbed in the absence of a clear showing of abuse of discretion. . . (p. 129.)
The ruling of the trial court, which we have heretofore quoted, indicates that it was fully apprised of all the circumstances of the case and the previous proceedings and, further; that the court was exercising careful discretion in making the ruling. The fact that the court postponed trial a day and a half until 1:30 p. m. on the 21st negates arbitrariness in the court’s action.
We are mindful that the policy of the law favors the hearing of a litigant’s claim upon the merits, but from a careful examination of the entire record before us it cannot be said drat the trial court abused its discretion under the attending circumstances in the instant case.
Appellant contends the findings and conclusions of the trial court are not supported by the evidence or are contrary to the evidence and the law.
In their cross-petition, Sybrants’ claim against Clapsaddle was based on breach of contract and negligence; as against Armstrong their claim was based primarily on representations by and through its agents, particularly Washington that “Clapsaddle was experienced, capable and competent in the renovation, construction and equipment of buildings for use as “help-your-self laundries” — that such representations were relied upon when in truth and in fact Clapsaddle was inexperienced, incompetent and lacking the capacity to perform such services, all of which Armstrong well knew.
The evidence consisted of considerable testimony by George E. Sybrant and a number of documents including the lease, the contract and various exhibits concerning plans and specifications of materials. At the conclusion of the trial the court made extensive findings. Those which we believe are pertinent to the judgment against Armstrong are:
“III.
“That said Sybrants proposed to improve said real estate by renovation of the improvements for a rental office building, food dispensing, or other retail business until one Fred Washington, employee and agent of the defendant Armstrong Commercial Laundry Distributing Company, hereinafter referred to as Armstrong, came to them and discussed the improvement of the premises for a self-service laundry and dry cleaning establishment. Mr. Sybrant advised Washington that he knew nothing about such an installation, that he knew of other similar businesses within the City which had not been successful, and he was doubtful of the wisdom of such installation.
“IV.
“Washington thereupon advised Sybrant concerning the activities of his employer, Armstrong, stating that it handled Maytag products throughout this area, that he and his company had had considerable experience in this type of work, that this location was believed to be an excellent one for such facility, and that the defendant, Don Clapsaddle, a building contractor, had had considerable experience in building and construction similar installations for his Company, was an expert in this work, and that he could and would obtain Clapsaddle as contractor therefor.
“V.
“Sybrant advised Armstrong, through its agents, that he would not be interested in such improvements unless he was assured that a long term lease, with a responsible leassee, would be entered into with the consideration thereof sufficient to warrant the investment. Negotiations between and among Sybrant and Armstrong then continued culminating in the execution of Building Agreements (Defs.’ Exh.), between Clapsaddle and Sybrant, and the Lease (Defs.’ Exh.), between Sybrant and Armstrong. The Building Agreement was attached to and made a part of the Lease Agreement. The Building Agreement specifically provided for use of Armstrong blueprints and Armstrong ceiling and provided that the improvement work and materials should be subject to the approval of Fred Washington and Sybrant.
“VI.
“The entire transaction was participated in by Armstrong and Sybrant. The Building Agreement required Clapsaddle to remodel, construct and erect in a good and workmanlike manner in accordance with plans and specifications, made a part thereof, the improvements described therein, but Clapsaddle negligently, carelessly and in disregard of the terms and conditions set forth in the agreement neglected and failed to perform such services as agreed. Such contractor caused the walls on the building to collapse, the roof was constructed so that rain water was collected thereon, causing it to leak, damaging the ceiling, floorcovering and equipment within the building, the building was made to be out of line and structurally weak, the foundation not true, and Clapsaddle failed and neglected to pay for materials and labor furnished by sub-contractors and finally abandoned the job before completion thereof.
“VII.
“Sybrant relied upon the representations of Armstrong and its agents as to the efficiency, competency and experience of Clapsaddle to perform the type of construction work involved. The building agreement required Clapsaddle to remodel, construct and erect in a good and workmanlike manner in accordance with plans and specifications, made a part thereof, the improvements described therein, but Clapsaddle negligently, carelessly and in disregard of the terms and conditions set forth in the agreement neglected and failed to perform such services as agreed. Such contractor caused the walls on the building to collapse, the roof was constructed so that rain water was collected thereon, causing it to leak, damaging the ceiling, floor covering and equipment within the building, the building was made to be out of line and structurally weak, the foundation not true, and Clapsaddle failed and neglected to pay for materials and labor furnished by sub-contractors and finally abandoned the job before completion thereof.
“VIII.
“As a result of the negligent performance of the building contract, supervised from time to time by Fred Washington, agent of Armstrong, Sybrant was required to take over and complete the improvement work and, incident thereto, to pay the following expenses:
“Powers Roofing, $450.00 to repair roof;
“Fouts Plumbing, $602.00 for plumbing repairs and labor;
“F & G Sheet Metal, $500.00 for duct-work;
“The sum of $400.00 for 54 foot, 16 inch I beams;
“The sum of $200.00 for four 24 foot bar joists;
“The sum of $50.00 to repair a sign.
all of such expenditures directly resulting from the incompetent performance of said building agreement.
“IX.
“In addition, due to the improper construction and renovation work, damages to the building amounted to the sum of $2,798.00, making total loss and damages sustained by defendants, Sybrants, in the sum of $5,000.00.
“X.
“That Clapsaddle was not an experienced or competent building contractor for this particular type of facility and this fact was known to Armstrong and its agents prior to the commencement of said improvements. That Sybrant relied upon the representations and statements made to him by Armstrong and its agents relating to Clapsaddle and would not have entered into either the building agreement or the lease bad he been fully and correctly informed as to such matters.”
We believe a fair analysis of the testimony establishes that a duty rested upon Armstrong to honestly and correctly inform Sybrant as to the experience and competence of Clapsaddle in the particular enterprise with which Sybrant was shown to be wholly unfamiliar. This duty was breached, misrepresentations were made and relied upon by Sybrants to their loss and damage.
Concerning misrepresentations by Armstrong as to Clapsaddle Sybrant testified:
“Q. All right. Now, Mr. Sybrant, did you have some conversation — I think by telephone — with Mr. Armstrong one time?
“A. Yes, at one time, Mr. Armstrong — I believed he called me, or one of his people called me, and I talked to a man who identified himself as Armstrong at Oklahoma City. I complained rather bitterly to him about the experience that we’d had with this man Clapsaddle that they and Washington had brought to me and that I was damaged severely. Mr. Armstrong at that time told me that he didn’t know anything about Clapsaddle, that they hadn’t had him on jobs and that Washington was no longer with him. He said something to the effect that Washington had taken advantage of his company or taken advantage of other people, and I honestly don’t recall the full detail of that, but I got the impression that Armstrong — well, he told me Armstrong (sic) was no longer with the company.”
The items set out in Finding No. VIII were put in evidence by the testimony of Sybrant and exhibits in connection therewith. With respect to Finding No. IX, Sybrant testified specifically as to the structural damage to the budding — the roof, ceiling, walls, plumbing, etc.; what he had done by way of repairs and what would be necessary to put the building in condition it would have been in if the work had been properly done in the first place.
We believe there is ample evidence in the record to support the trial court’s findings that Sybrant had no knowledge of the enterprise undertaken; that he had a right, under the circumstances shown to exist, to rely on the superior knowledge of Armstrong and its agents; and that due to the misrepresentations and negligence of Armstrong’s agent Washington the damages referred to were incurred for which Armstrong is liable.
We find applicable this statement in Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 399 P. 2d 822:
. . Where one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud. . . .” (p. 396.)
See, also, Jenkins v. McCormick, 184 Kan. 842, 339 P. 2d 8; and 37 Am. Jur. 2d, Fraud and Deceit, p. 339, § 253 [Effect of exceptional circumstances — superior knowledge, standing, or experience of representor].
Appellant claims error in overruling its motion for a new trial. Its arguments on this point are largely a restatement of arguments made with respect to the trial court’s refusal to grant a continuance. Appellant was unable to establish that any of the evidence proffered was newly discovered nor was any proof proffered, in the form of affidavits or otherwise, to show that counsel and witnesses were unable to be present at the trial. An affidavit of Clapsaddle was offered. It dealt mainly with the dispute between Clapsaddle and Sybrants. Clapsaddle was totally in default as a party defendant having neither answered nor appeared at any stage of the proceedings. The trial court rejected the Clapsaddle affidavit on the ground there was no showing by Armstrong that Clapsaddle would not have been produced as a witness at tihe trial. The record supports the ruling.
At the conclusion of the hearing on the motion for a new trial, the court ruled:
“Well, gentlemen, we have heard a lot of this, and the Court’s going to take this position, gentlemen; I’m going to deny the motion for new trial I don’t feel that there was any error in exclusion of evidence and that the defendants were given a fair opportunity to produce evidence. There’s nothing that’s been proffered to the Court that indicates any newly discovered evidence, and therefore, the Court’s going to overrule the motion for a new trial.”
The record supports the ruling.
We find no affirmative showing why the judgment entered in favor of Sybrants on their cross-claim against Armstrong should be disturbed.
In point five of its statement of points, Armstrong claims the trial court erred in entering judgment against it in favor of Fouts because no evidence was offered or submitted to support the judgment. While Fouts was represented by counsel, we are unable, as Armstrong says, to find any evidence offered by Fouts. It follows that Fouts’s judgment in the amount of $245.00 must be set aside as to Armstrong and a new trial directed thereon.
Appellant Armstrong further points out that its cross-claim against Sybrants was not dismissed, ruled on or disposed of in any way by the trial court. The point is well taken. Armstrong’s cross-claim concerned a provision in the lease whereby Sybrants agreed to pay one-half the cost (alleged to be $788.62) of carpeting the laundry. At the trial, Sybrants’ Exhibit No. 5, a memorandum signed by Fred Washington dealing with the carpeting and other matters concerning the construction contract, was offered into evidence by Sybrants. Apparently, the exhibit was offered for the purpose of showing that the construction contract was a part of the lease. We find no reference to Armstrong’s cross-claim for one-half of the carpeting in any of the trial court’s findings or rulings. Therefore, the matter must be remanded for determination.
The judgment entered in favor of appellees Sybrants on their cross-claim against appellant Armstrong is affirmed; the judgment of appellee Fouts is reversed as against appellant Armstrong and is remanded with directions for a new trial. The issue raised by the cross-claim of appellant Armstrong against appellees Sybrants is remanded for further proceedings.
It is so ordered.
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by a husband from an order of the district court refusing to terminate future alimony installments previously awarded to the wife in a divorce decree. The wife remarried subsequent to the granting of the divorce.
The original divorce decree which became effective on February 3, 1970, provided for a division of property, custody of the minor child of the parties and for child support. In addition the decree provided for an award of permanent alimony to the wife in the following language:
“It Is Further By the Court Considered, Ordered, Adjudged and Decreed That Defendant be and he is hereby ordered to pay to Plaintiff through the Clerk of the District Court of Shawnee County, Kansas, an allowance for future support, which is by the Court hereby denominated as permanent alimony as follows:
“B. That Defendant be and he is hereby ordered to pay the sum of Five Thousand dollars ($5,000) to Plaintiff as an allowance for future support, which is by the Court hereby denominated as permanent alimony, in periodic monthly installments of One Hunderd dollars ($100) each, commencing on the 15th day of February, 1970, and a like sum on the 15th day of each month thereafter until the 1st day of April, 1972, at which time said periodic monthly installment to be increased to the sum of One Hundred Fifty dollars ($150) per month and a like sum payable on the 1st day of each month thereafter until the said total sum of Five Thousand dollars ($5,000) has been paid by Defendant unto the Plaintiff. It Is Further Ordered That said permanent alimony so provided for shall not terminate because of the death or remarriage of the Plaintiff, but shall be paid by said Defendant until said full amount has been paid in full."
On December 14, 1970, the appellant, Robert S. Wright, filed a motion to modify the judgment of divorce, requesting the court to terminate alimony payments not yet due and payable, by reason of the remarriage of the appellee. A hearing was had before the district court on appellant’s motion and the motion to modify the divorce decree was denied. There was no dispute as to the fact of remarriage of appellee. The trial court in its memorandum letter denying the motion to modify took the position that under the provisions of K. S. A. 1971 Supp. 60-1610 (c) the court may award an allowance for future support denominated alimony in such an amount as the court finds fair and just under all the circumstances, and that the decree may make the future payments continuous and terminable under the circumstances prescribed therein. The trial court further pointed out that in granting relief for the appellee in the divorce decree, the court took into consideration the circumstances of the parties existing at the time of the divorce and concluded that the appellee was entitled to a lump sum amount of $5,000 payable in installments but not subject to modification by remarriage or death. Hence the trial court concluded that the appellant was obligated to pay the full lump sum amount of $5,000 in installments as ordered without regard to the remarriage of the appellee. From the order of the trial court refusing to terminate future alimony payments the appellant has brought a timely appeal to this court.
At the outset it should be pointed out that the decree of divorce entered in this case and providing for alimony was not Rased upon a separation agreement of the parties. It should Re further emphasized that no division of property of the parties is involved here and that the alimony which was awarded in the lump sum of $5,000 payable in installments was designated as future support for the wife. It is admitted by the appellee that the wife has remarried and that there are no special circumstances or strong and compelling reasons in the appellee’s situation which should place upon the appellant the burden of her continued support.
Under the circumstances of this case we hold that the trial court was in error in refusing to terminate alimony payments originally awarded but which had not already become due as of the date the appellant filed his motion to modify the judgment.
The controlling statute is K. S. A. 1971 Supp. 60-1610 (c) which provides as follows:
“60-1610. Decree. A decree in an action under this article may include orders on the following matters:
“(c) Maintenance. The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or tenninable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.”
In Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465, we held that a decree of future support denominated alimony may be modified on subsequent order of the court as provided by K. S. A. 60-1610 (c). We further held that remarriage of a recipient of alimony does not of itself operate to release the obligation to pay alimony, but proof of remarriage on a motion to modify makes out a prima facie case requiring termination of future alimony payments, and further that upon proof of remarriage a burden rests upon the married recipient to prove special circumstances justifying the continuance of alimony and absent strong and compelling reasons future alimony payments should be terminated. In Herzmark the decree provided in substance that the husband should pay as permanent alimony the sum of $600 per month “until further order of the court.”
Later in Beck v. Beck, 208 Kan. 148, 490 P. 2d 628, the rule of Herzmark was held applicable where the wife was awarded alimony in a lump sum amount of $7500 payable at the rate of $75 per month until fully paid or until further order of the court. It should be noted that in Beck the decree provided for an alimony award in a lump sum payable in installments.
In the instant case the award of alimony was made in a lump sum in the amount of $5,000 payable in installments but the decree provided specifically that the alimony “shall not terminate because of the death or remarriage of the plaintiff.” The issue presented in the case at bar is essentially this: Can a district court avoid the rule of Herzmark and Beck by providing in the decree that alimony is not subject to modification or termination on death or remarriage of the wife? We hold that the answer to this question is in the negative.
There are no cases in Kansas exactly in point on this issue but we note that the general rule applied in other jurisdictions under similar factual circumstances is that where a court has the statutory power to modify a decree for alimony or support, a provision in a decree prohibiting the court from modifying the decree generally or only under certain circumstances is void, and the court may modify the decree notwithstanding such a provision. For a comprehensive annotation of cases supporting this rule we note the many cases cited in 166 A. L. R. 683, and in particular Trowbridge v. Trowbridge, 16 Wis. 2d 176, 114 N. W. 2d 129, and Miller v. Miller, 317 Ill. App. 447, 46 N. E. 2d 102. The rule is further recognized in 24 Am. Jur. 2d, Divorce and Separation, § 667.
In the instant case the district court had the power to modify the decree as to alimony awarded but not yet due under the express provisions of K. S. A. 1971 Supp. 60-1610 (c). In exercising such power the district court was required to act within the ambit of the rule established by Herzmark and Beck.
Applying the rule of Herzmark and Beck to the factual circumstances of the case at bar we hold that the trial court should have terminated future alimony payments not yet due since, admittedly, the wife had remarried and there were no special circumstances justifying the continuance of alimony payments. The trial court should have sustained the motion to modify and should have ordered an outright termination, cancelling the appellant’s obligation for any installment payments which had not already become due at the time he filed his motion. (Beck v. Beck, supra; Ortiz v. Ortiz, 180 Kan. 334, 340, 304 P. 2d 490.)
The order of the trial court is reversed and the cause is remanded with directions to terminate alimony as of December 14, 1970, the date the appellant filed his motion to modify the decree.
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The opinion of the court was delivered by
Fontron, J.:
This action challenges the legality of a bond election held February 3,1971, in which the voters of Unified School District No. 449, Leavenworth County, Kansas, approved a bond issue in the amount of $810,000 to pay the cost of acquiring a site, and erecting and equipping a high school building. The trial court sustained the district’s oral motion for summary judgment and proceeded to enter judgment denying the plaintiffs prayer for an injunction. The parties herein will be referred to as plaintiff on the one hand and defendants or district on the other.
In a brief announcement issued April 19, 1972, and reported as Knapp v. Unified School District, 209 Kan. 236, 495 P. 2d 529, this court upheld the judgment of the trial court and we now file this more formal opinion amplifying the same.
The central issue in this case is whether the ballot presented to the voters at the bond election was legally sufficient. Omitting formal portions, the official ballot reads as follows:
“Shall Unified School District No. 449, Leavenworth County, State of Kansas, issue and sell General Obligation Bonds of said School District in the sum of not exceeding eight hundred ten thousand dollars ($810,000.00) for the purpose of providing funds to pay the cost of acquiring a site, and erecting and equipping a high school building within said Unified School District No. 449, Leavenworth County, State of Kansas under the authority of K. S. A. 72-6761; provided that the cost of the entire project shall not exceed $810,000.00 and provided that the amount of the bonds issued shall be reduced by any amount or amounts received from a grant or grants by the Federal Government pursuant to applications heretofore made through the Department of Health, Education, and Welfare?”
The plaintiff bases his case on the proposition that the ballot, as it is worded, does not present a clear and forthright picture of the bond proposal, as the law requires. He aims his artillery at the proviso which he now argues should contain information as to what applications the district had made for the allocation of federal funds or grants under the provisions of Public Law 85-620, § 101 (20 U. S. C. A. § 645, [8]) and in what amounts. He also contends that amounts received from federal grants allocated by the Department of Health, Education and Welfare under the foregoing act cannot be used in paying off bonded indebtedness. For these reasons the plaintiff would have us hold that the ballot is misleading and the election void.
We are well aware of the authorities cited by the plaintiff and of the rule which obtains in this jurisdiction that where a special proposition is submitted to a vote of the people, the ballot 'must clearly state the substance of the proposition, to the end that the voters will not be misled thereby. (Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877; Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P. 2d 138.) This salutary rule has been applied in a number of cases involving school bond elections. In Board of Education v. Towers, 142 Kan. 664, 51 P. 2d 421, Henson v. School District, 150 Kan. 610, 95 P. 2d 346, Heller v. Rounkles, 171 Kan. 323, 232 P. 2d 225, and Unified School District v. Hedrick, 203 Kan. 478, 454 P. 2d 536, various bond proposals were held to be defective where they failed to apprise the voters of the total cost of the contemplated improvements and of the fact that funds derived from other sources — notably federal grants— would be added to the proceeds from the bonds to assist in financing the entire cost of the building program.
However, we cannot agree that the proposal submitted to the voters in the instant case violates the rule fashioned by our former decisions. The voter will know, if he reads his ballot, that the entire cost of the project will not exceed $810,000. He knows also that the amount of bonds to be issued cannot exceed $810,000, but that if grants are received from the federal government, pursuant to applications already made, the amount of bonds issued will be reduced by the amount of the grants. Such is the sense of the stated proposal and we find it difficult to understand how it would mislead or mystify a literate Leavenworth voter.
The plaintiff places a good deal of emphasis on his allegation that grants in aid of education obtained through applications made to H. E. W. cannot be used to pay off or reduce bonded indebtedness. The defendants tend to dispute the accuracy of such assertion, but we are not at this time disposed to attempt a construction of the federal act in such respect. The proposal put to the voter does not imply that amounts received from federal grants will be used to pay off bonds which have been issued; the proposal, as we read it, is that if grants are received they will be used to reduce the amount of bonds which would otherwise be issued.
When the case was argued on April 6, 1972, we were advised no federal funds had been made available to the district up to that time, even though applications for federal grants had been pending for a number of years. There is nothing in the record, however, to suggest that should federal grants become available to the district before bonds are issued, that the district board would not use the same to reduce the amount of bonds which the district would issue.
The plaintiff also complains that the trial court entered summary judgment prematurely, thus precluding him from conducting essential discovery procedures. We believe this complaint lacks merit.
On March 9,1971, the plaintiff filed interrogatories to be answered by the defendants. On March 18 the court held a hearing with all parties present. On this occasion the plaintiff filed a written motion for summary judgment. The record discloses that as of that date the defendants’ answers to the interrogatories had not been filed, and, although they were dated March 18, they were not filed until the following day. At the conclusion of the March 18 hearing, defendants made an oral motion for summary judgment and both sides were given until March 29 to file briefs.
Summary judgment was entered April 8 on the defendants’ oral motion and the plaintiff’s written motion was overruled. Both the memorandum opinion and the journal entry makes it clear that the court considered the defendants’ answers to plaintiff’s interrogatories, as well as the pleadings and briefs, in arriving at its judgment. Hence, the plaintiff has no cause to complain so far as this phase of his discovery is concerned.
Although the record shows no request by plaintiff on March 18 for additional time to conduct further discovery, we find that on April 5,1971, he did file additional interrogatories for the defendants to answer. These interrogatories had not been answered when the court entered summary judgment. However, when the trial court ruled on the plaintiffs motion for new trial, it concluded that no material facts were in dispute and that the second set of interrogatories were not designed to produce any additional information which would be material to the issues raised in plaintiff’s petition.
We agree with the trial court’s position. Most of the information requested in the second set of interrogatories was already before the court from answers given in response to the first set, and nothing further in the way of information was called for which, in our opinion, would bear in a material way on any disputed issue of fact. Where no genuine issue of material fact exists, it is proper for the trial court to enter summary judgment pursuant to the provisions of K.S.A. 60-256. (Evans v. Lynch, 200 Kan. 331, 436 P. 2d 867; Hastain v. (Greenbaum, 205 Kan. 475, 470 P. 2d 741.)
The plaintiff suggests it was improper to enter summary judgment on oral motion. This position is not tenable. In City of Ulysses v. Neidert, 196 Kan. 169, 409 P. 2d 800, this court upheld a summary judgment entered on verbal motion. Moreover, we have said that a summary judgment may be entered on the court’s own motion where no genuine issue of material fact has been found to exist. (Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.) And finally, the plaintiff was placed at no disadvantage by the motion having been oral, inasmuch as he was given time to file a brief.
We find no error in the court below and the judgment is affirmed.
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The opinion o£ the court was delivered by
Owsley, J.:
This is a personal injury action. Judgment was entered in favor of defendant on a special verdict of the jury. Plaintiff appeals.
Plaintiff Lutz was lying down across the seat of a parked 1950 Chevrolet pickup truck, asleep, when defendant Peine drove into the rear of the pickup in which the plaintiff was sleeping.
Thurman Carter and the plaintiff owned sheep which were located at a farm near the scene. They drove the pickup from Ottawa, Kansas, to the scene where the collision occurred. Carter parked the pickup headed west “off the roadway between the fence and the grader ridge” on the east-west road. Carter was employed regularly by plaintiff and was paid every two weeks. He was also at the time of the collision under the direction and control of plaintiff.
The collision occurred shortly after 1:00 p. m., on October 19, 1967. The roadway was a smooth, gravel surface, twenty-five or thirty feet wide. The weather was clear; it was daylight; the sun was shining.
The pickup involved was owned by the plaintiff, but it was driven and parked by Carter. Carter, after parking the truck, proceeded to do some weed mowing while the plaintiff pulled weeds at the farm for about fifteen or twenty minutes. Because she was not feeling well, she returned to the pickup, lay down and fell asleep on the seat of the pickup, and was sleeping at the time of the collision.
The defendant testified at the trial that she and her husband ate lunch at their farm home southeast of Ottawa on the day in question at about noon. Thereafter, she left for Ottawa at about 1:00 p. m. Her home was about two and one-half miles from the accident scene.
The undersheriff of Franklin county who investigated the accident found the pickup occupied by plaintiff headed westerly, off the right side of the road. He testified that the right two-thirds of the front of defendant’s car was damaged and that the left two-thirds of the rear of the pickup was damaged. At the trial the undersheriff said the pickup was about twenty feet east of a driveway and sitting “partly on the road and partly off the road.”
The defendant saw Carter helping the plaintiff after the accident. She observed Carter going to the telephone, and after returning to the scene she again observed Carter helping plaintiff.
Plaintiff’s injuries were established by the testimony of herself, Carter, her employer Phillip Everett, and Drs. M. E. Pusitz and Richard Tozer of Topeka. Plaintiff said the impact caused her breast to strike the steering wheel three times and that she was rendered unconscious. She was taken to the Ottawa hospital by ambulance where she remained twenty-four horns. She had pain in her neck and her head. She remained home over the weekend with pain in the cheek and in the head and neck areas. On November 5, 1967, she was hospitalized for three weeks for chest pains that may have been complicated with pneumonia. She was later treated by Drs. Pusitz and Tozer. She made 121 trips from Ottawa to Topeka for therapy with Dr. Pusitz and none of these treatments helped her. Dr. Tozer testified the pneumonia that required her to go to the hospital several weeks after the accident was not related to the accident.
The record shows that plaintiff Lutz was precluded from showing that defendant Peine had testified in her discovery deposition that she had been watching Carter on the mowing machine prior to the impact.
At the conclusion of the trial, the plaintiff moved for a directed verdict on the issue of liability. In considering the motion, the court ruled that the defendant was negligent and that her negligence was a proximate cause of the collision, and also ruled that the question of contributory negligence should be submitted to the jury. The case was submitted to the jury on the two following special questions:
“1. Do you find the defendant has met the burden of proof that plaintiff was contributorially [sic] negligent in the manner the vehicle was parked and that this contributed as a proximate and direct cause of the collision?
“2. What amount of money would compensate plaintiff for the injuries and damages she received from the collision?”
The jury returned their verdict answering question No. 1, “Yes,” and answering question No. 2, “$5,000.00.” The plaintiff filed a motion for a new trial, which was overruled by the trial court and judgment was entered for the defendant on the special question. The plaintiff appeals from this ruling.
We first refer to the propriety of submitting question No. 1 to the jury. The form of the question requires three answers. Did defendant meet the burden of proof? Was plaintiff contributorially negligent in the manner the vehicle was parked? Was the manner the vehicle was parked a proximate cause of the collision? The main object of special questions is to ferret out the various facts separately in order to enable the court to apply the law and to guard against any misapplication of the law by the jury. (Allen v. Ellis, 191 Kan. 311, 380 P. 2d 408.) A special question should be clear and understandable, requiring a single answer on one issue of fact. This question requires one answer to three questions. It also asks the jury to answer questions which are basically issues of law. (Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295.) We have approved verdicts based on like questions, but such questions were supplemented by questions requiring specific findings of fact. (Applegate v. Home Oil Co., 182 Kan. 655, 324 P 2d 203.)
The only act of negligence charged against the plaintiff was the manner in which the truck was parked. The jury was instructed on this issue as follows:
“The laws of Kansas provide that upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to' stop, park, or so leave such vehicle off such part of the highway, but in every event a clear and unobstructed width of at least twenty feet of the highway opposite the standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.” (In accord with PIK 8.47a, page 212.)
The court instructed that the defendant had the burden of proving contributory negligence. (Instruction No. 9.) The jury was also instructed that violation of a duty or a law is negligence, but that to permit recovery such negligence had to be a direct cause of the injury and damage. (Instruction No. 13.) Although not covered in the instructions, it follows that a violation of a duty or a law is contributory negligence, but to deny recovery such contributory negligence had to be a direct cause of the injury or damage.
Carter testified he parked the truck on the right side of the roadway headed in a westerly direction; that he parked the truck off the roadway between the fence and the grader ridge. (Exhibits 1 and 2 disclose the grader ridge was off the traveled portion of the highway.) Carter also testified the roadway was twenty-five or thirty feet in width at that point.
Plaintiff Lutz testified they parked off the road and into the ditch between the grader ridge and the fence line.
Undersheriff Richardson testified that the right two-thirds of the front of defendant’s vehicle was damaged, and the left two-thirds of the pickup was damaged. He also testified:
“Q. And can you tell the Court and jury approximately where at the scene the truck was positioned at the time you arrived?
“A. At the time I arrived the truck was about, around 20 feet from the driveway sitting partly in the road and partly off the road.
“Q. All right, about 20 feet which direction from the driveway?
“A. This is approximately, it is east of the driveway.
“Q. And you say it was part in the ditch and part in the road?
"A. Yes.”
Since the testimony of the undersheriff as to the location of the plaintiff’s truck was about an hour after the collision, we do not believe the testimony has any probative value as to the location of the track at the time of the collision. The record discloses no evidence on which the jury could find the plaintiff violated any duty or law as to the manner in which the truck was parked; thus, defendant failed to sustain the burden of proof on this issue. In the absence of evidence to support an answer, the court erred in submitting question No. 1 to the jury.
It follows that the court should have submitted the cause on the question of damages only. Since the issue of damages was submitted and the jury made a determination of the amount, should this amount be binding on the parties on appeal? We cannot speculate on the effect of submitting question No. 1 on the answer to question No. 2. The jury was properly instructed on the elements of damage. In the absence of any contrary showing, we must assume the jury correctly and consciously followed the court’s instructions.
Notwithstanding this reasoning, plaintiff claims she is entitled to a new trial on the issue of damages because of the inadequacy of the judgment. She points out that the evidence disclosed special damages of $6,690.85 and the jury’s verdict was $5,000.00. The items of special damages were medical bills, $2,385.85; income loss to date of trial, $2,453.00; travel expense for therapy (121 trips), $1,452.00; and physical damage to truck, $400.00. The record does not disclose that the defendant questioned any of these items of damage. Defendant argues on appeal that $1,245.35 of these damages resulted from a pneumonia episode unrelated to the accident. Defendant also argues that a portion of the doctor bill and travel expense related to therapy treatments could have been disallowed, based on plaintiff’s statement that they did not help her.
In Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522, a statement listing medical expenses of $357.95 was admitted into evidence by agreement of the parties. In this case the jury returned a verdict of $357.95, notwithstanding evidence of pain and suffering and disfigurement. We said:
“A verdict in a personal injury action limited to the exact amount of uncontradicted medical expenses incurred as a result of an accident, and which verdict includes nothing for the pain and suffering or permanent injury, shown by uncontradicted evidence is in part contrary to the evidence and should be set aside on motion for new trial. . . .” (p. 399.)
The uncontradicted medical expense and loss of wages of the plaintiff was $5,445.50 after eliminating the expense of the pneumonia episode. The statement of plaintiff that the therapy treatments did not help her does not justify a disallowance of the cost of the treatments. We do not believe there is any distinction between the medical expense dealt with in Timmerman and the medical expense and loss of wages involved here. The result is that the jury failed to make any award for pain and suffering or temporary and permanent injuries incurred by the plaintiff in this action.
We also stated in Timmerman:
“A new trial on the issue of damages only should not be granted when there appears a strong suspicion that inadequate damages were awarded as a compromise on the issues of liability and damages. . . .” (p. 401.)
The jury in this case found that plaintiff was guilty of contributory negligence. In view of this no compromise could have been made. A compromise could exist only under circumstances where the jury found the plaintiff was not guilty of contributory negligence.
The trial court found the defendant was guilty of negligence as a matter of law and that her negligence was a proximate cause of the collision. On appeal we find the plaintiff free of contributory negligence as a matter of law. We can see no legal reason why the issue of liability should be tried again. We conclude this action should be remanded to the trial court with instructions to try the issue of damages only. We are satisfied that justice demands this result.
Reversed and remanded with instructions.
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The opinion of the court was delivered by
Fatzer, C. J.:
This was an action for personal injury arising out of the crash of a private airplane in which the plaintiff, Charles E. Weber (Weber), was riding as a passenger. He has appealed from the entry of summary judgment in favor of each of the defendants, Southwestern Bell Telephone Company (Bell), and Lowell Strickler and Dixie Strickler his mother (individually oías the Striclders).
The following is a summary of facts disclosed by deposition testimony, answers to interrogatories by Bell and the Stricklers, and statements and affidavits of the parties and witnesses, at the time the district court sustained the motions for summary judgment:
The accident occurred on Sunday afternoon, July 23, 1967, when the airplane in which Weber was riding was in the process of landing at the Striclder Airstrip three and one-quarter miles east of Nickerson. The weather was clear and warm and there was a slight wind from the south. The crash occurred when the landing gear of the airplane came in contact with certain telephone lines owned by Bell. When the airplane struck the telephone lines, it nosed down, turned over, and crashed near the north end of the airstrip.
To orient the reader, it may be said the telephone lines in question are located in the southeast quarter of Section 7, Township 22, Range 6, in Reno County, which was owned by the Fred Striclder estate at the time of the accident. The telephone lines run in an east-west direction, and are fourteen and one-half feet north of the right-of-way of Old K-96 Highway. The highway is both a section line road and a paved highway. The Strickler airstrip is located south of, and across the highway, in a 50 ox-60 acre prairie grass pasture in the northeast corner of the northeast quarter of Section 18, Township 22, Range 6, in Reno County, which was also owned by the Fred Strickler estate and rented by Lowell Strickler from his mother Dixie Strickler, executrix of the estate of her deceased husband Fred D. Striclder. K-96 highway turns south at the northeast corner of Section 18, and the area is known as “Stricklers’ Corner,” but it is also referred to as “Stricklers’ Airstrip.”
The airplane involved was an experimental aircraft known as the “Bluey Sport.” It was piloted by Roscoe V. Huey, one of the owners and builders of the plane. The aircraft was an open cockpit, single engine, tricycle gear, high wing airplane, with dual controls and could be flown from either of its two seats, except that pedals to brake the plane were on the left or pilot’s side of the aircraft. The airplane was in excellent mechanical condition at the time of the crash, having been approved by the Federal Aviation Authority, and was cxxrrently certified by the FAA. Huey was a private pilot, having been licensed since about 1949, and he was certified to operate the aircraft. Huey was killed in the crash, and Weber, a licensed student pilot with some forty hours of flying time, was permanently and severely injured.
The Strickler Airstrip has been in existence since about 1930, and has been continually used for the landing and taking off of private airplanes. The airstrip has a runway 2200 feet in length which runs in a north-south direction, and is referred to as a “sod strip,” meaning prairie grass which is kept mowed. It is 72 feet wide, the north end of which is about 90 feet south of the north boundary of the pasture. Over the years Fred Strickler, deceased, permitted his son Lowell and some of their friends to keep private aircraft at the airstrip, and several of them had built hangars for their airplanes. Lowell and his friends who kept their planes at the field, kept the grass mowed on the airstrip and leveled the strip by filling badger and gopher holes, and so forth. At the time of tire accident, eight people were permitted to keep their planes at the airstrip. Only one of the hangers was enclosed on all sides. This was owned by James Foster who housed his plane in the hangar. Foster had a written agreement with Fred Strickler permitting him to build his own hangar but to pay no rent, and Lowell Strickler was permitted to use part of the hangar to house his own airplane. When the crash occurred, there were four other “T” hangars on the airstrip, and another was incomplete. All of the buildings were privately owned by S trickier’s friends and erected at their own expense. None of the hangars were available for rent or used by the public in general. Strickler received a nominal remuneration from some of his friends to offset the loss of any pasture area resulting from building hangars at the field. The total payments Strickler received were usually less than $50 in any one year, and never exceeded $125 in any given year.
Shortly after Foster was permitted to keep his plane at the airstrip, he and other persons who owned planes smoothed up the field and placed old tires Foster had painted white at the ends and sides of the airstrip to outline the runway. There is a windsock to show wind direction, but there has never been a control tower or traffic control of any kind. There were no radio facilities for air-to-ground or ground-to-air communications, except Foster had a personal citizen’s band radio between his home, car, and his hangar. The airstrip had no tiedowns, hangar facilities, repair facilities or gasoline or oil, or any other maintenance or service facilities available for use by the public or transient aircraft. No landing fees were ever charged, nor were any flying instructions given for a charge. No product or service was offered or available for sale to the public. The airstrip had never been advertised by signs or otherwise, as open to the public or transient aircraft. It was not listed or shown on any aeronautical or other maps, charts or directories as even an emergency landing area. No governmental agency had indicated that the airstrip was in any way subject to, or regulated by, any governmental agency. Lowell Strickler did not attempt to, nor did he make any profit from the airstrip. The only profit which he made, or attempted to make, was in connection with the use of the pasture to graze his dairy cattle. The only persons who were invited to the airstrip were friends who were invited for social purposes.
Numerous aircraft have landed at the airstrip over the years, and, with the exception of Foster, Strickler placed limited restrictions upon those persons he permitted to house aircraft at the field concerning their invitations to other pilots to land. However, there was an open invitation to members of the Experimental Aircraft Association (EAA), of which Lowell Strickler, James Foster, Tommy George, Colonel Marion Unruh, Huey and Weber were members, to fly to the airstrip at their pleasure and convenience, and unannounced. Similar invitations had been issued by other EAA members who owned private airstrips in that part of the state. The EAA is a voluntary national association having state and local chapters. Strickler had been a pilot since 1949, and was active in organizing EAA in Kansas; he was a charter member, had served on various committees, and had undertaken, as most of its members had, to build his own airplane. The primary purpose of EAA is to permit members to meet and discuss the construction and performance of experimental airplanes, and Strickler’s invitation to members of the association took on some of the characteristics of invitations issued by Mae West to, “come up and see me sometime,” that is, “if you are in my area on a Sunday afternoon, drop in and see me.”
Over a period of four or five years, Strickler had expressly invited George and Huey to visit him at the airstrip, and George had flown to the airstrip on several occasions. Huey had driven his automobile to Strickler’s home to attend EAA meetings, but he had not previously landed a plane at the airstrip. The evidence showed that when Strickler invited members of EAA to drop in and see him, he had a practice of always warning them of the obstruction of the telephone lines at the north end of the runway. The record shows that on several occasions Huey had been expressly warned about the telephone lines and to watch out for them.
The evidence also showed that occasionally Weber attended chapter meetings of EAA. Strickler testified he did not know Weber but had seen him at meetings — he could not place his name with anyone he knew. Strickler never personally invited Weber to the airstrip; however, Weber might have been in a group at an EAA meeting when those present were invited to the field. Weber testified he did not personally know Strickler, but had seen him at one EAA event in Illinois, and that any invitation Strickler might have given “was on a friendly, social type basis,” and “like you would invite somebody to come to your home.” Foster testified that at a recent EAA meeting before the accident, “we asked them to come over,” and that “they had all been warned of the telephone wires at the north end of the field.” While the record does not show whether Weber was present at any EAA meeting when Strickler would extend his invitation to visit the field, it is clear from the evidence that if he was present at such a meeting and heard the invitation, he would have also heard Stricklers or Foster’s warning about the telephone lines north of the runway, and to watch out for them.
There was never an organized flying event at the airstrip where a number of pilots were invited to attend. Sometimes there were three or four planes at the field on a nice Sunday afternoon. However, Strickler did not invite a lot of people into the area either by ground or by air, because there was limited parking facilities and the road to the airstrip was a “field crop road”; if there was too much travel, the ground would tend to blow. Also, there were 20 to 30 head of cattle in the pasture, and he worried about strange pilots not being used to cattle grazing in the pasture.
On the day of the crash, the Stricklers were not at home and they did not know Colonel Unruh intended to fly to the airstrip, nor did they know that, as hereafter detailed, George, Huey and Weber were flying to the airstrip that afternoon in search of Colonel Unruh.
As indicated, the telephone lines in question were located fourteen and one-half feet north of the right-of-way of old K-96 Highway, and 165 feet north of the north end of the runway. The telephone line was originally constructed in 1902 or 1903, by the Nickerson Telephone Exchange. In 1949, a drainage district was formed, and the district obtained an easement from Stricklers grandfather to widen and deepen the ditch on the north side of the highway. The telephone lines had to be moved farther north and onto the Strickler land, to permit the widening of the ditch. In 1953, Bell purchased the lines from the Nickerson Telephone Exchange, and ten or twelve years ago Bell replaced the lines with new poles and new lines. The poles were a foot or two higher than the old poles, and were also spaced farther apart. The old lines were replaced by four strands of heavy gauge, high strength steel wire permitting longer spans and fewer poles. The record shows that Bell had made repairs on the poles and lines subsequent to their replacement in 1953, as part of its normal maintenance procedure. However, the district court precluded discovery of maintenance and changes in the poles and lines more than four years prior to the accident, and that factual issue remains in the case.
The telephone lines in question consisted of wooden telephone poles, approximately eighteen to twenty feet high, with crossarms holding the four strands of wire. The poles are approximately 455 feet apart, and with reference to the runway south of the highway, one pole is located in the approach pattern approximately 20 feet west of the east side of the airstrip. The telephone lines are not visible when one is attempting to land an airplane at the airstrip until it is too late to take any evasive action, or do anything to avoid hitting the lines. The evidence was undisputed that a pilot could not see the wires until you were on top of them, and passing over them.” The pole in front of the runway is brown in color blending into the horizon. Likewise, the crossarms on the poles are not visible during an approach since the end of the crossarm is all that is visible to a pilot. There were no markings or warnings of any kind on the telephone poles or the lines to warn of then-existence.
Weber contended he had physical evidence to prove it was a common practice in the industry to use markers and reflectors on the telephone poles and lines such as those involved in this case, to warn unsuspecting air travelers, and that such equipment was inexpensive. Weber advised the district court of such evidence, but summary judgment was entered before it was obtained.
In addition, there was a sharp factual conflict concerning Bells right, or lack of right, to maintain its lines in their location on the Strickler property. An earlier contention that Bell owned an easement was abandoned for the contention that it had acquired prescriptive rights. In any event, Bell did not have a right-of-way agreement, and the evidence disclosed a factual issue as to whether Bell was a trespasser or a licensee. Bell owned and maintained the poles and lines with knowledge of the airstrip’s existence and the property rights of the defendants Lowell and Dixie Strickler. Whether Bell was a tenant at sufferance, or at will, or had acquired prescriptive rights, was not established by the evidence, and that factual issue remained.
Strickler and Foster had discussed the matter of the telephone lines many times, and both knew the dangers and hazards the lines presented to air travelers. Likewise, other persons housing planes at the airstrip knew the lines were dangerous and hazardous and had discussed this among themselves. Both Strickler and Foster had experienced “close calls” with the telephone lines in landing and taking off from the airstrip.
Prior to the time the lines were sold to Bell, Strickler talked with the manager of Nickerson about lowering or burying the lines north of the runway. Strickler was advised the company was selling to Bell. Later, Strickler talked with Bell linemen in the area concerning the lines, and was told to see the supervisor in Hutchinson. Strickler once stopped in Hutchinson to see the manager, but he was not there.
After Foster started using the airstrip, Strickler left it up to him to contact Bell’s manager in Hutchinson to see what could be done about eliminating the dangers presented by the poles and lines in question. On at least two different occasions before the crash occurred, Foster talked with the manager in Hutchinson to put Bell on notice again about the dangers and hazards presented by the lines, and requested the removal or burial of the lines. Those meetings and conversations were denied by Bell, and that factual issue remained. Notwithstanding those conferences, which were clearly established by the plaintiff’s evidence, Bell failed to take any action to remedy the hazards created by the poles and lines, either by lowering or burying the lines, or by moving the pole north of the runway to the east.
At the time the district court sustained the motions for summary judgment, there had been no final pretrial conference, discovery had not been terminated, and the defendants were informed that Weber proposed to present expert testimony with respect to airport hazards.
On the morning of the accident, Weber drove to Huey’s home at Valley Center, about 7:10. He and Huey then flew in the Bluey Sport to a “fly in” of EAA members at Kingman. After the “fly in,” they left Kingman about 1:00 or 1:30 p. m. They planned to return to Wichita at that time, but Tommy George, who piloted another plane and who flew to Kingman with them, wanted to talk to Colonel Unruh for a few minutes and look over an airplane the Colonel was building. The plaintiff testified he and Huey were simply “tagging along behind Tommy George.” He didn’t want to see Unruh, although he and Huey would have looked at the airplane the Colonel was building. Both airplanes landed on the Colonel’s landing strip located on his farm. After the two planes landed, Mrs. Unruh told them the Colonel was at Strickler’s. Neither Huey nor the plaintiff had previously flown to Strickler’s, but Tommy George had flown there before, and led the way. Both Huey and George were in control of their own airplanes. The only reason the plaintiff and Huey were going to Strickler’s was that they were following George who wanted to see Colonel Unruh. The plaintiff testified, “I was just along for the ride.”
George was in the lead aircraft, and when they arrived over Strickler’s airstrip, he pointed down at the field. Both airplanes were traveling in a northerly direction. George flew over the field and Huey flew the Bluey Sport to the east of the field in a northerly direction. Huey then flew a left-hand pattern, turned south in a normal approach to the airstrip, and was in the process of landing when his airplane came in contact with the telephone lines and crashed across Old 96 Highway. As stated, Huey’s approach was normal, and had the lines not been present, the accident would not have occurred. Two lines and the pole were broken, and two lines followed the airplane all the way to the ground.
On the date of the accident, Strickler and his wife, and Dixie Strickler were not at home. They had driven to Wichita to meet and have dinner with a relative from Chicago. As indicated, the Stricklers did not know that Colonel Unruh was coming to the field, nor did they know Tommy George, Huey and Weber were coming. They heard about the accident on their car radio on their way home from Wichita.
The appellant contends the district court erred in sustaining both appellees’ motion for summary judgment because the depositions, answers to interrogratories, admissions on file, together with the affidavits, show that a genuine issue of material fact exists as to the legal relationship of the appellees to the appellant; further, that he was foreclosed from completing discovery as he had expert testimony concerning Bell’s duty in the industry to mark its lines and poles immediately north of the airstrip. No contention is made concerning the Sticklers with respect to the latter point, or that discovery was incomplete concerning the legal relationship of the Sticklers to the appellant.
K. S. A. 60-256 (c) prescribes the standard whether summary judgment should be granted. This court has held that before summary judgment may be granted, the record must show that there remains no genuine issue as to a material fact; that when ruling on a motion for summary judgment, the distict court must resolve against the movant when any doubt exists whether there remains a genuine issue of material fact, and that the evidentiary material presented by the party opposing the motion must be taken as true, and such party given the benefit of all reasonable inferences from such evidence. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019; Jarnagin v. Ditus, 198 Kan. 413, 424 P. 2d 265; Knowles v. Klase, 204 Kan. 156, 460 P. 2d 444; Johnson v. Farha Village Supermarkets, Inc., 208 Kan. 241, 491 P. 2d 904.) In Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, this court stated the purpose 60-256, “is to obviate delay where there is no real issue of fact,” and further said:
“In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is a reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to the language of the rule, there must be left no genuine issue of any material fact.’
“The proper application of the rule leaves but two rather simple questions for determination, i. e., what is a ‘genuine issue’ and what is a ‘material fact?’ The answer as to what constitutes a ‘genuine issue as to any material fact’ appears to account for most of the voluminous opinions on the questions.
“It may be said that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. It has been said that before summary judgment is granted the court must be convinced that the issue is not genuine, or there are only immaterial or imaginary factual issues.” (l. c. 575, 576.)
In Albright v. McElroy, 207 Kan. 233, 484 P. 2d 1010, we quoted from 3 Rarron and HoltzofE, Federal Practice and Procedure, rules edition, § 1234, as follows:
“Normally where the only conflict is as to what legal conclusions should be drawn from the undisputed facts, a summary judgment should be entered [p. 128.] ... It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to .affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. ... It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted, [pp. 131-132.] . . . A popular formula is that summary judgment should be granted on the same kind of showing as would permit direction of a verdict were the case to be tried, [p. 133.] ... If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.’” (p.134)’”” (l.o. 244.)
The thrust of the defense of the appellees is that the controlling legal issues in this case are governed by “premises law,” which immunizes each of them from liability. To ascertain the validity of the various contentions of the parties, we examine separately the available facts as to each appellee to determine whether there was a genuine issue of material fact concerning the liability of either of them.
We first turn to Weber’s claim against the Stricklers and that the airstrip was maintained as a commercial enterprise, and to Hendren v. Ken-Mar Airpark, 191 Kan. 550, 382 P. 2d 288, upon which he relies; that the structures, terrain and airport equipment maintained on the premises by Strickler constituted an implied invitation to air travelers; that Striclder’s open invitation to all members of EAA was related to the activities of its members to meet and exchange their talents and experiences concerning the building of their own airplanes, and that such projects were more than social reasons and ventures; that Weber was a business invitee enroute to Strickler Field at the time the airplane in which he was a passenger came in contact with the unseen telephone lines and was injured when the plane fell to earth upon the airstrip which was operated by Strickler; that Strickler knew of the hazards and dangers created by the telephone lines at the north end of the airstrip, and that failure to warn meant probable death or serious injury to any air traveler attempting to land at the airstrip unless warned of the unseen danger, hence, Strickler’s express invitations to visit his airstrip without warning of the hazards and dangers known to him, but unknown to Weber, constituted willful, wanton and reckless conduct, and that Strickler, knowing of the hazards and dangers presented by maintaining the airstrip, in conjunction with the telephone lines existing to the north, and having directed Foster to act in his behalf to get Bell to bury the lines, and knowing that Foster had conferred twice with Bell’s manager, and thereafter Strickler did nothing because of his and Bell’s economic reluctance to remedy the dangerous condition, constituted a trap to those whom he invited to the field without warning of the hazards.
Strickler contends the status of the plaintiff as a visitor to his land is the central point of the action; that the district court rendered summary judgment in his favor upon the ground the undisputed facts showed Weber was at most a licensee — a social guest; that the duty Strickler owed him as a licensee was to refrain from willful, wantom or reckless conduct, and that based upon the record, Strickler did not breach the applicable standard of care with respect to Weber — assuming the telephone lines across the road from the landing strip constituted hazards and dangers known to Strickler, and even assuming the evidence presented an issue of fact whether Strickler warned the plaintiff of such hazards and dangers, since failure to warn under Duckers v. Lynch, 204 Kan. 649, 465 P. 2d 945, constituted at most passive negligence, not amounting to willful, intentional, or reckless conduct sufficient to enable Weber to recover in this case.
Weber’s contention the airstrip was maintained as a commercial business enterprise is not well taken. Its physical characteristics, as well as the facts surrounding its maintenance and operation, have been fully set forth. The evidence need not be reiterated, and this court concludes the airstrip was not a commercial business venture in which Strickler impliedly invited visiting aircraft to tíre field on the basis it was operated for profit, or was maintained as a facility open to public use, and that those who ventured there were business invitees which would impose upon Strickler a duty to keep the premises in a reasonably safe condition for use of those pilots and aircraft which he knew or should have known would fly to the airstrip and use its facilities. Weber’s reliance upon Hendren v. Ken-Mar Airpark, supra, is not in point. It is unnecessary to discuss the case at length, but it is sufficient to say the airport there was incorporated and operated for profit; as such, it was held there was an express and implied invitation to the public to use its premises and facilities — that clearly is not the case at bar. Further reference to Ken-Mar Airpark is unnecessary since it does not control the disposition of this lawsuit.
Likewise, Webers contention Strickler’s open invitation to all members of EAA was related to the activities of its members to meet and exchange their talents, experiences and discuss the performance of experimental aircraft was more tiran a social venture or purpose (Well v. Smith, 205 Kan. 339, 469 P. 2d 428), thus affording substance to his argument that he was a business invitee on the day of the accident, also is not well founded. Assuming, as Weber contends, the purpose of the EAA meetings was for the mutuality of interest and advantage of an owner of an airstrip and to the members of EAA to exchange experimental data with respect to the construction and design of airplanes, the meeting at King-man on the Sunday in question had terminated either at 1:00 or 1:30 p. m., and any economic or business purpose of the meeting ceased to exist. Huey and Weber intended to return to Huey’s home at Valley Center. However, Tommy George suggested he wanted to see the airplane Colonel Unruh was reported to be building and to visit with the Colonel for a short time. George asked Huey and Weber to accompany him, which they did. The record shows they were “merely tagging along,” and when Colonel Unruh was not at his home and they were told he was at the Strickler airstrip, the plaintiff’s own testimony shows he was simply “going along for the ride.” Neither he nor Huey had any purpose to see Colonel Unruh, and for that matter, had no reason to go to Strickler’s airstrip other than to “tag along” following Tommy George who wanted to see the Colonel. Neither Huey nor Weber had business relations to discuss with Strickler or anyone else who might be at the airstrip. It is clear the purpose of Weber’s visit to the airstrip was purely social and for his own convenience and pleasure. He was, in the eyes of the law, a licensee. (Lemon v. Busey, 204 Kan. 119, 461 P. 2d 145; Weil v. Smith, supra.)
It is unnecessary to reiterate at length the law as stated in our decisions as to the legal status of a person who enters or remains upon the land of another whether by invitation or permission — a licensee — and the duty owed to him by the owner or occupier. That duty is to refrain from willful, wanton, intentional or reckless conduct that might result in his injury. (Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862; Roberts v. Beebe, 200 Kan. 119, 434 P. 2d 789; Weil v. Smith, supra; Lemon v. Busey, supra; Duckers v. Lynch, supra.)
What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself. In the nature of things, it is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. Conduct which will justify the presumption of willfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury. In Mathes v. Robinson, 205 Kan. 402, 469 P. 2d 259, it was said:
“It is fundamental that the law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his acts or omissions, and treats him as guilty of willful and wanton wrong. Our cases hold that one with knowledge of existing conditions, and conscious from such knowledge that injury or death will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously does some act, or omits to discharge some duty, which produces the injurious result, is sufficient to establish willful or wanton conduct . . .” (l. c. 405.)
Strickler knew of the hazards created by the telephone lines and considered them one of danger for which a warning was required to be given to persons he invited to the airstrip — to air travelers who were not familiar with the field or the condition and terrain surrounding it. Assuming Weber was at an EAA meeting and heard Strickler s express invitation to visit his airstrip, it is clear from the record, as indicated, he would have also heard Strickler s or Foster’s warnings to watch out for the telephone lines north of the runway. In addition, the record shows Huey was expressly warned on several occasions of the hazards and dangers produced by the telephone lines in landing or taking off from the airstrip, and that warning was also conveyed to all who were present at EAA meetings when Strickler invited them to fly to his airstrip. The purpose of a warning is to give notice of the condition. In Albright v. McElroy, supra, it was said:
“. . . The function of a warning is simply to convey knowledge or notice. The particular manner in which defendant warned plaintiff . . . is immaterial if in fact effective notice was given. . . .” (l. c. 245.)
Viewing the facts in their most favorable light to the appellant, it is clear Weber, as a licensee, was owed a duty to be warned of the hazards of the telephone lines; but it is likewise clear that Strickler fulfilled that duty. There is no genuine issue of material fact existing concerning the character of the warning given by Strickler and Foster, and it follows that if Weber heard the invitation, he also heard the warning. The appellant does not contend that additional discovery is required to further define the legal relationship between the Stricklers and him. Based upon the admissions and the undisputed testimony, this court is of the opinion the district court did not err in sustaining the motion for summary judgment on behalf of Lowell and Dixie Strickler.
Bell contends it is entitled to the benefits of the general rules of law pertaining to persons who enter upon the land of another, and that if the appellant’s status as to the Stricklers was one of licensee, then it too, as an occupier of the land where its lines were located and the airspace above, was subject to the same liability, and enjoyed the same freedom from liability, as the Stricklers, and it owed only a duty to refrain from willfully, wantonly, intentionally, or recklessly injuring Weber. The district court sustained Bell’s motion for summary judgment upon the theory the “premises law” was applicable under the facts and circumstances, and concluded as a matter of law that Bell’s only duty to Weber was to refrain from willfully, wantonly, intentionally, or recklessly injuring him.
As indicated, there was a substantial factual dispute as to Bell’s right to maintain the lines in their location on the Strickler property. Bell’s contention it had an easement was abandoned, and there is nothing to indicate it acquired any rights by purchase or eminent domain. Its rationale is that it had an easement by prescription; however, what is apparent is that Bell acquired permission to run its lines parallel to the highway merely with the consent, expressed or implied, of the landowner, and such a permissive right exists only at the owner’s will and tolerance. Although circumstances may exist where such a permissive right takes on the characteristics of a prescriptive easement, the record does not support Bell in that respect, and we are of the opinion its status on the land was one of a continuous revocable licensee as to the landowner. (Jobling v. Tuttle, 75 Kan. 351, 89 Pac. 699; Fiest v. Steere, 175 Kan. 1, 259 P. 2d 140; White v. Mississippi Power & Light Company, 196 So. 2d 343 [Miss.].)
This court questions the logic of a rule that would place Bell within the legal category that it contends is applicable. Due to the nature of the occupancy ostensibly held by Bell, it would be difficult to imagine facts and circumstances under which it would owe any duty to a person entering upon its occupancy or the airspace above, other than that owed a trespasser or at best a licensee. The only purpose of Bell’s occupancy on the Strickler land is to further its own business interests. There would be little or no economic or business reason for any person to enter upon Bell’s occupancy so as to afford him the status of an invitee as contemplated by the “premises law.” Moreover, it would be equally as pervasive to consider circumstances under which anyone would enter upon Bell’s occupancy as a social guest to be afforded the status of a mere licensee. The use of “premises law” to delineate Bell’s duty would in effect define out of existence any affirmative duty it owed to maintain its lines so as not to create or permit dangerous conditions to exist that might cause injury to the public. In short, we conclude that the “premises law” does not provide a functional test to define the legal relationship that Bell had with the appellant, and we decline to use that approach as a solution to this lawsuit.
Since we hold that Bell may not enjoy the benefits of rules of law pertaining to landowners within the context of this case, it follows that the rules found in United States v. Causby, 328 U. S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062, and cases following those rules, to the effect that an air traveler may be classified as a trespasser, are not applicable here. The Causby rationale supports the proposition that the use of “premises law” is unwarranted and wholly inapplicable to aircraft granted a privilege to fly within the navigable airspace. Air travelers may fly over the land without having attached to them the connotations of trespasser, licensee, or invitee —such as liability for trespass or degrees of duty owed persons depending upon the nature and purpose for which they entered upon the land. (Mills v. Orcas Power & Light Co., 56 Wash. 2d 807, 355 P. 2d 781.)
The case of Hendren v. Ken-Mar Airpark, supra, is not helpful to Bell since the only standard of care discussed was that which the operator of the commercial airport owed to the air traveler— the duty of public utility companies was not raised, or discussed.
While cases concerning the legal status of air travelers who are injured as a result of contact with the lines of public utility companies found in other jurisdictions indicate that the authorities are split on the question, this court, considering the matter on first impression, is of the opinion it should adopt and follow the great weight of authority to the effect that a public utility company is not relieved of liability to such persons injured as a result of contact with its lines, where the proximate cause of such injury can be attributed to its negligence in construction, inspection, or maintenance of its lines, upon the theory the person injured was a licensee or trespasser on a third party’s land.
We conclude that a public utility company must exercise reasonable care and precaution to prevent injury, not only to persons who have a right to be on the land or in the airspace above where the injury occurred, but also to persons whom the company should reasonably have anticipated might be present and exposed to danger at that location. The standard of care applicable, that of ordinary negligence based upon the foreseeability of the injury, will be complied with if the company provides such protection as will safely guard against any contingency that may be reasonably anticipated. What is contemplated is that the company is not legally bound to safeguard against occurrences that cannot reasonably be expected, nor do we intend it should be liable as an insurer. Under such circumstances, the company ought not be permitted to escape liability for injury actually inflicted, as a proximate cause of permitting such a danger to exist, merely because the injured party was a trespasser or licensee insofar as a third party landowner may be concerned. (Mills v. Orcas Power & Light Co., supra; Yoffee, Aplnt. v. Pa. Power & Light Co., 385 Penn. 520, 123 A. 2d 636; Arizona Public Service Company v. Brittain, 107 Ariz. 278, 486 P. 2d 176; White v. Mississippi Power & Light Co., supra; 52 Am. Jur., Trespass, § 84 [1944]; Anno. 30 A. L. R. 3d 777.)
In the Yoffee case, the Supreme Court of Pennsylvania summarized the duty of a public utility company, and said:
“. • • If the owner of any instrumentality, equipment, or device has reason to believe or expect that an airplane will use the legalized unoccupied air space above his installation and he erects or permits to exist an obstruction which, without fault on the part of the aviator, will do damage to the pilot or his aircraft, the owner of the installation will be as responsible for the damage done the aircraft and its passengers as if he had shot down the aircraft. . . .” (p. 541.)
Applying the foregoing rules, there remains the question of fact to be submitted to a jury, whether Bell should have reasonably anticipated that persons attempting to land at the airstrip might come in contact with the telephone lines and be injured as a result of its negligence in the construction, inspection, or maintenance of its lines at that location. Subsidiary to that, and going to the issue of foreseeability, is the question whether Bell had been warned by Strickler or Foster as to the dangers inherent in the wires being strung at that location.
There remains the question whether Bell had a duty in this case, as a matter of law, to mark the lines in such a manner as to warn aircraft of the existence of the telephone wires to the north of Striclder’s airstrip. Jurisdictions are also split on this issue, some holding there is no duty (Columbia Helicopter, Inc. v. U. S. By and Through Bonneville Power Administration [Dept. of Interior], 314 F. Supp. 946 [D. C. Or.]), while other authorities recognize that such a duty exists. (Yoffee, Aplnt. v. Pa. Power & Light Co., supra; United States v. State of Washington, 351 F. 2d 913 [9th Cir.]; El Paso Natural Gas Co. v. United States, 343 F. 2d 145 [9th Cir.]; Arizona Public Service Company v. Brittain, supra.) Each of those cases turned upon its own complex factual pattern, and this court is of the opinion that such a question should not be decided as a matter of law. Foreseeability is the foundation of liability in the instant case, and we conclude that the duty to mark the lines is also a question for the trier of fact.
The judgment of the district court is affirmed as to Lowell and Dixie Strickler, and reversed and remanded as to Bell with directions to the district court to proceed in a manner consistent with this opinion.
It is so ordered.
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The opinion of the court was delivered by
Foth, C.:
On October 17, 1970, the appellant and a companion entered David’s, Inc., retail store in Wichita. They went to the gun counter where they were waited on by a clerk named Andrew Corbin. Corbin displayed 30 or 40 hand guns to the two shoppers and, after fifteen or twenty minutes, left three or four guns on the counter for their inspection while he went to help at the cash register. While Corbin was at the cash register, appellant picked up a pistol, showed his companion that he had it and placed it beneath his coat. Retween five and fifteen minutes later he took the gun from beneath his coat and placed it in his coat pocket.
Unknown to appellant, he was being watched during this entire time by Doyle Moore, another sales clerk. Upon seeing appellant place the pistol in his pocket, Moore stepped around the counter and asked the appellant to come to the office with him.
Appellant asked what for, and Moore replied, “For this,” tapping the pocket containing the gun. Appellant thereupon handed Moore the gun and the two headed for the office. En route the appellant started to run toward the exit, but stopped when he was told a security guard was on duty there. The two then proceeded to the office and the police were called. While waiting, in reply to a question concerning what he was going to do with the gun, appellant said that he was going to sell it.
As a result of this escapade appellant was charged with the attempted felonious theft of the gun, which had a value of more than fifty dollars. In addition, when it was learned that he had been paroled from the reformatory just a year before, he was charged in a second count with the unlawful possession of a firearm under what is now K. S. A. 1971 Supp. 21-4204 (b). He was convicted by a jury of both counts, and he appeals.
Appellant argues three of his four points-relied-on together, each based on his claim that the state’s evidence failed to show the requisite intent. His argument is based on the fact that, until accosted by Moore, he had made no move to leave the gun department. His actions were all, according to him, entirely consistent with an “innocent handling,” and did not demonstrate the intent to “have, possess and control” the gun required by State v. Phinis, 199 Kan. 472, 430 P. 2d 251 and State v. Runnels, 203 Kan. 513, 456 P. 2d 16.
His argument goes to both crimes of which he was convicted. The concept that “possession” constitutes more than an “innocent handling” was first enunciated in Phinis and elaborated upon in Runnels, both involving the predecessor of our present statute prohibiting the possession of a pistol by certain felons. That concept is clearly applicable to the firearm count in this case. (The differences between former 21-2611 and the present 21-4204 (b) are immaterial for present purposes. Each requires “possession” of the forbidden weapon, with the present statute requiring the prior felony conviction, or release from imprisonment therefor, to have occurred within the five years immediately preceding the violation.)
The pertinent portion of the theft statute, 21-3701 (a),- defines the offense as “obtaining or exerting unauthorized control over property” when done with intent to deprive the owner permanently of the possession, use or benefit of his property. The “control” contemplated by this statute likewise is more than innocent handling, embodying the concept of “dominion.” Cf. State v. Brown, 203 Kan. 884, 457 P. 2d 130, where that term was used together with “control” to explain what constitutes “possession” of recently stolen property. And see, State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919.
While “control” may conceivably be exercised in a manner not amounting to “possession,” generally speaking each term connotes something of the other when they are used in the context of criminal law, and each connotes the exercise of some degree of “dominion” over the property in question.
The trouble with appellant’s argument is that there .was ample evidence from which the jury might readily infer that his “possession” of the pistol and his “control” over it were of exactly the nature contemplated by the respective statutes. He first concealed the weapon and demonstrated this fact to his companion; he then put it in his pocket. Under the circumstances this alone would have supported a finding that he “possessed” the pistol and exerted “unauthorized control” over it. There was direct testimony, if needed, that such conduct was not customary among bona fide shoppers and was “unauthorized” in this case. In addition there was his attempted flight — always evidence of guilty knowledge— and the admission that he intended to sell the gun. This combination — concealment, flight and admission — is a powerful indication that appellant’s “handling” of the pistol was not “innocent.”
Indeed, it would appear that his control over the pistol was such that he could well have been convicted of the completed crime of theft, and not merely the attempt charged. “Theft” under the present statute, unlike “larceny” under the old, requires no asportation to complete the crime. All that is required is the (here unauthorized) control, coupled with the intent to deprive the owner permanently of his possession, etc. There was ample evidence of each of these elements.
In his brief appellant urges that the court’s instruction on pos session was inadequate under the authorities cited. The record reflects no request for an instruction or any objection to the one given, thus indicating a waiver under K. S. A. 60-251 (b). Additionally, this was not one of the points designated on appeal, precluding review of the question under Rule No. 6 (d). We nevertheless would observe that, while a more elaborate instruction might have been appropriate, we are unable to say the one given is fatally defective, particularly in view of the evidence. Cf., State v. Brown, supra.
Of more concern is appellant’s complaint that evidence of his prior conviction for burglary and larceny was admitted, and no instruction was given limiting the purposes for which it might be considered by the jury. He relies on cases such as State v. Roth, 200 Kan. 677, 438 P. 2d 58, and State v. Jenkins, 203 Kan. 354, 454 P. 2d 496, for the proposition that failure to give such a limiting instruction is reversible error even in the absence of a request.
Those cases, and others, do so hold, and they are sound. They all deal, however, with evidence of prior crimes admitted solely under K. S. A. 60-455 because it was relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Those cases recognize that a jury may well believe that proof of a prior delinquency shows the accused’s disposition to commit crime, from which they may infer that he committed the crime charged. This is precisely the kind of mental meandering the statute is designed to prevent; the limiting instruction is the judicial tool fashioned to carry out that design — at least insofar as possible.
This case, however, presents a qualitative difference. Evidence of appellant’s prior felony conviction was not merely “relevant” to a material fact, it was an essential element of the firearms charge. (State v. Duke, 205 Kan. 37, 468 P. 2d 132; State v. Anderson, 202 Kan. 52, 446 P. 2d 844.) Its admissibility was unarguable, and in fact appellant’s counsel stipulated to its admission. At this point it appears to the majority of the court that its future fate was dependent on K. S. A. 60-406:
“When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis added.)
No request was made. Had it been, it would not have been appropriate to give the limiting instruction first approved in State v. Wright, 194 Kan. 271, 398 P. 2d 339 and again in substance in State v. Anderson, supra, and State v. Fabian, 204 Kan. 237, 461 P. 2d 799. The prior conviction here was not to be considered “only for its value, if any” as to those elements listed in 60-455; it was evidence of a fact which had to be proven and found before the jury could convict on the firearms charge. Had a request been made, the trial court could and no doubt would have given an instruction either to the effect that the jury should not consider the conviction in connection with the theft charge, or that such consideration should be limited as to that charge to the purposes embraced by 60-455. The majority is unable to see, however, that the giving of such an instruction would have been of sufficient benefit to the appellant, where the jury was considering the double-barreled charge here involved, that its absence was prejudicial. In the absence of a request we hold that failure to give such an instruction was not reversible error.
Finally, we note that appellant, pro se, has suggested that the two counts of which he was convicted are duplicitous and subjected him to double jeopardy. The point is not good. Although arising out of the same transaction, different elements are required to prove each offense, i. e., that the control was unauthorized and exerted with an intent adverse to the owner for the theft charge, and the prior conviction for the firearms charge. Only the “control” or “possession” is common to the two charges. See Coverly v. State, 208 Kan. 670, 493 P. 2d 261; cf., State v. Gauger, 200 Kan. 515, 438 P. 2d 455.
The judgment is affirmed.
approved by the court.
Fatzer, C. J., and Fontron and Prager, JJ., dissent from paragraph 3 of the syllabus and the corresponding portion of the opinion.
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The opinion of the court was delivered by
Harman C.:
Gary W. Kelley was convicted by a jury of one count of kidnaping in the first degree with bodily harm inflicted (K. S. A. 21-449), two counts of kidnaping in the second degree (K. S. A. 21-450) and one count of forcible rape (K. S. A. 21-424). He was acquitted of another count of kidnaping in the first degree. His motion for new trial was overruled. Two prior felony convictions were shown. Imposition of sentence upon the two convictions for second degree kidnaping was suspended. He was sentenced to life imprisonment for the first degree kidnaping and to fifteen years imprisonment (concurrent) for the rape. Mr. Kelley now appeals.
The sufficiency of the evidence to sustain the convictions is not challenged; however, some of it should be stated for an understanding of the trial errors asserted.
On June 13, 1970, a fourteen year old girl and four male youths, all of whom resided in Haysville, Kansas, drove to Wichita. About midnight the group parked their automobile in the parking lot of a tavern while one of the young men entered the tavern to see a friend. Meanwhile five older Wichita young men gathered about the Haysville vehicle. This group included Paul L. Lassley, Dale Schriner, John Berry, Charles Brantley and the appellant Kelley. When the operator of the Haysville vehicle returned to it from the tavern and attempted to drive it away the Wichita group blocked the passage and refused to allow the Haysville group to depart. The Wichita group then forcibly commandeered the Haysville automobile, together with its occupants, and drove it and their own vehicle to a sparsely populated area on the outskirts of Wichita. One of the Haysville boys escaped by jumping from the automobile as it was leaving the parking lot; this youth reported the abduction to the Wichita police.
The two automobiles were parked adjacent to a field which was bordered by a windbreak of trees. There the Wichita group took two of the Haysville boys across the road where they attempted to confine them in a half-completed stone house.
The Wichita group then attempted through the use of a knife to force the girl and the remaining Haysville youth to have sexual intercourse. When the youth refused he was struck with a board and rendered unconscious. Appellant then removed the girl’s clothing and demanded she have sexual intercourse with him. The girl refused, saying she was menstruating and wearing a tampax. When the girl refused to comply with appellant’s request to remove the tampax, appellant removed it and threw it outside the automobile. He then dragged the girl from the vehicle and forced her to the ground where he and Lassley attempted to have intercourse with her. When it was discovered the two Haysville boys had escaped from the house across the road appellant and Lassley forced the girl into the back seat of their automobile and drove it to a vacant lot. En route appellant had intercourse with the girl against her will. At the vacant lot the girl was further sexually abused by appellant and Lassley, the particulars of which need not be related. The girl was left lying there, from whence she went to the nearest residence to notify the police.
Appellant was convicted of second degree kidnaping of two of the Haysville boys and of first degree kidnaping and rape of the girl.
Appellant first asserts the trial court erred in denying his request for a transcript of his preliminary hearing. It appears that a reporter took notes at this proceeding. A transcript was initially requested of the administrative judge of the judicial district, and denied, and later of the trial judge immediately following the voir dire examination of the jury. Appellant bases his request here upon the provisions of K. S. A. 1971 Supp. 22-2905 (1). This particular statute is inapplicable to the type of transcript requested and supplies no authority for granting the request; this fact, however, furnishes no basis for disposition of the problem.
Prior to denying the request for a transcript the trial court made inquiry into the matter. The colloquy reflected by the record reveals that appellant’s trial attorney, Mr. Fry, had represented appellant at the preliminary hearing, at which appellant had testified, and that Mr. Fry remembered the testimony. In making its ruling after defense counsel indicated the transcript was needed for effective cross-examination of any witness who might change his testimony, the trial court stated:
“The simple matter would be to bring in the reporter with the notes and have it testified to. You won’t be precluded from doing that. ... If there is something that a witness testified to in this case that you feel is at variance from his testimony in a preliminary hearing, the reporter’s notes are available for impeachment purposes.”
In State v. Burgess, 205 Kan. 224, 468 P. 2d 229 (decided April 11, 1970), we stated:
“Nor is there any substance to the charge that failure to provide the defendant with a transcript of the preliminary hearing impinged upon his constitutional rights. Neither our statutes nor our procedural rules impose such an obligation on the state, and no prejudice to the substantial rights of the defendant has been shown on this score.” (Emphasis supplied.) (p. 227.)
K. S. A. 1971 Supp. 22-2904, which became effective July 1, 1970, provides with respect to preliminary examinations:
“Testimony reduced to writing. The magistrate may cause a record of the proceedings to be made and should do so when requested by the prosecuting attorney or the defendant or his counsel at least 48 hours prior to the time set for preliminary examination. The cost of preparation of such record shall be paid by the party requesting it. If neither party requests the record or the request is made by an indigent defendant, such costs shall be paid from the general fund of the county and taxed as costs in the case.”
Thus the legislature has expressly authorized either party to have a record of the proceedings of a preliminary examination prepared at his own expense. Preparation at state expense is contemplated in case of an indigent as it is now fundamental that when the state affords a defendant a right, either by statute or constitutionally, the exercise of that right cannot be conditioned upon the defendant’s ability to pay (Griffin v. Illinois, 351 U. S. 12, 100 L. ed. 891, 76 S. Ct. 585). K.S.A. 1971 Supp. 22-4509 makes that preparation conditional upon a determination by the trial court that such transcript is necessary for the indigent to present his cause adequately. In this connection it should be noted that any request by a defendant for a transcript should be made far enough in advance of trial to allow a reasonable amount of time within which to transcribe the notes and to avoid the necessity of suspending the trial pending production of the. transcript.
In Roberts v. LaVallee, 389 U. S. 40, 19 L. ed. 2d 41, 88 S. Ct. 194, a request by an indigent for a free copy of a preliminary hearing transcript was denied in a state prosecution. Such copy could have been secured upon payment of a prescribed fee. Because of failure to supply a copy the court vacated the conviction as being obtained in violation of the equal protection clause of the fourteenth amendment to the federal constitution. The court did not explore the question of need for a transcript nor of any alternatives to its production.
The issue of a free transcript was most recently explored in Britt v. North Carolina, 404 U. S. 226, 30 L. ed. 2d 400, 92 S. Ct. 431 (decided December 13, 1971). There petitioner’s first trial in state court for the offense of murder had resulted in a hung jury. Upon retrial one month later he was convicted. Between trials his request as an indigent for a free transcript of the first trial was denied. Both trials occurred in a small town before die same judge and with the same counsel and court reporter, who was well known to defense counsel and would have read back his notes to defense counsel before the second trial had he been asked to do so. It was held that under the particular narrow circumstances, a transcript was not needed for the petitioner’s defense.
The Britt court first pointed out that the state must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. The court further stated:
“While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.
“In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” (Emphasis supplied.) (p. 227.)
In the light of the foregoing, it must be deemed proper for a trial court, in making its determination of necessity for a transcript of a prior proceeding, to consider the availability of alternative devices that would fulfill the same functions as a transcript.
In the case at bar appellant was represented at trial by the same counsel as at preliminary examination. That attorney acknowledged he remembered the testimony. The trial court specifically indicated full access to the reporter’s notes was available when needed. We believe this constituted a fair and adequate alternative to the furnishing of a transcript. In passing it may also be noted that appellant, as well as other defendants who have been placed on trial upon criminal charges since July 1, 1970, has had available comprehensive discovery tools to aid him in the presentation of material evidence in his defense (K. S. A. 1971 Supp. 22-3212). We hold the trial court did not err in concluding a transcript was not necessary for appellant adequately to present his defense.
The next two issues raised by appellant may be quickly determined. He asserts the trial court erred in permitting the state during the trial to endorse on the information as a witness the name of a police laboratory investigator and in permitting the witness to testify. Appellant’s trial counsel conceded at the time of making his objection he had previously interviewed the witness. Surprise was not asserted, either at trial or here, continuance was not requested, prejudice is not shown and under familiar rules we hold the trial court did not abuse sound discretion in permitting the late endorsement (State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. ed. 2d 286, 88 S. Ct. 298).
Appellant complains of the admission into evidence of the tampax allegedly worn by the rape victim. Three days after the offense this item was found by an investigating officer in a secluded spot where the offense allegedly occurred. Appellant makes the bald assertion of irrelevancy and that display of the exhibit was inflammatory. No cogent reasons for the contentions are advanced. The exhibit had probative value, a proper foundation was laid for its admission and no error appears.
Finally, appellant complains of the prosecution’s closing argument to the jury. He asserts it went beyond the evidence and was inflammatory to his prejudice. No objection to the argument was made at trial, nor did the trial court intercede. The record does not indicate whether this impropriety was mentioned upon motion for new trial. It goes without saying that in argument to the jury the prosecutor should not use statements calculated to inflame the passions or prejudices of the jury. He should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict. (See ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function, Approved Draft, 1971, § 5.8 [d].)
Counsel for the prosecution here in the closing argument made reference to the consequences of an acquittal on future lawlessness in the community. Such an argument was beyond the scope of the issues in a criminal trial and should not have been allowed. Rhetoric of this type has too frequently plagued this court as well as other appellate courts, and with varying results. In extreme cases reversal has been ordered, although generally in such instances there has been objection made at trial level as in State v. Wilson, 188 Kan. 67, 360 P. 2d 1092. Nonetheless in Wilson this court quoted approvingly the following statement from State v. Gutekunst, 24 Kan. 252, as follows:
“Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.” (p. 73.)
In Roda v. Williams, 195 Kan. 507, 407 P. 2d 471, this court, after holding that a jury argument was improper, stated:
“From the cold printed record it is difficult, if not impossible, to assess the impact of improper jury argument in every case. This is best left to the trial judge in the first instance who is in position to take immediate corrective action. Moreover, in this case no objection was made to the argument until upon motion for new trial.
“The trial court should, of course, of its own motion without waiting for objection from opposing counsel protect litigants from misconduct of counsel, particularly where the misconduct is so prejudicial that it must influence the jury. If the court fails to act of its own motion, then an objection should be made and a ruling thereon had in order to take advantage of the error in such improper conduct (88 C. J. S., Trial, §196 b). Such misconduct may be waived by failure to object (88 C. J. S., Trial, § 196 e). This rule has been applied by this court [Citations].” (p. 515.)
The rule was recently applied in State v. Fleury, 203 Kan. 888, 457 P. 2d 44, and iterated as follows:
“. . . [RJeversible error cannot be predicated upon a complaint of misconduct of counsel in the closing argument to the jury where the defendant makes no objection to the misconduct and makes no request to have the court admonish the jury to disregard the objectionable statements.” (p. 896.)
See, also, Schmidt v. Farmers Elevator Mutual Ins. Co., 208 Kan. 308, 491 P. 2d 947.
In Fleury it was pointed out that the trial court in its instructions had admonished the jury as to its duty to disregard any statements by counsel having no basis in the evidence. Such instruction is not, of course, to be taken as carte blanche for a prosecutor to indulge in any kind of diatribe. He must be free to present his arguments with logical force and vigor but should not allow an excess of zeal for conviction or a fancy for exaggerated rhetoric to carry him beyond the permissible limits of argument (ABA Standards, ibid., § 5.8, p. 127).
In view of all the foregoing we conclude reversible error is not shown in the closing argument.
The judgment is affirmed.
APPROVED BY THE COURT.
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‘The opinion of the court was delivered by
Kingman, C. J.:
Parker & Tisdale commenced an action .against Charles W. Wiggins, Joseph M. Wiggins, and John J. Wiggins, doing business under the name of C. W. Wiggins & Bros., on an account for money had and received as agents of the plaintiffs. No service is shown on any of the defendants. Joseph M. Wiggins alone answered, setting up, first, .a general denial; second, payment; third, a defense that is called a counterclaim, and which appears by the evidence to have been such in favor of “C. W. Wiggins & Bros.” and ngainst the plaintiffs. This counterclaim is in its terms in the name' of the “ defendants,” all the time throughout using the plural number to indicate the parties setting it up. When the case was called for trial the plaintiffs, failing to get a continuance, dismissed their petition. The court at the instance of defendants retained the counterclaim for trial. Upon the trial the plaintiffs objected to the reception of evidence because the counterclaim did not state facts sufficient to constitute a cause of action; but wherein it is defective is not suggested in argument, nor is it apparent to the court. Verdict and judgment were rendered in favor of the defendants. After the evidence was closed the plaintiffs asked the following instruction, which was refused:
“If the jury find from the evidence that the defendant Joseph M. Wiggins had associated with him as partners in the hotel business Charles W. Wiggins and John J. Wiggins, at the time the board was furnished arid services rendered charged for in the answer and counterclaim filed herein by Joseph M. Wiggins, and that they were interested in the proceeds resulting from the same, and do not find from the testimony that there had been an assignment or sale of the interest of the said Charles W. and John J. Wiggins therein to the said defendant Joseph M. Wiggins, they will then find under the issues joined herein in fevor of the plaintiffs, Parker & Tisdale.”
The refusal to give this instruction is the only error presented in the brief of plaintiffs in error. The third paragraph of the answer setting up the counterclaim seems to us to show upon its face that the claim therein set up is one in favor of the Wiggins Bros. The answer is by carelessness or design very awkwardly worded. It purports by its commencement to be the answer of one defendant, yet it uses the word defendants throughout, with its corresponding plural verb, and concludes in these words, “and he asks judgment for the balance in their favor, with costs.” If we are right in thinking that the counterclaim shows a demand in favor of all the defendants, and it was plead only by one, then the defect of parties appeared upon the face of the answer, and could be taken advantage of by demurrer, and if not so taken advantage of, the defect, under the code, is waived. Code, §§89 and 91. Even if we err in our construction of the pleading, the same conclusion is reached, for the defect in that view should have been taken by the reply, or it is waived. In this case the reply was filed after the petition was dismissed, so that there was ample opportunity to have raised the question by the reply, had it been desirable. Instead of availing themselves of a bar to the action on the counterclaim, provided by the code, the plaintiffs preferred to risk a hearing upon the merits, and trust to an instruction to save their case. But the court properly held that that point had been waived by neglecting to interpose it as a defense at the proper time, and in the manner pointed out by the code. Such a defense not being upon the merits, is called dilatory; and its indulgence, except at the first available opportunity, is not favored in law. This point has been decided in Zabriskie v. Smith, 13 N. Y., 322, and in Merritt v.Walsh, 32 N. Y., 689, so far as the samehs applicable to a petition; and we think the same rules are applicable to a counterclaim set up by way of answer, that govern a demurrer to a petition. The code on this point may seem somewhat uncertain (§102,) as the only ground of demurrer given by the code for an answer, is that it is insufficient. But it is probable that the legislature intended that the same rules should be resorted to in determining its sufficiency, that is given for a petition, so far as such rules apply. It is certain that they apply to an answer that sets up a counterclaim, for that in its very nature bears a close resemblance to a cross action, requiring the same substantial allegations as a petition, (Vassear v. Livingston, 13 N. Y., 248, affirming case reported in 4 Duer, 285,) and is necessarily tested by the same rules. Judgment affirmed.
All the Justices concurring. ■
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The opinion of the court was delivered by
Brewer, J.:
The action below was one in ejectment brought by defendant in error against plaintiff in error to recover possession of a section of land in Leavenworth county. -The petition was filed Sept. 14th Í870, and was in the ordinary form, alleging title in plaintiff, and that the defendant unlawfully kept him out of possession. The answer contained two paragraphs. The first was as follows: “This defendant disclaims any and all right, title, interest and possession of the premises, piece, and parcel of land in the petition-mentioned and described.” The second alleged substantially a transfer by defendant of all interest.in the land in 1865 to Shoemaker & Co., a sale by Shoemaker & Co. in 1867 to John P. Usher, and that the latter ever since and still held both possession and title. To this answer plaintiff filed a reply, containing first, a general denial, and second, an allegation of a sale to plaintiff in 1862, and that said Usher had full knowledge of the same prior to 1865.' Upon these pleadings a trial was had, evidence received, findings of fact and conclusions of law made by the court, and judgment rendered. The court found the title in the plaintiff, and the possession in Usher, except as to the road-bed of the railroad company. All this, except the judgment, was irregular and unnecessary. Under the pleadings the plaintiff was entitled- to a judgment for possession; and the only question was, whether the defendant should recover costs on its disclaimer. The pleadings substantially amount to this: “I have the title, and you the possession.” “I have neither title nor possession; Usher has both.” As between plaintiff and defendant in an ejectment suit there was nothing to try.
The second paragraph of the answer does not avoid the effect of the disclaimer in the first. It alleges that which is immaterial to this action. If defendant claims neither title nor possession, it makes no difference to it who has. McBratney and Usher may wrestle over title and possession to their hearts’ content, and the defendant is not affected by the result. It follows therefore, that the findings of fact and conclusions of law are superfluous, and that the time of the court was unnecessarily occupied in the hearing of testimony. Both parties are at fault. The plaintiff filed a reply, and offered testimony, as though the issue of title was to to be tried. Defendant objected to the testimony, not on the ground that there was nothing to try, or that the only question to be settled was one of costs, but on the ground that the petition did not state facts sufficient to constitute a cause of action. As the petition follows the code, (§ 595, p. 747, Gen. Stat.,) this objection was properly overruled. Sec. 587 of the code provides that “where defendants disclaim having any title or interest in land or other property the subject-matter of the action, they shall recover their costs, unless for special reasons the court decide otherwise.” We shall not decide the question of costs upon this record, for the proceedings in the district court have been on the assumption that there was an issue to be tried, and we see nothing in the record to justify us in changing the rule laid down in the statute. There may be abundant reasons however for compelling the defendant to pay the costs of this litigation, and the plaintiff should not be cut. off from an opportunity of showing such reasons. The case will therefore be remanded to the district court with instructions to set aside the findings of fact and conclusion of law, and to modify the judgment so as to give to the defendant a judgment for costs, unless within such reasonable time as the court shall fix, special reasons to the contrary shall be shown. The judgment, for possession in favor of the plaintiff will not be disturbed. The costs in this court will be divided.
All the Justices concurring.
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. The opinion of the court was delivered by
Kingman, C. J.:
This was an ordinary action for the recovery of land. The defense was an equitable one, alleging that the plaintiff purchased the land for the defendant, with money that plaintiff had loaned to defendant. The issues were submitted to a jury, and in the course of the trial various questions were raised which are brought to this court for review. The first error alleged is the refusal of the court to give the third instruction asked by the plaintiff, which is as follows:
“3d.-That the above points should be sustained by the party claiming a specific performance, not only by a preponderance of testimony, but should be made clear beyond doubt.”
To understand this instruction the preceding one to which it refers is quoted: ,
“ 2d. — That to take a case of parol contract for the purchase of land out of the operation of the statute of frauds, under the plea of part performance, the alleged contract should be-first shown to be clear, definite, and unequivocal in all its terms; and second, the acts of part performance should clearly appear to have been done solely in pursuance of the contract alleged, and solely with a view to such contract being performed.”
It is plain that this instruction, which was given, lays down the true rule for the determination of the issue made up. In many of the decisions equivalent and perhaps stronger expressions are used, as in Phillips v. Thompson, 1 Johns. Ch., 149, where it is said that clear oand satisfactory proof of the parol contract must be presented. In Parkhurst v. Vancortland, id., 284, it is said that the terms of the contract must distinctly appear or be made out to the satisfaction of • the court. In Blanchard v. McDougal, 6 Wis., 167, the-court use this expression: “If the material fact, viz., the-making of the contract, or its essential terms, are left in doubt,, a court cannot decree specific performance.” To the same-effect is Knoll v. Harvey, 19 Wis., 99. These authorities would justify the refused instruction so far as is applied to the making of the contract, but would not justify it in making the proof of the acts done under the contract necessary to be proven beyond doubt; and this the instruction required. For this reason the court correctly refused to give it.
It is further alleged that the court erred in refusing to grant a new trial because, first, the verdict is not sustained by sufficient evidence. Under the well-established rules of this court we cannot say against the decision of the court below that the evidence was not sufficient to authorize the verdict. Another ground was the neglect of the jury to make answers to certain special questions submitted to them by the court at the instance of the plaintiff. No effort was made by the plaintiff to have this omission corrected. This court cannot say that if an attempt had' been made it would not have been successful. The awkward condition in which the plaintiff found himself was the result of his own action, and he surely was bound to make some effort to correct it other than to put the court and parties to the trouble of a new trial. The failure to produce the tender in court till the day after it was ordered by the court cannot be taken advantage of in a motion for a new trial. These are all the errors complained of, and in none of them do we find sufficient cause to reverse the judgment. Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This case involves the same questions of law as we have just decided in the case of the Wyandotte & Kansas City Bridge Company v. The Board of County Commissioners of Wyandotte County, ante, 326, 329. And without entering into details in the case, we would say that we reaffirm all the principles of law enunciated in that case. The order and judgment of the court below are affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer J.:
This is a proceeding in error to reverse the order of the district court of Douglas county overruling a motion to set aside, and sustaining a motion to confirm, a sale of real estate. Several points are presented and urged with ingenuity and force. We will reverse the order of counsel for plaintiff in error, and consider first the last point in his brief. The judgment upon which these proceedings were had was rendered in a justice’s court. An abstract of that judgment, under §119 of the justice’s act, was docketed in the district court, and thereupon from that court issued the execution to the sheriff. Counsel claims .that under §518 of the code a transcript of the judgment must be filed in the district court to support such proceedings as were had. We think not. True, a transcript could be filed, and would justify like proceedings. But we think the abstract must have the same force as a transcript. Sec. 119 is in art. 9 of the justice’s act, an article entitled and devoted to the matter of “Judgments.” The section reads: “ For the purpose of docketing in the district court the abstract of a judgment of a justice of the peace shall be in the following form,” etc. This obviously contemplates a transfer of the judgment from one court to the other. “For the purpose of docketing in the district court.” Docketing what? The judgment. But if the judgment be transferred to the district court, then, in the absence of words of limitation, it becomes subject to the same rules, and vested with the same powers as though originally rendered in that court. This works no hardship. So far as the matter of the indebtedness is concerned, that is settled as conclusively by the judgment of the justice as it could be by that of the district court. It would be in either case res adjudicata. All that is gained by transferring is additional means of enforcing payment; and if the debtor fails to pay he has no legal cause of complaint if the creditor pursues the ordinary methods of enforcing payment.
The next point is that the advertisement of the sale was not sufficient as to time. The first publication was on July 13th. The sale on August 14th. The publication Was m the Aveekly paper, and was repeated each consecutive week from the time of the first publication to the day of sale. This we think satisfies the statute. It is 'not necessary that the notice be in a daily paper. A weekly is sufficient. Nor does the statute call for publication for a certain number of weeks. It says notice “must be given by advertisement for at least thirty days before the day of sale.” Civil code, § 457. Here the notice was published more than thirty days before the sale, and was continued through every successive issue of the paper until that time.
Again, it is claimed that the advertisement does not advertise the land to be sold but “the interest of the judgment-debtor in the land.” The return of the sheriff shows that he levied upon the land, and that the land was appraised. The advertisement gives notice that he will sell “ all the right, title and interest whatsoever of the defendants in the land,” describing it, “appraised at $875, and taken as the property of C. F. W. Treptow, et al., and to be sold to satisfy said execution.” All that the sheriff can sell and convey is the interest of the defendant. He of course gives, ail<^ ProPoses to give 110 Warranty; but he prop0ses to sell no limited interest, no equity of redemption, no leasehold estate. He gives notice that the land has been taken as the property of the defendants, and their interest therein he will sell. No one would be misled as to what was offered for sale. It clearly indicates that while the officer gave no warranty he was attempting to sell and convey a full and perfect title. Again, it is urged that the return does not show “no goods.” The return shows upon, its face that the sheriff made search for personal property. He received the execution at 4 o’clock p. m.. J 7 june 26th, and at 4 o’clock p.m. of the same day levied on the lot. The exact expression, “No goods,” need not be indorsed upon the execution. It is sufficient if the return show that the officer was unable to find any goods and chattels. Here he returns that “after diligent search I have' been unable to find any goods or chattels of the within-named defendants.” True, he returns that he levied the execution on the land at the same time that he received it, so that he does not seem to have had very much time for searching after personal property. But for aught that appears he may have had ample time. He may have been so familiarwith the financial condition of defendants as to know that they had no personal property. They may have been standing by when he received the execution, and assured him they had none, and sent him to the real estate. At any rate, we are not justified in assuming that the return is untrue. For any wrong done by his return, both himself and bondsmen are liable. And if the defendants had personal property, and wished to save their real estate, they had ample time to turn such property over to him before the sale. It is claimed that the affidavit of Carl F. W. Treptow offered on the motion to set aside the sale contradicted this return of the sheriff. The judgment was against four defendants. The real estate was taken as the property of one. He makes the affidavit that the other defendants had personal property subiect to seizure at the date xx. ° 0f the execution, but he nowhere describes such property, or points out where it may be found. It would be trifling to set aside a return upon such an affidavit. The other defendants may have personal property. So may Treptow himself. But if they have it so concealed that the sheriff cannot find it, of what avail is it to the creditor? If they have personal property, let them turn it over, or point it out to the sheriff; and then if he persists in selling the realty they may have some cause of complaint.
The last point to be considered is this: Mrs. Treptow claims that the property was hers, and not her husband’s, and that it was her homestead, and exempt from seizure upon execution. Testimony was offered to support this claim. From that testimony it appears that the . - nr» _ n _ _ judgment before the justice was rendered May 3]^ 1871. At that time the title to the property was in Carl F. W. Treptow. On the 26th of June 1871 the abstract of judgment was docketed in the district court. Intermediate these dates, and on the 24th of June, Treptow and wife conveyed to Frederieke Belon, and on the 26th of June Frederieke Belon and husband conveyed to Mrs. Treptow. The affidavits filed allege that these conveyances were in good faith, and for a valuable consideration. One affidavit also alleges that Mrs. Treptow is occupying the property as a homestead. Upon this testimony ought the district court to have set aside the sale? Or perhaps more correctly, was there such manifest error as will justify us in reversing the ruling of that court? A question of similar import was before this court in the case of White-Crow v. White-Wing, 3 Kas., 276. In that case the decision of the district court was in favor of the motion to set aside the sale, and the supreme court sustaining the decision use this language: “But it maybe asked, where would you stop? If the showing indicated the existence of a substantial question as to the ownership between the debtor and a third person; or, if it should appear that the debtor had some sort of an interest in the property, the motion ought to be overruled. A decision either way would not affect tire ultimate right of the parties, nor be a bar to an action to determine which was the owner. It would be impossible to fix an abitrary boundary which would not in some instance work great injustice. The court must be allowed a reasonable discretion in each case in determining what shall, and what shall not be sufficient ground to set aside a sale.” Now it cannot be denied that the time and manner of these conveyances, being a conveyance from husband to wife through a third party after judg ment before a justice, and just prior to the transfer of the judgment to a court in which it would be a lien on real estate, naturally raise a suspicion as to the bona fides of the transaction. True, both husband and wife in their affidavits swear that it was bona fide; but we cannot say that the district court abused its discretion when it decided to let the question go before a jury in an action of ejectment. It must be remembered that this decision on the motion is not conclusive as to the facts. If the conveyance was in good faith, and for a valuable consideration, or if the property is her homestead, these facts can be shown in defense to an action of ejectment by the purchaser. No writ of assistance runs to put him in possession. He must bring his action at law, and either party will then be entitled to a jury. We fail to see how the error, if error there was, has wrought injury to the substantial rights of the plaintiff in error. The order of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought suit against plaintiffs in error for certain alleged trespasses committed by them. A. G. Allen justified as constable executing a writ of restitution regular on its face. The suit Avas dismissed as to Wickersham. John D. Allen and Thomas Barton claim to have acted on the call of the constable for assistance in executing the writ. John D. Allen was also the plaintiff in the action before the justice of the peace wherein the Avrit of restitution was issued. Robert Corlew was the defendant in such action. On the trial in the district court the writ of restitution, Avith the return of the constable thereon, Avas •offered in evidence, but rejected because based upon no valid judgment. The AAO’it Avas issued by a justice of the peace having jurisdiction of the subject-matter; it was regular on its face, and commanded the constable to put CorleAV out of and John D. Allen into possession of certain premises, and to make the costs out of the goods and chattels of Corlew. A. G. Allen Avas a constable, and authorized to serve process of this nature issued by such justice. Was he protected in executing such writ, Avithout regard to any irregularities in the judgment, or must he also show a regular and Adalid judgment? This question can hardly be considered an open one, having been settled by repeated adjudications. In 2 Greenl. on Ev., § 629, it is said: “ If the action is by the person against Avhom the process issued, it is sufficient for the officer Avho served it to prove the process itself, if it appear to have issued from a. court of competent jurisdiction, under its seal, and to be tested by the chief justice, or other magistrate whose attestation it should bear, and be signed by the clerk or other proper officer.” See also Savacool v. Boughton, 5 Wend., 170, where the question is discussed at length by Marcy, J., and the rule laid down that “a ministerial officer is protected in the execution of process, whether the same issue from a court of limited or general jurisdiction, although such court have not in fact jurisdiction in the case, provided that on the face of the process it appears that the court has jurisdiction of the subject-matter, and nothing appears in the same to apprise the officer but that the court also has jurisdiction of the person of the party to be affected by the-process.” See also Parker v. Walrod, 16 Wend., 517; Whipple v. Kent, 2 Gray, 410; Donahoe v. Shed, 8 Metcalf, 326; Dwinnells v. Boynton, 3 Allen, 312; Twitchell v. Shaw, 10 Cush., 46; Gott v. Mitchell, 7 Blackf., 270; Brother v. Camson, 1 Scam., 200; Jackson v. Hobson, 4 Scam., 411; Burns v. Barber, 1 Gilman, 401; McDonald v. Wilkie, 13 Ill., 22; Tefft v. Ashbaugh, id., 602; Stafford v. Low, 20 Ill., 155; Sprague v. Burchard, 1 Wis., 457; Watkins v. Page, 2 Wis., 92; Young v. Wise, 7 Wis., 128; State v. Giles, 10 Wis., 101; Bogert v. Phelps, 14 Wis., 88. This list of authorities might be extended greatly, but these are enough to show the settled law.
The protection afforded the officer is also extended to those acting under him in the service of the process. It does not however extend to the plaintiff in the judgment, even though he also assists the constable. To protect him, he must show a valid judgment. Burns v. Barber, 1 Gilman, 401; Savacool v. Boughton, 5 Wend., 180. The docket of the justice which was offered did not show a valid judgment. So much as is material reads as follows:
• “ Parties appeared, ready for trial. After hearing the- evidence the court decides in favor of the plaintiff against the defendant. Costs taxed to defendant, $6.85.
“ W. Q,. Wickersham, Justice of the Peace.”'
While disposed to regard tolerantly any mere technical irregularities or defects of form in proceedings of justices of the peace, it would be going too far to hold that this was a sufficient recital of a judgment. Plaintiffs in error sought to remedy this difficulty by parol testimony that a judgment of restitution of the premises was in fact rendered by the iustice at that time. This testimony was properly ruled out. The record must stand or fall by itself, and cannot be supported •or supplemented by oral evidence. This disposes of all the questions in the case. The judgment of the district court as .against John D. Allen will be affirmed; and as to A. G. Allen, and Thomas Barton, it will be reversed, and the case as to them sent back for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action to compel the specific performance of a contract for the sale and conveyance of real estate, and to quiet title and possession. The action was tried by the court without the intervention of a jury. The findings and judgment were for the plaintiff below, defendant in error. One of the defendants below, who is now the plaintiff in error, demanded a new trial in the following words to-wit: “And now conies the said defendant, 'William Blackford, and demands a new trial in the above entitled cause.” The court refused to grant the new trial, and the said defendant duly excepted. This is the only ruling of the court below complained of in this court. And this ruling was correct. There is only one kind of action under our statutes in which a party is entitled to a second trial as a matter of right or simply demanding it. And that is “an action for the recovery of real property.” (Gen. Stat., 748, sec. 599.) This is not that kind of action. The plaintiff in this action does not seek to recover the property, for he was already in the possession thereof. All that he seeks is to get a good title thereto. This question has already been decided in this court in the cases of Nothrup v. Romary, 6 Kas., 240, and Swartzel v. Rogers, 3 Kas., 374. The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under § 3 of the dramshop act, (ch. 35, Gen. Stat., 400.) The defendant was found guilty, and the court arrested the judgment on the ground that the information upon which the defendant was tried did not state facts sufficient to constitute a public offense. The information charges that the defendant sold intoxicating liquor in the town of Jacksonville, Neosho county, Kansas, “without taking out and then having a license as grocer, dramshop-keeper, or tavern-keeper from the tribv/nal transacting the county business of said county of Neosho.” This information was not sufficient. The dramshop act permits both the tribunal transacting the county business and the council of any incorporated town or city to issue licenses to dramshop-keepers, tavern-keepers, and grocers. (Gen. Stat., 399, §§ 1, 2.) But the act clearly does not require that any person should procure more than one license. If the person ■desiring the license proposes to sell liquors in an incorporated town or city he must procure the license from the city council; if he proposes to sell in some other place than an incorporated town or city, he must procure the license from the tribunal transacting the county business; and in either case license will’ be a sufficient protection to him from any prosecution under ■§ 3 of said act. That portion of said section third applicable to this question reads as follows:
“Any person without taking out and having a license as grocer, dramshop-keeper, or tavern-keeper, who shall directly ■or indirectly sell any spirituous, vinous, or fermented or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offense.”
The information in this case merely charged that the defendant did not have a license from the tribunal transacting the county business, and it did not charge that he did not have a license from the council of some incorporated town or city. In this the information was defective. If the information had omitted the foregoing words in italics, or if it had added these words, “or from the council of any incorporated town or city,” or some other words which would have shown that the liquor was not sold in any incorporated town or city under a license from the town or city council, the information would have been sufficient. Of course, the court cannot take judicial notice whether the town of Jacksonville, or any other town or city in Kansas, is incorporated. Towns and cities in Kansas are incorporated only under general laws. Before they can be incorporated under such laws they must have the requisite population. Whether Jacksonville has the requisite population or not, or whether it has all the other requisites or not, or whether it has ever been incorporated or not, we cannot take judicial notice. The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On the 31st of October 1871 the plaintiffs in the court below, (defendants here,) commenced their action against Gilmore and Spicer as county clerk and county treasurer of Lyon county to enjoin and restrain the collection of certain assessments levied on the plaintiffs’ lots in the city of Emporia, a city of the second class, by the city council of said city. The petition sets forth the same facts, and the same grounds for an injunction as the petitioh of Norton and others against the same defendants, and the proceedings in the court below in many respects were the same as in that case. (Gilmore, et al., v. Norton, et al., ante pp. 491, 501.) And as many of the questions involved in, this case have already been decided in said case of Gilmore v. Norton, we shall discuss only such of the questions involved in this case as were not involved in that. In this case the defendants below demurred to tbe plaintiffs’ petition on the following-grounds : 1st, That there was another action pending between the same parties for the same cause; 2d, That there was a defect of parties plaintiff; 3d, That there was a defect of parties defendant; 4th, That several causes of action were improperly joined; 5th, That the petition did not state facts sufficient to constitute a cause of action. The plaintiffs in error (defendants below) now rely upon only the second, third and fifth grounds of demurrer. We have already considered the question raised on the fifth ground in the other case. We shall therefore now consider the questions raised on the second and third grounds only.
I. There was no defect of parties plaintiff; Under our statutes .any one or more of a number of persons whose property is affected by an illegal tax or assessment, may maintain an action to enjoin the collection of such tax or assessment so far as the same affects his or their property without joining others as plaintiffs whose property may also be affected by the said illegal tax or assessment. Code, § 253; Bridge Company v. Wyandotte Co., ante, 326; Gilmore v. Norton, ante, 491.
II. Was there a defect of parties defendant? We think there was. Gilmore, the county clerk of Lyon county, and Spicer, the county treasurer of said county, were, under the statutes, and under the allegations of the plaintiffs’ petition, proper parties to the action; but still they were merely nominal parties. They could be but little affected by any judgment that might be rendered against them. It could make but little difference to them whether said taxes or assessment were collected or not. They would get no portion of the same when collected, except their fees for collecting and disbursing the same. The city of Emporia is the real party in interest. It was the city of Emporia that levied said taxes, and they will belong' to the city of Emporia when, collected. The city has already acknowledged its responsibility to the persons who made the improvements, and if responsible it is bound to see that they are paid for their work. If the city cannot collect these special assessments it must resort to gen eral taxation to raise the amount. But before it cart properly be determined that the city cannot collect these special assessments the city must have its day.in court. No judgment could be rendered against Gilmore and Spicer without seriously affecting and prejudicing the rights of the city of Emporia. A judgment could not be rendered against Gilmore and Spicer and the rights of the city of Emporia be at the same time saved. A. judgment enjoining them from collecting the tax is virtually and substantially a judgment against the city of Emporia. The city of Emporia has no means of collecting said tax except through the agency of said Gilmore and Spicer. (Amended charter, Laws of 1871, ch. 62, §§ 17, 26, 27.) Hence the city of Emporia was a necessary party, and should have been madesuch. (Code, § 41; State v. Anderson, 5 Kas., 90.) Counsel for defendants in error state in their brief that “ There is no defect of parties defendant, for it certainly could not be to the interest of the city of Emporia to have an illegal tax fastened upon and collected from her citizens.” Of course not. ' But is it to be adjudged against the city of Emporia that said tax is illegal without giving her an opportunity to be heard on the question? Such would be strange justice. We think there was a defect of parties defendant, and therefore that the demurrer to the petition should have been sustained on that ground.
III. It is also claimed that the court below erred in sustaining the demurrer 'to the third defense set forth in the defendant’s answer. We hardly think the court erred in this respect. Said defense stated a portion of the facts which would constitute a good defense to this kind of action, but it did not state all of them. It stated that the plaintiffs below had full knowledge of the commencement and progress of the work; that they made no objection thereto, but at all times openly encouraged the same. But it did not state that the work was done under any kind of authority whatever. Nor did it state that any person ever intended or expected or even susjDected that the cost of the work would be charged against the abutting lot-owners. Every word of this defense may be true and yet the work may have been done by voluntary contribution, or as a gratuitous act on the part of those who did it; or the persons who did it may have been paid for, doing it before they did it. The petition alleges that the work was done without any authority, and this defense does not even deny or controvert that allegation. But for the error above stated the judgment will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The only error alleged in this case is, that upon the evidence, the judgment should have been rendered for the plaintiffs in error. But as the bill of exceptions fails to show that it contains all the evidence offered on the trial, it is impossible for us to say that the judgment was against the weight of evidence, or rendered in favor of the wrong party. This matter is well settled in this court: Western Mass. Ins. Co. v. Duffy, 2 Kas., 347; Cooper v. Armstrong, 4 Kas., 30; McGrew v. Armstrong, 5 Kas., 284; Topeka v. Tuttle, 5 Kas., 323; Hale v. Bridge Co., 8 Kas., 466 ; Turner v. Hale, 8. Kas., 38. The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
According to the principles settled in
the case of Jones v. Eisler, 3 Kas., 134, the writing sued on in this case was due in six months. It was payable in that time, or it might never become payable at all. It cannot be inferred from the note that it was the intention of the pax'ties that it should not be paid unless the maker should realize the amount of the patent which he purchased. The paper not being susceptible of such a construction, it must have become due at the end of six months. It is not a contract to do a thing on one day or another, in which case the party who is under obligation to do the thing has an election as to the day. It is, taken literally, an acknowledgment of indebtedness for value received with a promise to pay the indebtedness upon a certain day, or on a contingency that might never happen. The note does not authorize a conclusion that it was the purpose of the parties thereto that it should in any event never be paid. Such being the tenor of the note, it must be held as due in six months. The judgment is reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Kaul, J.:
This was an action to recover damages for personal injuries sustained by plaintiff-appellant in an accident caused by the collapse of an automobile jack manufactured by defendant Vulcan Manufacturing Company, Inc. (hereafter referred to as Vulcan). The action was filed against Vulcan, R. & C. Distributors, Inc., a corporation, and the Great Lakes Distributing Company, a corporation, (hereafter referred to as Great Lakes).
Prior to trial, R. & C. Distributors, Inc., who purchased the jack from Vulcan and sold it to plaintiff was dismissed out of the case on a covenant not to sue.
Great Lakes was sued on the theory that it was liable for the debts of Vulcan because it was merely a continuation of the Vulcan Company, or in the alternative that actions of Great Lakes constituted a de facto merger with Vulcan.
The case was tried to a jury. At the conclusion of plaintiff’s evidence, the trial court sustained a motion for a directed verdict in favor of Great Lakes against plaintiff. The court also directed a verdict in favor of plaintiff against Vulcan on the issue of liability. The trial proceeded on the issue of damages between plaintiff and Vulcan and terminated in a substantial verdict in favor of plaintiff. Vulcan made no appearance at the trial and was wholly in default. The Vulcan Company is not disorganized but apparently has little or no assets.
Plaintiff’s motion for a new trial as to Great Lakes was overruled and he has appealed from the trial court’s order directing a verdict in favor of Great Lakes — thus the sole issue presented is whether Great Lakes is liable for the debts of Vulcan.
Vulcan was incorporated in 1939, and for many years thereafter was engaged in the business of manufacturing automobile jacks. Although there were thirty-five stockholders, controlling interest was held by two — R. E. Lange and J. L. Ward. A third, Beryl White, was described as a principal stockholder; Ward and White died prior to 1963. In the late 1950’s and early 1960’s Vulcan encountered financial difficulties due to the lack of working capital, and as a result was forced to borrow considerable money. As security for loans, Vulcan mortgaged its real estate, machinery and equipment, and its “goods in process.” In 1962 or early in 1963 Vulcan obtained a Small Business Administration loan in the amount of $100,000.00. At that time the total indebtedness of Vulcan amounted to about $120,000.00.
In 1963 Vulcan was doing a considerable volume of business, but was handicapped because of a lack of working capital. In the latter part of 1963, Joyce C. Verplank, a business man of Owatonna, Minnesota, became interested in acquiring the controlling interest in Vulcan. Mr. Verplank became interested as a result of a suggestion by Judge Warren C. Plunkett, a business associate. Judge Plunkett was the principal owner of the Minnesota Trust Company of Austin, Minnesota. After negotiations which he initiated, Mr. Verplank acquired the stock of R. E. Lange, the Ward estate, and the Beryl White estate for the sum of $46,000.00. This amounted to controlling interest in the corporation. Verplank obtained a loan from Minnesota Trust Company in order to finance the purchase of the stock. Verplank took over the operation of the business early in 1964. He installed new officers and new directors with one exception — David Lange who had sold his stock to Verplank, was retained by Verplank as a salaried employee and served as secretary of the reorganized Vulcan Corporation. During this period, Verplank personally controlled and operated Vulcan.
Vulcan borrowed additional working capital, gave second mortgages on the Vulcan building and equipment, and assigned its accounts receivable. During the time that Verplank controlled Vulcan, the jack which caused the accident and injuries to plaintiff was manufactured.
Although Verplank was able to create a profit situation in Vulcan during his first year of control, the problem of lack of working capital continued. The financial condition deteriorated and finally, on June 8, 1965, Vulcan was unable to make its payroll and abandoned its employees, property and business.
Immediately thereafter, Vulcan’s various mortgagees commenced foreclosure proceedings, pursuant to Minnesota law. The building was sold at a sheriffs auction sale to Polytex Corporation, a Minnesota corporation wholly unrelated to any of the corporations or individuals involved herein. Shortly thereafter, the holder of a second mortgage on the building redeemed from the Polytex Corporation. Tire new owner then leased portions of the building to four or five tenants, one of which was Great Lakes. The machinery and equipment were sold at a sheriffs sale — attended by 40 or 50 people — to two individual persons wholly unrelated to any corporation or individual involved. Thereafter, the holder of a second mortgage on the machinery and equipment redeemed it from the individual purchasers.
The new owner then made an intensive effort to sell the machinery and equipment and, after several bids, sold a portion of the equip ment to Great Lakes and the balance to other companies in the area. The inventory of finished goods and goods in process was purchased by a mortgagee bank. The corporate records of Vulcan were removed and stored in a safe by Warren Wallenberg, the treasurer of the company. The accounts had been previously assigned to a creditor of Vulcan.
Great Lakes was incorporated in February of 1965. Its incorporators were R. E. Lange, John Phenning and Frank Lapinski. Six other persons later became stockholders. At first, its business was the manufacture of sporting goods, in particular “gaff hooks” used in fishing. After Vulcan went out of business, Great Lakes leased from the First Heartland Investment Company, a portion of the building formerly owned by Vulcan. Great Lakes purchased some of the equipment formerly owned by Vulcan from Heartland and commenced to manufacture jacks similar to those previously manufactured by Vulcan, but of heavier and stronger materials. There was testimony that Great Lakes repaired some Vulcan jacks, which were returned by Vulcan customers. Also, Leslie Jennings testified that he went to work for Great Lakes in the summer of 1966 as a shipping clerk. Jennings testified that during the summer of 1966 (he was not certain as to the date) he received telephone orders from a Mr. Hernandez of Topeka, Kansas. In response to the orders from Hernandez, Jennings packaged and shipped three Great Lakes jacks to him — Jennings said that, at the request of Hernandez, he removed Vulcan tags from repaired Vulcan jacks and attached them to the Great Lakes jacks, and also altered the color of the paint so as to correspond with the color of Vulcan jacks. Jennings testified that this was the only occasion when he had altered jacks before shipping them and that he had no authority to do so.
As previously stated, the basis of plaintiff’s action against Great Lakes is that it is merely a continuation of Vulcan, or in the alternative there was a de facto merger of Vulcan and Great Lakes. In order to support his claim, plaintiff attempts to compare the corporate composition of Vulcan prior to 1963 with the corporate makeup of Great Lakes, which did not exist until 1965. Plaintiff ignores the complete change in Vulcan’s corporate composition during the period 1963-1965 due to the intervening acquisition by Verplank. At the time of the alleged continuation or merger, the parties who were stockholders, officers and directors of Vulcan prior to 1963 no longer had such status. The continuation or merger into Great Lakes, claimed by plaintiff, must be considered with reference to Vulcan as it was composed under the Verplank operation when the jack in question was manufactured and when Vulcan ceased doing business, not as it was in 1963 when acquired by Verplank. In other words, June 8, 1965, when Vulcan ceased doing business, serves as the point of reference for the consideration of the issue of continuance or merger.
On appeal, both parties accept the general rule of nonliability of a transferee corporation for the prior debts of the transferor and the exceptions thereto, which are expressed in 15 Fletcher Cyc. Corp. [Perm. Ed.] § 7122, in these words:
“Generally where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor, except: (1) where the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporation; (3) where the purchasing corporation is merely a continuation of the selling corporation; and (4) where the transaction is entered into fraudulently in order to escape liability for such debts.” (p. 187.)
The rule and exceptions were stated in almost identical language in 7 R. C. L. 183 (see 19 Am. Jur. 2d, Corporations, § 1546, pp. 922-924) which was accepted as the law in this jurisdiction in the case of Mank v. Southern Kansas Stage Lines Co., 143 Kan. 642, 56 P. 2d 71 [1936].
Plaintiff admits the rule of nonliability, which we have quoted, is the law of this jurisdiction, but attempts to impose liability on Great Lakes on the theory of consolidation or merger under exception (2), or in the alternative on the theory that Great Lakes was merely a continuation of Vulcan under exception (3). The record does not support either theory.
We shall first direct our attention to the claim of consolidation or merger. The terms are defined and distinguished in 15 Fletcher,. supra, § 7041 as follows:
“Strictly speaking a consolidation signifies such a union as necessarily results in the creation of a new corporation and the termination of the constituent ones, whereas a merger signifies the absorption of one corporation by another, which retains its name and corporate identity with the added capital, franchises and' powers of a merged corporation.” (p. 6.)
In the instant case there is no evidence of direct dealing between Vulcan and Great Lakes. Vulcan never sold, transferred or delivered anything to Great Lakes. Some of the equipment and machinery formerly owned by Vulcan is now owned by Great Lakes. The testi mony of Judge Plunkett, which is undisputed, was that the machinery and equipment was sold at a sheriff’s auction to a Dale Thule and L. L. Hurst, Jr., after competitive bidding by several bidders. Thule was described as the owner of an automotive equipment business and Hurst as owner of the Edwards Manufacturing Company. Thereafter, the First Heartland Investment Company, to protect its investment, bid in the machinery and equipment within the statutory time. Later part of the machinery and equipment was sold to Great Lakes and the remainder to Lake Center Switch Company of Winona, Minnesota.
The Vulcan building, as previously noted, was bid in at the foreclosure sale for $60,000.00 by the Polytex Corporation. First Heartland Investment Company, holder of a third mortgage, exercised its right of redemption within a year, under Minnesota law, by redeeming the building for $67,000.00. At the time of the trial First Heartland Investment Company had the building leased to four or five tenants, one of whom was Great Lakes.
There is no evidence that any assets, tangible or intangible, passed directly from Vulcan to Great Lakes. Nor is there any evidence that any of the original purchasers of Vulcan’s property at foreclosure sales acted as “strawmen” to accomplish a transfer of ownership from Vulcan to Great Lakes.
The portion of the machinery and equipment formerly owned by Vulcan, which eventually came into the hands of Great Lakes, passed through first and second purchasers following a foreclosure sale before acquisition by Great Lakes. On this point we find the applicable rule in 15 Fletcher, supra, § 7333:
“When a corporation purchases the franchises and property of another corporation at a sale under a decree foreclosing a mortgage thereon, or other judicial sale, or where natural persons purchase at such sale and afterwards transfer to a corporation, the new corporation is not liable for the debts of the old company, provided they are not prior liens on the property, and provided their payment has not been assumed, nor their payment imposed by the foreclosure decree or by statute. So where an individual purchases the assets of a corporation at a foreclosure sale and then resells to a new company composed largely of the members of the company whose assets were sold, and there is no fraud, the new company is not liable for the debts of the old. . . .” (pp. 642-644.)
By the undisputed evidence, Great Lakes acquired tibe machinery and equipment as a bona fide purchaser; it does not own any interest in the building formerly owned by Vulcan, but only occupies a part of it as a tenant. Otiher assets of Vulcan were purchased or acquired by other parties. The acquisition of some Vulcan property by Great Lakes, under the circumstances described, does not tend to show a consolidation, merger or mere continuation as those terms have been defined.
Is there any evidence tending to show that Great Lakes was merely a continuation or reincarnation of Vulcan? None of the incorporators of Great Lakes were stockholders or officers of Vulcan at the time Great Lakes was chartered in February of 1965. Vulcan was a going business under the control of, and operated by, Verplank at that time and continued as a corporate entity. There was testimony that the directors or stockholders of Vulcan held a meeting as late as October 1965. Great Lakes did not come into being as a result of a reincorporation of Vulcan or by amendment of the Vulcan corporate charter. (See 15 Fletcher, supra, § 7329, pp. 633-635; and Am. Jur. 2d, Corporations, § 1550, pp. 926-927.)
Plaintiff does not plead fraud; nevertheless, we have examined the record in this regard since he mentions fraud in his brief. The incorporation of Great Lakes in 1965, and the subsequent bona fide acquisition of some Vulcan property after foreclosure and sale, cannot serve as a premise for a claim of fraud.
Plaintiff relies heavily on the case of Ledbetter v. Oil Co., 96 Kan. 636, 152 Pac. 763, wherein this court held that a petition alleging an injury caused by Sunflower State Oil Company stated a cause of action against Cudahy Refining Company as an absorbing corporation of Sunflower. The petition referred to was summarized in the opinion in these words:
“. . . [T]hat since the injury and damage to the plaintiff an agreement was entered into between the defendants by which the Sunflower company sold and transferred to the Cudahy company all its capital stock, assets, contracts, and franchises; that since such transfer the Sunflower company has ceased business and has no office in Kansas or elsewhere, and no property, and that plaintiff can not obtain service upon it in any manner. It alleged further, that “by reason of the agreement and transfer’ the Sunflower company was consolidated and merged into the Cudahy company; that the latter is the successor of the former, and that by reason of the foregoing facts the Cudahy company has become liable for plaintiff’s claim. In substance, the petition alleged: consolidation, succession, and receipt by the Cudahy company of all the assets of the old company. . . .” (pp. 637-638.)
The evidence in the instant case does not establish any of the allegations of the petition considered in Ledbetter. There is no evidence in the instant case of any direct dealings between the two corporations — no transfer of capital stock, assets, contracts or franchises and no evidence of any agreement or understanding between the two corporations.
Plaintiff cites Crozier v. Shoe Co., 103 Kan. 565, 175 Pac. 376, wherein Crozier sued Menzies Shoe Company, a Michigan corporation and garnisheed moneys in the hands of a Geary County, Kansas, firm. The Menzies Shoe Company of Wisconsin claimed the money and was permitted to intervene. The trial court upheld plaintiff’s claim that the Wisconsin company was liable for the debts of its predecessor, the Michigan company, finding that the principal stockholders of the old Michigan company merely organized the new Wisconsin company to take over the old Michigan company. This court affirmed, stating in the opinion:
“. . . The capital and assets of the old company were a trust fund for the payment of its debts. The Wisconsin company holds and enjoys all, or nearly all, the assets of the old company; it did not procure them as a wholly independent purchaser at a fair sale, nor otherwise freed of the pertinent liabilities attaching thereto. . . (p.567.)
The case of Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 774, 36 Pac. 724, dealt with a statutory consolidation of two railroad companies. The cases of Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025; and Jackson v. Insurance Co., 101 Kan. 383, 167 Pac. 1046, involved contractual assignments of assets which were held to impose liability upon absorbing corporations under the trust fund doctrine.
The cases referred to illustrate situations where liability may be imposed upon a transferee corporation by reason of absorption, consolidation, transfer of assets without consideration, or contractual agreement but none of the cases mentioned lend support to plaintiffs position here.
Viewing the evidence in the light most favorable to plaintiff, we find nothing in this record that would make applicable any of the exceptions to the general rule of nonliability, nor is there evidence which might serve as a basis for the drawing of any rational inference to that effect by the trier of facts. It follows that the trial court correctly sustained Great Lakes’ motion for a directed verdict and its judgment is affirmed.
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Per Curiam:
This is a workmen’s compensation case wherein the Second Injury Fund of Kansas was made a party by appellants — the employer and its insurance carrier — who contend claimant’s injury was caused in whole or in part by a preexisting condition.
On November 16, 1967, claimant suffered an injury diagnosed as a condition of ‘low back strain.” After treatment, claimant was permitted to return to work for the same employer on February 2, 1968. Employer filed a Form 88 (Notice of Handicapped Employees), prescribed by the Director of Workmen’s Compensation pursuant to K. S. A. 44-566 in which claimant’s impairment was listed as “Physical deformity — spine arthritis — spine.”
On August 1, 1968, claimant suffered a second injury described as an injury “to his intervertebral disc and in the lumbosacral area of his back.” The injured disc was removed by surgery. The surgeon, Dr. John Lance, testified that he could detect no significant arthritic changes in claimant’s lower back.
The brief medical testimony presented in the record indicates that claimant’s second injury could have been caused or contributed to by the preexisting condition. On the other hand, Dr. Lance, who operated after the second injury, testified that there was no arthritic change in claimant’s spine, thus indicating that the injury to the intervertebral disc was unrelated to arthritis of the spine listed on the Form 88.
The burden is on the employer to prove that the employee’s compensable injury was caused or contributed to by the listed pre existing handicap. (Hardwick v. General Motors Corporation, 206 Kan. 182, 470 P. 2d 244; and Leiker v. Manor House, Inc., 203 Kan. 906, 457 P. 2d 107). Where there are conflicts in the evidence and facts in dispute the district court is the arbiter. (Lyon v. Wilson, 201 Kan. 768, 443 P. 2d 314; and Mannell v. Jerome & Associates, 194 Kan. 789, 401 P. 2d 1009).
The trial court found that under the provisions of K. S. A. 1969 Supp. 44-567, appellants failed to prove a causal relation between claimant’s preexisting condition and the compensable injury. We conclude there is evidence to support such findings.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This action seeks to enjoin the issuance and sale of school bonds approved by the voters of Unified School District No. 449, Leavenworth County, Kansas, at a special bond election held February 3, 1971.
On April 8, 1971, the trial court refused injunctive relief and entered judgment in favor of the defendants. The case now comes before us on plaintiff’s appeal from that judgment, the issuance of bonds having been held in abeyance during the interim.
Issues were joined on appeal and the case has been briefed and orally argued by counsel on both sides. In order that the school district officers may proceed expeditiously in the performance of their duties connected with the issuance and sale of the bonds, we are filing this brief opinion to announce our decision.
Upon due consideration we conclude there is no legal infirmity in the ballot presented to the voters at the election and we affirm the judgment of the district corut. A formal opinion will be prepared and filed in due course.
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The opinion of the court was delivered by
Foth, C.:
This is a dispute over an undivided one-twelfth (Viz) interest in the oil, gas and other minerals underlying a half-section of land in Reno County. Appellees, plaintiffs below, were granted summary judgment quieting their title to a collective five/eighths (%) interest in the undivided one-twelfth (142) as against the defendants, who have appealed.
The basic issue is whether a deed conveying real estate by surface description, with no qualifying, reserving or excepting language, conveys the grantor’s interest in the underlying minerals when there has previously been a severance of the mineral estate.
The deed in question was executed March 21, 1955, by Jake Fast to his brother, C. F. Fast, and conveyed an undivided one-twelfth (142) interest in the described one-half section. No men tion was made of any minerals, either by way of conveyance or by reservation or exception.
Jake Fast died intestate on June 19, 1964, leaving numerous heirs. Plaintiffs collectively inherited five-eighths of Jake’s estate, and so assert title to five-eighths of the subject mineral interest, which they claim did not pass under the deed. Defendants are heirs of C. F. Fast, who died, also intestate, on January 18, 1962. Their assertion is that the deed conveyed to C. F. a one-twelfth interest in the minerals as well as in the surface, and they claim through him.
It is undisputed that Maria Fast, mother of both Jake, C. F., and ten other children, executed a mineral deed on June 30, 1934, in which he conveyed to Jake an undivided one-twelfth interest “in and to all of the oil, gas and other minerals in and under, and that may be produced from” the half section, subject to an existing recorded oil and gas lease. The term of the grant was fifteen years and as long thereafter as oil or gas should be produced; there was production at the time, which continues to the present.
The instrument is substantially identical to those considered in such cases as Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 69 P. 2d 4; Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995; Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567; and Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844. In all such cases we have held that the instrument effects a severance of the minerals from the balance of the real estate— not so as to render it personal property but so as to subject it to separate ownership. In Fry v. Dewees, supra, we said (p. 492):
“. . . The instruments here involved were mineral deeds and effected a severance of the minerals from the remainder of the real estate. After the severance was so made, two separate and distinct estates existed, and both were estates in real property (Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 Pac. 499). For convenience we shall refer to the estate in the minerals as the mineral estate, and to the estate in the surface and the reversionary interest, after the mineral deeds have expired by their terms, as the fee.”
We generalized on this proposition in Shaffer v. Kansas Farmers Union Royalty Co., supra (pp. 88-9):
“It is well settled in this state that petroleum and natural gas are minerals and as long as they remain in the ground are a part of the realty and belong to the owner of the land. (Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995.) That is true notwithstanding the fact they are fugitive fluids. (Gas Co. v. Oil Co., 83 Kan. 136, 140, 109 Pac. 1002.) When land contains minerals there may be separate ownership of the minerals in one person and the remainder of the land in another. This separate ownership may be accomplished by the owner of the entire estate in the land conveying all of it except the minerals, or by conveying the minerals only. (Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 Pac. 499.) An owner of land may convey all of it, or part of it. When he conveys but a part of it he may divide it vertically or horizontally, and he may convey full title, or a fractional interest in the whole or in any part.”
From the foregoing it is clear that by virtue of the mineral deed of June 30, 1934, Jake acquired an undivided one-twelfth interest which was an estate in the minerals separate and apart from the “fee.” From the transfer order executed by Maria the same day it appears she conveyed a similar one-twelfth mineral interest to each of her other eleven children. Through inheritance Jake acquired fractional interests in the “twelfths” owned by certain of his siblings who predeceased him, so that by the time of the 1955 deed he owned a total undivided interest which was more than his original one-twelfth.
We are not so favored by the record as to Jake’s interest in the surface, although we were told in oral argument that in 1955 he owned it all. In any event, he owned at least the one-twelfth of the surface conveyed to C. F. The question is, did that one-twelfth carry with it one-twelfth of the underlying minerals?
The parties draw contrary inferences from the fact that the deed was by unembellished surface description (although the word “surface” was not employed). Plaintiffs say that since a separate mineral estate had previously been carved out of the fee specific language was required to convey such estate. They cite no cases in support of this proposition, relying wholly on a statement to that effect found in 54 Am. Jur. 2d, Mines and Minerals, § 116, which in turn relies on four cases from other jurisdictions which support it in varying degrees.
Defendants say that since Jake owned both estates he was required to use appropriate language if he didn’t intend to convey both. They rely on K. S. A. 58-2202, which provides:
“. . . every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
This statute (and its identical predecessor, R. S. 67-202), has been liberally construed over the years as one designed to simplify in this state the ancient and arcane art of common law conveyancing. Thus, it has been read to provide a ready answer to the effect of a deed for courthouse purposes, obviating the necessity of resolving “profound questions” involving “those abstruse subtleties of law involved in base or determinable fees, estates upon implied conditions, qualified fees with conditional limitations or with conditions subsequent, to treat of which with proper comprehensiveness might require us to resort to authorities like Lyttleton and Coke for their proper determination.” (Finney County Comm'rs v. Welch, 133 Kan. 258, 260, 299 Pac. 600.)
Similarly, in Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017, after reviewing the authorities and statutes relating to conveyances, we said (p. 298):
“. . . From these statutes it is clear that, so far as conveyance by deed is concerned, the distinction between estates proper and other interests in land has been obliterated, and the result is, the word estate is used in R. S. 67-202 as a general and not a technical term. It connotes whatever the grantor could convey, and the statute is to be read as though it were phrased, ‘Every conveyance of real estate shall pass all the interest of the grantor therein, unless the intent to pass a lesser interest shall expressly appear or be necessarily implied in the terms of the grant.’ ”
It has also been relied on for the proposition that a conveyance which specifically excepts land previously granted for school or railroad right of way purposes nevertheless conveys the grantor’s interest in the land previously deeded, i. e., the servient estate. The exception was held to refer only to the dominant estate, i. e., the easement for school or right of way purposes. Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661; Barker v. Lashbrook, 128 Kan. 595, 279 Pac. 12; Shell Petroleum Corporation v. Hollow, 70 F. 2d 811 (10th Cir. 1934).
A corollary of the broad construction given to what is granted is the strict construction given to reservation or exception, or, as was said in Keller v. Ely, 192 Kan. 698, 391 P. 2d 132:
“In harmony with our statute (G. S. 1949, 67-202), which provides that every conveyance of real estate shall pass all of the estate of the grantor therein unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant, a deed is to be construed strictly against the grantor and to confer upon the grantee the greatest estate that its terms will permit.” (Syl. ¶ 2.)
In that case a reservation to the grantor of “all of the oil, gas, casinghead gas and other liquid semi-solid and solid minerals” in and under the conveyed land was held not to be a sufficient description to include gypsum; the gypsum under the surface passed to the grantee despite the reservation.
Although neither party cites it, we believe the basic question here is controlled by Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039. The land in question there was owned by a Mary Smith. At the time she executed the critical deed the land was subject to several oil and gas leases, and also mineral deeds of record, the primary term of which had not expired. Hence, although the question was not discussed in the opinion, it is clear that under the authorities cited earlier herein there had been a severance of several mineral interests.
The deed executed by Mrs. Smith was, in form, a general warranty deed. It made no mention of minerals in the granting or habendum clauses, merely describing the land by survey description, but in the covenant and warranty clause it excepted an oil and gas lease and "seven hundred fifty (750) acres of royalty commonly known as 15/ioths royalty or mineral interest.” It was claimed that the deed was intended to convey only a Vieth. mineral interest, with 1%oths to be reserved. Indeed, about a month later Mrs. Smith purported to convey a 1!H.6ths mineral interest to a corporation, reciting that it was the same 1%eths retained and reserved in the earlier deed.
The trial court found the exceptions effectively reserved to Mrs. Smith the 37ieths mineral interest referred to in the covenant and warranty clause. On appeal this court reversed, saying (Id., at 637-8):
“. . . We must start with the statutory declaration that every conveyance of real estate shall pass all of the estate of the grantor unless the intent to pass a less estate expressly appears or is necessarily implied in the terms of the grant. No such intention appears in the granting and habendum clauses. The only exceptions are in the covenant and warranty clause and, as stated, are only limitations on the covenant that the real estate is free, discharged and unencumbered from all former and other grants. We think it clear from the deed considered as a whole that the exceptions were limitations only on the covenants and that they may not be said to have cut down the grant and reserved title to ^oths of the minerals to the grantor.”
The result was a remand to determine the status of the outstanding mineral deeds and to quiet the grantee’s title to the land and minerals, subject to the rights of the grantees of the prior unexpired mineral conveyances.
As noted, no mention was made of the effect of the prior severance of any mineral estate. It was assumed that under the statute a general warranty deed carries with it all the grantor’s interest— even in a severed mineral estate — unless the terms of the grant unmistakably negate such intent. The language there employed did not measure up to that standard, and the minerals went with the surface.
Here, we have no reservation or exception at all. We have only a grantor who, owning more than one-twelfth of both the surface and the minerals, conveyed an undivided one-twelfth interest in described real estate by general warranty deed. We hold that by such deed Jake conveyed an undivided one-twelfth interest in both surface and minerals.
Plaintiffs assert in this court that defendants are estopped from claiming title to the minerals under the 1955 deed because Jake continued to receive royalties and pay taxes on the one-twelfth interest until he died in 1964, and because both Jake and C. F. Fast signed division orders after 1955 which accounted for ownership changes in other shares of the royalty but did nothing about the one-twelfth here in issue.
Plaintiffs concede that the facts do not rise to the dignity of a true estoppel, for there is nothing to show active misrepresentation or concealment, an intent that anyone should rely on facts misrepresented or concealed, or any detrimental reliance. Thus at least three of the five essential elements of estoppel are absent. See Place v. Place, 207 Kan. 734, Syl. ¶ 4, 486 P. 2d 1354. At best we have an acquiescence by C. F. in a continuing course of conduct which was, if anything, beneficial to Jake. In Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P. 2d 1039, we held that the signing of a division order might estop the signer vis-a-vis the oil company, but worked no estoppel as against rival claimants to the mineral interest, saying, “rather than reliance by the defendants to their detriment, plaintiffs’ signing of the division orders in fact gave them a benefit to which they were not entitled.” (Id., at 93.)
“Quasi-estoppel,” as now urged by plaintiffs, must be based on the previous assertion of a position so inconsistent with the one now taken as to make the present claim unconscionable. See Bank v. Jesch, 99 Kan. 797, 163 Pac. 150; Nogrady v. Fourth National Bank, 136 Kan. 43, 12 P. 2d 787; Wilson v. Stephenson, 143 Kan. 91, 53 P. 2d 874. We find nothing in the conduct of C. F. which would bring this doctrine into play. The argument was rejected under very similar circumstances in Brungardt v. Smith, supra, although there no royalties were involved. In short, we are unable to find the elements of either a genuine or quasi-estoppel in the facts before us.
In view of the result we reach we need not consider defendants’ contention that the issue is res judicata by reason of proceedings in the probate court in Jake’s estate.
The judgment is reversed and the case is remanded for further proceedings, giving the deed in question the effect we have found herein.
APPROVED BY THE COURT.
Fontron, J., not participating.
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The opinion of the court was delivered by
Fromme, J.:
These consolidated appeals present the single question of whether K. S. A. 1970 Supp. 22-3609 ( 2), effective July 1, 1970, requires a written notice of appeal to be filed in a municipal court to perfect a criminal appeal to the district court.
The appellant, Charles T. Nikias, was convicted on January 13, 1971, in the Municipal Court of the City of Overland Park, Kansas, of violating city ordinances. A bond of recognizance was posted conditioned upon the appellant’s appearance in the District Court of Johnson County, Kansas, on the first day of the next term to answer the complaint of the city for violation of the ordinances, to abide the orders of said court and to not depart without leave.
The appellant, George R. Hoffmann, was convicted on September 16, 1970, in the same municipal court of violating a traffic ordinance. A similar bond of recognizance was posted.
Each bond was posted on the day judgment of conviction was entered. The nature of the offenses has no bearing upon the question raised in this court. Neither appellant filed a written notice of appeal in the municipal court. In each case the municipal judge certified the complaint, the bond of recognizance and the journal entry of conviction to the district court. Motions to dismiss the attempted appeals were filed and both appeals were dismissed for failure to file a written notice of appeal in the municipal court pursuant to K. S. A. 1970 Supp. 22-3609 ( 2). As previously noted this statute became effective on July 1, 1970, and these appellants were convicted shortly thereafter. The two cases were consolidated for the purpose of this appeal since both present a single question to be decided herein.
K. S. A. 1970 Supp, 22-3609 provides:
“Appeals to district court. (1) The defendant shall have the right to appeal to the district court of the county from any judgment of a court of limited jurisdiction which adjudges the defendant guilty of a violation of the laws of Kansas or the ordinances of any municipality of Kansas and imposes a sentence of fine or confinement or both. The appeal shall stay all further proceedings upon the judgment appealed from.
“(2) An appeal to the district court shall be taken by filing a notice of appeal in the court where the judgment appealed from was rendered. No appeal shall be taken more than 10 days after the date of the judgment appealed from.
“(3) The magistrate whose judgment is appealed from, or the clerk of such court, if there be one shall certify the complaint, warrant and any appearance bond to the district court of the county on or before the next court day of such district court occurring more than ten (10) days after the appeal.”
This section has since been amended in minor particulars not mentioned by the parties. The amendment is not deemed important to a determination of the question presented here. The section standing alone appears clear and unambiguous. Sub-section (1) provides for appeals to the district court from any judgment of guilt in the violation of the ordinances of any municipality of Kansas. The section thus applies to the appeals in this case. Sub-section (2) provides that an appeal to the district court shall be taken “by filing a notice of appeal.” It further provides that no appeal shall be taken more than 10 days after judgment. Sub-section (3) directs when an appeal is taken the complaint, warrant and any appearance bond be certified to the district court within a specified time.
Prior to the effective date of the new statute appeals from justice of peace courts and from municipal courts of first, second and third class cities were taken by filing a bond of recognizance. K. S. A. 63-401 (relating to justice of peace courts), K. S. A. 13-611 (relating to municipal courts of first class cities), K. S. A. 14-815 (relating to municipal courts of second class cities) and K. S. A. 15-515 (relating to municipal courts of third class cities) contained no requirement that a written notice of appeal be filed. These statutes all contained similar wording. Prior to July 1, 1970, an appeal from the municipal court of Overland Park (a first class city) would have been controlled by K. S. A. 13-611, which provides:
“In all cases before the police court, an appeal may be taken by the defendant to the district court in and for the county in which said city is situated; but no appeal shall be allowed unless such defendant shall, within ten days after such conviction, enter into a recognizance, with sufficient security, to be approved by the court, conditioned for his appearance at the district court of the county at the next term thereof to answer the complaint against him.”
It is noted that this statute does not say what steps are actually required to perfect an appeal. It merely says an appeal may be taken but no appeal shall be allowed unless the defendant enters into a recognizance within ten days. The nature and conditions of the required recognizance are set forth.
In construing the appeal statute relating to justice of peace court appeals this court in Pinaire v. Beaver, 164 Kan. 593, 191 P. 2d 176, stated:
“A careful reading of this statute [G. S. 1947 Supp. 63-401] discloses nothing requiring a notice of appeal or an announcement of intention to appeal. The statute is entirely silent on those subjects. It speaks only of an appeal. Under it no right of appeal exists unless a recognizance is first entered into as therein provided. . . .” (p.594.)
The same observation is equally applicable to K. S. A. 13-611, now under consideration. The court held in Pinaire no notice of appeal was required. K. S. A. 13-611 is a counterpart of the statute construed in Pinaire. It follows that prior to July 1, 1970, no notice of appeal would have been required under K. S. A. 13-611 to perfect an appeal from a judgment of conviction in the municipal court of a first class city. The statute then in effect was entirely silent on the subject of filing a notice of appeal.
When the legislature enacted K. S. A. 1970 Supp. 22-3609 as a part of the new Kansas Code of Criminal Procedure, K. S. A. 13-611 was permitted to remain on the statute books in full force and effect. We are now confronted with the problem of construing these two statutes to determine the intention of the legislature.
Rules of statutory construction are aids to the court in arriving at the legislative intent. We should continue, if possible, to give effect to K. S. A. 13-611, for it is a well-settled rule that the law does not favor repeals by implication. In Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102, this court said:
“Repeals by implication are not favored in the law, and a former act will be held to have been repealed by implication by a later act only when the latei enactment is so repugnant to the provisions of the first act that botih cannot be given force and effect.” (Syl. ¶ 1.)
Statutes in pari materia should be read together and harmonized, if possible, to the end that all may be given force and effect. (State v. Burney, 194 Kan. 292, Syl. ¶ 3, 398 P. 2d 335; 50 Am. Jur., Statutes, § 348, p. 343.)
A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose the court should follow the intent as expressed by the words used. (Hand v. Board of Education, 198 Kan. 460, Syl. ¶ 1, 426 P. 2d 124.)
Appellants point to the case of Eudora v. Hartig, 68 Kan. 742, 75 Pac. 1113 and argue that K. S. A. 13-611 and K. S. A. 1970 Supp. 22-3609 are mutually exclusive in that they provide two separate procedures for appeal, the former requiring only a bond and the latter requiring only a notice of appeal. The holding in Hartig relates to statutes providing for the vacation of city streets and is not persuasive here.
An examination of K. S. A. 13-611 indicates that the wording therein contained relates solely to a requirement for a recognizance or appearance bond when an appeal is taken from a municipal court’s judgment. The new statute, K. S. A. 1970 Supp. 22-3609, in contrast, does not mention an appearance bond except in subsection (3) where provision is made for the magistrate or clerk to certify the complaint, warrant and any appearance bond to the district court when an appeal has been taken. If we hold each statute is to operate as a mutually exclusive method of taking an appeal, as urged by appellants, no notice of appeal would be required if appeal is taken under K. S. A. 13-611. Likewise no recognizance would be required if appeal is taken under K. S. A. 1970 Supp. 22-3609 and, under sub-section (1), the appeal would stay all further proceedings upon the judgment leaving no control in the courts over a defendant. On the surface this would not seem reasonable.
As previously pointed out sub-section (2) speaks to the manner in which an appeal may be taken or perfected. It indicates an appeal shall be taken by “filing a notice of appeal”. Appellants argue that the section does not mention a written notice of appeal and in this they are correct. They point out that in their cases the bonds of recognizance were filed in time and that the court from which the appeals were taken had notice of their desire to appeal. We do not question these facts. However, we are faced with a legislative intent expressed in sub-section (2) of the new statute. The legislature employed the phrase “by filing a notice of appeal”. The word “file” contemplates the deposit of a writing with the proper official. (State v. Heth, 60 Kan. 560, 57 Pac. 108; Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20.) See also K. S. A. 60-205 (e) where filing with the court is defined. The phrase “by filing a notice of appeal” as used in K. S. A. 1970 Supp. 22-3609 (2) is construed to require filing of a written notice of appeal.
In considering these separate statutory provisions we see no repugnancy between K. S. A. 13-611 and K. S. A. 1970 Supp. 22-3609 (2). They can be harmonized and both may be given force and effect. If this court were to accept appellant’s position the provision in sub-section (2) of 22-3609 requiring a notice of appeal to be filed would be emasculated. We decline to do this for the two statutes can be read together and harmonized to the end that both may be given force and effect.
We note that K. S. A. 1970 Supp. 22-3609 was enacted as part of the Kansas Code of Criminal Procedure and that K. S. A. 1970 Supp. 22-2804 (3), which is part of the act, relates to release after conviction in courts of limited jurisdiction. The procedural requirements for release after conviction in 22-2804 ( 3) appear to be entirely consistent with the provisions of both 22-3609 and K. S. A. 13-611 if they are held to be complementary statutes.
The final argument of appellants is that the filing of a notice of appeal is not jurisdictional and that under the rationale of Ostler v. Nickel, 196 Kan. 477, 413 P. 2d 303 and Crouch v. Marrs, 199 Kan. 387, 430 P. 2d 204, the district court should not have dismissed the present appeals. We have examined those cases and do not find diem persuasive. A written notice of appeal was prepared and served in both cases and the procedural defects urged arose after notices of appeal were filed. The defects were held not of jurisdictional proportions.
When a notice of appeal is required by statute this court has consistently held that the failure to file or serve such notice is a jurisdictional defect depriving the appellate court of authority to proceed to hear the appeal. (See State v. Shehi, 185 Kan. 551, 345 P. 2d 684; State v. King, 191 Kan. 318, 380 P. 2d 325; and Rainbow Color Film, Inc. v. Milgram Food Stores, Inc., 193 Kan. 168, 392 P. 2d 947.) We see no satisfactory reason why this rule does not apply in the present case for the present cases do not come within the rationale of Ostler v. Nickel, supra, or of Crouch v. Marrs, supra, and cannot be brought within the “mere irregularity” rule of Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 326, 411 P. 2d 616. The rule of the latter case does not come into effect unless notice of appeal has been filed and jurisdiction has attached. No notices of appeal were filed in our present case.
Therefore we are of the opinion that the filing of written notices of appeal as required by K. S. A. 1970 Supp. 22-3609 (2) was jurisdictional.
Accordingly the orders dismissing the attempted appeals to the district court are affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendant was convicted of grand larceny. He appeals, contending there was no evidence that the value of the motorcycle taken was over fifty dollars.
The owner, Mr. David C. George, testified that he purchased the Mini-Trail Honda ’70 motorcycle on April 14, 1970, for $381.08. Mr. George’s canceled check in that amount was received into evidence. The motorcycle was stolen forty-three days later, on May 27, 1970.
At the conclusion of the state’s evidence, defendant moved for discharge on the ground value was not established. Defendant’s motion was overruled and the case was submitted to the jury, the defendant offering no evidence. Instructions are not challenged, thus presumably the jury was properly instructed concerning the ■dollar value element of grand larceny.
On appeal, defendant argues there was not sufficient evidence that the motorcycle was of a value of more than fifty dollars as required by K. S. A. 21-533 [now K. S. A. 1971 Supp. 21-3701], and thus the case should not have been submitted to the jury.
The state argues that since Mr. George testified he used the motorcycle on May 27, thus showing it was operable, the jury could reasonably find it had not depreciated 87% in value in forty-three days. We are inclined to agree.
Defendant relies principally on the case of State v. Towner, 202 Kan. 25, 446 P. 2d 719, which involved the theft of an eight-year-old automobile. The only evidence of value was the make, year and model of the automobile; that it was second hand and operable, and eight years old at the time of the theft. We held the evidence insufficient to support a conviction of grand larceny, stating:
“We would not say the diacritical amount could never be inferred in a particular case where property has been sufficiently described or exhibited to the trier of the fact. However, prices of automobiles of the vintage in question are negotiable over a considerable range and are in part at least dependent upon condition. Possibly this vehicle was in fact worth $50.00 but upon tire showing made, this fact would not be a matter of unquestionable common knowledge. We think the only safe rule is that the prosecution be required to make a sufficient showing and that was not done here. . . .” (pp. 29-30.)
The distinction between Towner and the case at bar is that the value of the motorcycle was definitely fixed by the owner only forty-three days prior to the theft, whereas in Towner there was no purchase price fixed and the automobile was shown to be eight years old.
We believe the jury could properly infer that an operable motorcycle could not depreciate in value 87% in forty-three days.
The owner of property may testify as to its value. (State v. Kirk, 205 Kan. 681, 472 P. 2d 237; State v. Ireton, 193 Kan. 206, 392 P. 2d 883; and State v. Inverarity, 150 Kan. 160, 92 P. 2d 45.) Here, the price paid certainly indicated Mr. George’s opinion of the value forty-three days prior to the theft.
In State v. Handler, 142 Kan. 455, 50 P. 2d 977, we find this statement quoted with approval from 36 C. J. p. 908:
“ ‘Evidence of the price which the owner had paid for stolen property shortly before its theft, or which had been received for it or property of the same kind, since the theft, or which accused had refused to take for it, is sufficient to sustain a verdict based on the value so determined.’” (pp. 459-460.)
We believe the jury could reasonably infer the motorcycle was of the value of more than fifty dollars on May 27, 1970.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
On February 16,1960, a complaint was filed by the Barber county attorney charging that on April 6,1959, the appellant, Buddy Joe Delano, concealed an offender after the commission of a felony and withheld information regarding the murder of Linden M. Black, of Kiowa, Kansas, in violation of G. S. 1949, 21-106 (repealed July 1, 1970). A warrant was issued for Delano’s arrest the same day.
The appellant was arrested by the Louisiana State Police at Gretna, Louisiana, at the request of the Kansas Bureau of Investigation. Waiving extradition, he was returned to Barber County on February 20,1960.
On February 24, 1960, the appellant was brought before the county court of Barber County, and his preliminary hearing was continued until March 8, 1960. On the latter date, the appellant waived his preliminary hearing before the county court and was bound over to the district court for trial on the charges alleged against him. Bond was set, and in default of bond, the appellant was committed to the county jail. The record reflects the complaint was read and explained to the appellant in open court and the nature and purpose of a preliminary hearing was explained to him, and that he voluntarily and intelligently waived his right to a preliminary hearing.
Subsequently,- on March 29, 1960, the county attorney filed a second complaint in the county court charging the appellant with the murder of Linden M. Black, in the first degree. A warrant alleging that offense was issued and served upon Delano that same day.
On April 1, 1960, the appellant came before the county court on the first degree murder charge, and after the charge was read to him and explained by the court, he voluntarily waived his right to a preliminary hearing and was bound over to the district court for trial. On that same day, the county attorney filed an Information in the district court incorporating the charges of the February 16, 1960, complaint in Count One, and the charge of the March 29, 1960, complaint in Count Two.
On April 4, 1960, the state elected to file a third complaint against the appellant, charging him with the murder of Linden M. Black in the first degree. The complaint was given a different case number, and a warrant was issued and served that same day. The appellant was again brought before the county court, and the complaint was read and fully explained to him, including the nature and purpose of, and his right to, a preliminary hearing. The record reflects the county court found that Delano voluntarily waived his preliminary hearing on the charge of murder in the first degree, and he was bound over to the district court.
On the following day, April 5, 1960, the county attorney filed a second Information in the district court alleging the charge of first degree murder as contained in the third complaint. The Information was given a new case number, and had endorsed on it the names of witnesses for the state. On the same day, the district court appointed O. M. Wheat, an able and experienced member of the Barber County Bar, to represent the appellant.
The record does not show what disposition was made of the Information based upon the first two complaints and the charges alleged therein; however, on April 25, 1960, Delano was arraigned before the district court on the charge of murder in the first degree as alleged in the second Information, and entered a plea of not guilty. Thereafter, a jury was impaneled and trial commenced. On April 28, 1960, the jury returned its verdict finding the appellant guilty of murder in the second degree.
On May 2, 1960, the appellant’s motion for a new trial was overruled, and he was sentenced to the Kansas State Penitentiary for a term of 35 years.
The appellant subsequently perfected a direct appeal from his conviction in which he objected primarily to the instructions given at the trial concerning second degree murder. The conviction was affirmed. See State v. Delano, 188 Kan. 687, 366 P. 2d 294, where a statement of the facts of the crime may be found. Thereafter, Delano collaterally attacked his conviction in a habeas corpus proceeding in the United States District Court alleging a violation of his constitutional rights in that he was held for 49 days by Kansas law enforcement officials without formal charges having been brought against him, and that he did not make an intelligent waiver of preliminary hearing because counsel was not appointed to represent him. Both contentions were considered by the Honorable George Templar, Judge of the United States District Court. After hearing the petitioner’s and the state’s evidence in full, the court made extensive written findings of fact, and denied the writ of habeas corpus. The court found the appellant did not confess to the crime with which he was charged; that he was not coerced into waiving his preliminary hearing by any action of the officials of the State of Kansas; that a delay of 49 days in charging the appellant would not void a subsequent trial as a denial of due process of law; that the Constitution of the United States does not guarantee an indigent defendant appointed counsel to represent him at his preliminary hearing or prior to arraignment, and that the proceedings in the district court of Barber County were not shown to be inconsistent with the requirements of the United States Constitution. The appellant then made a direct appeal from that judgment to the United States Court of Appeals asserting the two contentions as error. The decision of the United States District Court was affirmed in Delano v. Crouse, 327 F. 2d 693 (10th Cir. [1964]).
On July 8, 1971, the appellant started the whole process again by filing a motion in the district court pursuant to K. S. A. 60-1507, to vacate his sentence upon the grounds that (1) he was held in confinement for a period of 49 days without being charged with a crime; (2) he was not afforded his basic right to a preliminary hearing with appointed counsel; and (3) the district court failed to instruct on manslaughter.
The district court carefully examined the files and records of the case and determined therefrom the appellant was entitled to no relief. It found the motion raised no substantial issues of fact, and that it was not necessary for the appellant to be present. It further found the motion presented no substantial questions of law or triable issues of fact and that the appointment of counsel was unnecessary. The court prepared a memorandum decision in which the three contentions raised by the appellant in this court were discussed and decided as follows:
“As to the first ground: The record shows that warrant was first issued for the Petitioner on February 16, 1960 and that the Information was filed on April 5, 1960. The record is silent as to the day of his arrest but if we assume that Petitioner was arrested on February 16, 1960, that would constitute the 49 days he complains that he was held without formal charges being filed. There is no showing by Petitioner nor even an allegation that this delay in any way deprived the accused Petitioner of a fair trial. As a matter of fact, it appears to this court that justice was rather speedy in this case. This court finds that the 49 days delay, if indeed such can be called a delay, did not constitute a denial of due process.
“As to the second ground: Petitioner complains that he was not afforded a preliminary hearing with an attorney representing him. He makes no claim that the fact that he waived a preliminary hearing without the advice of counsel prejudiced him in any way in making his defense during the trial of this action or in any other manner prejudiced his substantial rights. The Supreme Court has said repeatedly that in this jurisdiction an indigent accused has no constitutional right to appointed counsel at his preliminary hearing. Mann vs. State of Kansas, 200 Kan. 422.
“As to Petitioner’s third ground: Petitioner claims he was prejudiced because of the trial court’s failure to instruct on manslaughter. Having been well acquainted with the late Judge Clark A. Wallace, it can be safely assumed that had there been a scintilla of evidence pointing to the fact that the crime in question might possibly have been manslaughter in any of the possible degrees, there would have been such a lesser offense instruction. Besides, if the Court did err by not giving such an instruction, such was a trial error which would constitute grounds for appeal. There actually was an appeal in this matter and strangely enough the sole ground urged on the Supreme Court was that the Court did instruct on the lesser offense of murder in the second degree. Although Petitioner was represented by able counsel, both at the trial and in the appeal (State vs. Delano, 188 Kan. 687), no request was ever made for such an instruction nor was it contended in the Supreme Court that the Court erred by not instructing on the lesser degree of manslaughter. The Supreme Court has many times said that a K. S. A. 60-1507 proceedings cannot be made a substitute for a direct appeal involving a trial error. Baker vs. State of Kansas, 204 Kan. 607.”
The district court did not err in overruling the appellant’s motion attacking the sentence imposed upon him on May 2, 1960. In the first place, the appellant was not held for 49 days without being formally charged with a crime. The record indicates he was held under a valid complaint and warrant filed February 16, 1960. The fact he was subsequently tried on another charge does not mitigate the plain effect of the lawful confinement in the county jail arising out of the original complaint and the subsequent proceedings held thereon as reflected in the record. The most that can be said is that the Information upon which the appellant was convicted was filed 49 days after his arrest. There was no allegation or showing by the appellant that this delay deprived him of a fair trial. Competent counsel was appointed to represent him and the case was promptly and diligently prosecuted by the county attorney, resulting in a finding of guilty of the offense of murder in the second degree. Clearly, there was no denial of due process of law as to deprive the district court of jurisdiction to try the appellant. Moreover, the same issue was disposed of by the Tenth Circuit Court of Appeals adversely to the appellant’s contention. (Delano v. Crouse, supra.) The appellant has had his day in court on this issue.
As to the second contention, it may be said that in 1960, the failure of an examining magistrate to appoint counsel for an indigent defendant to represent him at a preliminary hearing did not violate the due process clause of the Fourteenth Amendment to the Constitution of the United States. This court has so held on numerous occasions. (See Chance v. State, 195 Kan. 430, 407 P. 2d 236, and the many cases cited on page 434 of the opinion.) In addition, the Tenth Circuit Court of Appeals specifically held that the fundamental constitutional rights of the appellant were not violated by reason of the fact counsel was appointed after the preliminary hearing was waived. However, in Coleman v. Alabama, 399 U. S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 [June 22, 1970], the United States Supreme Court held that the preliminary hearing of an accused is a “critical stage” in the proceedings so as to require the assistance of counsel, and tire failure to provide counsel to an indigent defendant may constitute prejudicial error. The right to counsel at the preliminary hearing has now been made a requirement in criminal proceedings in this state by statute. (K. S. A. 1971 Supp. 22-4503.) It has not been held that retroactive effect was to be given to the pronouncement in Coleman v. Alabama, supra, and we adhere to our rule that prior to June 22, 1970, an accused had no constitutional right to counsel in order to effectuate an intelligent and voluntary waiver of his preliminary hearing. See Adams v. Illinois, 405 U. S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916. Moreover, the record reflects that the county court made inquiry into the appellant’s waiver and was satisfied that it was made voluntarily and intelligently. We hold the appellant’s second contention is without merit.
The remaining issue, that the district court erred in failing to instruct on manslaughter is a trial error and does not take on constitutional proportions. This court has held on numerous occasions that a 60-1507 proceeding may not ordinarily be used for the purpose of reviewing trial errors that might have been considered in a direct appeal. (Cantrell v. State, 206 Kan. 323, 478 P. 2d 192; lurk v. State, 208 Kan. 946, 495 P.2d 87.) The record discloses no unusual or intervening changes in the law which prevented the appellant from asserting all trial errors in his direct appeal. In addition, we note that in his direct appeal the appellant contended that if he was guilty of any offense it was first degree murder, and that it was error to instruct on the lesser degree of second degree murder. He is now estopped from contending it was error not to instruct on manslaughter, a lesser degree of homicide than second degree murder.
In conclusion, the appellant urged in argument before this court that the state coerced certain statements from him that were prejudicial to his case. While the question was not raised in the motion to vacate, we need look only to the appellant’s brief to dispose of the matter:
“During the period of his [Delano’s] incarceration before being charged, petitioner made no confession, voluntary or involuntary, and no statements made by him during this time were used at the trial.” (Emphasis supplied.)
Clearly, if we were to assume that prejudicial statements or admissions were made, and the record does not so reflect, any inference of prejudice has been dispelled by the appellant’s own analysis of the facts.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendants appeal from felony convictions for possession and sale of marijuana in violation of the Uniform Narcotic Drug Act (K. S. A. 65-2501, et seq.). In a trial to the court the defense of entrapment was asserted by each defendant. The trial court’s adverse finding is the subject of attack in this appeal. Defendants contend the evidence established entrapment as a matter of law.
The information was filed in two counts. Defendant Fouch was charged individually in count one and jointly with Defendant Reichenberger in count two. The information was filed on May 14, 1970, and the offenses charged were alleged to have occurred on April 4, 1970.
Count one concerned actions of defendant Fouch occurring outside the Odessa Club at Second Street and Hydraulic in Wichita and count two concerned actions of both defendants occurring at the Quality Chevrolet Parking Lot at 1620 East Douglas in Wichita.
Attorney Russell Shultz represented both defendants in the trial below. There was no request for severance and the defendants were tried jointly without objection. A jury was waived and the case was tried to the court on September 10, 1970. The journal entry, approved by counsel for all parties, relates the trial proceedings pertinent to the issue on appeal as follows:
“After the State’s evidence had been presented, counsel for defendants moved that defendants be discharged because of the law pertaining to entrapment. This motion was by the Court overruled for the reason that the defendants had willingly obtained and sold marijuana upon request, and had not been entrapped.
“The defendants then presented their evidence, both defendants having testified in person.
“After argument, the Court found that both defendants were guilty of possession and sale of marijuana as charged.”
Each defendant was sentenced to a term of not more than seven years pursuant to K. S. A. 1971 Supp. 65-2519a. The defendants were then released on their own recognizance conditioned that their appeals be prosecuted in good faith and with diligence.
In his argument to the court below, Mr. Shultz conceded that defense of entrapment presupposes commission of the offenses; likewise, defendant’s counsel on appeal challenges only the trial court’s adverse finding on the defense of entrapment. Since the fact of the commission of the offenses is not challenged, the state’s evidence may be briefly summarized.
The state’s evidence consisted primarily of the testimony of Charles E. Hastings, an officer assigned to the vice squad of the Wichita Police Department. On the evening of April 4, 1970, Hastings met with several officers, including Rick Palone and Charlotte McPhetters, at the Sedgwick County Sheriff’s office. Palone was described as a commissioned buyer, employed by the sheriff. His mam duties were to buy narcotics for the sheriff in an undercover capacity. Apparently, Charlotte McPhetters was also an undercover agent for the sheriff.
Hastings searched Palone for money and drugs, finding none, Hastings then gave Palone money consisting of bills, the serial numbers of which had been previously recorded by Hastings.
By prearrangement, Palone and McPhetters drove in Palone’s Camaro automobile to Second Street and Hydraulic and parked near the Odessa Club. Hastings followed and parked his automobile across the street from the Odessa Club in a position where he could observe Palone and McPhetters seated in Palone’s automobile. Hastings’ testimony established the first contact between defendants and Palone and McPhetters which was arranged by a “thin bespectacled man”, who was later identified by defendant as a person going by the name of John Nichols, who was reputed to be an informer or police undercover agent. Defendants delivered a packet of marijuana to Palone and were paid $105 in marked money; $100 of which was found on defendant Fouch after his arrest. The other $5 was said to have been given to Nichols.
A second purchase was arranged between defendants and Palone and McPhetters with delivery to be made at the Quality Chevrolet Parking Lot at 1620 East Douglas. Hastings and Dick Fent, an officer of the Sheriff’s Department, accompanied Palone and McPhetters in Palone’s automobile. When they arrived at the Quality Parking Lot, Hastings and Fent crouched down in the back seat. Soon after the Palone automobile arrived at the parking lot an automobile drove alongside, the two defendants got out and approached the Palone automobile; at this point Hastings and Fent arose from the back seat, exited the Palone automobile and placed both defendants under arrest. Fouch was seen to drop a foil packet and kick it beneath the automobile. It was retrieved and proved to be marijuana. Fouch was searched and $100 of the marked money was found on his person. Reichenberger was searched and a hashish pipe and a foil packet of marijuana were found on his person.
The events surrounding the first contact with Nichols inside the Odessa Club and the later solicitation by Palone are established by the testimony of defendants. The state offered no evidence to refute the testimony of defendants, thus we take their accounting as accurate.
Fouch testified that he did not use marijuana and normally did not traffic in it. He described the approach by Nichols in his direct examination in this manner:
“Q. How did it happen you came in possession of it at that time?
“A. Well, this Johnny Nichols was inside the club. He went around asking people if they had marijuana or knew where he could get some because he had a friend who had asked him to get some, which later turned out to be Rick Palone over at the Sheriff’s Department.
“Q. Did Mr. Nichols ask you if you had any?
“A. Yes.
“Q. Did you have any?
“A. No, sir.
“Q. What happened then?
“A. He asked us if we could get some. I said we might be able to.
“Q. When you say we, who do you refer to as ‘we’?
“A. I and Steve Reichenberger.
“Q. What did you say — strike that. What were you doing at the Odessa?
“A. Drinking beer and listening to the band.
“Q. At the time you went to the Odessa did either one of you, to the best of your knowledge, have any marijuana in your possession?
“A. No, we did not.
“Q. After you were approached by Mr. Nichols, did you obtain marijuana?
“A. Yes.
“Q. From whom?
“A. A mexican guy that was inside of the Odessa Club.
“Q. Do you know his name?
“A. No, I do not.
“Q. Did you pay for it?
‘‘A. Me and Steve paid for it.
“Q. How much did you pay for it.
“A. $75.00. '
“Q. And had Mr. Nichols talked to you about price?
“A. Yes.
“Q. What did he say about it?
“A. He said that his guy wanted him to buy some — offered him $105.00 for an ounce of it; that he would give me $100 for the ounce so he could make $5.00 off the deal.
“Q. You and Mr. Reichenberger purchased some?
“A. Yes.
“Q. And did this Mexican person have it?
“A. He left the club for a period of about one or two minutes and came back with a package of what he said was marijuana in a tinfoil package.”
On cross-examination Fouch testified:
“Q- And you were doing this to make some money, is that right?
“A. Not exactly: not only that but because Mr. Nichols asked us.
“A. We wouldn’t have been buying it if Mr. Nichols hadn’t come up and asked us not for money or otherwise.
“Q. You mean that the money wasn’t the chief consideration for participating in activity of this kind?
“A. That is right.
“Q. Are you saying it was Mr. Nichols’ persuasiveness in talking to you?
“A. He asked us if we could see if we could find him some.
“Q. So, to help this person out you went ahead and tried to find him some?
“A. I didn’t see no harm in it at the time.
“Q. What was the prime consideration, tíren?
“A. Because he came up and asked us if we would find him some marijuana.
“Q. So then just because he asked you you went to find him some marijuana?
“A. Along with several other people in the Club. They said they would ask around to try and find him some.”
After delivery of the first package to Palone, Fouch testified:
“Q. And then what happened?
“A. Mr. Palone asked us if we could get him some more marijuana. He said that he wanted to buy some more marijuana.
“Q. What did you tell him?
“A. We told him we weren’t sure but we could ask and if we could we would. We asked him how much he wanted and he said two more ounces. He said to see what we could do and meet him at the Quality Chevrolet Parking Lot in thirty-minutes.”
Reichenberger’s testimony generally conformed with that of Fouch. On direct examination Reichenberger testified:
“Q. Why did you buy any on this particular occasion?
“A. Just sitting around the bar there and I thought it was something to do. I don’t really know why I did it.
“Q. Well, did you buy it for yourself?
“A. No. —Well, I did it because Mr. Nichols asked me if that is what you mean.
“Q. And . . .
“A. I just wanted to give him the favor. It wasn’t the money. I didn’t need any money.
“Q. Why did you buy the second portion that you went up to 29th Street to get?
“A. Officer Palone asked us to.”
Refore considering the specific issue on appeal, we pause to observe that while this court has long recognized entrapment as a defense in a criminal prosecution (See State v. Jansen, 22 Kan. * 498; and State v. Spiker, 88 Kan. 644, 129 Pac. 195), it was not until the enactment in 1969 of K. S. A. 1970 Supp. 21-3210 (effective July 1, 1970, now 1971 Supp.), that the subject received legislative attention. Entrapment, as defined under the new statute, was not argued to the court below and although alluded to by both counsel on appeal neither contend, as we understand their positions, that the issue herein should be decided in the context of the new statute. We view the new statute as substantive law and since the offenses charged occurred on April 4, 1970, we decide the issue herein under the law in existence on the date, reserving until properly presented consideration of the subject in the context of the new statute.
Ry way of further prefatory framework it should be pointed out that, though this prosecution was a trial to the court, the facts found, if supported by substantial competent evidence, must be accorded on appellate review the same weight as if found by a jury.
Entrapment, as a defense in a crimnial prosecution, was considered by this court in the recent case of State v. Wheat, 205 Kan. 439, 469 P. 2d 338, wherein we dealt with a situation where the police had learned of defendant Wheat’s particular criminal specialty, i. e., “stripping cars.” We approved an instrutcion which explained entrapment in terms and rationale similar to those expressed by Chief Justice Hughes, speaking for the court, in Sorrells v. United States, 287 U. S. 435, 77 L. Ed. 413, 53 S. Ct. 210, 86 A. L. R. 249, (see discussion thereof by Judge Learned Hand in United States v. Becker, 62 F. 2d 1007 [2 Cir. 1933]). The first impression Sorrells decision was followed by Sherman v. United States, 356 U. S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819, and Masciale v. United States, 356 U. S. 386, 2 L. Ed. 2d 859, 78 S. Ct. 827, reh. den. 357 U. S. 933, 2 L. Ed. 1375, 78 S. Ct. 1367. The three cases referred to established guidelines for the federal courts which are also generally followed by state courts in jurisdictions wherein the defense of entrapment is recognized.
In both Sherman and its companion case Masciale the sole issue was whether entrapment was established as a matter of law. In Sherman the agent’s continued persuasion over a period of time, coupled with appeals to pity because of illness and other reprehensible inducement, was held to constitute entrapment as a matter of law. On the other hand, in Masciale, even though the agent and defendant met on at least ten occasions, the court held the issue had been properly submitted to the jury. Masicale argued, as do the defendants in the instant case, that his undisputed testimony explained why he was willing to deal with the agent and established as a matter of law. The court rejected the contention holding that while Masciale presented enough evidence for the jury to consider, entrapment was not established as a matter of law and that the trial court propertly submitted the case to the jury.
The first paragraph of the Wheat instruction reads:
“ ‘In considering the defense of entrapment, the court advises you that the law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement, and where a crime is committed as a consequence of such entrapment, no conviction may be had with a person so entrapped as his acts do not constitute a crime,’” (p. 440.)
The second paragraph of the instruction applied principles of entrapment to the specific situation in Wheat where officers had received information that a person intended to commit a crime.
In the third and last paragraph of the instruction the circumstances under which a defendant can rely on entrapment were summed up as follows:
“ ‘In other words a defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but cannot rely on the defense when he has a previous intention of committing a crime and is merely afforded the opportunity to complete the crime by the peace officer.’ ” (p. 441.)
The Wheat instruction, as a definition of entrapment, was quoted with approval in State v. Hamrick, 206 Kan. 543, 479 P. 2d 854, wherein the trial court’s refusal to instruct was held not erroneous since there was no evidence of inducement by an officer.
We believe the instruction in Wheat correctly states the law of entrapment and fully explains the application thereof where officers had been informed that a person intends to commit a crime.
In the case at bar, defendants latch on to the term “previous intention” as used in the Wheat instruction as a basis for their argu ment. Defendants’ industrious and thorough counsel asserts that in order to overcome a defense of entrapment or to frame a submissible question of fact in connection therewith there must be some evidence of previous intention or predisposition, and he cites many cases including Sorrells and Sherman in support of his position. The thrust of his argument is that since there is no evidence of predisposition or criminal design on the part of either defendant prior to their encounters with Nichols and Palone, it must be concluded that defendants were innocent parties induced by law enforcement officers to commit the crime so that defendants could be arrested. We agree that previous intention or predisposition must be shown to rebut entrapment;' we do not agree with defendants’ claim that there is no evidence of predisposition here.
The state, on the other hand, asserts that solicitation by officers of sales in an ordinary way as between buyer and seller does not constitute entrapment as a matter of law or of fact. (Citing 33 A. L. R. 2d, Anno. [Entrapment-Narcotics Offense], p. 884.) The state correctly points out that the law of entrapment with respect to a buyer-seller situation was developed by this court in cases dealing with sales of liquor and that in those cases (State v. Merklinger, 180 Kan. 283, 303 P. 2d 152; State v. Driscoll, 119 Kan. 473, 239 Pac. 1105; State v. Gray, 90 Kan. 486, 135 Pac. 566; and State v. Spiker, 88 Kan. 644, 129 Pac. 195), the defense of entrapment was rejected as a matter of law. The rationale of the court appeared to be as stated by Chief Justice Johnston speaking for the court in Driscoll:
. . One who concedes that he has violated the law will not be permitted to shelter himself and escape punishment in the fact that the one to whom he brought and sold the liquor happened to be an officer instead of an ordinary customer. . . .” (p. 475.)
The reasoning of the Driscoll court appears to rest on the premise that it was difficult for an officer to procure evidence of the surreptitious sale of liquor, thus the court was warranted in not examining the conduct of the officer in procuring the sale. Insofar as the cases referred to stand for the proposition that the conduct of an officer or agent in making a buy of such illegal merchandise is not to be scrutinized or subjected to censor as a matter of law, the decisions are expressly overruled in conformity with our holding herein.
From our perusal of authorities dealing with the subject we be Heve it may be said that where the events culminating in a criminal offense commence with a police solicitation, the defense of entrapment will almost always present a question of fact for the jury (United States v. Moses, 220 F. 2d 166, [3 Cir. 1955]; and United States v. Stocker, 273 F. 2d 754, [7 Cir. 1960]), except where the undisputed evidence shows totaHy unacceptable conduct by the officer or agent as illustrated by Sherman v. United States, supra, and United States v. Klosterman, 248 F. 2d 191, (3 Cir. 1957). On the other hand, the defense may be rejected as a matter of law where the basic elements are not established as in State v. Hamrick, supra, and State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919.
In the case at bar, it must be conceded that predisposition is not shown by evidence of prior convictions, criminal activity or even previous suspicious conduct. However, the means referred to is only one of the accepted methods of establishing predisposition. Uncensurable sohcitation by an officer met with ready compliance by the actor is generally, if not universally, accepted as evidence of predisposition. (United States v. Rodriques, 433 F. 2d 760 [1 Cir. 1970]; State v. LeBrun, 245 Or. 265, 419 P. 2d 948; Swallum v. United States, 39 F. 2d 390, [8 Cir. 1930]; and cases collected in 33 A. L. R. 2d Anno., pp. 883-891, § 3.)
Except in the Kansas cases referred to, where the defense was rejected as a matter of law, this court has not been confronted with the specific question of how predisposition may be shown in a buyer-seller situation. However, an abundance of authority may be found in both state and federal cases wherein the court came directly to grips with the question.
In Swallum v. United States, supra, the defendant argued that the agent who procured illegal prescriptions for morphine from him did not have reasonable cause to believe that the law was being violated by him and therefore entrapment was conclusively shown. The court rejected this contention stating:
“We do not find any authority holding that lack of probable cause to believe defendant was unlawfully selling morphine, or lack of suspicion in the mind of an agent who makes a pretended purchase, alone, constitutes entrapment. See United States v. Siegel (D. C.) 16 F. (2d) 134, where the above authorities are digested.” (p. 393.)
Harmonious holdings of various federal circuits are noted in the case of Kadis v. United States, 373 F. 2d 370 (1 Cir. 1967), wherein the defendant argued that no inducement of any kind is justified unless the police had prior grounds warranting the initiation of their activity. In answering the contention the court said:
“. . . We rejected this contention in Whiting v. United States, 1 Cir. 1963, 321 F. 2d 72, cert. den. 375 U. S. 884, 84 S. Ct. 158, 11 L. Ed. 2d 114. So have a number of other circuits Kivette v. United States, 5 Cir. 1956, 230 F. 2d 749, 754, cert. den. 355 U. S. 935, 78 S. Ct. 419, 2 L. Ed. 2d 418; Silva v. United States, 9 Cir. 1954, 212 F. 2d 422, 424; United States v. Abdallah, 2 Cir. 1945, 149 S. 2d 219, 222 n. 1, cert. den. 326 U. S. 724, 66 S. Ct. 29, 90 L. Ed. 429; Hadley v. United States, 8 Cir. 1927, 18 F. 2d 507, 508; Newman v. United States, 4 Cir., 1924, 299 F. 128, 129. We adhere to that view.” (p. 373.)
Apparently, the most recent reported federal case dealing with the question is United States v. Burgess, 433 F. 2d 987 (5 Cir. 1970). Defendant was convicted of possession of untaxed liquor based on a purchase by an undercover agent. Defendant testified the agent informed him that he needed a case of whiskey for resale in the next county to obtain money for the agent’s family which he said was ill and hungry. The whiskey was sold, according to defendant, because of this strong plea to his humanitarian instincts. As in the case at bar, defendant’s testimony was uncontroverted and he argued entrapment as a matter of law to the Court of Appeals. The court rejected defendant’s argument stating that—
“. . . [T]he defense of entrapment is not established as a matter of law when, as in this case, the only evidence of such entrapment is the defendant’s own undisputed tetstimony. . . .’’ (p.988.)
The court held that the question was properly submitted to the jury. (Citing Masciale v. United States, supra.)
Where the question has been raised state courts follow closely the federal decisions.
In the recent case of State v. LeBrun, supra, the Supreme Court of Oregon was squarely faced with the identical issue confronting us. Defendant LeBrun was convicted of unlawful possession of morphine on evidence of a sale made to an agent when, as defendant put it, he was drunk and finally yielded to the agent’s pestering about narcotics. LeBrun argued that he was entitled to an instruction to the effect that he was entrapped as a matter of law unless previously suspected. The court rejected defendant’s contention holding that suspicion or reasonable cause to suspect defendant was a law violator at the time negotiations for the purchase of narcotics was commenced was not a prerequisite to the prosecutor’s reply to defense of entrapment. The defendant was not overpersuaded by the police and was ready and willing to seize the opportunity to make a sale of narcotics.
Illinois has codified the entrapment defense (Ill. Rev. Stats. 1967, Ch. 38, §§ 7-12) in general language similar to that used in the Wheat instruction. In the recent case of People v. Gonzales, 125 Ill. App. 2d 225, 260 N. E. 2d 234 (1970), the defendants, Gonzales and Mata, argued there was no evidence of predisposition to sell narcotics since the state had offered no evidence of prior convictions or previous criminal activity. The court noted there was no overbearing persuasion on the part of the agents and that the only reluctance displayed by defendants related to the price. The court held that since the evidence showed defendants were ready to make the unlawful sale, this established the criminal design in the minds of defendants resulting in the acceptance of the opportunity offered, thus negating the defense of entrapment.
Many other state court decisions in harmony are collected in 33 A. L. R. 2d Later Case Service Supplement pp. 883-910. The attention of a reader interested in further perusal of the subject is directed to the commentary of the Wisconsin Board of Criminal Court Judges in their recent publication of “Wisconsin Jury Instructions Criminal” on “Entrapment”, p. 780; and a comprehensive analysis of the entire spectrum of entrapment by John S. Goodnow, Vol. 45, Boston University Law Review, (1965), page 542.
Applying what has been said to the evidence before the trial court in the instant case, we are cited no authority and our research reveals none that would support a holding here that the conduct of Nichols in the first instance and that of Palone in the second, considered with the responses of defendants, amounts to entrapment as a matter of law. The testimony of defendants fails to show persistent persuasion or any appeal to sympathy or pity. No claim is made that the money offered was exorbitant or that it was the motivating factor behind the actions of defendants. The responses of defendants, by their own testimony, do not show hesitancy, reluctance or unwillingness that required undue persuasion to overcome.
In considering the facts relative to the issue of entrapment it is essential to distinguish between a trap set for the unwary criminal and a trap set to ensnare the innocent and law abiding citizen into the commission of a crime. (Sherman v. United States, supra.). Where a conflict is presented as to whether defendant or the state originated criminal enterprise involving possession or sale of nar cotíes, the issue whether entrapment occurred is for the trier of facts. (Frady v. State, 235 So. 2d 56 [Fla. App. 1970]; cases collected in 33 A. L. R. 2d Anno. [Entrapment-Narcotics Offense], p. 902, § 5, and Later Case Service Supplement, p. 180 § 5.)
In view of the definition of entrapment approved by this court in the Wheat case and after considering a wide range of authority on the subject, we conclude that the proper test for determining predisposition or criminal intent, as applied to the evidence here, is whether Nichols or Palone conducted themselves in such a manner or employed methods of persuasion which would have created a substantial risk that defendants would have procured and possessed marijuana in the absence of a predisposition to do so.
The trial court made the requisite finding that the evidence shows predisposition in the minds of these defendants to possess and sell marijuana upon request. We cannot say as a matter of law that the offenses committed by defendants under the circumstances related would have been committed by persons other than those ready and willing to commit them.
One further matter requires our attention concerning this appeal. At the conclusion of the case the trial court announced that it became necessary, because of the testimony of the defendants, to merge the two counts of the information into one. Thus it appears defendants were convicted only of the offenses charged in count two. We have carefully examined count two of the information, we find it fully charges each defendant with possession of marijuana for personal use or otherwise, but it does not charge a sale offense as to either defendant. Thus the convictions for the sale of marijuana as to each defendant must be set aside. The convictions for possession are affirmed.
The cause is remanded with directions that the judgment be corrected accordingly.
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Per Curiam,:
This is a divorce action. The defendant husband appeals from an order purporting to construe that portion of the original decree which, in addition to awarding the wife monthly alimony, ordered the husband to pay annually as alimony:
“. . . a further sum equal to twenty-five percent of the defendant’s adjusted gross income over $10,000.00, as computed for Federal Income Tax purposes, commencing with January 1, 1968, and continuing until the death or remarriage of the plaintiff, as heretofore set out.”
The husband is self-employed as an attorney. In 1968 he commenced making contributions to a retirement plan for self-employed persons, commonly known as a Keogh plan. He deducted such contributions in computing his “adjusted gross income,” and based his annual alimony on the resulting amount for 1968 and 1969. At the time of the decree, August 18, 1967, he was not participating in such a plan, although it is agreed that contributions were then, as they are now, deductible in arriving at “adjusted gross income” for federal income tax purposes.
The wife responded with a motion to construe the decree and to require him to pay the amount she claims is due for those two years. The trial court sustained her motion, finding:
“That at the time of the pronouncement of the Decree of Divorce in using the term ‘adjusted gross income’, the Court did not contemplate contributions to a Keogh Retirement Plan. . . .
“It is therefore by the court ordered, that for purposes of computing the twenty-five percent (25%) of the defendant’s adjusted gross income over $10,000.00, defendant shall make such computations prior to any deduc tions or contributions to a Keogh Plan or similar self-employed retirement plan. . .
It further ordered the husband to pay the arrearages due under this revised formula.
This court is unable to perceive any ambiguity in the original decree calling for a judicial interpretation. The phrase “adjusted gross income ... as computed for Federal Income Tax purposes” had a definite and readily ascertainable meaning at the time the trial court first employed it, which remained materially unchanged when the wife’s motion was filed. Unquestionably the figure may vary according to the manner in which the husband chooses to handle his business affairs and bookkeeping — income may be postponed by such devices as accelerated depreciation or by nonrecognition or nonrealization of capital gains.
It would appear that, as the trial court noted, this was a facet of the internal revenue code not comtemplated at the time of the original order. The order appealed from reflects what the judgment would have been if this factor had been considered, but its effect is to modify the decree actually entered in such a way as to increase the husband’s liability for alimony over that originally ordered. This, of course, the court cannot do. K. S. A. 1971 Supp. 60-1610 (c); cf., Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994; Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846.
Reversed.
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Per Curiam:
These four appeals, arising in the nineteenth judicial district of Kansas, involve a single question: Are the state director of property valuation, the state board of tax appeals, the state board of equalization and the individual members, the attorney and the secretary of those boards, indispensable, necessary or proper parties defendant in a local action to recover taxes paid under protest?
The question was fully considered and answered in the negative in Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490 P. 2d 399, under which authority the judgments appealed from are affirmed.
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The opinion of the court was delivered by
Owsley, J.:
The parties to this appeal were divorced on the 25th' day of July, 1969, in the District Court of Wyandotte County, Kansas. The decree of divorce incorporated a separation agreement which had stipulations for a division of property, alimony, and custody and support of the parties’ children. On the 14th day of May, 1970, the defendant wife filed a motion to modify the decree of the court with respect to alimony. The motion to modify was denied and the defendant appeals.
In denying the motion to modify the court found that the defendant wife had remarried and by reason of said marriage the alimony award as provided in the decree of divorce, and in the stipulation and agreement, should cease as of the date of said marriage. The date of said marriage is not disclosed by the record. The defendant wife does not complain of this ruling and does not deny the fact of remarriage. In view of this, we accept the trial court’s findings and judgment as to the effect of remarriage except as said findings and judgment may be affected by the motion to modify.
The plaintiff and the defendant were married on July 18, 1957. Subsequent to their marriage the parties adopted two children and on July 25, 1969, after twelve years of marriage, they obtained a divorce each from the other as above recited. During the course of the marriage the parties through their joint efforts, plaintiff as a dentist and defendant as his assistant, accumulated a sizable estate. Prior to the trial of the divorce, which came on as a default matter, the litigants by and through their attorneys were negotiating a property settlement agreement.
The negotiated agreement provided for a division of property and $2,900 a month alimony for the first ten months, and $1,900 a month alimony thereafter until death or remarriage of the defendant. The agreement also made proper provision for custody and support of the children.
The motion to modify alleged that a portion of the alimony award was, in effect, a division of property, and that in view of defendant’s impending remarriage it would unjustly deprive her of property unless modified.
In overruling the motion the court made the following findings;
“From the oral arguments of counsel it has been indicated to the Court that the defendant, Peggy J. Drummond, has since entered into a marriage contract with a third party.
“Not appearing in the record was a statement by counsel for the defendant, and an offer of proof by oral testimony, to the fact that the alimony provisions provided in the stipulation and agreement, and included in the decree of divorce, was not in the nature of an award for future support for the defendant but was in the nature of a division of the assets of the parties accumu lated during the course of the marriage. From all the records it indicates that the bulk of the accumulated assets were set over to the plaintiff husband, however, there was set over to the defendant as her sole and separate property the homestead, a half interest in the farm, all the personal household goods, including tractors, lawnmowers, miscellaneous machinery, and also some horses. This Court refused the offer of proof by the defendant in this matter at the oral argument of the motion on May 22nd. However, during the course of the argument, plaintiff, by and through his attorney, did stipulate that the alimony award was not future support for the defendant but was a means of equalizing the division of the property.
“The Court finds that to strictly enforce the provisions of the decree of divorce and the stipulation and agreement in this respect as to alimony would materially and substantially reduce the division of property in favor of the defendant in this case, with somewhere in the vicinity of one-third to three-quarters of the accumulated assets of the marriage being awarded to the plaintiff, if the support payments in the nature of alimony to the wife in the amount of $1900 per month were to be terminated by reason of her remarriage.
“However, from a review of the authorities cited in the respective briefs, that being the case law as well as the statutory law, this Court concludes that it is without authority at this time for the reasons set forth in defendant’s motion, oral statements, in the memorandum and exhibits presented, to grant the relief requested, that being to reduce to a lump sum the alimony award and require the payment over a given period of years.
“The Court, therefore, denies defendant’s motion for this relief and does find that by reason of the remarriage of the defendant that the alimony award as provided for in the decree of divorce and stipulation and agreement should cease as of the date of said marriage. This order is effective as of date it is filed.”
We are controlled by K. S. A. 1971 Supp. 60-1610 (b), (c), and (d), which reads as follows:
“(b) Division of property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.
“(c) Maintenance. The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.
(d) Separation agreement. If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.”
The defendant states the question presented on appeal in the following language:
“Where the parties intended a portion of the alimony award to be equalization of property, could the trial court under its equitable powers effectuate that purpose, despite the wife’s remarriage, by setting over to her, her proportionate share of the joint property.”
The plaintiff restates the question presented on appeal in the following language:
“Can a party (wife in this instance) accelerate alimony payments to her by continuing them on after her remarriage when to do so is in clear violation of the divorce decree and separation agreement entered into and executed by the parties approved by trial court when said divorce decree and separation agreement clearly terminate alimony payments upon remarriage?”
Defendant contends the prevailing factor to be considered by the court is the intent of the parties at the time of the making of the contract, and it is this intent which must be enforced despite the literal meaning of the words employed in the contract.
Defendant argues that a portion of the alimony award was meant to equalize the property settlement and, based upon competent evidence, this intention was found to be a fact by the trial court. In addition, defendant points out that plaintiff’s counsel stipulated in open court that the alimony award was a means of equalizing the division of property. Defendant explains that the reason defendant did not receive additional property and less alimony was because of the unique nature of the property. The assets of the parties did not lend themselves to joint ownership and they would not have maintained their worth if set over to the wife. The only suitable manner in which to divide the property was to award the property to the husband who was in a position to maintain it and compensate the wife for her share of the property in some other manner. Further, the division of property was included in the alimony figure so as to allow plaintiff in the higher income bracket to deduct the full amount, while the wife in a lower bracket paid tax on it. Defendant points out that income tax plays a substantial role in divorce proceedings and attorneys would be remiss in their duties if they did not take full advantage of tax laws. The parties felt at the time the contract was made that the wife would not remarry in the near future and thus the monetary payments appeared to be the most expeditious manner of reducing the tax burden on the husband.
Defendant further contends that Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465, which held remarriage terminates alimony, has no effect on that portion of a judgment which was intended by all parties to be a division of property.
The request of defendant is that the contract and judgment be modified by setting over to defendant a lump sum of $100,000 payable in six and two-thirds years, or remanding the case to the trial court with instructions that a hearing be held to determine what portion of the alimony award was a division of property.
Plaintiff points out the vital changes in the code concerning alimony, division of property, and separation agreements. The new code separates the division of property concept from that of alimony. Alimony is now purely a future support concept and it no longer retains any relationship to the division of property aspect. The court can now decree alimony to be payable until death or remarriage. Alimony may be modified, but the court cannot increase the award either in amount or by decreasing the time in which the spouse must pay the alimony.
Plaintiff also points out that a separation agreement merged in a journal entry cannot be modified by the court except as the agreement itself may prescribe.
Plaintiff relies on Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846, which involved a motion to modify a decree of the court with respect to division of property. At page 244 we said:
“The rule expressed in Conway was followed in cases involving alimony (see Hinshaw v. Hinshaw, 166 Kan. 481, 203 P. 2d 201; Henderson v. Henderson, 194 Kan. 456, 399 P. 2d 877) until, in 1963, the legislature changed the existing law with respect to alimony. K. S.A. 1968 Supp. 60-1610 (c) enacted at that time, now governs the allowance and payment of alimony. Among other major changes effected in the realm of alimony by this statute is the provision which authorizes the court to modify the amounts or conditions for payment of alimony originally awarded, but not yet due, except that no modification may be made without the consent of the obligor which would effect an increase or acceleration of liability for unpaid alimony beyond that prescribed in the original decree.
“It is significant that while the statute expressly authorizes the court, upon notice and hearing, to modify the original award of alimony, subject, of course, to the limitation therein set out, there is no comparable authority granted with respect to that part of a divorce decree which relates to an award or division of property. This omission can be construed only as a deliberate legislative design to withhold from a trial court the power to modify its original decree as to property rights or division of property. Had the legislature intended to vest the court with continuing jurisdiction in matters of property, as well as alimony, we must presume it would have made similar provisions as to both.”
Defendant’s motion to modify, although aimed at the award of alimony, has the effect of changing the division of property which is specifically prohibited by our decision in Flannery. We conclude that Flannery controls the issues in this case. However, the effect of defendant’s counsel stipulating in open court that the alimony award was not future support for the defendant, but was a means of equalizing the division of the property, merits some comment.
The defendant’s argument that the true intent of the parties is not being honored by the court is without merit. The true intent of the parties must be determined from the contract itself. What the defendant’s intentions were or what the plaintiff’s intentions were are of no concern since intent must be determined by the provisions of the written instrument. A separation agreement is subject to the same rules of law applicable to other contracts and this rule is well stated in In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515, in Syl. ¶4:
“The intention of the parties to and the meaning of a contract are to be deduced from the contract where its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must be determined by its contents alone, and words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. The court may not make an agreement for the parties which they did not make for themselves.”
It is apparent the defendant was represented by able and conscientious counsel throughout the negotiations for settlement. It is indicated in the record that at the time of the negotiations the defendant had no thought of remarrying. It is also apparent that the nature of the settlement was affected by tax considerations. The nature of the property of the parties as to requiring personal supervision and control of the plaintiff, undoubtedly had some effect on the terms of the agreement. Under these circumstances, we can readily see and understand why defendant’s counsel and the defendant herself agreed to the settlement.
Regardless of the motives, we do not believe that a defendant, through her counsel, can present a separation agreement to the trial court, seek the trial court’s approval, ask the trial court to incorporate it in a decree, and later, by motion, request the trial court to find that this was not the agreement of the parties and it should be set aside or modified. We can readily see that a wife, by way of settlement, could agree to accept a higher alimony award in lieu of an award of specific property. The wife has this right. Having made that decision, she is bound by it and cannot avoid its consequences because of a subsequent decision to again seek the happiness of marriage. Furthermore, the defendant has accepted all the benefits she obtained by the agreement and now seeks to modify that same agreement to avoid its disadvantages. A party may not accept the benefits of a judgment and reject its burdens. (Cohen v. Dresie, 174 Kan. 391, 256 P. 2d 845.)
In Herzmark v. Herzmark, supra, we said:
“When the original decree of divorce is entered care should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.” (p. 52.)
The admonishment in Herzmark as to care should be reiterated. We cannot dictate the provisions of a separation agreement, but court and counsel should be cautious and careful that the parties understand the legal consequences of their acts. The distinction between division of property and alimony should be clearly explained in accordance with the statutes of this state and the decisions of this court.
Affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This action involves a dispute over a boundary line between adjacent properties owned by the parties. The underlying question is whether the boundary line is that established by a legal survey as claimed by Dumlers, defendants-appellees, or is a line established by an alleged mutual agreement as claimed by Fritzlers, plaintiffs-appellants.
The trial court found generally for defendants.
The land in question fronts on the west side of Highway 281 just south of the City of Russell. It was annexed to the city in 1968 and the tract now owned by plaintiffs was platted as Lot 23 and the tract owned by defendants as Lot 24, both tracts lying situate in Block 5, Witt-Carter Addition to the City of Russell. Fritzlers originally owned both tracts, having purchased the same from McKean Carter, the owner of a quarter section of which the tracts were a part.
Both parties submitted the testimony of several witnesses in a trial to the court. In rendering judgment, the trial court filed a memorandum decision in which all of the relevant facts developed by the testimony are set out — we quote as follows:
“In 1955, McKean Carter conveyed a rural tract some 305 feet by 300 feet to the plaintiffs. By late 1956 the plaintiffs had built a home and a cedar shelterbelt on the tract.
“Jacob Anschutz purchased the north 150 feet of this tract from plaintiffs on June 2, 1956. The shelterbelt was apparently planted by that time. Mr. Anschutz testified that when he made the purchase he was told by Mr. Fritzler that his property ran 150 feet north from this row of trees. There was no testimony that the boundary line was in dispute or that there was any agreement between the parties that the tree row was to be the boundary line. The statement was made by Mr. Fritzler as a matter of information only. Mr. Anschutz apparently had no reason to doubt the correctness of this designation and he apparently believed it to be true. The deed contained the ordinary general warranties. It also contained an attempted restriction providing that the land could not be used for non-residential purposes for fifteen years.
“Jacob Anschutz made no improvements upon the tract and no use of tihe land other than grazing. He sold it to defendants on November 18, 1958. At that time he told Mr. Dumler that it was 150 feet north from the tree row. This, again, was for information purposes. There is no evidence that there was any question about the boundary and certainly there was no controversy. In fact, Mr. Dumler claimed that he did not remember of this being said to him.
“Until 1965 there were no other conversations nor other acts done by anyone other than heretofore stated that had any bearing on the location of the boundary line of the property.
“During a highway widening project that bordered this property on the east, Mr. Dumler received an impression that his south property line as established by his deed was between the tree row planted by plaintiffs and the home built by plaintiffs. This was in 1965. There is no evidence that he then did or said anything in pursuance of this impression.
“On December 11, 1968, Mr. Dumler had his attorney write plaintiffs’ attorney formally offering to sell the south 10 feet of his deeded land for $55 per running foot. This was the footage price that he could sell the tract for to a Mr. Dortland for commercial purposes. In this connection, he offered to pay $200 to plaintiffs to release the attempted restrictive covenant about residential use. Plaintiffs were advised in this letter that Mr. Dumler had completed a survey which showed that the tree row and a portion of the house were on his land. By this time, a shed and two ornamental trees were also on the strip of land about which title was now being questioned. About this time, the City of Russell annexed all the plaintiffs’ and defendants’ tracts as Block 5, Witt-Carter Addition, plaintiffs’ lot being designated as Lot 23 and defendants’ as Lot 24.
“Plaintiffs and defendants were unable to agree upon a sale and removal of the covenant. On January 21, 1969, the defendants wrote the plaintiffs that they would keep the strip in controversy and take other legal action. They gave plaintiffs one week to remove the trees or ‘we will remove them.’
“One week later defendants had all trees removed by a 14-ton crawler tractor. The ground was frozen and it proved to be too difficult to uproot the trees. Mr. Dumler was present and directed how the removal was to be done. He approved of cutting through them at the base when advised by the tractor operator of the impossibility of uprooting the trees. He directed the exercise of caution to not run into a corral at the back or the house in performing this work.
“The operation of the tractor caused vibration of the frozen ground that extended into the garage attached to the north part of the house. There were cracks in the garage before this operation. These cracks were caused by the use of construction materials that had differing rates of expansion and contraction and by settling of the foundation. The foundation apparently was below average in stability. While there was evidence that the cracks were the same before as after the operation, the court accepts the evidence of the plaintiffs to the extent that after the operation there were small piles of debris from the wall that evidenced either new or additional damage to the wall of the garage. The monetary amount of such damage is found to be $75.00.
“The court finds that there was no damage done to the driveway. In this connection, the court fully accepts the testimony of Mr. Schneider as to why the driveway crack had to exist before this operation.
“Toward the end of the trial, the court stated he did not intend to allow punitive damages because the conduct of Mr. Dumler was irresponsible rather than wanton. On reflection, the court finds that die action of Mr. Dumler in causing the crawler tractor of this size to be operated so close to the house under these conditions and when he was vexed because plaintiffs would not come to an agreement about the restrictive covenant was reckless disregard of plaintiffs’ property and a wanton act. A proper award of punitive damages would be $200.00.
“On February 11, 1969, a legal survey was conducted at the request of the plaintiffs. It showed that the south line of the tract described in the deeds from plaintiffs to Anschutz and from Anschutz to defendants was about seven and one-half feet south of the trunk line of the shelterbelt cedars and about two feet south of the north wall of the garage and of the corral. The survey findings were not appealed and appeal time has expired.
“The market value of Lots 23 and 24 is $87.00 per front foot. The de fendants concede it would be unfair to take the position that plaintiffs are required to remove the improvements on the two feet above mentioned. The court interprets this as an admission by defendants that the court would be justified in doing equity as to this item by providing for a transfer of property.
“Plaintiffs occupied the strip in question in open and adverse possession from the time of building the house and planting the tree row which was about the middle of 1956, but they did so under a mistake as to the correct location of their north boundary line.
“The work of tree removal obviously involved possible damage to the plaintiffs’ improvements even if performed with the utmost care, considering that the tractor-crawler would have to operate within two feet of the garage on hard ground which the operator admitted did cause vibration. The testimony of the professor expert that the tractor-crawler does not vibrate is pure sophistry.”
The trial court made conclusions of law which we quote in part as pertinent to the issue presented on appeal:
“The legal boundary between Lot 23 and Lot 24 is that established by the legal survey of February 11, 1969. Plaintiffs concede that they cannot satisfy the statutory requirement of ‘open, notorious and adverse’ possession to obtain title by prescription as their holding period falls short of the required fifteen years.
“Plaintiffs claim that occupancy of the strip for close to the statutory period when combined with the designation of the boundary line to Anschutz and redesignation by Anschutz to Mr. Dumler is sufficient in law to establish title in them. The difficulty with this claim is that, as stated in 12 Am. Jur. 2d 85, ‘acquiescence means a consent to the conditions and involves knowledge of them. It involves more than a mere establishment of a line by one party and the taking of possession by him.’
“While it may be that long continued acquiescence as to a boundary is evidence that it is the true line, a better view — if statutory law of prescription is to have any real meaning — would appear to be as stated in 12 Am. Jur. 2d 86: ‘Some courts have gone so far as to hold that simple acquiescence, in the absence of an agreement, is without value and that no validating agreement may ever be inferred from it, requiring some showing of other facts from which an agreement may be inferred if the line is to be upheld.’ Under this test, plaintiffs’ claim must fail for there was no discussion of the boundary line between plaintiffs and defendants. Moreover, if plaintiffs are somehow entitled to consider Anschutz as their messenger, there was never any conversation between any of the parties that rises to the quality of an ‘agreement.’ The designation was made, in each instance, by one who was parting with his interest rather than by two people consenting to each hold to a line in the future.
“In 12 Am. Jur. [2d] 87, the theoiry advanced by plaintiffs is probably correctly characterized as being one of estoppel. But estoppel must have a point of beginning: ‘At the time of the location, a disputed, indefinite, or uncertain boundary line between the adjoining owners.’ None of the people involved in these transactions considered the property line to be in dispute. For definiteness and certainty the purchasers took the word of their grantors as definiteness and certainty were not in issue.
“The next legal point is the defense of defendants that plaintiffs are not entitled to recover for damage to the garage because the tree removal was done by an independent contractor. Conceding that the work was done by one generally in the independent contractor category, this defense fails for two reasons, either of which is sufficient.
“The factual findings of direction and supervision made herein are undisputed and make the relationship, as to this work, that of employer and employee.
“Secondly, since the work was of a type which was likely to result in damage to plaintiffs’ property and since it involved a constructive trespass, defendants are not entitled to the benefit of immunity even if the employment was that of an independent contractor.
“Finally, since plaintiffs did not own the land, they did not have any property right in the trees. Surely every purchaser of property is advised in connection with his title opinion to ‘determine by survey or otherwise the actual location of property lines.’ Plaintiffs should have done this. If defendants had not already removed the trees, they would be entitled to do so now — subject only to the duty to remove in a manner that would not damage plaintiffs’ property.”
In line with its finding that defendants conceded it would he unfair to take the position that plaintiffs should be required to remove their improvements on the two feet of defendants’ property, the trial court entered a judgment in substance that:
1. Plaintiffs are granted judgment in the sum of $75.00 for actual damages to plaintiffs’ garage and for the sum of $200.00 as punitive damages.
2. Since plaintiffs are not the owners of the south ten feet of Lot 24 they are not entitled to damages for the destruction of the trees located thereon.
The court further decreed:
“. . . [T]hat defendants herein be granted judgment against plaintiffs in the sum of $870.00 for the taking of the south ten front feet of Lot 24, Block 5, Witt-Carter Addition to the City of Russell, Kansas, and it is further DECREED that defendants shall execute and deliver a warranty deed to plaintiffs conveying said ten front feet upon receipt of said $870.00, Provided: that plaintiffs shall have the alternative of acquiring the ten front feet of the land adjoining said Lot 24 on the north and conveying the same to defendants within 45 days of the date this journal is filed, in lieu of payment of tire abovesaid $870.00”
and further ordered:
“. . . [T]hat title to Lot 23, Block Five Witt-Cartet Addition to the City of Russell, Kansas, and the South ten feet of Lot 24 thereof be quieted in plaintiffs from and after payment of the abovesaid $870.00 to defendants and delivery of the deed therefor to plaintiffs or from the date that plaintiffs and defendants exchange deed pursuant to the alternative above provided, whichever occurs first.”
On the hearing of plaintiffs’ motion for a new trial, which was denied, the court modified the original judgment with respect to the provisions for forty-five days abeyance by directing that in case of an appeal to this court the forty-five days provision should come into effect on the filing of the mandate of the decision of this court with the Clerk of the Court of Russell County.
On appeal, plaintiffs state their challenge to the trial court’s ruling in these words:
“The main theory involved in this appeal and the one basically relied upon by the plaintiffs is that the boundary line established between the property owned by the plaintiffs and the defendants was established through agreement and acquiescence by the plaintiffs and defendants, and their predecessor in title, notwithstanding the boundary lines established by survey.”
At the time of their conveyance to Anschutz, plaintiffs were the owners of all the land in question. In harmony with K. S. A. 58-2202 (formerly G. S. 1949, 67-202) which provides that every deed of real estate shall pass all of the estate of the grantor therein unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant, a deed is to be construed strictly against the grantor and to confer upon the grantee the greatest estate that its terms will permit.
The descriptions in the series of conveyances in the instant case are clear and unambiguous. The two legal surveys, the first initiated by defendants, at the request of a prospective purchaser, and the second, made later at the instance of plaintiffs, resulted in the fixing of the same boundary line. The field notes, included in the record on appeal, reflect that the survey was a simple matter in merely chain measuring the distance set out in the deed descriptions from the beginning reference point which was the northeast corner of the Carter quarter section.
As a general rule, the boundary line between adjacent properties is to be determined by reference to the deeds and the intention of the parties as reflected by the description in the deeds and where there is no ambiguity in the descriptions they are to be taken as the conclusive evidence of the intention of the parties. (12 Am. Jur. 2d, Boundaries, § 2, p. 548. See, also, Winters v. Bloom, 96 Kan. 443, 151 Pac. 1109; and Hinnen v. Artz, 99 Kan. 579, 163 Pac. 141.)
Therefore, where descriptions are unambiguous and in metes and bounds, as in the instant case, it requires only a survey to establish the true boundary.
On appeal, as in the trial below, the plaintiffs take the position that their situation in the case at bar falls within one of the exceptions to the general rule; namely, that the boundary line contended for by them was established through agreement and acquiescence by the plaintiffs and defendants and their predecessors in title notwithstanding the boundary line established by the survey.
Before proceeding further with plaintiffs’ argument it should be noted that plaintiffs concede they have no standing with respect to adverse possession or as occupying claimants’ — two other doctrines that operate as exceptions to the general rule.
Plaintiffs cite our cases and other authority to the effect that where a boundary line is in dispute or unknown it may be established by the mutual agreement of the parties fixing a line and acquiescence thereafter in the line so agreed upon. The proposition presented by plaintiffs is sound and in harmony with our decisions. The trouble is that it is not applicable to the instant case. Here, as noted, the trial court found there was no agreement, either express or implied, between Fritzler and Anschutz that the tree line was the boundary line. When the tree line was established, both tracts were owned by the same party — Fritzler. Further, the trial court noted there was no testimony that the boundary line was in dispute. When Anschutz sold to Dumlers the court, likewise, found there was no question or controversy about the boundary line.
Under similar rules of appellate review there is nothing presented in the record which could serve as a basis for overturning the trial' court’s findings on these matters. In short, there was no express agreement fixing the boundary line nor evidence from which an agreement could be implied. We agree with the trial court’s observation that the designation of the tree line as the boundary line by Fritzler and in turn by Anschutz was a designation in each-instance by one who was parting with his interest rather than consent by two people to each honor a line in the future. The statements were not made with the intention that they should be acted, upon — no agreement was made in response.
With respect to plaintiffs’ claim of acquiescence, that term, as-applied to a boundary line controversy, is defined as a consent to-the conditions and involves knowledge of them. It involves more: than a mere establishment of a line by one party and the talcing of possession by him. There must be knowledge on the part of the other party. The line acquiesced in must be known, definite and certain or known and capable of ascertainment. (12 Am. Jur. 2d, Boundaries, §85, pp. 620-621.) In the case at bar Fritzler established the tree line when he was owner of all the property; neither Anschutz nor Dumlers were in the picture.
The case of Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019; Terrell v. Chessmore, 94 Kan. 611, 146 Pac. 1152; and Blanford v. Biven, 123 Kan. 269, 254 Pac. 1030, cited by plaintiffs, involved controversies where boundary lines were fixed by an express mutual agreement of the parties who were the owners of the adjoining properties at the time the agreement was made. The holdings in the cases mentioned are not determinative in the absence of a finding of an express agreement as in the instant case. Likewise, the more recent case of Beams v. Werth, 200 Kan. 532, 438 P. 2d 957, was a holding based upon an implied mutual agreement fixing a boundary line and acquiescence thereafter by the parties in the line agreed upon. In Fyler v. Hartness, 171 Kan. 49, 229 P. 2d 751, this court held there was sufficient evidence to show a boundary agreement “circumstantially” and affirmed the trial court’s ruling to that effect. Again the holding rested on an implied agreement.
In the instant case, plaintiffs do not plead mutual mistake and ask for reformation of their deed. Their claims of an agreement, express or implied, and acquiescence were rejected by the trial court. The findings are in effect negative findings and in view of the record before us cannot be disturbed on appeal. (Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829; and King v. Robbins, 201 Kan. 748, 433 P. 2d 308.)
In view of our disposition of the appeal, the question of damages raised by plaintiffs need not be considered.
The judgment is affirmed.
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The .opinion of the court was delivered by
Harman, C.:
This appeal involves five damage actions consolidated for trial and review here. Two of the suits are for wrongful death and the remaining three are for property damage, all arising from a truck-passenger train collision.
Certain background facts were stipulated to at pretrial conference and may be summarized as follows: On February 8, 1966, at about 2:30 p. m. Union Pacific train number 70 collided with a Ford two-ton truck at the intersection of the main Union Pacific track and Ohio street in Salina, Kansas; the truck was owned by plaintiff Ryder Truck Rental, Inc., leased by it to Salina Office Supply and at the time of the collision was being operated by the latter’s employees W. Lawrence Sexsmith or Elmer D. Warren acting within the scope of their employment; as a result of the collision Sexsmith was tolled and left surviving him as his heirs at law his widow, plaintiff Margaret Sexsmith, and a daughter; Warren also was killed as a result of the collision and he left surviving him as his heirs at law his widow, plaintiff Auddie Warren, and two children; office equipment in the truck belonging to Salina Office Supply was destroyed, for which loss it was compensated by its insurance earners, plaintiffs Home Insurance Company and Commercial Union Insurance Com pany; the truck belonging to plaintiff Ryder Truck Rental was totally destroyed. The parties also agreed upon the amount of some items of damage.
The trial court, on its own motion, decided to submit to the jury the issue of liability only, in advance of determination of the remaining factual issues of damages. At the conclusion of plaintiffs’ evidence defendant moved for a directed verdict, which motion the court took under advisement; at the close of all the evidence defendant renewed this motion, which the court again took under advisement. Under appropriate instructions the liability issue was then submitted to the jury by way of special verdicts and interrogatories (K. S. A. 60-249 [a]).
The questions submitted, and the jury’s answers thereto, are:
“1. Q. Was the defendant, Union Pacific Railroad Company, guilty of any act of negligence which was the direct cause of said collision? “Ans: Yes.
“2. Q. If your answer to No. 1 is in the affirmative, state of what such negligence consisted.
“Ans: A. Lack of proper signals.
“B. Location of railroad cars too close to the crossing for the speed of the train.
“3. Q. Was the driver of the truck negligent in the operation of the truck which negligence was a direct cause or a contributing cause of said collision?
“Ans: Lack of positive evidence.
“4. Q. If your answer to No. 3 is in the affirmative state of what such negligence consisted.
“Ans: XX
“5. Q. Were Elmer D. Warren and W. Laurence Sexsmith engaged in a joint enterprise, as defined by the Court’s Instructions, at the time of the said accident?
“Ans: Yes.
“If you answer question No. 5 in the affirmative then you need not answer questions numbered six and seven.
“6. Q. Was the non-driving occupant in the truck negligent which negligence was a direct cause or a contributing cause of the collision? “Ans: X
“7. Q. If your answer to No. 6 is in the affirmative, state of what such negligence consisted.
“Ans: X
“8. Q. Did the Salina Office Supply truck stop at the stop sign located on the south side of the railroad tracks?
“Ans: Lack of positive evidence.
“9. Q. Who was the driver of the Salina Office Supply truck involved in the accident on February 8, 1966 with the Union Pacific Train No. 70?
“Ans: Lack of evidence.”
Defendant immediately moved the court to set aside the jury’s answers to special questions number 1, 2, 3, 4 and 8. Without acting upon this motion the trial court then sustained defendant’s motion for directed verdict, the ruling upon which it had previously reserved. The court stated it was convinced plaintiffs had not sustained the burden placed on them to establish the crossing as an unusually dangerous one; further that there was contributory negligence as a matter of law on the part of both the decedents inasmuch as they were found by the jury to have been engaged in a joint enterprise. The court accordingly entered judgment for defendant from which plaintiffs have now appealed.
Initially appellants raise a procedural issue respecting the trial court’s action. They assert the trial court could not enter judgment for appellee because appellee had failed to ask for judgment. Appellants’ statement of points contains no mention of this issue. The issue sought to be raised does not go to the jurisdiction of the court over, the subject matter of the litigation. Hence under our Rule 6 (d) relating to appellate practice (205 Kan. xxix) it will not be considered on appeal (Crowther, Administrator v. Baird, 195 Kan. 134, 402 P. 2d 753).
Appellants challenge the propriety of the trial court’s action sustaining appellee’s motion for directed verdict in the light of the evidence. They assert the evidence sufficiently made a submissible case on appellee’s negligence for a jury’s determination and did not establish the decedents’ contributory negligence as a matter of law.
Our cases are legion that upon a challenge to the sufficiency of evidence on an issue of fact by motion for a directed verdict, the court may not weigh conflicting evidence, but is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the motion is leveled; and if the evidence is of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict must be denied and the issue submitted to the jury (Lord v. Jackman, 206 Kan. 22, 23, 476 P. 2d 596).
In considering a motion for directed verdict the question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party (9 Wright and Miller, Federal Practice and Procedure, § 2524). Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where this is true, then the issues must be submitted to the jury (ibid. § 2528).
The evidence adduced at trial reveals the following:
The locale of the collision was the intersection of appellee’s tracks with Ohio street, a north and south street in Salina. Appellee has five sets of tracks at this point, its main line being the middle set. The tracks run generally east and west but intersect Ohio street at a slightly acute angle (measured from the south toward the west). The crossing has no watchman or signal device to warn of oncoming trains but does have a standard stationary crossbuck sign as well as a stop sign facing northbound traffic on Ohio street. The signs are on the east side of Ohio street, south of the crossing. The railroad sign indicates five tracks. North of the tracks and east of Ohio street there is an alfalfa mill. On the west side of Ohio north of the crossing there are business buildings which front on Ohio. There was no obstruction to the view to the west of a motorist approaching the crossing from the south except, on the occasion in question, a string of boxcars located 256 feet west of the crossing. The boxcars were on the first or southernmost track. Boxcars were also standing in an area on the north side of the main line of tracks. There was no other obstruction to the view south of the tracks on either side of the crossing. Ohio street is a main-traveled paved sheet forty feet six inches in width. The point of impact was nine feet five inches west of the east side of Ohio.
On the afternoon in question the weather was overcast and drizzling or misting rain; however, visibility was good and four witnesses observed the collision.
The attention of an operator of a service station located 300 to 500 feet north of the crossing was drawn to the fact a train was approaching because he heard a whistle and noticed the ground at his station was shaking. He observed the truck south of the crossing three or four seconds before the impact but did not know whether the truck was then moving nor where it was with reference to the main line. The truck was headed north on Ohio. He could not tell whether or not the truck had stopped nor how fast it was being driven. The truck was struck on the left side behind the door of the cab. The witness also observed the train, the speed of which he estimated to be “somewhere around fifty to sixy miles an hour”.
A foreman at the alfalfa mill who was standing in the mill’s driveway also observed the collision. He heard the train whistle and first saw the truck south of the crossing. He alternately watched it and the train until the two collided. The second time he saw the truck he could not tell if it was moving. When south of the stop sign it was moving very slowly. Near the stop sign it stopped, then started across the tracks. He estimated the train’s speed to be at least sixty miles an hour. Boxcars were frequently left on the tracks west of the crossing.
The train engineer testified that the train, powered by three diesel units, had left the Salina station on time proceeding eastward on the main line. He described his usual operating procedures which he followed upon the occasion in question. After leaving the station and while in full power a running air test is made. A schedule is fixed for the entire trip, maintenance of which requires certain speeds. The speed limit within the city limits of Salina is sixty miles per hour. Twelfth street is the first street crossed after leaving the station. The first main-traveled street crossed is Ninth street at which a watchman is maintained. On this particular trip the throttle was possibly all the way open and the train was traveling twenty to twenty-five miles per hour when it crossed Ninth street. The next street crossed is Santa Fe at which a watchman is also maintained. As the train crossed Santa Fe it was traveling thirty to thirty-five miles per hour. After the entire train had crossed Santa Fe the engineer conducted the moving air test to ascertain if the brakes were working. Upon receiving a signal from the rear that the brakes were working properly he released the brakes and put the engine on full throttle. The test was completed when the train was one-half mile west of Ohio street, moving about twenty-five miles per hour. The engineer sounded the whistle at the whistle post about one-fourth mile west of Ohio and continued it while approaching the crossing. Two front lights on the yellow engine were operating and the engine bell had been ringing automatically since leaving the station. The engineer noticed the string of boxcars standing on both sides of the main track west of Ohio street. The top of the boxcars on the south side of the track was above his eye level position in his locomotive cab. He testified he first saw the truck when the train was about 250 feet west of the crossing. The truck was twenty-five to thirty-five feet south of the stop sign, traveling between ten and fifteen miles per hour. He acknowledged he had signed a pretrial statement that he had first seen the truck when he was five to six hundred feet west of the crossing when the truck was approaching the stop sign at a speed of eight to ten miles per hour; also he had made an earlier statement that the truck was forty feet south of the stop sign. The engineer continued to observe the truck but did not see it stop. When it drove past the stop sign the engineer applied emergency procedures. The train was then approximately 150 feet west of the crossing traveling about fifty-five miles per hour. It was not unusual for boxcars to be left standing near the Ohio street crossing.
The fireman who was sitting in the left or north side of the locomotive cab testified he first observed the truck when it was 100 to 200 feet south of the stop sign, traveling ten to fifteen miles per hour. The train was just emerging from the east end of the parked boxcars. He did not see the truck stop at the stop sign. He shouted at the engineer to stop — the engineer applied emergency procedures at the same time. The boxcars along the south side of the main track extended back ten or fifteen car lengths, probably more than that. The fireman had signed a pretrial writing which stated:
“Truck came from the South going North very slowly. They hesitated just before going on the track and then they moved forward right on the track in front of the engine.”
An accident reconstruction analyst also testified on appellants’ behalf. He used visual aids consisting of a scale model of the scene and speed strips indicating distances in feet per second traveled at various speeds. His testimony consisted largely of demonstrations based on the testimony received, taking into account acceleration and reaction times. He also testified as to the possible line of vision of the driver of the truck and the engineer at various points. Photographs of the scene taken shortly after the collision were also received in evidence.
Appellants contend the evidence made a submissible case on the issue of appellee’s negligence. They point to the trial court’s instructions to the jury on the subject. Instruction No. 4 was a routine definition of negligence. Instruction No. 10 was as follows:
“If the jury finds that the surrounding conditions and circumstances of the crossing where the collision occurred were such as made it unusually dangerous, then the jury may inquire as to whether a reasonably prudent person under such circumstances would have maintained a watchman or other device besides the signs then there at such crossing at the time of the collision, and in determining whether or not such crossing was unusually dangerous, you may take into consideration the obstructions, if any, to the view of a motorist when approaching, the crossing signs erected there, or other objects proper in themselves, and you may consider whether or not said crossing was a much traveled one, the location of said crossing within the city, and all of the circumstances of this crossing at the time of the collision, and if you find, after due consideration of such circumstances, that such crossing was an unusually dangerous one, and if you further find that an ordinarily prudent person would have maintained, in addition to the signs located at the crossing, a flagman or device to warn of an approaching train at said crossing at the time of the collision, then you are instructed that such failure to maintain a flagman, or some additional device at said crossing at the time of the collision was negligence on the part of the defendant, but such negligence, if any, would not excuse either of the decedents from exercising ordinary care on his part, as defined in these instructions.”
Instruction No. 10 was not objected to at trial. Noteworthy is the fact it is virtually identical with one approved by this court in Johnson v. Union Pacific Rld. Co., 157 Kan. 633, 143 P. 2d 630, which case is cited and relied upon by each side in this suit. About the only difference in the two instructions is the fact the negligence in the Johnson instruction was bottomed on lack of a watchman at the crossing while here it is the failure to have either a watchman “or other device besides the signs” at the crossing.
Johnson involved an automobile-passenger train collision at appellee’s Ninth street crossing in Salina. A watchman was maintained at the crossing except from 11:00 p. m. to 7:00 a. m. The collision occurred about 1:10 a. m. Plaintiff’s decedent approached the crossing from the south; the train came from the east. North of the crossing there was a seven-story flour mill located 120 feet east of the crossing. South of the crossing and on the west side of Ninth street was a small shelter cabin for daytime crossing watchmen. About 125 yards south of the crossing and twenty yards east of Ninth street there was a six-story flour mill. Elevators were located south of this flour mill. There were freight cars in the track area but their location is not revealed in the opinion. In discussing the sufficiency of plaintiff’s evidence on the issue of negligence this court stated:
■ “A majority of this court are inclined to hold that the heavy traffic over the Ninth street crossing, the tall buildings and the noise of industry thereabouts which deflected or muffled the sound of railway engine bells or whitsle, the shortened range of vision for motorists approaching the crossing from the south, the many railway tracks thereabout, and the moving of switch engines and freight cars thereon — that these circumstances created a situation where it could not be dogmatically stated as a matter of law that the crossing was not dangerous. It was, this court holds, a fair jury question, which if thus established, would render the defendant guilty of negligence in not maintaining a flagman at the crossing at the time of the collision.” (p. 639.)
The opinion reflects no dissent as to this aspect of the case. The court did go on to hold, three justices dissenting, that the evidence revealed plaintiff’s decedent was guilty of contributory negligence as a matter of law.
Appellants have contended throughout that the crossing was an unusually dangerous one. The order entered at pretrial conference reflects that appellants charged appellee with “knowingly creating a dangerous condition by causing or permitting boxcars to be located on the railroad tracks immediately adjacent to the north and south of the main line track, said boxcars being located 256 feet west of the west edge of Ohio Street, knowing that its trains would be traversing Ohio Street, a busy crossing, at 50-60 miles per hour.” The negligence submitted to the jury in instruction No. 10 was premised upon maintenance of an unusually dangerous crossing under the existing circumstances. The jury’s response specified as negligence the lack of proper signals in connection with the location of the boxcars and the speed of the passenger train. The evidence indicated Ohio street was a paved street carrying a considerable amount of vehicular travel. It was described as a busy street. The boxcars were positioned approximately 250 feet from the normal path of the truck in crossing Ohio street and it can scarcely be denied their presence constituted an obstruction to the view of north bound motorists on that street. The trains speed was shown to be from fifty-five to sixty miles per hour, the equivelent of about eighty-one to eighty-eight feet per second.
Although the speed at which a train is being operated will not alone constitute negligence, we think that speed under particular circumstances may well render a railroad crossing an unusually dangerous one. It may also be said that ordinarily the presence of boxcars near a crossing will not alone constitute negligence and this jury was so instructed.
In Grisamore, Administratrix v. Atchison T. & S. F. Rly. Co., 195 Kan. 16, 403 P. 2d 93, we held that whether a railroad crossing is more than ordinarily dangerous is generally a question of fact, although the sufficiency of the evidence to establish that fact re mains a question of law. We also recognize the rule there, and in Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P. 2d 975, as well, that where unusually dangerous conditions prevail at a railroad crossing the unusual hazard may make additional warnings and precautions by the railroad company necessary. The crux of the matter is simply whether the railroad has afforded users of the crossing sufficient and adequate protection under the reasonably careful person rule. Where obstructions to view exist the precautions necessary may take the form either of lower speed or commensurate warnings — all of which items were specifically fingered by the jury in its answer No. 2 finding appellee guilty of negligence.
Without further iteration of the evidence as to appellee’s negligence, viewed as it must be in the aspect most favorable to appellants, we think it was such that reasonable minds could reach different conclusions thereon, thus rendering the issue one for submission to a jury.
The general rules respecting contributory negligence have been stated many times and need not be repeated. The difficulty lies, always, in their application. We reviewed the doctrine as applicable to a crossing collision most recently in Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748. There the collision occurred at a wide open rural crossing and an attempt was made to apply the last clear chance doctrine. This court held that the contributory negligence of plaintiffs’ decedents “continued unceasingly right up to the moment of the collision.” (p. 600.) The factual situation here is scarcely analogous.
Much of the evidence respecting the movement of the truck prior to the collision was of a negative, rather than positive, character. This is of significance in connection with the fact the burden of proof of contributory negligence, including the element of proximate cause, remained on appellee (see Williams v. Union Pacific Railroad Co., supra, p. 779). Contributory negligence may not be based on mere surmise or conjecture. The effect of the jury’s answers respecting that issue was to absolve the occupants of the truck of contributory negligence. There was evidence the truck was being driven at a reasonable rate of speed as it approached the crossing and that it stopped at the stop sign, which we are told was located about fifty.feet south of the main track. There was also evidence the truck hesitated just before going on the track. We think the combination of all the circumstances shown by tire evidence, includ ing the nature of the locale, the absence of a watchman or flashing signal at the crossing and the speed of the train approaching from an obscured area presented a situation where reasonable minds might differ on the issue of decedents’ contributory negligence, making it one properly for jury determination.
We have considered all the cases cited by appellee but find none controlling under the totality of the facts here. The juiy was fully instructed upon the duty of a driver approaching a crossing. Again the ultimate yardstick to be applied is the conduct of a reasonably careful person under the particular circumstances.
We conclude, and so hold, that the trial court erred in sustaining appellee’s motions for directed verdict and in entering judgment for appellee thereon. Having reached this conclusion, a question remains as to disposition upon remand.
Appellee suggests in the event this court determines its motions for directed verdict should not have been sustained and judgment entered for it, the case should be returned to the trial court for consideration of its motion to set aside the answers of the jury to the special verdict questions since that motion was never acted upon. In support of its position appellee points to language used in certain of our opinions in cases decided prior to the enactment of our present procedural code. We think those decisions inapplicable under our present practice. Appellants request reinstatement of the special verdicts.
Appellee’s motion to set aside the answers to certain of the interrogatories submitted in connection with the special verdicts is authorized by K. S. A. 60-250 (b), where decision on motion for directed verdict has been reserved. The record does not reflect the ground for this motion but we must assume its basis lay in the sufficiency or character of the evidence — the same ground for appellee’s motion for directed verdict. That is the only issue presented upon appeal and, so far as we can discern, at trial level. No motion for new trial was joined with this motion as it might have been. No cross-appeal has been filed and no trial errors have been suggested by appellee. The liability issue appears to have been fairly tried and no reason has been asserted by appellee for further trial court consideration of that issue other than ruling on the motion to set aside certain of the jury’s answers.
The trial court has already, in affect, negated the jury’s findings of fact respecting appellee’s negligence and the decedents’ contribu tory negligence — this on the basis of the evidence. We have disagreed with the trial court’s appraisal of that evidence and have concluded it was such as to support the jury’s findings. We know of no valid reason why, upon reversal, the special verdicts of the jury should not be reinstated (see Striplin v. Kansas Gas & Electric Co., 204 Kan. 324, 461 P. 2d 825).
The judgment is reversed and the cause remanded with directions to reinstate the jury’s special verdicts on the issue of liability, and to proceed with determination of the remaining issue of damages and rendition of appropriate judgments.
APPROVED BY THE COURT.
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Per Curiam:
Plaintiff sued for breach of warranty of merchantability of a $3250 travel trailer manufactured and sold by the defendants. A jury returned a verdict for plaintiff, and defendants appeal.
Plaintiff purchased the trailer on March 4, 1968. When he first pulled it some three or four weeks later he discovered it wouldn’t trail properly and was unmanageable at speeds over 25-30 miles per hour. It developed that the trailer’s axle was out of line. Negotiations for repair were not fruitful and on August 23, 1968, plaintiff instituted this suit. He alleged that he had returned the trailer to defendants and that, although given an opportunity to do so, they had refused to either repair or replace it. The result, he pleaded, was their unjust enrichment in the amount of the purchase price, and his consequential damage by way of interest, taxes and fees.
On August 31, 1968, the repair facility to which defendants had referred him finally examined the trailer, ascertained the problem, and within two weeks thereafter had completed repairs.
The record does not include any pre-trial order nor does it contain any of the instructions from which we can deduce the theories presented to the jury. (For that matter, neither does it contain the verdict or the judgment appealed from. See Rule No. 6 [g].) We therefore assume the case was submitted with appropriate instructions, particularly on the measure of damages. Defendants concede a breach of warranty, and quarrel only with the damages awarded for the breach.
The jury might well have found from plaintiff’s evidence that defendants were given, and refused to exercise, a reasonable opportunity to repair. Their liability thereupon became fixed. Cf., Allen v. Brown, 181 Kan. 301, 310 P. 2d 923; Steele v. J. I. Case Co., 197 Kan. 554, 419 P. 2d 902. They might also have found that in the absence of such repairs the trailer had little or no value for the purpose for which it was manfactured and sold. Cf., Oliver Farm Equipment Co. v. Rich, 134 Kan. 23, 4 P. 2d 465. We are advised that the verdict was for less than the full purchase price, rendering inapplicable Fox v. McKay Motor Co., 188 Kan. 756, 366 P. 2d 297. Assessment of the amount of damages was for the jury. Allen v. Brown, supra.
Defendants have failed to demonstrate error, and the judgment is affirmed.
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Per Curiam:
Erman Clinton Wade and Wilma E. Wade, his wife, executed a joint and mutual will, which we found was contractual in In re Estate of Wade, 202 Kan. 380, 449 P. 2d 488. After Erman’s death, Wilma deposited $8,000.00 in the Capitol Federal Savings & Loan Association at Lawrence, Kansas, registered in the name of Mrs. Wilma Wade or Densil Cox, as joint tenants with rights of survivorship and not as tenants in common. She also deposited $5,000.00 in the Lawrence Building & Loan Association in the name of Mrs. Wilma Wade and Verona Cox and Densil Cox, as joint tenants with rights of survivorship and not as tenants in common.
After Wilma’s death, her administrator filed suit against Densil Cox, Verona Cox, and the two associations, claiming the two accounts were assets of the estate of Wilma Wade. The defendants, Densil Cox and Verona Cox, appeal from an adverse ruling of the trial court.
Defendants present two theories on appeal: (1) The accounts were created for good and sufficient consideration; and (2) the contractual will gave the survivor an unrestricted right to dispose of the property.
The trial court held the two joint tenancy accounts created by Wilma E. Wade were gifts, and that good and sufficient consideration was not given by the defendants Cox to Wilma E. Wade for creation of the accounts. It is the function of the trial court to hear the evidence and make findings of fact. If the findings are supported by competent substantial evidence we cannot disturb the findings on appeal. (Jensen v. Jensen, 205 Kan. 465, 470 P. 2d 829.) We have no difficulty in finding evidence in the record to support the trial court’s findings.
The Wade will provided:
“ ‘First, That in the event of the death of one of the above named Testators all property, both Real estate, Personal, all moneys or any other values tangible or intangible shall be the sole property of the one who survives. To be used at their own discretion.’ ” (In re Estate of Wade, supra, p. 382.)
From this language, defendants argue that the will should be construed to mean there was no restriction on the right to dispose of property received by Wilma E. Wade from her husband or owned by her individually. Language in a contractual will defining the powers and rights of the survivor as to property affected by the will and in his hands, must be subordinated to the basic purposes of the contract.
We considered this question in In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818. The will read:
“ ‘After the death of either of us, the survivor shall have the right and privilege of selling, mortgaging and disposing of any property coming to him or her by the terms hereof, without restrictions of any kind, . . .’” (p. 179.)
We held that this provision in a contractual will did not permit the survivor to make gifts and deeds without consideration.
The contractual will in In re Estate of Tompkins, 195 Kan. 467, 407 P. 2d 545, contained a similar provision. It read:
“ ‘Second. All property, whether jointly or separately held and whether real or personal owned by either of us is hereby devised and bequeathed to the survivor, with the right of disposal.’ ” (p. 469.)
We held that the phrase “with the right of disposal” as used in this will does not authorize the survivor to “give” property away.
The judgment is affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
Thepetition in error in this case prays for a reversal of the'judgment, and assigns as causes of error three grounds as follows:
“ 1st. That the court erred in its instructions given to the jluT-
“2d. That the court erred in admitting the evidence of the plaintiffs, to which plaintiffs in error objected.
“3d.' That the judgment was given for Enunert and Cor-many, when it ought to have been for Barlow, Sanderson .& Co.”
Upon an inspection of the record we find that but a portion ■of the charge of the court is preserved, and no exception whatever was made to any part of it, or to the whole of it. It is not necessary to give reasons for again deciding that under such circumstances this court wi 11 not examine the charge of the court. The defendants (plaintiffs in error) asked one instruction which the court refused to give. To the refusal of the court to give this instruction exceptions were duly made, but this refusal is not made a cause of error in this court, and therefore cannot be passed upon. As to the second error alleged, it is only necessary to say that there does not appear to be any of the evidence that was offered on either side that was objected to. But one possible question can be considered in this case under the third assignment of error, and that is, does the petition state facts sufficient to constitute a cause of action? No point was made in the court below, either by demurrer, or by objection to evidence, or in any other way, to the sufficiency of the petition. . The defect claimed here is, that the petition charges a direct trespass committed by the servants of the defendants of their own willful and wicked intent, and that therefore the master is not liable. It is a sufficient answer to this to say that the petition does not so state, but taken as a whole it avers that this injury was produced by the fault and carelessness of the servants of the defendants, in the prosecution of the business in which they were employed. It is the defendants themselves that are charged with the fraudulent and wicked intent, and not their servants. The record does not purport to contain all the evidence, but so far as it appears seems-to justify the verdict rendered. For the reasons given the judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error was treasurer of School District No. 54 in Crawford county. The • school district issued bonds to the amount of $600, and the defendant in error negotiated the bonds with a banking-house in Fort Scott and took a certificate of deposit for the amount for which they were sold. Afterwards he drew a check on the banking-house for the amount and sold the same to one F.. Playter. This check was dishonored; whereupon Playter' brought an action against the' defendant in error for the amount, and recovered judgment therefor. This judgment was recovered on the 15th of January 1872; and on the next day defendant in error filed his petition against the plaintiff in error, and on the same day an answer was filed and a trial had resulting in a judgment against the plaintiff in error for $564.91. Two errors are alleged. One is, that no answer was filed by the district. The answer is informal; it purports to be by the clerk and director of the district instead of by the district; but as these were the proper officers to answer for the district we think the answer must be taken as that of the district. The other error is, that the petition does not state facts sufficient to constitute a cause of action. The petition is fatally defective. It does appear from it that the defendant in error received of Playter the amount for which the bonds were sold, and it is not shown hut what that money is still in his hands. Again, the judgment against him has not been discharged, and may never be. There is nothing in the petition to show that he has property, or that he proposes to pay the judgment against him. Again, it does not appear that Van Fossen & Bi’itton (the Fort Scott banking-house,) are not entirely responsible, in which case defendant in error may never lose anything. It is true that it ,is alleged that the certificate of deposit was taken in the name of the district, but the inference is inevitable that defendant in error drew upon the fund as an individual; otherwise he could not have been held liable as an individual in the action of Playter. If he has control of the funds deposited with the bank, he may yet get them; for while it is averred that the bankers had suspended, and had uot yet resumed, it nowhere is pretended that'they are insolvent. Taking the petition as true, and it appears that defendant in error has received the proceeds of the sale of the bonds, and it does not appear that he has paid out any part thereof to or for the district; nor does it appear that he has paid or ever will pay anything on the judgment of Playter, while it is more than likely, taking the statements of the petition as true, that he may finally obtain the money from the bankers. Such a state of facts does not authorize a recovery, and the petition is so fatally defective that no judgment can be rendered upon it. This disposes of the case in this court. We have carefully refrained from discussing some of the questions raised by plaintiff in error, as such a discussion would result in no benefit with the imperfect knowledge of the facts presented in the record. The judgment is reversed.
All the Justices concurring.
, —Upon receiving and filing the mandate, and entering the order reversing the judgment of the district court, Carson, on leave, amended his petition. The material amendments so made were the inserting therein the following averments:
John T. Voss, for plaintiff in error:
1. The action of Carson cannot be maintained, either in a court of law or equity. The courts are powerless to remedy the fancied wrongs which he supposes he has sustained. He cannot recover on contract, because he does not sue upon contract; and if he did he could not so recover, because said district is incapable of making a contract to that effect.
2. But if the court could render a judgment in favor of Carson, how could such judgment be paid ? The board can raise no money to meet such judgment. It is not an incidental fund. It is not to pay teachers’ wages. It is not to pay interest on bonds. It is not to create a sinking fund; and for none of the enumerated causes known to the statute for raising money. The electors of the district can only raise money by vote for certain purposes, and this is not one of them. There would be no way of satisfying such judgment or decree.
“That the certificate of deposit taken by him from said Van Fossen & Britton, bankers, in the name of School District No. 54 for said $480, was so taken pursuant to the order and instruction of the school board of said district.” “That plaintiff, as treasurer as aforesaid, paid said sum of $480 so received from said Playter to the building contractors previously employed by said district to’ erect a school-house for the use and benefit of said district upon the written order of the director and clerk of said district.” “Plaintiff further says that he has not received said $480, nor can he recover of said Van Fossen & Britton said sum of money, or any part thereof.” “ Plaintiff further states that on the 2d day of February 1872 he paid off and fully discharged and satisfied said judgment of Playter’s aforesaid out of his own private funds, and that said defendant has wholly neglected and refused to pay plaintiff the amount of said judgment or any part thereof.”
To the amended petition the School District demurred, assigning, 1st, that said petition did not state facts sufficient to constitute a cause of action, and 2d that the court had no jurisdiction of the subject of the action. Upon this issue the case was heard at the May Term 1873 of the district court. The court ovei’ruled the demurrer; and from such decision and order the School District appealed, and brought the case here on error, where it was heard and decided at the July Term 1873 of this court.
3. The plaintiff .sets up in his petition that all, or nearly all his acts were done by him alone, and not by the board. He had no right to act alone, and the board had no right to-instruct him; no right to dictate to him. (See 6 Kas., 518.) His duties as treasurer are plainly marked out by statute, and if he acted on what the members of the board, or any others, instructed, he did so at his peril. The fact that Carson was school-district treasurer is of no consequence whatever. It was not his duty, as treasurer, to negotiate the bonds, but it is the duty of the board to negotiate the bonds for labor, material or cash. See Gen. Stat., 939, ch. 93, §1, and §1, ch, 95, laws of 1872, where the following language is used, to-wit: “The bonds shall be negotiable and transferable by delivery, and may be negotiated by the school board for cash, material or labor, in the erection of a school-house or houses.” Any sale or disposition of the bonds, except for cash in hand, or, if for labor, when done and performed, or, if for material, when the same shall have been delivered, is clearly illegal. Public officers acting in a fiduciary capacity, and as custodians of public funds, must have and safely keep the same for the uses and purposes for which it was designed and intended;, and no negligence, much less a “ criminal act,” on the part of a custodian of public funds will excuse him from a strict liability and a prompt payment of the money, which it was his official duty to take care of. Sec. 10, ch. 93, Gen. Stat.
4. Again, the bonds cannot be negotiated in the manner they were, at all, in the absence of express statutory authority; that is, the bonds cannot be negotiated for less than par, nor away from home. See 22 111., 152, where it is expressly held that the treasurer cannot legally have tíie public funds any place except at his office. The district board, as well as Carson, were engaged in an unlawful transaction when they sold the bonds for less than par. See 3 Kas., 120.
The opinion of the court was delivered by
'Valentine, J.:
The petition in the court below shows substantially that school district bonds of school district No. 54, Crawford county, were regularly voted and issued, and that the plaintiff, who was treasurer of said district, and ■ex officio one of the school board of said district, in pursuance of authority given to him by said board, negotiated said bonds at eighty cents on the dollar, receiving therefor the sum of $480, and that he deposited said sum with Van Fossen & Britton, bankers, at Fort Scott, Kansas, “ and took a certificate of deposit therefor from said bankers, he being instructed so to do by said board, which certificate of deposit was drawn in favor of said district;” that in eight days thereafter, to-wit, June 3d 1871, at about 3 o’clock p. m., said bankers failed and have since been and are now wholly insolvent; that on said June 3d, about 4 or 5 o’clock p. si., the plaintiff, as treasurer of said district, and in pursuance of instructions from said board, drew a check on said bankers in favor of Frank Playter for said money, and in consideration therefor received from said Playter $480; that plaintiff paid this money to the school-house building contractors on the written order of the director and clerk of the district; that said check was dishonored, and that Playter then sued the plaintiff thereon and recovered a judgment against the plaintiff for $480 principal, $31.60 damages, $27.01 interest, and $26.30 as costs; that plaintiff afterwards paid said judgment. The prayer of said petition is that judgment shall be rendered against, the district and in favor of the plaintiff for $564.91, and interest and costs. And to this petition the defendant filed a demurrer.
We suppose the sole question intended to be raised in this court is, whether the petition below states facts sufficient to constitute a cause of action; and involved in that question is the question: Who shall lose the money deposited with said bankers — the school district, or the plaintiff? We know of no law authorizing a school district treasurer to deposit the funds of the district with any bank or banker, and especially with a bank or banker outside of his district, and outside of his county, as in this case. Nor do we know of any law that authorizes the school board to “instruct” or authorize the treasurer so to do. In our opinion the instructions of the board to the treasurer upon this subject were ultra vires, illegal and void, and the depositing of said money with said bankers was wholly without any legal authority • and thereNre, as the bank and bankers afterward became insolvent (ii they were not at the time insolvent,) the plaintiff and not the school district must lose said money. The treasurer is the only legal custodian of the funds of the district, and he cannot relieve himself of responsibility for them by depositing them elsewhere even with or without the authority of the board.
The judgment of the court below is reversed, and cause remanded with the order that said demurrer be sustained, and for such further proceedings as shall be proper in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The property in controversy in this case was not, exempt from the execution which was levied upon it. The defendant in error (plaintiff below) pledged said property to B. E. Andrews, a creditor of his, as collateral-security for the payment of a debt. He placed it in the possession of Andrews, and there it- remained until it ivas siezed by the officer, under said excution, which was issued on a judgment rendered on the debt for which said property ivas pledged. After the property ivas so seized the defendant in error commenced this action (replevin) to recover said property from the officer, who is now the plaintiff in error, claiming that said properly was exempt from execution. Now Avhile it may be admitted that said property Avas exempt from execution in general, still Ave do not think that it can be legally maintained that it was exempt from the execution Avhich was levied upon it. Any person may if he chooses pledge his personal property as collateral security for the payment of a debt, and make it liable for the payment of such debt, notAvithstanding such property Avould otherwise be exempt by law from seizure or sale on execution, attachment, or any other legal process. The laAV exempting personal property from sale on legal process Avas not intended to prevent the oAvner thereof from seling the same, or mortgaging or pledging it as security for debts.
But it may be claimed that Andrews, the creditor, lost his lien on the property by suing on the debt and by recovering it judgment thereon. We do not think he did. After personal property has been pledged, as it was in this case, as collateral security for the payment of a debt, and the debt has become due, the creditor may sue the debtor and recover a judgment against him for the amount of the debt without destroying or in the least affecting his lien on the property pledged. (See authorities cited in counsel's brief, and Edwards on Bailments, 271, 272, and cases there cited.) It is true that the extinguishment of a debt, if really extinguished, will destroy all liens existing on property pledged for its payment. It is also true that the original debt for which this property was pledged may be said in one sense to have been extinguished by being merged in the judgment, a higher security. It is true that the original debt was so extinguished by having a judgment rendered thereon that another action ■could not be maintained on the original debt. But this is the only way in which it was extinguished. The debt in fact still remains, in a new form, but evidenced by a higher security, and the property pledged for its payment still remains liable therefor. I The debt in fact remains until it is satisfied. In the case of Butler v. Miller, 1 N. Y., 500, the Court of Appeals of New York (Johnson, J., delivering the opinion of the court,) say: “The-rule that security of a higher nature extinguishes inferior securities will be found only to apply to the state or condition of the debt itself, and means no more than this, that when an account is settled by a note, a note changed to a bond, or a judgment taken upon either, the ■debt, as to its original or inferior condition, is extinguished -or swallowed up in the highest security; and that all memorandums or securities by which such inferior condition was •evidenced lose their vitality. It has never been applied, and I think never should be, to the extinguishment of distinct collateral securities, whether superior or inferior in degree. These are to be canceled by satisfaction of the debt, or voluntary surrender alone.”
We suppose no valid objection can be raised as to the manner of selling the property if sold on execution. It seems to be conceded that the creditor could have given notice and sold the property himself without judgment or execution. Then if the judgment does not destroy the lien, what valid objection can there be to having an execution issued, and having an officer of the law give notice and sell according to law? Must greater care be taken in the sale of this property than the law prescribes for the sale on execution of all personal property? We think not. The judgment of the court below must be reversed.
The agreed statement of facts brought to this court seems-to be an agreed statement of facts made for this court, under the rules for making a case for the supreme court, and not on agreed statement of facts upon which the case was submitted in the court below. In fact, the case does not seem to have-been submitted.at all on an agreed statement of facts in the court below. The “facts agreed to,” mentioned in § 559 of the civil code, which authorize the supreme court to direct the district court “to render such judgment in the premises as it should have rendered on the facts agreed to,” are such facts as are agreed to in the district court, and not such as may be agreed to in the supreme court. For this reason we cannot order that judgment shall be rendered for the defendant below, but must order that a new trial be granted. Judgment reversed and new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The main question presented in this case is as to the power of a deputy county clerk to execute a tax deed. The defendant in error proved title from the government. The plaintiff in error proved possession in himself for a series of years, and offered tax deeds which had been recorded more than two years prior to the commencement of the suit; but the district court refused to receive them in evidence. These tax deeds seem to be in substantial conformity to the forms laid down in the statute. Counsel for plaintiff in error alleges in his brief that the only objection made to them was that they were executed and acknowledged by the deputy county clerk. If other objections were made or do exist we are not advised of them, for counsel for defendant in error have filed no brief, and made no appearance in this court.
Could a dePuty county clerk, then, under the laws of 1862, execute and acknowledge a valid tax deed, or must the act be performed by the clerk himself? The act was one purely ministerial. It called for no discretion, imposed no choice. Certain specified conditions having been complied with, it became his duty to act, a duty which could be enforced by mandamus. Now, it is a general rule that a ministerial officer may act by deputy. Com. Dig., Officer, D, 1. And every act which the principal may do, may be done by his deputy. True, there are some limitations on this rule, as where the duty to be performed is of the individual and not of the officer, or where there is a personal trust imposed. But the act of executing a tax deed •comes within none of the exceptions. In Blackwell on Tax Titles, p. 375, it is said that “the power of a deputy to sell and convey lands depends upon the power of his principal to make a deputy. The general rule is, that every ministerial office may be performed by deputy. The power of appointing a deputy is therefore implied in all such cases. Whatever power may be exercised by the principal may be performed by the deputy, and is equally valid in the one case as in the ether.” See also Haines v. Lindsey, 4 Ohio, 88; Jacobs v. Measures, 13 Gray, 74; K. P. Ply. Co. v. Amrine, 7 Kas., 178, But we are not left in this state to any mere implication as to the power of a county clerk to appoint a deputy. Such power is expressly given. It is even made a duty. •“ Every such clerk shall appoint a deputy,” is the language of the statute. In the absence or disability of the clerk, the •deputy “shall perform all the duties of such clerk.” He may also appoint more than one deputy. Comp. Laws, p. 418, ch. 52, §44. (Gen. Stat., ch. 25, §41.). This section concerning the power and duty of a county clerk to appoint •deputies was in force at the time the amendment to the tax law authorizing conveyances by the county clerk was passed. Many other duties were by the tax law, and its amendments, imposed upon the county clerk. In fact, a large portion of the machinery of tax collection is in his hands. These duties are obviously ministerial, and properly performable by deputy. Now if the legislature intended that any specific duty should be performed only by the clerk himself, they. would naturally have used some language of limitation. But there is none. It would be an arbitrary assumption on our part, not justified by the language employed, or the nature of the duty to be performed, to hold that the clerk alone could execute a tax deed, while a deputy could perform all the other varied duties of the office in regard to the collection of taxes. Eor these reasons we think the district court erred in rejecting the tax deeds; and the judgment must be reversed and the case remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
On the 22d of May 1871, the plaintiff in error ran a special excursion train over its road, southward, through the city of Garnett. On Third street in that city, near where that street crosses the railroad, tlie defendant in error was riding in a buggy drawn by two horses. The horses were frightened by the train, and in their fright turned around, and tipped out the driver and the defendant in error, whereby she was severely injured. For these injuries she brought an action, alleging negligence on the part of those having charge of the train, in the manner of running it, and in failing to give the necessary signals of its approach. The defense sought to establish the facts that the train was carefully and prudently run, and the signals properly and timely sounded; and further, that the defendant in error was guilty of negligence in not taking reasonable care to observe the approach of the train, and thus contributed to the injury. On the admission of the testimony but two exceptions were made to the ruling of the court, and in these instances the ruling was so manifestly correct that no point is made thereon in the brief of plaintiff in error, and no further notice of them will be taken here. The other errors alleged are in the refusal of the court to order a special verdict upon the demand of the plaintiff in error, and in the instructions given and refused, and in overruling the motion for a new trial; and these will be considered in their order.
I. Plaintiff in error demanded a special verdict from the jury. The statute expressly gives this right. It is neither ambiguous, uncertain, nor open to construction. It is clearly the duty of the court to direct the jury to find a special verdict when both or either party demands it: Laws 1870, ch. 87, § 7. No question of the convenience or inconvenience of such practice can have anything to do with the decision of the question. The right is absolute. We may doub.t the wisdom of the law, but are not authorized to evade it. The refusal of the court to direct a special verdict compels this court to send the case back for a new trial. As the counsel for defendant in error insists that no exception was taken to the refusal, at the proper time, it is deemed advisable to state the facts as they appear on the record. At the commencement of the trial the plaintiff in error, in answer to a suggestion of the court, informed the court that it “required the jury to find a special verdict in the action embracing all the issuable facts.” No refusal of the demand was then made or intimated, so that there was no occasion for an exception. The party had a right to believe that a right given him by law would be awarded by the court. When the testimony was all in, and before the argument, the demand was repeated. Then the court decided, that “the jury may find a special verdict upon such of the issuable facts presented by the counsel in writing, and may conclude their findings by a general verdict.” To this ruling the defendant “then and there excepted.” Again, when the jury returned with the verdict the request to have them sent back with directions to bring in a special verdict was renewed, and the refusal to so order was excepted to. Thus speaks the record; and it is apparent that the plaintiff in error demanded and the court refused to direct a special verdict. The demand, though not in the language of the- statute, was in such substantial conformity with it that there is no possibility of misunderstanding it. The code, § 285, defines what a special verdict is. The special findings of fact made in this case in response to written propositions submitted to the jury do not constitute a special verdict, and if they did, would not uphold a judgment.
II. The conclusion reached on the foregoing point renders it comparatively easy to dispose of the others, for in commenting upon instructions it is often more difficult to determine whether an instruction is misleading in a particular case than it is to decide whether it accurately lays down true principles of law. The charge of the court consisted of nine paragraphs; to the 6th, 7th, 8th, and 9th, the plaintiff in error excepted. The 6th charge is as follows:
“The jury should determine from all the evidence whether any agent, officer, servant, or employee of the defendant, whilst conducting, running, or managing any locomotive, car, or train of cars, failed to exercise the diligence, care, and foresight of a prudent man; and the absence or want of such diligence, care, and foresight, would constitute such negligence as would render the defendant liable.”
This instruction would be correct if the negligence led to the injury complained of; and this is probably what was intended, and what the jury understood by it, as there was no evidence tending to show negligence in any other ° . ° , than this particular tram at this time. The 7th instruction is intended to embrace the requirements of § 60, of ch. 23, Gen. Stat., but should be corrected so that if the whistle was sounded at least eighty rods from the street crossing, on the outside of the city limits, and was continuously sounded till the city limits were reached, and then the bell was rung until the crossing of the street, then there was no negligence on account of signals. But the charge is open to a more serious objection. The failure to give the signal required by the section is negligence. The law has fixed the duty in exact terms. An omission of that duty is negligence; but the degree of negligence must depend on the facts of each case. When the court told the jury that such omission was gross negligence, it was error. Each case must depend upon the peculiar facts, and may be gross negligence, or simply negligence because the law makes it so. It should have been left to the jury to say in this case whether the omission was gross negligence or not. The 8th instruction is not inconsistent with the charge making it the duty of parties approaching a railway, to look out for danger, but is to be taken in connection with that part of the charge, and taken together the principles laid down are correct. The 9th instruction is to the effect, that if the injuries complained of were caused by gross negligeuce, and the jury so found, they might find exemplary damages. This is the law as settled by this court: Malone v. Murphy, 2 Kas., 250; Wiley v. Keokuk, 6 Kas., 94. But the negligence should be so gross as to amount to wantonness, to authorize exemplary damages. We do not care to enter into a discussion of the correct principle. It is fully discussed pro and con in the appendix to Mr. Sedgwick’s treatise on the measure of damages. The authorities seem to be mostly one way, and those this court has seen proper to follow rather than theory.
The plaintiff in error asked six instructions, of which the first only was given, and that in a modified form. The modification consisting in striking out that portion of it that stated that it made no difference as to defendant’s liability whether the whistle was sounded at the distance of 80 rods from the crossing or not. This was properly stricken from the instruction. It was one of the real questions at issue, whether the whistle was sounded so as to put the plaintiff on her guard. The 2d instruction does not specify any points or' distances at which the required signals should be sounded, to escape from the charge of negligence; and for this reason, if for no other, was not law. The 3d and 5th instructions are as to the weight of evidence of certain kinds. As the court laid down the true rule in the 4th paragraph of its charge, it was not bound to repeat it. The 4th instruction asked is faulty in this, that it made it the duty of the driver of the carriage in which plaintiff was riding to stop and look up and down the track to see if there was a train approaching. This is requiring more of a traveler than any reported case to which we are referred demands. The railway and the street are equally highways. A legitimate use of either is a public right, and this right rests on the same basis in both. Parties are bound to care and diligence when using either, so that their use shall not work injury to others with the . same rights. On the highway the traveler must use prudence, so as not to inflict injuries on others and to guard against injury from others. The same obligation rests upon the operators of a railway train. They must exercise a degree of care corresponding to the perils of such a mode of transportation. Persons crossing a railroad on a street or public highway are only exercising an undoubted right; but in doing so they must use the same care and vigilance for their safety, and the safety of persons running on the railroad, that the operators of the train use. The principles applicable to one are applicable to the other, and are as old as law. The traveler on the highway is no more bound to stop when he approaches a railroad, than the managers of the train are bound to stop when they approach a highway. It may be the imperative duty of either to stop when the conditions require it. The managers of a railway train, though they have a right to the use of the track, have no right to run it into a procession crossing the track on a highway, or into a crowd collected to extinguish a fire; and if they should do so knowingly, and without every effort to stop the train, would be guilty of culpable négligence. In most cases, as the traveler on the highway can arrest his progress easier and quicker than the railway train, it would be his duty to stop on the approach of danger. But this obligation does not arise from the superior right of the railroad, but from the conditions of the parties. The duty of the train to stop in case of apprehended danger is just as strong and obligatory.
It is unnecessary to examine the other points made on a motion for a new trial, as the judgment must for the reasons given be reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action brought by defendant in error to recover damages for trespass on real estate. The following facts are found in the record: The plaintiff in error built its road through the land of defendant in error, without having first obtained the right-of-way. The land was entered upon early in August 1870, and the work on the road-bed commenced. Application to the county commissioners for condemnation proceedings was made October 12th thereafter. The commissioners filed their report on the 28th of November, and the money allowed by the commissioners as compensation and damages was deposited in the county treasurer’s office on the 29th of March 1871. The action in this case was commenced on the 28th of September 1870, and was tried in September 1871, resulting in a verdict for defendant in error.
No right of way was obtained through the land of Ward until the money was deposited. Sec. 4, art. 12, Const. Every act of the railroad company, in the way of build-mg and operating their road through and upon the land of defendant in error before that time, was a trespass, for which he could recover. Until the payment ■ of this money, or its deposit, as required by law, the corporation obtained no right, unless it was the right to make their survey. The proceedings to procure a condemnation of the right-of-way were not a bar to the action previously commenced, nor did it cure all past trespasses. The provision in our constitution is peculiar, and cannot be overborne by any possible necessity. It stands opposed to the construction given by courts in other states as to the effect and operation of laws providing for taking land for public purposes. Until the money is paid or deposited the corporation gets no rights. The decision of this point, which has hardly been questioned by the bar in this state, disposes of much of the argument of counsel for plaintiff in error. It was not an appeal case. The condemnation proceedings cut no figure except to fix a time when the right-of-way became the property 0 J x x •> 0f the plaintiff in error; and about that, there was no controversy. It is not necessary to determine whether the condemnation proceedings were regular or otherwise. We have assumed that they were correct. The plaintiffs in error, in the court below, relied upon a license given by Ward to them, and under which the acts complained of were done; but the fact as to whether such a license had been granted was submitted to the jury upon conflicting testimony. The jury decided that no such license had been given, and we think the preponderance of testimony sustains the verdict. From the testimony of A. P. Ladue alone, a license might be inferred, but the conversation as testified to by him is so vague as to terms, that one would infer a license from it with much hesitation, while the defendant in error positively denies the license. On this point the testimony is not negative, as it is when he says he does not recollect any such conversation as that detailed by Ladue. This conflicting testimony, with all the surrounding circumstances, went to the jury, and was by it decided. The court properly refused to give 3d and 4th instructions asked by defendant in error. They relate to the condemnation proceedings, which cut no figure in this case. For the same reason the 15th paragraph of the charge of the court could not have wrought any injury to plaintiff in error. Whether the condemnation proceedings were void or not, was of no consequence under the issues and proof in the case. That portion of the charge is obscure, and it is not necessary to say that it is a correct exposition of the law, as it could not affect the case. The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
It is claimed that the instructions given at the instance of defendant in error (plaintiff below) are not correct; but as there were no exceptions to them, this court will not examine them.
The court refused to give this instruction asked by plaintiff in error: “ The burden of proof is upon the plaintiff in this action to show gross carelessness or negligence on the part of the defendant in the care of the horse.” The action was to recover damages for the death of a hired horse caused by the negligence of the hirer. The hirer was liable for an omission of that diligence in the use and care of the horse which “all prudent men use, that is, the generality of mankind use, as to their own horses.” Such an omission is called ordinary negligence. That degree of negligence only the plaintiff was required to show, to entitle him to recover. The instruction asked, demanded proof of gross negligence to authorize a verdict. The difference between gross and ordinary negligence is too well established to require comment. Because the instruction exacted the proof of a degree of negligence greater than the law requires, it was not law.
The remaining questions arose on a motion for a new trial. The first is, that the court used language to the jury calculated to mislead the jury in the discharge of its duty. The remarks made only appear in affidavits, and certainly bore as strongly against one side as the other. Neither party made any objections at the time, but waited the result, and then the losing party was shocked at expressions “calculated to mislead the jury in the faithful and conscientious discharge of its duty.” It is an uncommon method to present the remarks of a court to a jury by means of affidavits addressed to the court which makes the remarks. It would be better to incorporate such remarks in a bill of exceptions, wherein the judge could set down just what he did say. In this case two jurors profess to give the substance only of what was said to them by the court, and so far as it was calculated to induce them to agree on a verdict it was eminently proper. The amount in controversy was small. The testimony was not strong on either side. It was very desirable that the controversy should be settled, if possible, without the cost and inconvenience of another trial. The jury had been out all night. The only phrase in the' remarks of the court about which there can be any doubt is this: “ That no man should say the verdict must be as he wants it, but all should be governed by a spirit of conciliation.” We are'not ready to say that that phrase embodies the law that should govern a jury; but taken in the connection in which it was-used we feel sure the jury were not misled by it. They must have understood, not that any juror should give up his own judgment, but should hold it open to reason and further examination in the jury-room.
Again, it is claimed that the fact that one of the jurors who was over sixty years of age was permitted to sit on the jury, would invalidate the verdict. The fact appears only after trial, and by the affidavit of the juror over the age fixed by law when men are exempt from such service. While the juror was clearly exempt by law from service as juryman, still the law does not render jiim incompetent on that account. The law is for the benefit of a class of men. If the exemption is not claimed by the party interested there is no one else injured by his service on the jury. This point has been often decided, and with marked uniformity: 2 Graham & W. on New Trials, 275, et seq.
The remaining error urged arose on this state of facts: John Donnelly, one of the jurors who tried the case, upon his examination under oath as to his qualifications as a juryman that he was acquainted with the plaintiff, but not intimately acquainted with him; that ^ ]mew. uothjng about the case, and had not formed or expressed an opinion as to it. After the trial five affidavits were read showing the acquaintance between the plaintiff and the juror, and which plaintiff in error claims show an intimate acquaintance. Neither an acquaintance nor an intimate acquaintance with a party to a suit renders a juror incompetent. It does not necessarily show that the juror would not be impartial. It would depend on the moral character of the man, and his mental organization, what effect his intimacy might have on his judgment, even if this intimacy is caused by strong friendship, which is not always the case. Intimacy frequently grows out of business relations, and is strengthened by habit, and may exist with envy and dislike. This may not be a very amiable feature, but it is true. The fact of intimacy does not of itself disqualify a man as a juror, though in most cases it would cause a peremptory challenge of such a man. .The most that can be claimed then, is, that the .answers of the juror misled the counsel by their falsehood. It is not necessary to inquire whether that would be a good cause for a new trial, because we are not convinced that the facts stated show even an intimate acquaintance with the plaintiff on the part of the juror. It is shown that he frequented the .saloon of the plaintiff as often as once a week; had been seen to drink there, arid with plaintiff; and had played cards in the same company; and these acts had continued for a year or more before^ the trial. Now all these facts.hardly show an intimate acquaintance. Certainly the facts may exist without any intimacy. Again, what constitutes intimate acquaintance is not so clearly defined in men’s minds that the juror might not truthfully say that he had no intimate acquaintance with the plaintiff, even if counsel should think otherwise on the same facts. We 'cannot say from the record that the juror answered untruthfully, and’ so all semblance of error on this point vanishes. The motion for a new trial was properly overruled. The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kingman, C. J.:
This action for the recovery of real «state was brought by the plaintiffs in error, the heirs-at-law of Aaron Case, deceased. The petition is in the ordinary form for such cases. The answer is a general denial. A jury was waived, and the cause was tried by the court. No findings of fact were made by the court. Judgment was given for the defendant; and an exception to the judgment is the only exception made by plaintiffs in error in the case. The record purports to contain all the evidence in the case. Several interesting questions are discussed in the argument, which it is not necessary to decide, as the judgment must be affirmed on a ground too plain to admit of controversy. Under the issues, as made up, it was incumbent on the plaintiffs to show title to make out even a prima fade case. On the trial it was admitted that the plaintiffs were the heirs-at-law of Aaron Case, deceased. The plaintiffs then introduced a deed from the Humboldt Town Association to Aaron Case, and this was all the title shown by them. There is nothing indicating that the lots in controversy ever belonged to the Humboldt Town Association, or that that Association ever had a shadow of title to the lots. It is conceded that if the defendant held under a title derived from Aaron Case, that he could not •deny Case’s title. But the pleadings do not disclose any such fact; nor does the evidence. It is true that the defendant ■sought to show title in himself by deed from the administrators of Aaron Case to his vendors; but there is not an iota of evidence tending to show that the defendant held under that title. That title may have been bought by his vendors for the purpose of purchasing their peace, without any confidence in it as a title, and they may have held under a title perfect as against Case or his heirs and every one else. Nor is there anything in the record tending to show that defendant was estopped from denying the title of Aaron Case. The points raised in argument could have been best presented by following the method pointed out by the code, § 290. For the reason given the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced originally before a justice of the peace by Byron S. Goddard and George W. Goddard as plaintiffs against George H. Winsor, to recover damages to the amount of $295 claimed to have been sus tamed by said plaintiffs by reason of the cattle of tlie defendant Winsor “feeding upon, eating up and destroying corn and pumpkins growing, grown, and standing upon the N.E.£ of sec. 30, and the N.W.J of see. 32, all in township 32 south, range 2 east of the sixth principal meridian, in Sumner county, during the spring, summer and autumn of 1871.” The questions of law and fact involved in this case are almost identical with those involved in the case of Winsor v. Cole, just decided, (ante, 620.) About the onfy differences between the two cases are the following: In this case the defendant’s cattle ate up and destroyed “corn and pumpkins, growing, grown and standing upon” certain premises not shown or claimed to have been owned by the plaintiffs or by any one else, “during the spring, summer, and autumn of 1871.” In the other case the defendant’s cattle ate up and destroyed “ corn and squashes standing and being upon the plaintiff’s premises,” “during the month of October 1871.”
In this case the record shows that the justice appointed the special constable who served the original writ about one month before this suit was commenced, while in the other case no such appointment is shown.
We do not think it is necessary to consider whether said appointment is valid'or not, for in this case (as in the other case) there is nothing to show that the constable was not appointed specially to serve the summons issued in this case. The transcript does not purport to contain all the proceedings of the justice. For the reasons given in the other case the judgment of the court below in this case must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on an instrument in writing claimed to be a criminal recognizance. The action was brought by the county attorney of Washington county in the name of the State against Edward Ingram, J. C. Hebbard and J. B. Snider, who appear to have executed the said instrument in writing as sureties for the appearance of D. A. Ingram at the next term of the district court of said county to answer to the charge of grand larceny. The defendants (now plaintiffs in error) claim that the said instrument is void upon its face for the following reasons: First, said instrument is not in form a recognizance, but is in form merely a penal bond; second, said D. A. Ingram did not sign or execute said instrument; third, the initials only of the Christian name of said D. A. Ingram are given in said instrument, his full ohristian name not being given.
We think the said instrument is sufficient as a recognizance, notwithstanding these supposed defects. The instrument purports upon its face to be a recognizance. It was given by the Par^es as sn°h. The parties call it such in the instrument itself, and it was taken and approved ' ^ 0fficer ag is true, that that portion of the instrument which contains the obligation is in the form of a penal bond, and not in the form of a recognizance. It is true, that that portion of the instrument seems to create a new debt or obligation as a penal bond does, and is not the acknowledgment of a pre-existing debt, as a recognizance is; but this is such an immaterial difference that the instrument cannot be declared void under our statutes merely for that reason: (criminal code, §154.) The defendants signed and executed this instrument, and it was not necessary in order to bind them that D. A. Ingram should have signed or executed it. The instrument is not void because the initials only of the Christian name of D. A. Ingram are used. (Ferguson v. Smith & Dunham, ante, 396.). We therefore think said instrument is sufficient as a recognizance under our stat utes, and that it may properly be called a “ recognizance.”
The execution of said recognizance was properly alleged in the petition in the court below, and was not denied by an answer verified by affidavit, and therefore no ,. , . , , n n question can be raised as to the due execution oi the recognizance: (civil code, § 108; Reed v. Arnold, ante, 102; Mo. R., Ft. S. & G. Rld. Co. v. Wilson, ante, 105.) We think the petition in the court below states sufficient to constitute a cause of action. It is true, as is claimed by plaintiffs in error, that the petition “ does not allege that the defendants or either of them were called, and made default;” but it does allege that D. A. Ingrata, (the only person who was required by the recognizance to appear at court,) was duly called, and that he made default. It is also true that the petition does not allege that the default of D. A. Ingram was ever made a matter of record. But notwithstanding these omissions we think the petition is sufficient. It was not necessary to call the sureties on the recognizance; and the failure of the clerk to enter the default of D. A. Ingram will not defeat any action on the recognizance. (Criminal ■code § 154.)
The defendants filed an answer to the plaintiff’s petition •denying generally all the allegations thereof, and setting up ■some other matters of defense. The plaintiff demurred to the answer 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 rendered judgment on the pleadings for the plaintiff. This was erroneous. The general denial of the defendants was a good defense to the plaintiff’s action. While it could not of course put in issue the execution of the -recognizance, as the answer was not verified by an affidavit, yet it did put in issue the fact whether D. A. Ingram made default or not. If Ingram appeared at court, as required by the recognizance, then of course no cause of -action ever accrued against the defendants. This fact was put in issue by the pleadings, and could be determined only by a trial upon the evidence. The judgment of the court below is reversed and cause remanded with the order that the demurrer to the answer be overruled, and for further-proceedings in accordance with this opinion.
All the Justices concurring.
Another case between the same parties (except that the action below was upon another recognizance,) was brought to this court, and heard and decided with this case. In said' cause the opinion of the court is as follows:
Valentine, J.:
The questions involved in this case being precisely the same as those involved in the case of Ingram,, et al., v. The State, just decided, the decision' and judgment will be the same as in that case.
All the Justices concurring.
|
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