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The opinion of the court was delivered by
Dawson, J.:
This is an original proceeding in quo warranto to determine whether the city of Coffeyville may sublet its airport to a private individual and authorize him to operate it for the convenience of all aviators who choose to use it on reasonable terms, and to put the profits, .if any, in his own pocket.
The statute under which the airport was acquired reads:
“That whenever in the opinion of the governing body in any city in the state of Kansas, the public safety, service and welfare can be advanced thereby, such governing body of such city may acquire by purchase or lease and maintain a municipal field for aviation purposes, and pay the expense of such purchase, lease or maintenance out of the general funds of the city. Such field may be used for the service of all aircraft and pilots desiring to use same.” (R. S. 3-110.)
Pursuant to that authority, on February 14, 1928, the defendant city leased a convenient tract of 140 acres for a municipal airport. The lease term was five years and the rental was $1,000 per annum with an option to buy the land at $13,500, and there was an additional stipulation that if that option were exercised the rents paid would be credited on the purchase price.
On July 15, 1928, the city sublet its airport to one George L. Bennett, an aeronaut who practiced his profession under the name of the Bennett Flying School. The contract subletting the airport reads:
“Lease of Airport.
“The city of Coffeyville, Kan., hereby leases to the Bennett Flying School, home office 223 West Twelfth street, Kansas City, Mo., for a period of five (5) years, the Coffeyville municipal airport.
“The city of Coffeyville agrees to, at its own expense, erect four (4) metal hangars upon the airport grounds, and to make the airport safe for daylight landing. Water and lights are likewise to be furnished by the city of Coffeyville without costs to the lessee.
“The lessee to pay fifty ($50) dollars per month to the city of Coffeyville for this lease on the field, including the four hangars, and five ($5) per month for each additional hanger erected by the city. The payment of $50 shall commence at the time and when the hangars are, by the city of Coffeyville, on the municipal airport grounds erected.
“The Bennett Flying School promises to . furnish one licensed ship and one licensed pilot, available at all times for local air transportation and cross-country flying.
“The Bennett Flying School promises to establish a branch of the Bennett Flying School on the said city airport, and the Bennett Flying School will have exclusive rights on the field for training aviators.
“The Bennett Flying School is to operate the field in accordance with the rules and regulations of the Department -of Commerce as an open airport and the rules are hereby made a part of this contract.
“The Bennett Flying School agrees to make all charges not to exceed the average current prices for equal service in this locality, and these rates should prevail as a minimum by any other individual or company operating from the field.
“Any individual or company operating planes from the municipal airport, shall pay to the Bennett Flying School ten per cent (10%) on short passenger flights, and five per cent (5%) on cross-country flights when using the municipal airport as a base.
“The Bennett Flying School is to have the right and privilege of subleasing hangar space and furnish service and equipment on the field at all times. This is not an exclusive arrangement to prevent deliveries of supplies on the field, but only to give them the privilege of permanent service equipment on the field.
“It is hereby agreed that if at any time, for any cause, the- Bennett Flying School fails to give service for aerial transportation for one week, that this lease is canceled and held for naught.
“The Bennett Flying School agrees to keep a man on the ground at all times, available as an instructor in aeronautics, and further agrees that the airplane that the Bennett Flying School will keep on this field be an airworthy craft and duly licensed.-
“Both parties promise that they will do their utmost to carry into effect the. terms of this contract in order to advance the science of aviation.
. “Signed, by the contracting parties this the 10th day of July, 1928, at Coffeyville, and on the 10th day of July, 1928, at Kansas City, Mo.
“The City of Coffeyville, Kansas,
“By. Harry Lang, Mayor.
“The Bennett Flying School,
(Seal) “By Geo. L. Bennett.
“A. P. Irwin, City Clerk."
In the state’s petition the foregoing facts are pleaded at length. Various illegalities are alleged against the lease — the granting of exclusive rights over the entire airport to Bennett, and authorizing him to fix prices for the services of the airport and for the trans portation of passengers, and the want of corporate power on the part of the city to sublet its airport.
The city answered, in part, thus:
“That the governing body of defendant city, realizing the propriety and importance of providing and maintaining a municipal airport near to said city, and recognizing the danger to the public incident to its operation, therefore, and with the purpose and to the end of having, at all times, airworthy craft on said airport field, manned and under the efficient care of tried and practical aeronauts, acting under a single and undivided responsibility and management; and, having to that end, first assured itself of the good reputation, responsibility, learning and skill of Dr. Geo. L. Bennett, sole proprietor of the Bennett Hying School, in the art, science and practical operation of aerial transportation— . . . defendant further says that aviation is a pioneer, and in the experimental stage, in the field and business of transportation and travel, and is at the present time, at least, fraught with danger to person and property; ... (4) And . . . defendant says that in entering into the aforesaid lease contract, it did so with no intention or purpose on its part to thereby divest itself, as a city of the first class, of its rightful power, as such municipal corporation, over said airport and its operation, nor . . . surrender its inherent and inalienable right to the supreme management and control and the supervisory care over the operation thereof for the public good.”
It will readily be noted that the principal question here presented is whether the city has corporate power to sublet its municipal airport to a private individual. No such right is expressly conferred by statute. The pertinent rule for the proper construction of corporate powers of cities was first stated in the case of The City of Leavenworth v. Rankin, 2 Kan. 357.
“Municipal corporations are creations of the law and can exercise only powers conferred by law and take none by implication. In making contracts they must act within the limits and observe the regulations prescribed . . . Persons contracting with such corporations must inquire into their powers at «their peril.”
This rule is one of general application and has been applied many times to curb the exercise of powers not conferred upon official boards and governmental agencies. In State, ex rel., v. City of Topeka, 31 Kan. 452, 2 Pac. 593, it was said:
“Whenever a municipal corporation usurps any power which might be conferred upon it by the sovereign power of the state, but which has not been so conferred, such corporation may be ousted from the exercise of such power by a civil action in the nature of quo warranto in the supreme court. (State v. Topeka, 30 Kan. 653.)” (Syl. ¶ 3.)
Typical of many of our precedents to the same effect are: State, ex rel., v. Regents of the University, 55 Kan. 389, 40 Pac. 656; State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31.
The fact that the unauthorized power which the official board or governmental agency assumes to exercise may be a good stroke of business will not justify it. On this point, in State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149, where a school board sought to justify its unauthorized purchase of omnibuses to haul children to school rather than pay for their tuition in other schools more accessible, it was said:
“Touching the principal matters specially pleaded in defendant’s answers— the alleged saving of the district’s funds by the purchase and operation of the buses to carry to and from school the pupils who lived at a considerable distance therefrom rather than pay their tuition in other more convenient districts ... If the cost of paying tuition of some of the district pupils attending school in other districts is a lawful charge on the funds of the Labette county community high-school district and is more than it would cost to furnish transportation for such pupils to and from school in their own district, that is a matter which the legislature could and probably would correct if the fact were called to its attention. Legislative sanction has been given to expenditure for such transportation in common-school districts. (R. S. 72-601; State, ex rel., v. Cruzan, supra.) However, we have to deal with the law as it is, not as it might be.” (p. 497.)
There is no substantial analogy between this case and that of Balley v. City of Topeka, 97 Kan. 327, 154 Pac. 1014, where an exclusive concession in a small part of a large city park was granted, nor that of State, ex rel., v. Dodge City, 123 Kan. 316, 255 Pac. 387, where an inconsiderable part of a public park was set apart for the quite consistent purpose of a touring camp with the usual facilities pertaining thereto. The case of Kansas City v. Wyandotte County, 117 Kan. 141, 230 Pac. 79, is not sufficiently analogous to be helpful. Defendant cites the case of O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551, but in that case the grant of an exclusive franchise was authorized by statute. Our attention is called to the comprehensive language of R. S. 12-101, which declares that the cities of this state shall have power, among other matters, to make such orders concerning the real property of the municipality “as may be deemed conducive to the interests of the city, and to provide for the improvement, regulation and government of the same,” and also — ■
“Fourth. To make all contracts and do all other acts in relation to the property and concerns of the city necessary to the exercise of its corporate or administrative powers.
“Sixth. To exercise such other and further powers as may be conferred by law.”
This court, however, feels impelled to hold that neither the statute just quoted nor any other can by fair intendment be interpreted to confer upon the city of Coffeyville the corporate power to sublet its municipal airport, nor to confer upon a private individual as lessee of the city the exclusive privilege of managing the municipal airport for his private profit; and the fact that the lease contemplates that the lessee’s charges must be reasonable and that the aviation services which he undertakes to furnish must be open to all aviators alike will not excuse the city’s exercise of a corporate power for which there is no statutory authority.
Judgment for plaintiff.
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The opinion of the court was delivered by
Burch, C. J.:
The action was in form one by a patient to recover from a surgeon, Dir. M. L. Bishoff, for breach of an express oral contract to perform an operation for relief of hernia in the manner required by good surgical practice. A demurrer to the petition was sustained, and plaintiff appeals.
The petition alleged plaintiff was an employee of the A. T. & S. F. Railroad Company. For a period of years he had been a member of the A. T. & S. F. Hospital Association, with dues paid. By virtue of his membership and payment of dues, he was entitled to surgical treatment at the association hospital. Defendant is a surgeon who is a member of the hospital association’s staff. Plaintiff suffered from hernia and was given an order by an employee of the railroad company, which plaintiff delivered to defendant. Plaintiff consulted with defendant about plaintiff’s condition, and defendant recommended an operation to correct the hernia. Plaintiff orally employed defendant to perform the operation and to give plaintiff proper care and treatment following the operation. Defendant orally agreed to perform the operation in accordance with the practice of good and prudent surgeons, and to give plaintiff proper care and treatment following the operation, which would be done in consideration of the dues paid by plaintiff to the hospital association. The operation was performed on October 23, 1930, and plaintiff remained in the hospital of the association under care, treatment and supervision of defendant until November 5, 1930, when he was discharged as cured. Defendant had violated the terms of the agreement in that the operation was not performed in a manner in accordance with the custom and practice of good and prudent surgeons. Consequences followed which defendant refused to correct, and plaintiff was obliged to undergo a second operation. Plaintiff would have been completely relieved if the first operation had been performed in a manner in accordance with the custom and practice of good and prudent surgeons. Due to acts of defendant in failing to perform the operation in a manner in accordance with the customs and practice of good and prudent surgeons, plaintiff’s health was permanently injured. He suffered great pain for a long period of time. He was unable to perform work and labor. He was compelled to incur doctor and hospital bills in large sums, in an effort to relieve his condition. Wherefore- plaintiff was damaged in the sum of $50,000.
Plaintiff brought his action on April 28, 1933. The demurrer to the petition was sustained on the ground the cause of action was barred by the two-year statute of limitations.
It will be observed plaintiff, as an employee of the railroad company, and as a member of the railroad company hospital association, was entitled to treatment at the hospital without any new, express or independent contract with anybody. He paid his dues to the hospital association in order that he might receive surgical treatment when necessary. He was invalided to the hospital for treatment. At the hospital he consulted the surgeon who was there, as a member of the hospital staff, to give plaintiff needed treatment. Plaintiff says, in effect, he proceeded to employ defendant as an individual to do what the hospital association was maintained to do, and was bound to do for him. The petition does not allege that' plaintiff paid or agreed to pay defendant anything for his services. The dues which plaintiff had already paid to the hospital association. secured to him defendant’s services as a member -of the hospital staff. The contract, which plaintiff says he made with defendant was a contract to perform an operation according to good surgical practice, a method which defendant, as a surgeon, was obliged to follow in any event, without any contract. Defendant’s fault lay in the fact he failed to perform the operation in accordance with good surgical practice. Plaintiff suffered the damages which characteristically flow from malpractice.
The law of this state is realistic. Substance prevails over form. It is perfectly manifest that, notwithstanding the form given to the petition, the gravamen of the action was malpractice, which is a tort, and the action was barred by the two-year statute of limitations.
Plaintiff cites the case of Ericson v. Charles, 108 Kan. 205, 194 Pac. 652. In that case plaintiff’s petition contained two causes of action for damages. The first was based on breach of contract by a surgeon to perform an operation according to proper surgical practice. The district court overruled a demurrer to that cause of action. Nobody complained. The ruling was not brought to this court for review. This court did not review the ruling, and the decision is not authority for casting what is, in fact, a malpractice action in the form of an action for breach of contract.
In the Ericson case, the second cause of action was one ex delicto. A demurrer to that cause of action was sustained on the ground the action was barred by the statute of limitations. This court approved the ruling.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued George Downey, one of the signers of a promissory note, to recover thereon. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The defense was that the note had been signed for the accommodation of the plaintiff and that the defendant had not received any consideration therefor. The evidence was submitted to a jury which returned a verdict in favor of the defendant and answered special questions as follows:
“1. Did the defendant receive any consideration for signing the note in question? A. No.
“3. Did Joe La Roeque receive any consideration for defendant’s signature upon the note in question? A. No.
“5. Did the defendant sign the note sued upon at the request of the plaintiff through its officer, John Nelson? A. Yes.
“6. Had the note sued upon been signed by Joe La Roeque before the defendant signed it? A. Yes.
“7. Had Joe La Roeque ever requested the defendant to sign the note sued upon? A. No.”
The material parts of the evidence as shown by the abstract of the plaintiff were as follows:
“Plaintiff’s Evidence.
“Martin Johnson testified that he is cashier of the plaintiff bank and has been cashier since 1921. That the bank had transactions with Joe La Roeque and Geo. Downey, the maker of the note sued upon, starting about 1923 . . . Asked if the old note was returned or if it was kept by the bank, upon renewal, witness answered, ‘Well, if they both signed there at' the same time, why it would be returned to them; if not, why, the other one would be held until it was signed by both.’
“Witness produced the accounts receivable book of the bank, containing the transactions by the bank and Joe La Roeque, and the defendant Geo. Downey. The first note given was January 30, 1923, being note No. 9040 in the sum of $428.50, signed by Joe La.Roeque and Geo. Downey. This note was renewed September 27, 1923, by note No. 9520 in the sum of $400, signed by Joe La Roeque and defendant Geo. Downey.
“That note was renewed August 23, 1924, by note No. 10,137 in the sum of $400 signed by the same parties, and was renewed July 30, 1925, by note No. 11,589 in the sum of $400, the makers being Joe La Roeque and Geo. Downey, and that note was renewed July 9, 1926, signed by the same parties, and is the note sued upon in this case. The note sued upon was introduced in evidence.”
“Defendant’s Evidence.
“Joe La Roeque identified defendant’s exhibit 1, being a copy of the note sued upon in this action, and stated that he signed the original at the Simpson State Bank on July 9,1926. That at the time he signed the note the name of Geo. Downey had not been signed to the note. That the note was a renewal of a former note in favor of the bank, and that Geo. Downey was a signer on the former note. . . .
“Q. State if you know who received the proceeds, or consideration, or the money for the note of which exhibit 1 is a renewal. Did you get the money on the first note that Downey signed? A. No; I got the money previous to that time.
“Q. Was Mr. Downey a signer on the old note for which you received the money? A. No.
“Q. Did Geo. Downey ever owe any part of the indebtedness which is evidenced by the note, exhibit 1? A. No. ...”
“Geo. Downey testified that he resides at Simpson, Kan., and has lived there twelve years. That he had no checking account at the plaintiff bank; that he signed the note, exhibit A, in the plaintiff bank at Simpson.
“Q. Who, if anyone, requested you to place your name on that note? A. I was going by the street and John Nelson called me in to sign this note that Joe had renewed, a former note that I signed for him.
“Q. And had you signed a note upon which Joe La Rocque’s name appeared prior to that time? A. Joe La Rocque’s name was on the one I signed in 1925 —in 1925 on the 30th day of July.
“Q. Now at the time you signed this exhibit A, had Joe La Rocque’s name been signed on there? A. Yes; this name here had been signed, I don’t know when he had renewed it, and paid the interest, and they called me in after-wards and I signed this note.
“Q. Do you know about how long you signed it after the date of the note? A. I don’t know just how long it was; he had renewed it, and called me in to sign this later on. That defendant had signed a note of which this was a renewal the year before at the J. C. Topp farm. That Joe La Rocque, John Nelson and witness were present and John Nelson asked witness to sign the note.
“Q. Just state what he said. A. He asked me to sign this note for accommodation, that the bank commissioner was riding them and they asked to put somebody else on the note. . . .
“That Nelson paid the defendant no money and he received nothing for placing his name on the note.
“Q. Now, do you think of anything else that was said by Mr. Nelson out there at the Topp farm that you haven’t testified to? A. Well, he just told me to sign this as accommodation because the bank commissioner was bothering them and he just wanted to hold the note.”
“On cross-examination defendant testified that John Nelson and La Rocque came out together when defendant signed the note in question.
“Q. Didn’t La Rocque say anything to you about signing this note? A. He did after Nelson had talked to me, because I told him I was good, and he would come back on me,, and Joe (La Rocque) told me that they wouldn’t. Defendant knew that La Rocque went through bankruptcy sometime after giving the note sued upon and defendant talked with Mr. Johnson about it. That La Rocque never told witness that the bank wouldn’t extend him any further time on this note unless he signed a renewal and got defendant as security on the note.
“Q. Well, and what you thought you were doing, you weren’t accommodating La Rocque at all, you were accommodating the bank — is that it? A. He already had owed the bank and they asked me for its accommodation to sign this note; it was an old note, had been renewed and he had it signed before they came out there.
“Q. Yes; but I say, you didn’t consider you was doing anything for your neighbor, La Rocque; was that it? A. He never had mentioned it to me, never had asked me to do it; I didn’t even know he owed a debt till Mr. Nelson and him came out there.
“Q. And you thought then you were signing it for accommodation of the bank and not for La Rocque; is that it? A. Well, it was the bank that asked me to sign it as accommodation.”
“Martin Johnson, called in rebuttal, testified that it was no accommodation to the bank for Downey to sign the note. That had Mr. Downey not signed the note the bank would have brought an action to collect the note, and would not have extended the time of payment. That witness is the cashier of the bank, and was at the time, and would not have permitted the extension of time of payment had Mr. Downey not signed the note.”
The plaintiff moved for judgment on the evidence and findings notwithstanding the verdict. The motion was denied. The plaintiff says, “The court erred in refusing plaintiff's motion for judgment on the evidence, notwithstanding the verdict.” The abstract does not show such a motion. The motion was “for judgment on the evidence and findings notwithstanding the verdict.” Was it error to deny that motion?
The evidence established that the note sued on was given in renewal of a note on which, the defendant was liable. He was discharged from liability on that note when he signed the new one. That was the consideration received by him when he signed the new note. The bank had given consideration when the first of the whole series was given, and it forbore to sue on the old note when the one sued on was given. The motion for judgment should have been sustained. It was error to deny that motion.
The judgment is reversed, and the trial court is directed to render judgment in favor of the plaintiff for the full amount of the note and interest thereon.
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The opinion of the court was delivered by
Thiele, J.:
The city of El Dorado appeals from an order overruling its demurrer to plaintiff’s petition, the allegations of which are summarized as follows: Plaintiffs for many years have owned and resided on certain described real estate; defendant is a city of the second class owning and operating for more than ten years past a sewage-disposal plant on the bank of the Walnut river, and the outlet from the plant is into the river, which flows along the east city limits and then in a westerly direction past plaintiff’s real estate, bounding the same on the north and east; that for many years the defendant operated the sewage plant in such manner the sewage was treated and no damage was caused plaintiffs.
“That beginning with the spring of 1933 a serious drought condition began in Butler county and said drought continued during the summer of 1933 and all of 1934, until about October thereof. That as a result of said drought the water in said Walnut river became low and its volume insufficient to carry away the sewage from said sewage-disposal plant. That the proportion of sewage discharged from said sewage-disposal plant increased over the volume of water in said river and said defendant carelessly and negligently and improperly operated said sewage-disposal plant during said drought period and as a result much raw and untreated sewage was dumped and thrown into said river by said defendant, and the water in said river became very foul, unclean and contaminated and a very obnoxious and nauseating stench and odor came from said river. That some of the time during the summers of 1933 and 1934 said defendant did not operate said sewage-disposal plant at all, but dumped the sewage from said sewage-disposal plant into said river in its raw state, and without treating it.”
It is further alleged that plaintiffs’ home is only a few hundred' feet from the river, and that the odor and stench from the river at times became so foul plaintiffs were unable to endure it and were forced to leave their home for periods of time. That because of the sewage insects existed in great numbers and plaintiffs were kept in actual fear of disease from contamination. Because of the facts alleged the value of plaintiffs’ property decreased in the sum of $5,000. It is further alleged that plaintiffs are aged, have become accustomed to said real estate as their home and are unable to establish another home at their time of life; that at all times mentioned defendant and its agents and employees have known the facts and conditions; that plaintiffs have protested and have requested the condition be remedied; that notwithstanding the protest of plaintiffs and others the city has willfully and knowingly operated said sewage plant in a careless and improper manner, and that because of the drought conditions defendant should have úsed greater care and diligence in the operation of the plant than under ordinary conditions; that during the summers of 19,33 and 1934 said plant was in a bad state of repair and known to be so to the defendant, and if it had been kept in proper repair and operated in a careful and prudent manner the sewage would have been properly treated and the water in the stream would not have been contaminated and plaintiffs would not have been injured; that in addition to the damage to their real estate plaintiffs have been in constant fear of contamination and have been unable to live comfortably in their established home, have been compelled to breathe foul and obnoxious odors from the river and as a result their health has been impaired and their peace of mind destroyed and by reason thereof they have been damaged in an additional sum of $5,000. That on August 7, 1934, they filed a written statement of claim and demand with the city, a.copy being attached. The prayer of the petition is for $10,000. An examination of the stated claim shows that it covers about the same matters as are alleged in the petition, making claim for the two specific items of damage, and notifying the city action would be commenced unless the claim was settled and the pollution of the river by the city discontinued.
Appellant contends that the maintenance and operation of its sewers are in exercise of its governmental rather than proprietary capacity, and therefore it is not liable to plaintiffs for any damages they may have suffered. We shall not pause to analyze the general question of a city’s liability for damages growing out of some opera tion arising from the exercise of a governmental function, for, as said in State v. Concordia, 78 Kan. 250, 96 Pac. 487:
“The power granted to cities of the second class to build and maintain sewers does not warrant the commission of a public nuisance through their agency.
“In planning and in maintaining systems of sewerage cities of the second class must make due provision against public nuisances resulting from occurrences naturally and reasonably to be anticipated.” (Syl. Iff 1, 3.)
In White on Municipal Negligence, § 161, page 204, it is said:
“A city has no more right to injure the waters of a stream or the premises of an individual by the discharge of sewage into the stream than a natural person, and incurs the same liability by so doing, and as the rule is that where a municipal corporation deliberately pollutes the waters of a stream by causing its sewers to empty into the same, it is liable in damages to a landowner through whose premises the stream passes, and who is entitled to use it in its natural state, though the act was done in the exercise of a governmental function; and it will be no defense that the sewage was discharged at a point some distance from the watercourse, where it is discharged near a creek that flows into such watercourse. The rule is the same, of course, where, owing to negligence on the part of the municipality or its officers or agents, sewage escapes into such a stream and pollutes it.”
In an annotation in 75 A. L. R. 1196, with respect to municipal immunity from liability for acts in performance of a governmental function, it is stated that a majority of the courts passing upon the question have held the immunity of a municipality from liability for acts done in performance of governmental functions does not extend to cases of injury resulting from a nuisance created or maintained by the municipality, and that the municipality is liable although the nuisance was created or maintained in the performance of public duties or governmental functions; .and many cases in support are cited.
The allegations of the petition are that the city constructed a sewer system emptying into a stream and then so negligently operated it as to make it a nuisance to the damage of plaintiffs. Assuming those facts to be proved, it would be no defense to the city that the construction and maintenance of a sewer is a governmental function.
Appellant insists there is no allegation of nuisance in the petition. The word “nuisance” has been said to be incapable of precise definition. Literally, nuisance means annoyance, and any use of property which endangers life or health, gives offense to the senses, violates the laws of decency or obstructs reasonable and comfortable use of property may be said to be a nuisance. (20 R. C. L. 380; 46 C. J. 645.) That operation of a sewer may constitute a nuisance was recognized in State v. Concordia, supra. (See, also, 46 C. J. 723, § 268, and cases cited.) Disagreeable odors were held to be a nuisance in McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753. And the cases holding that pollution of a well or a stream may constitute a nuisance are numerous. (See McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, 50 L. R. A., n. s., 388; Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679; Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953.) While the plaintiffs did not plead a conclusion and state that the facts alleged constituted a nuisance, they did allege the city had so operated the sewers, sewage-disposal plant and the waste therefrom that the waters in the stream bordering their property were polluted, and an obnoxious and nauseating stench arose therefrom, etc. We think the allegations of the petition were sufficient to state a nuisance existed.
It is likewise argued that the statement of claim filed by appellees with the city was insufficient. We are not disposed to put much stress on this contention so far as considering whether the statement as filed advised the city of plaintiffs' claim, for without repeating its language, although it may have been vague in some particulars, it clearly showed the plaintiffs claimed damages growing out of an alleged unlawful operation of the sewer and sewage-disposal plant.
We do, however, take note of the fact that it is readily discernible that, although not separately stated and numbered, an attempt is made to state two causes of action, one for $5,000 permanent damages to the real estate, and one for $5,000 temporary damages.
With reference to the claim for permanent damages, attention is directed to McDaniel v. City of Cherryvale, wherein a very similar state of facts existed. The question as to when the cause of action accrued was considered, and it was held that as the sewer system was in its nature, design and use a permanent structure, and its' operation was necessarily a constant and continuous use, a cause of action for permanent damages arose when the sewage was first placed in the stream. Lackey v. Prairie Oil & Gas Co. dealt with a similar situation, and it was there said:
“The nature of a cause of action and the time when it accrues are determined by the facts, and not by when the injured person chooses to sue, or what he chooses to sue for. The principle is illustrated by the decision in the case of Buss v. Missouri Pac. Rld. Co., 120 Kan. 689, 244 Pac. 1059, cited by plaintiff. A watercourse was obstructed in 1916 or 1918. In 1923 crops were destroyed. In the opinion the court said a cause of action for damage to the land arose when the obstruction was built, and a cause of action for damage to crops occurred when the water destroyed crops.” (p. 757.)
In McMullen v. Jennings the question of when a cause of action for damages from nuisance arose was again reviewed, the last two mentioned cases, and others of like effect, being followed. If the plaintiffs have sustained permanent damages to their real estate, it is because of the fact the sewage not only now but for some years past has been deposited in the Walnut river. It is apparent they are now seeking to recover permanent damages because during 1933 and 1934, owing to failure of sufficient rainfall to maintain the river at its former usual level, an inherent condition, existing since the sewage was first deposited in the river, has become worse. That cause of action is barred by the statute of limitations.
As to the cause of action for temporary damages, we note that claim was filed August 7,1934. R. S. 12-105 provides that no action shall be maintained against a city on account of injury to property unless the person injured shall within three months thereafter and prior to bringing suit file the required written statement of claim. In Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540, a statute which, so far as we are now concerned, is almost identical with R. S. 12-105, was under consideration, and it was there held the claimant was limited to the injury sustained during the four (now three) months’ period preceding the filing of the required written statement. It thus appears that while plaintiffs claim temporary damages sustained during 1933 and 1934, they must on trial be limited to those, if any, sustained within the period of three months immediately preceding the filing of their written statement of claim filed August 7, 1934, and not otherwise.
Bearing in mind the old precept that a general demurrer should be overruled if any cause of action is stated, we hold the trial court ruled correctly in overruling defendant’s demurrer to plaintiffs’ petition.
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves the correctness of the allowance of a claim against a decedent’s estate.
It appears that in the probate court the claim of C. B. Fritz, undertaker, was allowed in the sum of $235, on which $115 .had been paid. On final settlement, the administratrix was directed to pay the balance of $120. The administratrix appealed to the district court, her notice of appeal stating that she appealed from the order made on final settlement disallowing her claim for moneys expended for the care and feed of livestock and for harvesting crops belonging to the estate.
On trial in the district court; an agreed statement of facts was filed under which it appears that if Fritz’s claim is a first-class claim there is due him $108, but that if his claim is inferior to the claim for taking care of the livestock, then there is due him the sum of $86. The district court held that the funeral claim was a first-class claim and that the expense of taking care of the livestock was a second-class claim, and remanded the matter to the probate court for further administration in accordance with the district court’s decision. From this order the administratrix appeals, assigning a number of errors, which will be noticed.
The agreed statement of facts is not very complete. It seems the administratrix had some trouble getting her widow’s allowance set off to her and did not promptly sell the livestock subject to sale. Eventually a sale was had and there was confusion in her accounts because of intermingling of proceeds from the sale of the stock belonging to the estate with the proceeds of sale of her individual property. Apparently that difficulty was not cleared up when she filed her final settlement. Prior to -the time the final settlement was filed the undertaker’s claim had been allowed and classified as a class-1 claim under the statute (R. S. 1933 Supp. 22-701). It is not shown whether the claim of the administratrix for caring for the livestock was ever allowed and classified in the probate court. On final settlement the probate court made an order finding the balance on hand and directing that the balance of $120 due on the funeral claim be paid and the balance of funds on hand be applied on second-class claims, the estate being insolvent. The administratrix, feeling she had been charged as administratrix with sums due her individually and had not been allowed credit for her feed bill as a preferred and paramount claim, appealed to the district court, where the agreed statement of facts was made and filed, and under the terms of which the only question left for determination was as to priority between the funeral claim and the claim for feeding livestock.
Appellant argues that under the statute providing for an agister’s lien (R. S. 58-207), she is entitled to be paid from the proceeds of sale of the livestock. The statute is not applicable. She received possession of the livestock as administratrix of her husband’s estate, and her rights and duties with respect thereto are defined and controlled by Revised Statutes, chapter 22, as now amended. The expense of taking care of the livestock was an expense of administration and properly to be classified as a class-2 claim under R. S. 1933 Supp. 22-701. Under that statute, the funeral claim was a class-1 claim and entitled to priority of payment. (See Keith v. Martin-Fleming Undertaking Co., 127 Kan. 129, 272 Pac. 564, which treats priority of the funeral claim.)
The probate court in the first instance, and the district court on appeal, correctly ruled the funeral claim was entitled to priority of payment. The district court ruled the claim of the administratrix for caring for the livestock was a part of the costs of administration and classed as a class-2 claim. It remanded, the case to the probate court for further proceeding in accordance with its decision. Its ruling was correct.
Appellant contends the district court erred in not retaining jurisdiction and completing the administration of the estate. When the district court decided the question submitted, its function was performed. The probate court is the court having jurisdiction to make settlement; that is where the accounts must be filed and recorded; that is where receipts for amounts ordered distributed must be filed; that is the court which has power to discharge the administratrix and release her bondsmen. (See the various provisions of R. S. chapter 22 as amended.)
Appellant’s complaint the judgment is contrary to the evidence is not good. The case was tried on an agreed statement. The judgment was not contrary to law, as has been demonstrated. The court did not err in denying the motion for a new trial.
No error appears and the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a promissory note which defendants had executed to the plaintiff. The face of the note was for $4,500, bearing interest at 5 percent, payable monthly. Plaintiff set oiit a schedule of debits and credits pertaining to the note and prayed judgment thereon.
Defendants’ answer admitted the execution of the note, and alleged that defendants had purchased from plaintiff a residential property in Forgan, Beaver county, Oklahoma; that the note in question was for the unpaid balance of the purchase price, and that it was secured by a real-estate mortgage covering the property.
Defendants’ answer also alleged that plaintiff’s corporate structure was that of a building and loan association; that as such it was required to take real-estate security for loans; that it had never instituted proceedings to foreclose its mortgage on the Forgan property, and that it was not entitled to maintain this action without setting up its mortgage .and having the same foreclosed and the property sold in foreclosure in conformity with established rules and practices of building and loan corporations.
The legal question thus raised was argued before the trial court, and decided adversely to defendants. The exact amount due from defendants was amicably fixed by the litigants, and. judgment was accordingly entered for plaintiff.
This appeal raises the single question whether under Kansas law a building and loan association may bring an action on a promissory note without maintaining incidental proceedings to foreclose the mortgage it holds to secure the payment of the note.
Counsel for defendants remind us that the maker of a note and morgtage to a building and loan association has the status of a shareholder in the corporation; he holds a proportionate number of installment shares which correspond to the extent of his indebtedness, and that these shares have a monetary withdrawal value which eventually is applied to the liquidation of his indebtedness. All of which is correct, of course; but it is not arguable here that in the rendition of judgment defendants were not duly credited with the withdrawal value of the shares of stock issued to them at the time of the transaction which culminated in the execution of the note and mortgage. Counsel likewise say that in some states a building and loan company is required by statute to foreclose its mortgage and exhaust the security before seeking other recourse for the collection of its due. The wisdom of such a policy can only concern the legislature, but circumstances can readily be imagined where its humanity would be open to question. No creditor should be criticized for reducing his due to judgment, to await a possible improvement of his judgment debtor’s circumstances for payment; but he might be altogether indisposed to demand or require that the mortgage he held on his debtor’s home be foreclosed, the home sold, and the debtor and his hapless family turned out of doors. Yet by the logic of defendants’ counsel the creditor would be compelled to do that very thing.
Counsel also remind us that building and loan associations are corporations of limited powers. Very true, but so long as they do not transcend those powers it is no concern of anybody except their responsible officials how or to what extent those corporate powers are to be exercised. Certainly it is no corporate delinquency, nor a matter of which defendants can complain, that plaintiff is content to withhold a demand to which the ruthless letter of the statute would entitle it.
It has always been the law of this state that the holder of a promissory note secured by a mortgage could sue on it without seeking to foreclose the mortgage security pertaining thereto.
In Lichty v. McMartin, 11 Kan. 565, decided sixty-three years ago, the syllabus, in part, reads:
“The owner and holder of a promissory note to secure which note the maker thereof gave a mortgage on real property, is not required to foreclose said mortgage, but may bring his action on the note alone wherever he may find the maker of the note; and this, whether the note and mortgage were given in this state or elsewhere, whether the mortgaged premises are situated in this state or any other state, ...” (Syl. ¶ 1.)
In Farmers & Bankers Life Ins. Co. v. Brown, 140 Kan. 458, 36 P. 2d 960, the. foregoing rule was federated and intervening cases cited. No sound reason can be advanced for a holding that a building and loan association has any less discretion as mortgagee in respect to such matters than any other mortgage holder.
We have not failed to note the statutory provisions governing building and loan associations, among which is R. S. 17-1012, which provides that if any borrowing shareholder shall fail to pay dues, interest, fines or other proper charges for a period of six successive months, the association may proceed, according to law, to foreclose the mortgage, etc. This court cannot assent to the suggestion that the procedure just summarized is exclusive, nor that the language which says the association “may proceed” to foreclose the mortgage means that it must proceed in that fashion and not otherwise.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action by lessors against their lessee for damages for the alleged wrongful termination of the lease. The jury answered special questions, and returned a verdict for defendant. Plaintiffs have appealed.
The necessary pertinent facts may be stated as follows: Plaintiffs were the owners of a three-story business building in Wichita. It was an old building, in need of repairs. Defendant desired to lease it. On December 10, 1928, the parties entered into a written agreement by which defendant agreed to rent the premises for a term of ten years beginning January 1, 1929, at a stipulated rental, and in addition to paying the rent to put in a new stairway, remodel the floor and put in new floors where needed, place a new roof on the building, repair and cement the courts, paint and plaster all walls where needed, and to make other ordinary, necessary and proper repairs. He agreed to expend during the first 'five years of the lease not less than $3,000 for repairs and improvements on the building. It was further agreed that a customary commercial lease be drawn and executed.
On January 25, 1929, the parties executed the lease. Apparently an old form was used, but the terms of the lease are not in controversy except as to one paragraph which was written into the printed form and which reads as follows:
“It is further agreed that in case the building on said premises shall be destroyed by fire, or be so injured by an act of God or by collapse of walls as to be unfit for occupancy, then the liability of said lessee for the rent of said premises thereafter and all rights to possession thereof shall at once cease. It is agreed, however, that in the event said building is rendered only partially unfit for occupancy by reason of fire or other damage by the elements, or collapse of walls, then lessee shall have the right to continue in possession of such part as is fit for occupancy and the rent shall be paid pro rata in proportion to the part of the building which is tenantable, but no rent shall be paid on that portion which is so rendered untenantable until such time as it is repaired and restored to a tenantable condition, at which time the payment of the full amount of the rentals herein agreed shall be resumed. If the said building is totally destroyed but is restored by lessors, then rentals will be resumed from the date said building is restored ready for occupancy.”
Defendant went into possession of the property, made the repairs which he had agreed to make, subleased portions of the building to other tenants as he was authorized to do, and paid the rent stipulated in the lease until about the beginning of 1933. By that time the rear wall of the building was settling so that it was pulling loose. There was some discussion about its condition. On February 9, 1933, defendant wrote plaintiffs:
“The back wall of the building . . . is in a dangerous condition and is liable to collapse, and unless the wall is immediately rebuilt and the injuries to the building caused by the settling of the wall are repaired, I will be compelled to terminate the lease. . . .”
Plaintiffs consulted their attorney, who, acting for them, wrote defendant, acknowledging the receipt of his letter and saying: “Please be advised that steps are being taken at once to make the necessary repairs,” and advising defendant that since he was asking for a strict compliance with the lease the plaintiff would insist on strict compliance, particularly with reference to the payment of rent. Plaintiffs procured the keys to the building and had it inspected by the city building inspector, who testified in his opinion the wall was in a dangerous condition and could not be repaired; by a structural engineer, who testified that while the wall was not in good shape he thought there was no immediate danger of its falling, and that it could be repaired; and by a contractor, who did not consider it dangerous and thought the building was fit for occupancy, and although the rear wall was not in good shape that it could be repaired. Plaintiffs made no repairs, but sued defendant for rent in the city court, and a month or two later brought a second suit for rent. These actions reached the district court, where they were consolidated and tried to a jury, which found the building became unfit for occupancy in May, 1933, because of the condition of the rear wall. Defendant and his subtenants had ceased to occupy the building by that date. Thereafter plaintiffs rented the property to other tenants at a monthly rental less than defendant had agreed to pay.
This action was brought for the difference between the amount defendant had agreed to pay and the amount plaintiffs were able to get another tenant to pay for the remainder of the term of the lease. In their petition, briefly stated, plaintiffs alleged defendant terminated the lease wrongfully and without just cause. In his answer defendant denied that charge and alleged that the rear wall of the building had collapsed to an extent to render the building unfit for occupancy. He also pleaded the judgment in the rent case as res judicata. Answering special questions, the jury found the rear wall of the building was not in a safe condition in May, 1933; that plaintiffs had not voluntarily assumed the obligation of keeping the rear wall in proper condition; that the leased premises were unfit for occupancy in May, 1933; that they did not become unfit for occupancy because of defendant’s failure to make “usual and ordinary repairs,” but because of a “collapse of the wall,” and because of the failure of plaintiffs to repair the wall. The jury further found that plaintiffs used ordinary diligence in securing a renter for the unexpired term. Plaintiffs’ motion to set aside the answers to certain special questions was overruled, as was also their motion for judgment on the answers to special questions notwithstanding the general verdict, and their motion for a new trial.
The controversy between the parties turns largely upon the meaning of the word “collapse” as used in the paragraph of the lease hereinbefore quoted. Plaintiffs cite, among other authorities, Webster’s New International Dictionary defining collapse:
"To fall or shrink together abruptly, as the sides of a hollow vessel; to cave in; to fall into a flattened, wrecked, distorted, or disorganized state; . . . to break down or fail abruptly and utterly; to go to pieces. . .
They argued that “before the wall can be said to have collapsed it must be shown to have fallen down.” There is no evidence the wall had fallen, hence, it is argued, the court should hold, as a matter of law, that defendant was not justified in terminating the lease on the ground the wall had collapsed.
Defendant argues that the context makes it clear the word was not used by the parties in that sense, but that the terms used mean a sinking, cracking, or falling of the wall so as to make the building unfit for occupancy. We agree with this view. The language is: “. . . In case the building . . . be so injured ... by collapse of walls as to be unfit for occupancy . . .” defendant’s liability to pay rent shall cease. Further, if the building “is rendered only partially unfit for occupancy by reason of . . . collapse of walls” the lessee is privileged to occupy “such part as is fit for occupancy” and pay rent pro rata; but no rent to be paid on the untenantable portion “until such time as it is repaired and restored to a tenantable condition.” Obviously the parties had “tenantable condition” or. “fitness for occupancy” uppermost in their minds when they wrote into the lease the paragraph above quoted. It deals with but little else. The trial court incorporated this view of the lease in its instructions to the jury. Plaintiffs complain of these instructions. We think they were correct.
On the question whether the rear wall of the building had given way or fallen to the extent the building was “unfit for occupancy,” while there was some conflict in the testimony, there was an abundance of evidence to sustain the verdict of the jury, which verdict, approved by the trial court, is binding here. We deem it unnecessary to summarize this evidence.
Plaintiffs point out the language of the agreement of December 10, 1928, by which defendant agreed “to make all ordinary, necessary and proper repairs.” On this language they predicate an argument that it was the duty of the defendant to make the necessary repairs, even to the walls. The point is not well taken. Deterioration of the wall of a building so as to render it unfit for occupancy occurs so seldom that it could hardly be regarded as “ordinary.” But apart from that, the parties here wrote into the lease a paragraph dealing with that specific subject. This indicates the parties did not regard the language quoted from the agreement of December 10 as pertaining to the walls. In this connection plaintiffs stress an answer of the jury to a special question that plaintiffs had not voluntarily assumed the obligation of keeping the rear wall in proper condition. This finding obviously relates to evidence offered at the trial with respect to conversations between the parties late in 1932 and early in 1933 and the correspondence between them hereinbefore mentioned, and amounts to a finding that plaintiffs in those matters had not voluntarily assumed such obligation. The quoted parts of the lease itself, however, place that burden upon plaintiffs. By it defendant was not to pay rent if the wall collapsed so as to render the building unfit for occupancy, or if partially unfit, the rent was to be pro rated until the walls were repaired. Clearly the duty to make such repairs was assumed by plaintiffs under the terms of their lease.
Able counsel have argued many of the rules of law pertaining to landlords and tenants, especially those relating to duty to repair and authority of tenant to terminate the lease because of the condition of the premises, and in this connection have cited numerous authorities. The cases cited, of course, deal with the facts disclosed by the respective cases. It would serve no useful purpose to analyze these authorities and distinguish them. The question involved in this case is: What did the parties agree upon with respect to the event or circumstances under which defendant might terminate the lease and cease to pay rent? Clearly, they meant such a falling of the wall as would render the building unfit for occupancy. Whether that condition came about was a question of fact for the jury and the trial court.
We need not go into the question of res judicata, although it appears that the same result would be reached so far as this appeal is concerned, for in the rent case the same issues were presented as in this case, and substantially the same findings were made.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
The proceeding was one by a widow for compensation for death of her husband, Juan Vera. Vera was an employee of Swift & Company, who worked in the meat packing plant of the company in Kansas City. The claim for compensation was based on accidental injury sustained when an elevator, which Vera was operating, fell. The compensation commissioner denied compensation on the ground death did not result from accident. The district court reversed the compensation commissioner and awarded compensation.
On Saturday, July 15, 1933, while washing windows at his home, Vera fell from a ladder, cut his hand on window glass, and barked both shins on a brick walk. On Monday morning, July 17, Vera came into the plant and was treated for the laceration of his hand. Vera then pulled up his pants legs, and disclosed abrasions on both shins. These were cleansed with alcohol and painted with mercuro chrome. The next day, July 18, the wounds were treated again. Vera did not report for further treatment.
Vera continued to work at the plant until the afternoon of Thursday, July 27. On that day he left the plant after 4 p. m., and walked home, arriving about 5 p. m. He was accompanied by his brother-in-law, Manuel Flores, who saw him again that night at supper. After supper Vera smoked a cigarette and sat around. Mrs. Vera said that when her husband came home, he was sick, went to bed, felt pretty sick, and asked for aspirin.
Some time after Vera arrived at his home on July 27, his wife saw his left leg. On the back part, behind the knee, he "had a kind of redding.” It was just a little red. The next day it was swelled up worse. Mrs. Vera saw the place three times before Vera was taken to a -hospital on the afternoon of July 30.
On Friday, July 28, Mrs! Vera called Doctor Jaime, of the Kansas City General Hospital, who came in the afternoon and found Vera a very sick man, with a fever of 103 degrees, and a pulse of 110. Vera complained of some chest pains, and Doctor Jaime thought he might be threatened with pneumonia. Doctor Jaime examined no part of his body except the chest. Vera did not mention his leg, or any accident, or previous sickness.
Flores saw Vera the night of July 28. Vera was in bed. The next day, July 29, Flores saw Vera and Vera showed the red spot on the under side of his leg. It was a small, red place, red and swollen a little bit, but not much. It was a red spot, and Flores called it a pimple, because that was the closest name he had for it. The skin was -red around the pimple.
On July 30 Vera was taken to the Kansas City General Hospital in a hospital ambulance. He was admitted at 6 p. m., and at 6:10 p. m. his temperature was 105 degrees.
The hospital record of the physical examination which followed was that Vera had a healed scar on the right tibia; an inflammatory lesion on the left tibia; a small inflammatory mass on the post-median surface of the lower left thigh; red streaks to the groin; unable completely to extend the left leg.
When admitted to the hospital Vera gave as his complaints chills and fever — three days. Nausea and vomiting; distention three days. Diarrhea ten days. The following is his story, entered on the hospital record:
“Patient works at Swift’s — Thursday noon three days ago, patient began about noon to have a chill — felt weak and feverish — started home — fell and bumped left leg — nauseated—vomited. Thursday night more chills, fever, excessive perspiration, weakness, nausea and vomiting. Friday seen by G. H. sick car M. D. Unable to move bowels without enema, whereas for previous week he had a diarrhea 6-8 x daily. Complaints continued Saturday and today.”
The physical examination was made by Doctor Lander, of the hospital staff. He testified concerning the healed scab on the right tibia, said the lesion on the left tibia was of about the same duration, but was larger and was red and angry. Concerning the inflammatory mass on the under side of the left leg, Doctor Lander said:
“That mass was about the size of a lemon; it was completely subcutaneous; there was no abrasion over that at all, and it was a completely subcutaneous abscess. The overlying skin was red, and very tender. It involved the tissues so much that he couldn’t extend the leg.”
Doctor Lander also testified concerning the red streaks extending from the inflammatory mass to the groin, and said Vera had tender, enlarged lymph glands in the left groin. The doctor also said the distention shown on the record was bowel distention.
The laboratory report, shown on the hospital record, dated August 1, disclosed Vera was suffering from short chain streptococcus infection. Doctor Poorman, chief of the medical staff of the hospital, saw Vera on August 1, and said Vera then had an abscess deep in the left pelvic region.
On August 1, Vera was removed from the General Hospital to Bethany Hospital, where he was entitled to treatment as a member of an employees’ benefit association.
Vera’s chief complaint, shown by the Bethany Hospital record, was that he hurt his left leg. He fell from steps on Thursday, July 27. He was able to get up and walk home. He did not notice the pain in the left leg until he reached home. That evening he felt bad, on account of some chest condition — felt chilly. The physical examination, shown by the Bethany Hospital record, disclosed the left leg was swollen and red and tender, and the left inguinal glands were enlarged. The laboratory report, dated August 3, showed positive for short-chain streptococcus. As a result of this infection, Vera died on August 18.
We have here a perfectly clear and adequate account of the origin, progress, and fatal termination of streptococcic infection. The fall from the ladder at home on July 15 produced an abrasion on the left tibia which did not heal, and when Vera was admitted to the General Hospital the place was red and angry. That was the “port of entry” for the infection, which spread upward. Nature tried to arrest progress of the infection at the point back of the left knee, but could not. Red streaks went on upward, the inguinal glands enlarged; by August 1 he had an abscess in the pelvic region, and ultimately the pleural cavity filled, causing death. Meanwhile, all the characteristics of the infection were regularly and successively manifesting themselves: diarrhea six to eight times a day for a week before July 27, the day Vera went home sick, chills, fever, nausea, profuse perspiration.
As indicated, Vera was admitted to the General Hospital on the evening of July 30, and on August 1, he was seen by Doctor Poor-man. In his testimony Doctor Poorman located the port of entry of infection at the place on the under side of the thigh. He told about the protection the skin affords against disease-producing bugs, which are not feared unless there is an abrasion, or broken skin. He said there was an abrasion which had produced what would commonly be called a little festered sore. The broken or abraded place was to the inner side and lower part of the left thigh. Doctor Poorman did not observe the scar on the right tibia, and the inflammatory lesion on the left tibia:
“Q. This is certain, isn’t it, Doctor, that if a man receives an injury whereby he has a breaking of the skin on the right tibia and an inflammatory lesion on the left tibia, besides these cut^ on his hand, that would be an avenue where the germ could enter, would it not? A. If you mean to say that that man had such a thing, I didn’t see it.”
His examination shows further that Doctor Poorman had not previously made himself familiar with the hospital record, but he proceeded to instruct the compensation commissioner as follows:
“He had a general septicemia. That means a general blood poisoning, coming from a broken skin to the inner side of the' lower part of the thigh, and that it partially localized, in the way of gland infiltration, with an abscess in the left pelvic region.”
In this connection, some observations concerning the testimony must be made. Mrs. Vera saw Vera’s leg three times after he came home sick on July 27, and there was no abrasion on the under side of the left leg. Flores saw Vera’s leg while he was at home, and described nothing resembling an abrasion. When Vera entered the General Hospital, and a complete physical examination was made, there was no abrasion on the under side of the left leg. The place on the under side of the left leg was definitely described as completely subcutaneous. Yera himself detailed characteristics of septicemia, which had been revealing themselves before he went to the hospital. When taken to Bethany Hospital, Vera was examined by Dr. L. D. Mabie, who observed the inflammatory mass on the postmedian surface of the lower left thigh, above the knee. He said there was no breaking of the skin at that place then. The accident which was the basis of the claim for compensation will be described presently, and it may as well be said here, there was no testimony from which speculation or conjecture could invent an abrasion on the under side of Vera’s left leg as a result of the accident. Since Doctor Poorman did not take into account physical evidence he did not see, and which, in view of the full history of the case, was indispensable to a correct diagnosis, his location of the port of entry went out of the case.
The General Hospital record disclosed a physical condition which might indicate some trouble with the left kidney. Doctor Poorman discussed the subject of trauma affecting the tissues of the left kidney. The testimony was undisputed no blood was found in the urine, and kidney lesion went out of the case.
On July 27, a freight elevator in the Swift plant, which Vera was operating, descended from the sixth floor to the elevator pit, bounded upward about a foot and a half, and then settled down. The elevator was loaded with several hundred pounds of meat.
July 27 was the first day Vera had operated the elevator. The elevator was a friction elevator, operated by means of a lever. To go up, the operator pulls down the lever and sits on it. The cage then goes up as fast as the motor will carry it. To go down, the lever is released, and the speed of descent is controlled by the operator. If the lever is completely released, the cage will go down as fast as it can go. There are automatic dogs in the guides, and if the rope should break, the dogs would set immediately, and stop the cage. There is a hand brake, with a ring above the operator’s head, for him to grasp. If that be pulled, the dogs are set and the elevator stops.
Vera was instructed in operation of the elevator before he commenced to run it — going up and down several times, with and without loads. The instruction was given by the master mechanic, who stayed with Vera until the millwright came to instruct Vera further, and to give him authority to operate the elevator.
The elevator was promptly inspected after the accident. Inspection revealed there was nothing wrong with it, no repairs were made, and Vera ran the elevator during the afternoon, until he went home.
Jose Cervantes was in the elevator with Vera. Cervantes testified through an interpreter, who would tell what the witness said instead of repeating the words of the witness. Cervantes testified as follows:
“Q. What time of day did the fall of this elevator happen? A. It was between 11:30 — and then he said near 12 o’clock.”
The master mechanic, who inspected the elevator after the accident, said the time when he went to the place where the elevator was resting after the fall was very near 11:30 a. m. He said he could not tell “close” because he did not look. The assistant foreman said the time was before noon, just a little before noon, he could not remember the exact time.
There was no testimony respecting degree of release of the operating lever, or which gave the speed of the elevator at any point in the course of its descent. There was no testimony that there were springs or shock absorbers at the elevator pit, or which could account for the resilience, if it was resilience, which was displayed. A few days before his death Vera told Flores that when the elevator started down, it went on down to the pit, and he could not control it. Flores’ account of the conversation included nothing about speed or any rebound.
As indicated, Vera operated the elevator that afternoon as if nothing had happened. He walked home, Flores accompanying him, a distance of about a mile. There was no reference to a fall of the elevator, so far as the record discloses. When Vera reached home he said nothing to his wife about an elevator accident. That evening, sitting around and smoking, Vera said nothing about an elevator accident. During the days Vera remained at home he said nothing about an elevator accident to his wife or to Flores, or to Doctor Jaime. On July 30, when telling his story at the General Hospital, he said nothing about an elevator accident. When Vera was taken to Bethany Hospital and told his story again, he said nothing about an elevator accident. At both hospitals Vera told of a different kind of fall. At the General Hospital he said he started home, fell and bumped his left leg. At Bethany Hospital he said he hurt his left leg, fell from steps, was able to get up, and walked home. So far as the record discloses, aside from those at the packing plant who knew what occurred, nobody heard about an elevator accident until a few days before Vera’s death on August 18. Vera then mentioned the elevator fall to his wife merely as an incident in an unlucky day. Mrs. Vera testified:
“Q. Go ahead and tell what your husband said other than what you have already told, there at the hospital on that day five days prior to the time of his death. Go ahead and tell in your own way. A. You want me to tell about he fell down the steps? He talked to me about what happened, the way he fell, at the hospital, over there to the packing house. He says he had pretty bad luck that day, he fell down first from the elevator, from the sixth floor to the basement, and then after getting — and then when he went to eat lunch he started to have chills and fever, and he didn’t feel like eating, just had a cup of coffee that day and he was going to ask the boss to come home; and when he finished lunch he went into the elevator and hit the iron steps on his knees. He was just talking about me living and that’s all, that he was going to die, and he didn’t know he was going to cause his death, that hurt in his leg.”
“No, he didn’t say anything else just what happened to him, he fell down you know.
“He told me that, that is all he told me, that he didn’t thought he was going to die, just for that leg he got hurt, he didn’t think he-was going to be so sick from that.”
It will be recalled that in giving the onset of his trouble at Bethany Hospital as a fall from steps, Vera said he did not notice pain in his left leg until he reached home. When he reached home he showed his leg to his wife, and the inflamatory mass on the under side of his left leg was beginning to form. When he got to the hospital the place was so bad he could not extend his left leg, and there were red streaks running to the groin. By August 1 he had an abscess in the pelvic region. Five days before his death it was the hurt in his leg which made him so sick he was going to die.
Flores testified as follows:
“Saw deceased in Bethany Hospital five times. Talked to him two days before he died. He called for a priest three or four days before he died. He told me that they put him to running an elevator, that he was not experienced about it, but he was up against it and he would try anything once, didn’t want to say no or anything like that, but he would try it and he was running the elevator there, over at the dry salt, -and he did not know whether the load was too heavy, the cable slipped on him or something. Anyway, Juan got on the elevator and when it started down, it went on down to the pit and he couldn’t control it. It went on down to the pit is what he told me and that he bruised his leg some place (indicating), and then after that when he went to shut the motor off when he was going home, and when coming down the iron steps there, he slipped and kind of strained or jerked a part of his leg up in here somewhere (indicating).”
It will be observed that Flores puts in a bruise somewhere in the leg, and what Vera had told both hospitals was a fall becomes a slipping and a strain up in his leg somewhere.
In this instance the compensation commissioner did not follow his usual custom of making a record of the places to which the witness pointed. It would be interesting to know whether the places were the back of the left leg, and the groin.
It was easy for Vera, on reflection, to translate pain in his leg, felt in the evening after he had a fall, into pain in his leg caused by a fall. Numerous persons examined Vera’s leg. Flores himself was the second. Nobody ever saw anything which looked like a bruise on Vera’s leg. The compensation commissioner found there was no accident causing death. The district court did not predicate its award of compensation on any injury to Vera’s leg, or injury to any other portion of his body, and any actual bodily hurt such as bruise or strain, caused by the elevator accident, went out of the case.
There was expert testimony that the period of incubation for short chain streptococcic infection varjes from almost instantly to a long time, depending on factors which were enumerated, and the time for incubation after July 15, and before July 27, was normal. Experts agreed that shock of a severe fall might cause a latent infection to flare up and become active, and the crucial question in the case emerges: What, if any, effect did the fall of the elevator have on the streptococcic infection at whatever stage it had reached when the fall occurred?
Vera commenced work at the plant at 8 o’clock in the morning of the day the elevator fell. He said that about noon he began to have a chill, and felt weak and feverish, which was near to the time the elevator fell. How near to noon Vera went to lunch was not disclosed. Vera’s wife said that when he went to eat lunch he started to have chills and fever. Vera said that when he started home he fell and bumped his leg, was nauseated and vomited. That night he had more chills, fever, excessive perspiration, nausea and vomiting. He also had bowel distention, and for a week before the accident had excessive diarrhea. A doctor who was a witness for the company and who is quoted in the brief for claimant, testified:
“Q. Let’s take them separately. What bearing has this question of diarrhea as a symptom? A. Acute infections as a rule cause an inflammation of the bowel, and the diarrhea is a consequence of the infection.
“Q. What about chills and fever? A. It is a natural reaction of the body to fight infection.
“Q. What about the nausea and vomiting? A. It is caused by the toxemia produced by the infection.”
The term “shock” was used in the testimony. If the elevator fall were hard enough, the effect would be shock. Shock might be felt in the feet, or ankles, or knees, or hips, or back, and there might even be brain concussion if the shock were severe enough. The term is defined in Webster’s New International Dictionary, 2d ed., as follows:
“7. Med. A state of profound depression of the vital processes of the body characterized by pallor, rapid but weak pulse, rapid and shallow respiration, restlessness, anxiety or mental dullness, and sometimes nausea or vomiting. The total blood volume is reduced. The blood pressure is low and the temperature subnormal. . . .”
Shock may also consist in sudden and violent agitation of the mental and emotional sensibilities.
Shock would not cause practically contemporaneous bowel distention. It would not cause diarrhea for a week before the shock occurred. It would not cause an inflammatory mass to begin forming on the under side of the leg before night of the day the shock occurred. There was testimony to the effect nausea and chills on July 27 might be attributed to septicemia and might be attributed to shock.
The judgment of the district court rests on the fact the fall aggravated the condition Vera was in when the fall occurred and became a contributory factor to his death. This conclusion rested on testimony the shock of the fall lowered resistance to invasion of the infection.
Dr. P. M. Krall, a rebuttal witness for the claimant, testified that shock will very decidedly lower a patient’s resistance to infection. He said mere handling of the patient in moving him from his home to the hospital would lower his resistance, and the infection would become overwhelming. Vera was not only moved from his home to the General Hospital on July 30, but he was moved from the General Hospital to Bethany on August 1, and so, according to the doctor, two causes of death, other than the fall, were introduced into the picture. They were eliminated by the findings of the district court.
Doctor Krall testified that such a shock as Vera sustained when the elevator fall occurred could well lower his resistance so that if the infective organism were present it would undoubtedly enhance the activity of that organism. As indicated, the infective organism was present when the fall occurred.
Doctor Lander, testifying for Swift & Company, said if there was diseased tissue in the body, it was possible the fall would aggravate it. A fall such as Vera had might aggravate such a condition as he had, and could have aggravated a preexisting streptococcic infection within his body. The doctor also testified as follows:
■ “Q. What about the proposition of the trauma that this man sustained on the 27th day .of July, 1933, when he fell these several flights? Does your science teach that a traumatic injury or a shock such as one would receive falling in an elevator has a tendency to light up or aggravate a preexisting condition? A. That is common, to find cases like that.
“Q. It is common to find cases of that kind? A. Yes.
“Q. So that it is your opinion, if I understand you correctly, that this fall that Juan Vera sustained at Swift & Company’s plant on the 27th day of July, 1933, could have activated or aggravated a preexisting streptococcic infection that was within the body? A. I think it is possible.”
The doctor also gave it as his opinion he did not believe the fall had such effect.
Doctor Jaime, testifying 'for Swift & Company, said:
“Q. On the 27th of July, 1933, when the elevator fell with him it is your firm belief he was then possessed of the streptococcic infection, isn’t it? A. Yes, sir.
“Q. And that the period of incubation was something like seven to twelve days? A. Yes, sir.
“Q. Would a fall such as described to you, six or eight floors, have a tendency to aggravate or light that thing up and make it flare up? A. Yes.
“Q. It would? A. Yes.
“Q. In other words the streptococcic infection might be lying dormant? A. Yes, sir.
“Q. And this trauma which I have described might have lighted it and flared it up? A. Yes.”
The infection was not lying dormant at the time of the fall. The period of incubation had passed, but the doctor’s testimony is open to the interpretation that the fall would have a tendency to aggravate streptococcic infection present in the body.
The brief for claimant refers to no testimony relating to aggravation of the condition Vera was in when the fall occurred, except the testimony of Doctors Jaime, Lander and Krall, which has been presented.
Pneumococci, always present in the lungs, may become active as the result of lowered resistance produced by shock. When Doctor Jaime saw Vera at his home on July 28, Doctor Jaime believed Vera was threatened with pneumonia. The doctor testified as follows:
“Q. When you saw him why did you come to the conclusion that he might be threatened with pneumonia? A. When I saw the man he complained of a severe pain in his chest.
“Q. His complaint was in the chest? A. A very severe pain in his chest, headache and difficult breathing, and the temperature he had, with the symptoms that I described to you a while ago, could very well be applied to pneumonia, although as I have stated before, I was not sure whether he had pneumonia or not because my physical findings did not show enough to make a fine diagnosis.”
When Vera was examined by Doctor Lander at the General Hospital on July 30 the doctor found some rales, and thought it possible Vera might have some pneumonia. Further symptoms of pneumonia did not develop.
There was much medical expert testimony that the elevator fall was not a factor in causing Vera’s death.
The foregoing embraces an enumeration of the material portions of the evidence adduced at the hearing before the compensation commissioner, and an effort has been made to present the evidence in such a way its effectiveness may be comprehended.
The district court made the following findings:
“That the award of the commissioner of workmen’s compensation, made and entered on the 17th day of February, 1934, wherein said commissioner denied an award of compensation to claimant, be, and the same is hereby set aside, the court believing it would be a violation of justice to permit this award to stand.
“It is further found, adjudged and decreed by the court that the deceased, Juan Vera, husband of claimant herein, met with an accidental injury on July 27th, 1933, while in the employ of Swift & Cofnpany, respondent herein, in that a loaded elevator on which Juan Vera was the operator fell a distance of six or seven floors, striking the bottom with such force as to cause it to rebound several feet upward and settle back down, and that such fall was a contributing cause to Juan Vera’s death, which occurred on August 18th, 1933, and aggravated the condition in which Juan Vera was in at the time of such fall, Juan Vera never having worked after the 27th day of July, 1933, the date of the elevator’s descent.”
The observation that it would be a violation of justice to permit the award of the compensation commissioner to stand determined nothing. If the elevator fall was a factor contributing to Vera’s death, the claimant was entitled to compensation; otherwise, not.
The observation that Vera did not work after July 27 explained nothing. It merely raised the question, What was the reason he did not work? Considering the condition he was in before he commenced work on July 27, it would not have been strange if he had failed to report for work that morning. If, during the day, the infection so manifested itself that he went home sick, and notwithstanding the elevator fall, he was unable to return to work, failure to return to work would be accounted for by the infection.
The finding respecting the action of the elevator was not supported by any evidence. The fall was from the sixth floor. When the cage struck bottom, it did not rebound several feet upward. Vera did not mention rebound at all. The only other man who knew what occurred was Cervantes. His testimony was:
“The elevator, after striking the pit, bounced upward about a foot and a half.”
In considering what was spoken of in the course of the hearing as “flare up,” flare up might not be enough. It might be inferred that from some cause, perhaps shock, the pneumococci flared up, and caused incipient pneumonia, which, however, did not pass the initial stage.
Mere aggravation of a previous condition might not be enough. If, notwithstanding the fall, the streptococcic infection had gained such headway it would have progressed steadily to fatal result, the fall was not a cause of death. To be a cause of death, the fall must have constituted a new factor which operated on the existing condition in such a way that it made a substantial contribution to the ultimate result.
There is no indication the court did not know what the legal standard of cause is. Whether the standard was met was a question of fact. The court found the standard was met, and distinctly found the fall was a contributing cause of Vera’s death.
The employer argues that the decision of the district court was the product of speculation and conjecture.
The evidence was, the elevator did descend, without control, from the sixth floor to the elevator pit. Something happened, because the elevator was immediately inspected. It must also be accepted as proved that the elevator did bound up about a foot and a half. One man was hurt, and shock of much severity was a necessary consequence. While Vera was not loquacious about the fall — perhaps he was not proud of his ineptness in running the elevator — it would be very remarkable if so startling an experience did not profoundly affect him. After it was all over and he went to lunch it was not strange he felt weak, and could not eat, and suffered a reaction which made him feel cold and hot — he called it chill and fever — and which later nauseated him. When the fall occurred the virulent streptococcic infection was active in his system. The infection was taking its normal course upward through the lymphatics, but aside from the port of entry it had not objectively manifested itself until it reached the point on the under side of the leg. At that point nature was trying to impound it. Swiftly after the fall the infection proceeded to run riot — inflammatory mass the size of a lemon on the leg and red streaks to the groin by the evening of July 30, an abscess deep in the pelvic region by August 1, and the battle was hopelessly lost.
The question before the court is not whether the award of the compensation commissioner or the award of the district court was the better award. The question is one of law only. Under the circumstances the court does not feel authorized to say there was no substantial evidence to sustain the finding of the district court, and the judgment for compensation is affirmed.
The district court rendered a lump-sum judgment, contrary to section 25 of the compensation law of 1927. (R. S. 1933 Supp. 44-525.) Therefore, the cause is remanded, with direction to modify the award which was made to conform to the statute.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages growing out of a collision of an automobile, in which plaintiff was riding, with a truck driven by one Henry Land, who it was claimed was an employee of the Chelsea Coal Company. Liability against the Crowe Coal Company is predicated on the claim that it owned the Chelsea Coal Company. We shall treat the defendants in the singular.
Defendant demurred to plaintiff’s evidence on the ground a cause of action had not been proved. The demurrer was sustained and plaintiff appeals, assigning as error not only the above ruling, but many rulings sustaining objections to introduction of evidence. A careful examination of the record shows that, at least in part, the demurrer was sustained because of a claimed failure of the plaintiff to prove that Henry Land was an employee of defendant Chelsea Coal Company. Practically all specifications of error based on exclusion of evidence refer to evidence other than that tending to prove the employment.
Plaintiff’s husband brought an action against the defendants here for damages growing out of the same accident. In the trial of that action a demurrer to plaintiff’s evidence was sustained, and an appeal was taken to this court. In the opinion is a statement of facts showing the place and manner of the accident to which reference is made. (Redfield v. Chelsea Coal Co., 136 Kan. 588, 16 P. 2d 475.)
In determining whether the demurrer to the evidence was properly-sustained, we assume the accident occurred; that plaintiff was without fault; that she sustained the injuries of which she complains and that Henry Land was responsible therefor, as alleged in the petition and as shown by the evidence. But a careful reading of the abstracts shows that all that was proved by or that may be inferred from plaintiff’s evidence was that Henry Land was driving a truck for Ered Garland, who was employed in some capacity by the Chelsea Coal Company. The evidence tended to show Land had hauled a load of coal to defendant’s tipple and was leaving the tipple at the time of the accident. Where Land was then going, whether he was returning to the mine, which was some distance away, or was going home or some place else was not shown.
In this connection we note plaintiff’s contention the trial court erred in not permitting an affidavit of plaintiff to be read in evidence because of noncompliance with a demand for inspection of a letter said to have been in possession of defendants which would show Land’s relation to defendants, plaintiff’s motion to compel compliance with the demand having been denied. It is unnecessary to discuss at length applicable provisions of the code of civil procedure. The motion to compel compliance with the demand was addressed to the trial court’s discretion (R. S. 60-2850) and there is no showing that discretion was abused. The petition alleged the Chelsea Coal Company was a Kansas corporation and very likely the trial court knew that its office was in Pittsburg, where the trial was held, as the motion to compel compliance stated. The demand for inspection was made February 19, 1934. The motion to compel compliance was filed March 3, 1934, and denied April 20, 1934. The trial was not until January, 1935. There is no showing that any subpoena duces tecum (R. S. 60-2807) was asked for and subsequently disobeyed, or that any attempt under R. S. 60-2851 or 60-2869 was made to produce the claimed evidence. Under the circumstances it seems fruitless to argue that plaintiff, who was present in court, could use her affidavit to show facts to which she personally could not testify.
For some reason evidently satisfactory to the plaintiff, but not disclosed by the record, plaintiff did not call Garland, or any officer, manager-or employee of the defendant, who, without resort to hearsay, could state what Land’s relationship to the defendants or either of them was, if any. Although a number of workmen and truck drivers were called, some of them said Land had been a truck driver, none of them testified as to whether they worked by the hour, the day, the load, etc. Some who drove their own trucks did say the foreman told them where to get their loads, and that the foreman determined when they should and should not work, and that he gave them their' checks. The witness, Hendrickson, stated he drove a track for Garland and that Henry Land did also, and that when the witness was driving Garland’s truck, the company paid Garland and Garland paid him, and that when he had his own truck and used it the company paid him; that when driving Garland’s truck he made his arrangements with Garland and not the company; that he then worked when and where Garland directed, and Garland was his boss and paid him by the day.
There was no direct evidence Land worked for the defendant, and the only inference that can be drawn from the evidence is that he worked under the same arrangement as Hendrickson, that is, that he worked for Garland and not for the defendant. Plaintiff argues that because it was shown Land hauled coal, and others engaged in similar work were employed by defendant, it may be inferred Land worked for defendant. A fact is not proved by circumstances which are merely consistent with its existence (Hendren v. Snyder, ante, pp. 34, 41, 53 P. 2d 472), a rule particularly in point where the only evidence directly on the question leads to a contrary conclusion.
Essentially, the evidence in the case at bar was little different from that discussed in Redfield v. Chelsea Coal Co., supra, and what is said there applies here and need not be repeated. The trial court did not err in sustaining the demurrer to plaintiff’s evidence.
The above conclusion renders it unnecessary that we discuss many assignments of error with reference to exclusion of evidence offered for the purpose of showing claimed identity of the two defendant corporations.
Other specifications of error have been examined and found to be without merit.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of being a persistent violator of the prohibitory liquor law and appeals, arguing two alleged errors. First, that there was no complaint made, signed and sworn to, as required by law; and second, that the court erred in permitting the state to cross-examine its own witnesses.
The record shows that the defendant was arrested November 17, 1926, on a charge of selling intoxicating liquor and being a persistent violator. He was brought before a justice of the peace, waived preliminary hearing and gave bond for his appearance at the next term of the district court. In the district court he filed a motion to quash the information on the ground that there had been no complaint filed against him. He says that a form of complaint was found among the files but that it had never been signed or sworn to nor filed and made a part of the record. It appears that while the complaint was not signed by the complaining witness, that there were attached thereto two affidavits setting out the facts of the sale of the liquor in question. Upon the complaint a warrant was issued fully setting out the crime charged. Under authority of the warrant, the defendant was arrested and brought before the justice of the peace. He was there informed of the nature of the charge against him, waived a preliminary hearing and gave bond for his appearance in the district court. When the case came on for trial in the district court he raised for the first time the question that no complaint was on file as required by the statute. The defendant’s action in waiving his preliminary examination and giving bond for his appearance in the district court amounted to a waiver of any defects in the verification of the complaint. (See State v. Carter, 122 Kan. 524, 253 Pac. 551, and cases cited.)
There is no merit in the contention that the court erred in permitting the state to cross-examine its witnesses. Where the state is confronted by an unwilling witness, as in the instant case, it is always within the discretion of the trial court to permit cross-examination. We are unable to say that there was any abuse of discretion in the examination of which complaint is made.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a balance of purchase price of real estate conveyed by plaintiff to defendant. The jury returned special findings of fact and a verdict in favor of plaintiff. The court granted a new trial generally, and denied defendant’s motion for judgment on the special findings. Both parties appeal.
The Chamber of Commerce of Coffeyville desired to obtain title to various tracts of land in order to donate them to a smelting company which desired to enlarge its plant — a matter which would be of general benefit to the community. In order to purchase at fair prices, plaintiff, a real-estate agent and dealer in real estate, was employed to purchase the tracts in his own name for defendant. Plaintiff was a member of the chamber of commerce, and agreed to act without compensation, but was to be reimbursed for his outlay. This arrangement was made in February, 1925, and pursuant to it deeds of all the tracts were delivered to defendant in July, 1925.' Among the lots which defendant desired to acquire were the two in controversy, the record title to which stood in the name of T. F. Cox. Some two years before consummation of the agency employment Cox made a deed of the two lots to plaintiff. Plaintiff was not quite ready to take up the deed, and it was held by Cox. It was placed on record on June 29, 1925, and it recited a consideration of one dollar and other good and valuable considerations. Defendant accepted plaintiff’s deed, recorded it, and took possession of the land. When defendant settled with plaintiff for the work he had done, it allowed him but $1,500 for the two lots, the sum which plaintiff paid Cox.
The petition alleged that plaintiff owned the land, that defendant agreed to pay $3,000 for it on delivery of deed, that plaintiff duly conveyed to defendant, and defendant refused to pay $1,500 of the price. The answer was that in procuring title to all the tracts which defendant desired to donate to the smelting company, including the two tracts in controversy,- plaintiff was agent for defendant and had no title or interest therein except to the extent of advancements and expenses in performing the agency contract; that Cox was owner of the two tracts; that plaintiff' purchased them from Cox for $1,500; and that in settling with plaintiff defendant reimbursed him for his outlay in acquiring the lots. The verified reply denied plaintiff was agent of defendant to purchase the two tracts, denied plaintiff did purchase the tracts pursuant to employment as agent, repleaded the agreement of defendant to pay $3,000 for the lots, and by way of estoppel pleaded acceptance by defendant of plaintiff’s deed and retention of possession of the premises.
Plaintiff demurred to the answer and moved for judgment on the pleadings. Plainly, the answer stated a good defense. Under the code the allegations of the reply were deemed to be denied, and the motion for judgment was properly denied.
As indicated, the special findings of the jury sustained plaintiff’s theory of the case were consistent with the verdict in his favor. Defendant’s motion for new trial was based on all the statutory grounds, and specifically challenged the jury’s treatment of the evidence, which was conflicting in important particulars, and from which, considered as a whole, conflicting inferences might be drawn. The motion for new trial was granted generally and, under the rule repeatedly applied, this court must assume the district court was not satisfied with the jury’s work. The order granting the new trial set aside the special findings and, so far as knowledge of the merits of plaintiff’s case is concerned, this court has no resource except the pleadings. There is therefore no basis for discussion of certain questions of law presented by plaintiff.
Defendant moved for judgment on the answers of the jury to the special questions. The jury found specifically against the only defense raised by the answer — agency. Defendant contends the answer was contrary to all the evidence. It was not contrary to all the evidence. It was perfectly consistent with plaintiff’s testimony, which took the two tracts out of the agency employment, and defendant could not be awarded judgment on the findings with that and other consistent findings standing on the record. Defendant contends the particular finding referred to was not in harmony with the next succeeding finding. If that be true the findings were conflicting, and defendant could not have judgment on the findings of fact. Besides that there was some basis for reconciling the findings, and as against defendant’s motion the findings were to be reconciled, if possible. The defendant alludes to what it calls undisputed evidence as supporting its contention that judgment should have been rendered in its favor on the findings. Defendant cannot prevail here without the findings of fact, and as indicated, the findings were strongly in favor of plaintiff.
The result of the foregoing is, both appeals fail, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
An opinion was filed in this action by this court on July 7, 1928 (Skaer v. American National Bank, 126 Kan. 538, 268 Pac. 801). On the motion of the appellants, a rehearing was granted. The cause has been reargued and again submitted. The former opinion and the order thereon are set aside. In order that those interested in reading this opinion may understand the issues, the evidence, and the propositions submitted to the court for determination, the entire cause is restated.
The plaintiff commenced this action to enjoin the American National Bank of Augusta and L. L. Wilson, its director and liquidating agent, from selling, or attempting to sell, a promissory note signed by the plaintiff for $2,600, payable to the bank and to cancel the note and hold it for naught. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
The petition alleged that the note had been paid; that it had been given without any consideration therefor; that it had been given for the accommodation of the American National Bank; and that the signature thereto had been procured by fraud. The answer denied the allegations of the petition.
There was evidence which tended to prove the following facts: That on October 23,1919, the plaintiff J. H. Skaer and M. T. Moyle executed a note to the American National Bank for the sum of $3,500; that on August 9,1922, the plaintiff, in renewal of the $3,500 note, executed a new note to the American National Bank in the sum of $3,000; that on April 21,1923, the plaintiff, in renewal of the $3,000 note, executed another note to the American National Bank in the sum of $3,000; that on February 21, 1924, the plaintiff, in renewal of the last $3,000 note, executed another note to the bank in the sum of $2,600, the subject of this controversy; that one J. W. LePorin was cashier of the bank when the $3,500 note was given and when each of the $3,000 notes was given; that when the $2,600 note was given a Mr. Varner was cashier of the bank; that A. W. Skaer, a brother of the plaintiff, was a stockholder in the bank and part of the time was an officer in it; that J. H. Skaer was a stockholder in the bank; that J. W. LePorin, A. W. Skaer, M. T. Moyle, and the plaintiff with others were interested in an oil company operating in Texas; that when the $3,500 note was signed the American National Bank advanced to that oil company, an Oklahoma corporation, the proceeds arising from the note; that at the time the first $3,000 note was given to renew the $3,500 note, the latter had been paid by deducting the amount thereof from the account of the wife of A. W. Skaer.
We quote from the testimony of the plaintiff as shown by the abstract of the appellants as follows:
“I recall having a conversation with Mr. LePorin while he was cashier of the American National Bank with reference to this $3,500 note and renewing it. Well, it was about this time, so far as I remember, that this note was signed.
“Counsel for plaintiff: I mean the $3,000 note, the second note.
“At the time I signed the $3,000 note, this $3,000 note that has just been introduced, I was in the bank and Mr. LePorin says to me, ‘John, we haven’t taken up that other note yet,’ and he says, T would like awfully well for you to accommodate me and sign this $3,000 note,’ and he said — I said, ‘Matt Moyle probably won’t sign that when he comes back,’ and he said, ‘He will sign it,’ and I said, ‘Will you see that he signs it,’ and he said, ‘I sure will,’ and he says, ‘We’ve got stuff to sell and it will be taken up,’ and under those conditions — well, I says, ‘Will I ever have to pay it?’ ‘Why, no,’ he says. I did not receive any money or other consideration from the bank or from LePorin at the time I signed this note. The $3,500 note was not delivered to me at that time.”
There was evidence which tended to prove that each of the four notes was given for the accommodation of the American National Bank. There was also evidence which tended to prove that the $3,500 note and each of the $3,000 notes was given for the accommodation of J. W. LePorin and of the oil company; that J. H. Skaer did not receive anything for himself when he signed the $3,500 note; that he did not receive the $3,500 note when he signed the first $3,000 note, but afterward did receive it; that he received the first $3,000 note when he signed the second one of that amount; and that he received the last $3,000 note when he signed the $2,600 note; and that he did not receive anything else when the last three notes were signed.
Summarizing what has been said, there was evidence which tended to prove that the plaintiff did not receive any consideration for the notes signed by him; that the renewal of the $3,500 note had been procured by fraud; that the $3,500 note had been paid when the first $3,000 note was given; and that all of the notes were accommodation notes so far as the plaintiff was concerned.
1. The defendants urge that the court committed error in giving instruction No. 3. That instruction read as follows:
“3. You are further instructed that J. H. Skaer admits execution of the $2,600 note, but alleges as a defense that he executed the same as an accommodation to the parties only, and the same was without consideration; and that said note has been paid. The burden of proof is upon J. H. Skaer to establish one or more of said defenses by a preponderance of the evidence and if he does establish one or more of said defenses by a preponderance of the evidence then your verdict must be in his favor; on the other hand, if he fails to so establish one or more of his defenses then your verdict must be for the American National Bank of Augusta, Kansas.
“In this connection you are instructed that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration and every person whose signature appears thereon to have become a party thereto for value. Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value and is deemed such whether the instrument is payable on demand or at a future time.
“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person.
“Consideration is any benefit, profit or advantage to the promisor or any loss, detriment, or inconvenience to the promisee, and if there is no benefit or the like on the one side or detriment or the like on the other side then there is no consideration.”
It is argued that the instruction was “misleading, ambiguous and prejudicial to the defendant.” It is urged that the first paragraph of this instruction should have specified who was meant by the word “parties” in the expression “accommodation to the parties.” The instruction would have been correct if instead of saying “accommodation to the parties” it had said “accommodation to the bank.” There was evidence which tended to prove that the bank gave ample consideration for the note and that it was not given for the accommodation of the bank. If that evidence was true the instruction was erroneous so far as the bank was concerned.
Section 52-303 of the Revised Statutes reads:
“Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.”
If the bank gave value for that note the plaintiff was liable thereon notwithstanding the fact, that it may have been given for the accommodation of J. W. LePorin or of the oil company. The instruction was misleading and erroneous. .
2. The defendants argue that the court committed error in refusing to give the following instruction requested by them:
“You are instructed that an accommodation party is one who has signed an instrument as maker, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person. But an accommodation party is liable on the instrument to the holder for value notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”
The first sentence of the requested instruction was given, but the last sentence was not. The instruction requested stated the law correctly so far as it went, but it did not go far enough to justify the court in giving it to the jury. It should have defined a holder for value and should have declared his rights as such and the liability of the plaintiff as an accommodation maker of the note if the jury should find that he was such an accommodation maker. The requested instruction would have permitted the jury to determine who was a holder for value. That was a question of law that should have been stated in the instruction.
In Douglas v. Wolf, 6 Kan. 88, this court said:
“The district court is not required to give instructions which need limitations and qualifications to make them applicable to. the case. Instructions must be good as asked, or it is not error to refuse them.” (Syl. ¶ 2.)
The first sentence of that language was repeated in Condiff v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 256, 25 Pac. 562.
In Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312, this court said:
“It is not error to refuse to give a requested instruction which fails to mention an important fact necessary to be considered in connection with the matters set out in the instruction.” (Syl. ¶ 13.)
In Kansas Ins. Co. v. Berry, 8 Kan. 159, this court said:
“If an instruction as asked is not correct as an entirety, the court- is not bound to correct it, but may reject it altogether.” (Syl. If 5.)
In Dickson v. Randall, 19 Kan. 212, 214, this language is found:
“An instruction must be good as asked, or it is not error to refuse it.”
See, also, State v. Perkins, 112 Kan. 455, 457, 211 Pac. 139, and Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312.
The court of its own volition could have defined a holder for value, but no complaint is made of the failure of the court so to do:
Because the instruction requested did not state the law as it should have been given to render it applicable to the issues on trial in the present action, there was no error in refusing to give it.
3. It is argued that the court committed error in giving instruction No. 4. That instruction concerned false representations alleged to have been made to secure the plaintiff’s signature to the notes. The evidence concerning the representations made to the plaintiff when the first $3,000 note was signed has been set out; that evidence was sufficient to justify the court in giving the instruction because the representations made affected each of the succeeding notes.
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant, a fraternal benefit association, from a judgment rendered against it on a life insurance certificate, alleging error of the trial court in overruling demurrer to plaintiff’s evidence, making rulings excluding evidence of the defendant, giving erroneous instructions, and overruling motion for new trial.
The plaintiff introduced the certificate, or rather, the face of it only, and rested. On the face of it were references to the application and warranties as to the correctness of the answers to all the questions therein and other warranties, and on the back of it what was later introduced in the form of a receipt in full for all claims under the certificate. The answer denied liability and set up three defenses — -misrepresentations and fraud in answer to questions in the application as to the health of the deceased, an absolute waiver of rights under-the certificate in case of abortion, and release by settlement and compromise. The reply was a denial of signing receipt, release, or settlement, and that plaintiff had no recollection of authorizing any one to sign same for her. The case was tried to a jury, which rendered a verdict for plaintiff for $1,850 and interest, it being a $2,000 policy, and credit was given for $150 paid, as defendant claims, in full settlement.
The certificate was issued November 25, 1921, on the life of a single woman past eighteen years of age, in which her mother, the plaintiff herein, was named as the beneficiary. The insured died February 19, 1923. The compromise or settlement was claimed to have been made August 23, 1923. The defendant introduced in evidence the application made by the insured and evidence of two parties procuring the application and the doctor making the examination. The defendant further identified and introduced the receipt on the back of the certificate and another release, which recited a denial of liability under the certificate because of the cause of death and the waiver in the application, and named the cause of death as septicaemia following abortion, and then showed an agreement to settle and compromise for $150. This release was on printed form or blank with blank spaces for names and other particulars to be written or filled in, with the following printed words erased by pen line drawn through them, but still legible, after the expression of reasons of the.association denying liability: “Misrepresentation in the application of membership.” The defendant then offered in evidence the deposition of a doctor in Topeka, who stated that he had very shortly prior to the making of the application of deceased for such membership treated her for pneumonia in Stormont hospital, whereas the application stated she had never had pneumonia, nor any medical care for the past five years. The objection of the plaintiff to this offer was sustained, and the evidence was not introduced. After the defendant rested, the plaintiff testified in rebuttal denying the signing of all the papers introduced in evidence purporting to have been signed by her or by mark, including the release, the receipt on the back of the certificate, and the proof of death. The court instructed the jury to disregard all statements made in answer to questions in the application and all testimony with reference to the application. On the hearing of the motion for new trial, affidavits of witnesses to release, receipt and other papers were presented as newly discovered evidence, with photographic exhibits of numerous checks they said they saw plaintiff sign.
Of the several errors assigned and urged by the appellant, we will first consider the exclusion of the evidence as to the application and instructing the jury to disregard the same. This was done notwithstanding it was one of the grounds of defense in the answer denying liability by reason of the alleged misrepresentations therein as to the health of the insured, particularly with reference to having pneumonia and being treated therefor by a physician within five years prior to making the application. The trial court adopted the theory of the appellee that the defendant company, by offering in evidence the "release as a compromise and settlement in which only one ground of defense was stated, namely, abortion, had thereby waived all other defenses, and particularly so since the printed reference to misrepresentations in the application was in the release so offered stricken out by pen line drawn through such words. The banker, who said he received it with instructions from Mr. West, the adjuster for the defendant company, to not deliver the check to the plaintiff until she signed the release, further said it was in its present form as to these words being stricken out when he received it. The defendant, of course, by offering the release in evidence, vouched for its genuine character as it was offered with the words intentionally stricken out, and doubtless intended it to support two of the three defenses named in the answer, viz., death from abortion and compromise settlement. Now the vital question is, Does the offer of this release constitute a waiver of the other defense contained in the answer?
Appellee maintains that by the decision in the case of Lucas v. American Yeoman, 105 Kan. 700, 185 Pac. 901, all other defenses were waived by the defendant when it offered this release limiting its defense thereby to abortion and compromise settlement. In the Lucas case the answer alleged three defenses — misrepresentation in the application, right of arbitration, and accord and satisfaction. The settlement was made for $250, and release signed. The beneficiary acknowledged the execution of the release but said she did not understand it or its effect, and she was fraudulently induced to sign it. She was shown to have been a very ignorant old lady of a foreign birth and as having been an inmate of an insane asylum until very shortly prior to the execution of the release. The apparently strong point in the case was the letter written by the association to the attorney for the beneficiary in answer to a request for copy of the policy for the purpose of filing suit, in which letter the company said: “We have her accord and satisfaction with her signature to same, whereby she agrees to accept the amount of $250 as settlement of same, and in so far as we know the settlement has been satisfactory to her.” (p. 703.)
The Lucas case differs from the case at bar in that there is no letter or statement limiting the defense to any one feature, and the further very important difference in the release. There its genuine character was admitted by plaintiff by acknowledging that she executed it, but she claimed she signed it by reason of misrepresentations and fraud; here the plaintiff testifies she never signed it or authorized it to be signed. At most, from her standpoint, it is a paper prepared by the defendant for her signature which she has never signed or recognized, but defendant has offered it in evidence with her name apparently signed thereto. If she never signed it and it is a forgery, it does not constitute a defense. The theory in the Lucas case is the reliance of the defendant upon a defense. The release there was a defense and was treated as such until set aside— just as a deed is a link in the chain of title until it is set aside. There was no attempt in this case to set the pretended release aside; the objection to it was that it was not a release to start with because it had never been signed by the plaintiff.
Reference is made in the Lucas case to the reasoning given in the opinion in the case of Insurance Co. v. Ferguson, 78 Kan. 791, 796, 98 Pac. 231, as to the theory of waiver. The following is copied from that opinion:
“Possibly there is no technical estoppel here, but, as we have seen, that is not necessary to a waiyer, which is based on grounds analogous to that of an election of defenses. The company, after subjecting the. insured to the expense of an action, upon the belief, justly entertained, that it would interpose only the defense stated in refusing payment, ought not to meet the plaintiff with other defenses of which it had the same knowledge when it refused to pay that it had of the one upon which it based its refusal. In such a case a frank statement of all the grounds of refusal might obviate the expense of commencing an action.”
The Ferguson case was on a fire insurance policy where, like in the Lucas case, there were letters written by the company speaking of only one defense, viz., the premises being unoccupied for more than thirty days before the fire, the company could not upon the trial be permitted to defend upon other grounds known to the company as well when it wrote the letters as when it filed its answer.
Three other Kansas decisions are cited by appellee in support of its theory of waiver: Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Wildey v. Sheppard, 61 Kan. 351, 59 Pac. 651; and Mayse v. Great American Ins. Co., 123 Kan. 692, 256 Pac. 1002. In the first case the question of overinsurance was admitted by the insured when the adjuster came after the fire, but the adjuster and the company attempted to arrive at the amount of the loss by personal interviews and correspondence without any further reference to the overinsurance, and even started arbitration as to amount, which was later discontinued. It was there held that the overinsurance feature had been waived.
The second case was on an accident insurance policy where a barber and restaurant keeper, while hunting, had his left hand shot off. The company attempted negotiations with him for settlement on the theory that when the accident occurred he was engaged in an occupation more hazardous than that of barber and restaurant keeper and consequently he was entitled to a smaller amount of weekly indemnity and for loss of hand than for his usual vocations, but when they failed to effect a settlement the defendant on the trial alleged this reduced liability and tendered the amount on that theory, and further attempted to show that there was no liability whatever because of certain acts of the plaintiff. The court held there was no question left for determination except the amount, because defendant by such offer had admitted a liability and waived a right to such defense.
The third case cited concerns a waiver of notice in a hail insurance loss, and contains a review of a number of cases on waivers of various kinds, but the decision affects only the question of notice. As stated in the Ferguson case, the doctrine of waiver of defense is similar to the election of remedies and it must have in some way inconvenienced or misled the insured before it can be considered a waiver.
“There are many cases asserting the rule that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground, especially where the insured has acted on its asserted position and incurred expense by bringing suit or otherwise. Where, however, the ground not asserted is one which could not have been cured by the insured, the rule is of doubtful application, as where a cancellation is asserted and there exists a breach of warranty, and the rule does not apply to grounds of objection not known to the insurer, if the beneficiary was not, by the ground of the refusal, led to take or refrain from taking any action which operated to his injury.” (14 R. C. L. 1196.)
“Where the company refuses to pay a loss upon a specified ground, it is estopped from asserting other grounds relieving it from liability of which it had full knowledge where insured has acted upon its position as announced and incurred expense in consequence of it, or, as the rule is sometimes more broadly stated, when one specific ground of forfeiture is urged against a policy of insurance and the validity thereof denied on that ground alone, all other grounds are waived. On the other hand, it has been held that the mere assertion of another ground of nonliability does not amount to a waiver or estoppel where there is no showing of trouble, expense, loss, or detriment to insured.” (32 C. J. 1354.)
In the case at bar there were no direct interviews between the beneficiary and the agents of the company,.,no letters about defenses to the certificate. The only reference to any conversation on the subjects by the adjuster with the brother and banker of the beneficiary shows he mentioned both defenses — misstatements in the application and abortion. We conclude that the release introduced in evidence as prepared by defendant, but the signature to which is denied by the plaintiff, cannot without her signature constitute a defense as a Release or a recognition of the defense of abortion; that it was therefore not a waiver to other defenses pleaded in the answer, and it was error for the trial court to strike out the evidence as to misstatements in the application and to instruct the jury to disregard such evidence.
Having reached this conclusion, it is needless to consider the other assignments of error.
The judgment is reversed and cause is remanded for a new trial.
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents for review certain proceedings in the district court of Butler county wherein a seventeen-year-old boy was sentenced to imprisonment for life upon his plea of guilty to the murder of his father and mother and his five brothers and sisters.
None of the facts concerning this seven-fold tragedy was developed in court by sworn testimony; and aside from a few inferences which may be gleaned from the record this court is entirely without dependable data upon which an intelligible statement of the case can be formulated. It seems, however, that the defendant, Owen Oberst, a lad of seventeen years, resided on a farm in Butler county with his parents and younger brothers and sisters, and that he attended high school at some distance from his home. And it may be inferred that all the members of his family except himself died a violent death at the farm home on April 20, 1928, although the record is altogether silent of facts to establish the corpus delicti or, more simply, that seven murders had been committed.
On May 5 the defendant was arrested on the charge of having murdered his entire family with a .22-calibre rifle. He was taken before a justice of the peace, where he apparently waived a preliminary examination and was bound over to the district court, and on the same day an information was filed charging him in seven counts with murder in the first degree. It may be inferred, also., that some sort of confession was made by defendant, but what, when, or to whom, does not appear. However, on the day of defendant’s arrest and waiver of a preliminary examination the presiding judge of the Butler county district court appointed eight persons as a commission,
“To investigate and confer with the defendant as they desired and to report generally as follows: whether any undue influence or coercion was used by any of the officers in securing any confessions or admissions from the accused in the above action.”
An explanation of this strange procedure is given in the brief of counsel for the state:
“As soon as the confession became public, numerous people in and around El Dorado at once began questioning the officers’ conduct, intimating coercion and third-degree methods, and it was for the protection of the officers as well as the defendant that the court appointed the commission of eight of the most reputable citizens of Butler county, four of them being attorneys, one a doctor, one a banker, another a teacher in the public schools and director of Boy Scout work, and the minister of the First Christian church' of El Dorado, all gentlemen of the highest integrity and in whom the public at large had the greatest confidence. The court knew that these gentlemen would return a finding of what the true situation was as they found it, and that this report would be made public, and in that way attempted to satisfy the public that no undue influence had been used on the defendant, and that every right of the defendant had been protected and that he was fully advised of all his rights.”
Four days later this “commission” reported their doings in writing, in part, viz.:
“We called the accused before us, caused him to be introduced to all the members of the commission, explained to him that the court had appointed us for the purpose of guaranteeing to him fair, proper and lawful rights, which he or any person accused of crime has. . . .
"... The commission asked many questions seeking to clear up apparent impossibilities in the statement, but were unable to get any clearer statement, defendant saying he did not recollect details which seemed important to us but which were not covered in the statement.
“We spent much time on hearing and assimilating the story of the defendant because of the gravity of the charge, and some inconsistencies in the statement of the details thereof, and also because of the immaturity of the accused and his apparent unfamiliarity with such matters and proceedings, and we desire to report as follows.
“1. That no undue advantage has in any way been taken of the accused by any of the officers; that his statements [record silent as to nature of these statements] have been free, voluntary and repeatedly made, sometimes varying in certain respects, but that in the main and as a conclusion of the matter, his statements have been made entirely without coercion or other overt influence, and wholly as a result of questioning or talking alone, and with no resort to violence or physical means or methods.”
Following this report of the committee of eight, the judge’s minutes, which supply the only record, recite:
“May 9, 1928. Defendant present in person and inquiry made of him whether he had seen the information filed against him and he having said no he was furnished with a true copy thereof and inquiry was made of him whether he desired the court to appoint an attorney to represent him, and he replied that he did not care, and thereupon the county attorney read the information on file, in open court, and the court inquired of the defendant whether he desired to plead guilty or not guilty, and he replied that he plead not guilty.”
It does not appear what next ensued upon defendant’s plea of not guilty, but a week later, according to the judge’s minutes, the following transpired:
“May 16, 1928. Defendant present and states in open court that he desired to plead guilty to the crimes of murder charged in the information. Court asked the defendant if he desired the court to appoint him an attorney or counsel and he replied that he did not care. Thereupon the court asked defendant how he desired to plead and he replied he desired to plead guilty to each of the offenses charged in information. The plea of not guilty was set aside and the court asked the defendant if he had any legal cause to show why the court should not sentence him, and he replied that he had none, and thereupon the court adjudged that the defendant be confined in the Kansas State Penitentiary for term of his life on first count, and a like separate sentence on counts, two, three, four, five, six and seven, and pay costs.”
A week later counsel for defendant appeared in the case for the first time. They filed a motion to remand the cause to the justice of the peace for a preliminary hearing for various reasons, viz.: that defendant had appeared there without counsel, that he was a farm boy of seventeen years and ignorant of his rights and wholly ignorant of the procedure and language used in the proceedings before the justice of the peace, that he had had no counsel until May 20, and that his attorneys could learn nothing of the status of his case until May 22, and that he had been denied his constitutional right to the assistance of counsel for his defense.
Two days later counsel for defendant also filed a motion to vacate the judgment and sentence and to permit defendant to withdraw his plea of guilty, on the ground that he was a minor seventeen years old and had no counsel to defend him and was ignorant of his rights, and that his first consultation with counsel was on May 20 after the judgment and sentence of the court had been imposed.
Thereafter, on June 1,1928, counsel for defendant filed a verified motion to require the sheriff to permit defendant to confer with his counsel, alleging that the sheriff and jailer had refused counsel the right to see the defendant, and that—
“3. The said sheriff, in so refusing and continuing to refuse and in so preventing and continuing to prevent counsel from seeing this defendant, when asked for his reasons for so refusing and preventing counsel from seeing their said client and conferring with him, gave as his sole and only reason that he desired to see the defendant put in the penitentiary, and that he, the said sheriff, intended to see that he was put in the penitentiary by every means at his command, and that he refused counsel permission to see their said client for fear said counsel would thwart said sheriff in his purpose of causing the said defendant to be put in the penitentiary. ‡
“5. Defendant, through his said counsel, states that he is a minor without guardianship; has been sentenced without counsel to the penitentiary for life seven times under one indictment of seven counts for the murder of seven different persons. That he secured the said attorneys as his counsel after such sentence so imposed at and during the present term of this court. That said counsel has filed in this cause, and there is now pending before this court two motions, one to remand for a preliminary hearing, and the other to vacate the judgment and sentence of this court and permit the defendant to withdraw his plea of guilty. That upon the disposition of same, imperative action, involving many facts and circumstances wholly within the knowledge of the defendant, must of necessity be immediately performed by counsel, and to deny counsel access to defendant at this time is a suppression of facts essential to orderly justice.”
In the affidavit in support of this motion it was recited:
“That when said attorneys asked him the reason for refusing them an interview with their said client, the said sheriff gave as his only reason and repeatedly stated during said interview for so denying affiants’ entrance into said jail, ‘I want to take him up to Lansing to the penitentiary, and I intend to do it if I have my way, and if I let you lawyers in to see him I don’t believe I will ever get to take him to the penitentiary.’ And that the said sheriff, E. E. McKnight, further stated, ‘You will never get in to see him as long as I am sheriff unless you go up to Lansing and see him there.’ ”
It may also be inferred that counsel for defendant wrote a letter to the presiding judge advising him of the filing of these motions, as on June 5 the judge wrote to counsel for defendant:
“Now in regard to your motion for permission to see Mr. Oberst will say that if you want to see him before Saturday you will please take the matter up with Mr. Taylor [county attorney]. He will arrange for you to see Mr. Oberst before Saturday if you care to do so. I talked the matter over with him when I was home and told him that the law gives a defendant the right to consult with his attorney at reasonable times, and I understand he agrees with me.”
On June 9, 1928, these motions came on for hearing. The motion to remand for a preliminary examination, and the motion to set aside the judgment and to permit defendant to withdraw his plea of guilty were overruled. The motion to require the sheriff to permit defendant to confer with counsel was sustained. As to the latter the court itself prepared the journal entry, reading—
“The court, after hearing the argument and statement of counsel and being fully advised in the premises finds that heretofore, to wit: On the 5th day of June, 1928, the defendant’s counsel was given written permission by the court to confer with the defendant, and at this time the court again grants defendant’s counsel permission to confer and advise with his attorneys and thereupon thejr did confer with the defendant herein.”
A motion in arrest of judgment was filed, setting up various grounds, including one that the whole record was insufficient to support a judgment. This motion was overruled, and seven 'life sentences were imposed on defendant, one for each count in the information.
Counsel for defendant assign and argue various errors suggested by matters outlined above — error in denying defendant’s application to remand for a preliminary hearing; in appointing the committee of eight to investigate the conduct of the county attorney and sheriff and the circumstances of an undisclosed confession of defendant; in arraigning defendant and setting aside defendant’s plea of not guilty and entering a judgment of conviction upon a plea of guilty without the advice of counsel; in denying defendant’s motion to vacate the judgment and to permit him to withdraw his plea of guilty; in over ruling motion in arrest of judgment; and in abuse of the trial court’s discretion as disclosed by the entire record.
This entire assignment of error centers about the final error suggested by the record, so we might as well lay hold of it at once.
Did the trial court abuse its discretion in conducting these proceedings under review, permitting the seventeen-year-old defendant to withdraw his plea of not guilty to seven separate and distinct charges of murder in the first degree, and to accept his plea of guilty on all of those felonies, and in imposing seven separate sentences of life imprisonment thereon, all without the advice of counsel, and in declining to undo any of those proceedings at the solicitation of counsel for defendant after they had been employed in his behalf?
It is part of our fundamental law that a person on trial for a crime is entitled to the assistance of counsel for his defense (Bill of Rights, § 10). This right is intended to be adequately secure by our penal code (R. S. 62-1304), and the same doctrine is as thoroughly emphasized in our criminal jurisprudence as any one matter treated in the 125 volumes which chronicle the judicial deliberations of this court. In State v. Moore, 61 Kan. 732, 60 Pac. 748, it was declared that “a person accused of crime is entitled to the assistance of counsel at every step and stage of the prosecution.” In that case the defendant did have counsel, but he was required to plead in their absence. This court held that the incident was a “denial of a fundamental right and was material error.” In the court’s opinion it was said:
“In order that the accused may have the full benefit of this fundamental right, the legislature has provided that when he is about to be arraigned upon a charge of felony, and is without counsel and unable to employ any, it is the duty of the court to appoint counsel to conduct his defense, upon request. (Gen. Stat. 1897, ch. 95, § 160; Gen. Stat. 1899, § 4410.)
“So important is the presence of counsel regarded that it has been held to be error for the judge to repeat an oral charge to the jury in the absence of counsel for the defendant. (State of Louisiana v. Davenport, 33 La. Ann. 231.) In People v. Trim, 37 Cal. 274, it was held to be a fatal error for the court to give further instructions to the jury in the absence of the defendant’s attorney, although the defendant himself was present. In another case it was held that the accused could not be deprived of the guaranteed right to be represented by counsel because he was a lawyer, and that to compel him to proceed without counsel was a plain and palpable violation of a fundamental right. (People v. Naethaly, 105 Cal. 641, 39 Pac. 29.) His right is not limited to proceedings at and subsequent to the impaneling of the jury, but he needs and is entitled to counsel at every step and stage of the prosecution. It has been held that an accused person imprisoned and awaiting the action of the grand jury has a constitutional right to a private interview with counsel, and that such right could be enforced by mandamus. (The People, ex rel. Burgess, agt. Risley, 66 How. Pr. 67; 13 Ab. New. Cas. 186.) In State v. Summers, 4 La. Ann. 26, where it was claimed that a prisoner was denied the aid of counsel in exercising his right of peremptory challenge of jurors, it was decided that he had an undoubted right to such aid, and that no verdict could be sustained where it was refused.” (p. 734.)
In The City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233, the defendant was arrested and brought before the police judge on a charge of violating a liquor ordinance. He pleaded guilty and was sentenced accordingly, but afterwards he filed a motion for leave to withdraw it. This was denied and he appealed to the district court, where he made a showing that when arrested he was promptly brought into police court, that he had no lawyer to defend him and that he had no opportunity to employ counsel, and while he admitted in police court that he had sold liquor he was not guilty of a misdemeanor for reasons not here pertinent. The trial court refused to allow him to withdraw the plea entered in police court and refused to enter his plea of not guilty. He appealed. This court reversed the judgment, saying—
“We think the court below, upon this showing, should have sustained the motion, and permitted the defendant to withdraw the former pleas of guilty entered against him by the police judge. All fairness should be accorded to a defendant in a criminal case, in every stage of an examination or trial. No advantage should be taken on account of his being in court without counsel. It always should be one of the first duties of a court, where a defendant is charged with a crime and is about to be called upon to plead, to inquire whether he has or is able to procure counsel; and if not, and he desires it, to see that he has an attorney to represent him. When a plea of guilty has been entered against a defendant, who is without counsel, and there is a question as to whether he intended to plead guilty, the court should permit the withdrawal of such plea in furtherance of the substantial rights of the defendant.” (p. 15.)
In 2 Bishop’s New Criminal Procedure (2d ed.) 619, it is said:
“ § 795. Undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty instead of denying the charge. Yet in proportion to the gravity of the consequences the court should exercise caution in receiving this plea. Thus, where one tendered it in a capital case, the judges would not accept it till they had explained to1 him its serious nature, sent him back to his cell for reflection, brought him again into court, had the indictment read to him a second time, and examined witnesses as to his sanity, and whether or not promises of clemency had been made to him. These steps are not in form taken in all cases, but they illustrate an ever- present caution. And in some of the states there are varying statutory and other like devices to protect defendants from improvident pleas of guilty.”
Id. Heard’s Criminal Pleading (1879) 263, it is said:
“If it appears to the satisfaction of the court that the defendant rightly comprehends the effect of his plea, the plea of guilty is recorded, even in a capital case, and nothing further is done unless a motion in arrest of judgment is interposed, till sentence is awarded.”
But in the annotation supporting the above text the same author says:
“The courts, however, are usually backward in receiving and recording such a confession, at least in highly penal cases, and will generally advise the defendant to retract it and plead to the indictment. 2 Hale P. C. 225. 4 Stephen Comm. 394, 7th ed.; Commonwealth v. Battis, 1 Mass. 95.”
In 1 Greenleaf on Evidence (16th ed.) 349, 350, it is said:
“Judicial confessions are those which are made before the magistrate, or in court, in the due course of legal proceedings; and it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate, pursuant to statutes; and the plea of ‘guilty’ made in open court to an indictment. Either of these is sufficient to found a conviction, even if it be followed by sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge. . . .
“In the United States, the- prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law.”
In the Kansas cases cited above, one of the defendants was merely a horse thief and the other a liquor vendor, both grown men. In the case before us the defendant was a seventeen-year-old boy •charged with seven murders. The one thing this youngster needed more than anything else before pleading guilty to such a horrifying .accusation was consultation with and the advice of a good lawyer, and it is not easy for us to grasp the attitude of the trial court which quite overlooked a precaution so essential to the due administration of justice. By way of contrast, it is worth while to ■consider how the murderer of President McKinley was dealt with in the criminal courts of New York as recorded in 14 American State Trials, 159 et seq. When Leon Czolgosz was arraigned in the county court at Buffalo, N. Y., for the murder of the president, the fact of his guilt of that shocking crime was known around the world, but every step in the state’s procedure for the administration of justice was scrupulously observed nevertheless. The record recites :
“September 16 [1901].
“ ... At 5:40 the prisoner was brought into the county court. . . .
“Mb. Penney, district attorney: Czolgosz, have you a lawyer?
“The prisoner shook his head and when the question was repeated he gave a simple stare.
“Mr. Penney: Czolgosz, you have been indicted for murder in the first degree. Do you want counsel to defend you? Look at me and answer.
“The prisoner remained mute.
“Mr. Penney: As the accused declines to answer, I suggest that counsel be assigned by the court to advise him what to do and to defend him.
“The Court: Czolgosz, you have appeared for arraignment in court without counsel. The law makes it the duty of the court to assign counsel for you. . . . The court therefore assigns the Hon. Loran L. Lewis and the Hon. Robert C. Titus as your counsel.” (pp. 164, 165.)
On motion the case was transferred to the supreme [trial] court where the defendant was again arraigned. The same record (pp. 169, 170) reads:
“The Court: Czolgosz, you are indicted and charged with having committed the crime of murder in the first degree. It is alleged that you on the 6th day of September of this year unlawfully shot and killed William McKinley contrary to law, how do you plead?
“The Prisoner: Guilty.
“The Court: That plea cannot' be accepted in this court. The clerk will enter a plea of not guilty and we will proceed with the trial.
“Mr. Penney : This defendant appeared in the county court last week, and at that time Judge Emery assigned as his counsel the Hon. Loran L. Lewis and the Hon. Robert' C. Titus, and his associate, Mr. Ladd, to attend to the case and ascertain the rights that this man had and to put in such defense as to them they deemed best. They are here to attend to that in this court this morning. I will ask Your Honor to confirm that assignment. . . .
“The Court: It certainly accords with the views of this court that' gentlemen like yourselves [Messrs. Lewis, Titus and Ladd] should have been appointed by the county court to defend this prisoner. It gives to the public and the court, and those engaged in the administration of the law absolute assurance that the prisoner will receive fair treatment during the progress of this trial, and that he will meet with such justice as the law demands in his behalf as he is assured by the fundamental law of the land. ... It' is my pleasure to not only confirm, but if it should be deemed necessary, appoint and designate you to the task which you have set out to perform.”
There is not in Kansas, as in New York and elsewhere, a positive statutory inhibition against a plea of guilty in a case of murder in the first degree; but how much better would it have been in this case if the county attorney had followed the example of the district attorney in the Czolgosz case, or if the trial court had drafted one or more of the lawyers who served on that “commission” to represent the youthful defendant.
To uphold the proceedings under review, the best that counsel for the state are now able to do is to recast the question this court has to solve into an inquiry whether it was error for the trial court not to force counsel upon the defendant whether he wanted counsel or not. And the literalism of the statute (R. S. 62-1304) is seized upon to justify such a formulation of our problem. Such has never been-the interpretation of our bill of rights, nor of our statute, nor our own decisions or those of any American or English court in modem times. It is suggested that there are many prisoners incarcerated in our penal institutions on pleas of guilty given without advice of counsel. We doubt that, and would be sorry indeed if it were true, particularly, if they are 17-year-old lads who without legal advice pleaded guilty to murder in the first degree. Certainly we are not anxious to share the responsibility for such a lamentable situation. We are well assured that the common practice in the district courts of this state is not to accept a plea of guilty in any felony case except on the well-considered advice of counsel for the prisoner; and some careful judges take other precautions to avoid miscarriage of justice which need not now be discussed. One thing is certain, this court has never affirmed a judgment of penal servitude on such a record as here presented. Even the justice of the peace who bound over the defendant swore he did not know for sure whether the lad understood what he was about or not. On the hearing of the motion which raised the question whether defendant had waived a preliminary examination, the justice of the peace testified:
“I asked him [defendant] first, as I remember it, if he knew what he was charged with. He said that he did. ... I explained to him what he was there for and the purpose of the preliminary examination and asked him whether or not he wished to waive his preliminary examination or whether or not he wished it set down for a definite date for hearing. He, of course, didn’t understand that and I went — . . . .
“A. As I remember it, he said that he wanted to plead guilty. A plea of guilty I told him could not be made in justice court — couldn’t be accepted— and I told him — the county attorney or myself made the statement that if those were his wishes the only thing he could do would be to waive his pre liminary examination, and later on he did waive his preliminary examination. . . .
“A. I went into it very thoroughly because of the gravity of the offense and because of the fact that the boy was very young. . . .
“Q. Could you get any reaction from him as to whether he was understanding or paying any attention to what you did say? . . .
“A. Yes, I thought he understood it.”
However, this court is not prepared to say that the trial of this defendant could not have gone ahead in the district court on this showing. (State v. Handrub, 113 Kan. 12, 213 Pac. 827; Hancock v. Nye, 118 Kan. 384, 234 Pac. 945; State v. Miner, 120 Kan. 187, 243 Pac. 318.) What this testimony of the justice did develop was the indispensable need of a competent and courageous attorney to give absolute assurance that some responsible person charged' with the solemn duty of caring for defendant’s interests did understand what was being done in his case.
We have already remarked that the record does not reveal any of the facts of the seven crimes charged against defendant. The corpus delicti was taken for granted. The most light we can glean is supplied by a dialogue between the trial court and the defendant:
“By the Court: There are seven counts in the information. As I remember them in a general way, one of them charges the killing of your father and another your mother, and then there are five counts that charge the killing of your five brothers and sisters. You understand there are seven charges made against you in the information? A. Yes.
“By the Court: And you are pleading guilty to all seven of them? A. Yes, sir.
“By the Court: How did you come to do this? A. Well, I — just the way my dad treated me. He didn’t care what he did.
“By ti-ie Court : I have never seen the original confession I understand you signed, though I have read in the newspapers about it. In that confession, as I remember it, the statement was made in substance that you had killed all of these people with one shot each of a target rifle. A. Yes, sir.
“By the Court: That doesn’t occur to me as being possible. A. Well, it is.
“By the Court: And especially in view of the fact that I understand you had said you pointed the gun at these members of your family and shut your eyes and pulled the trigger. A. Yes, sir.
“By the Court: Do you know where the bullets — what part of the body the bullets struck each one? A. I think right about the heart.
“By the Court: Right about the heart? A. Yes, sir.
“By the Court: Did any of them try to take the gun away from you, or anything of that kind? A. No.
“By the Court: Did any of them try to get away or run? A. No.
“By the Court: The five children were in the kitchen at the time you started the shooting? A. Yes, sir.
“By the Court: Did you shoot all five of them, one right after the other? A. Yes, sir; I did.
“By the Court: And then your mother? A. Yes, sir.
“By the Court: And then your father? A. Yes, sir.
“By the Court: Did any of the five of your brothers and sisters make any effort to get out through the doors or escape from you, or— A. No, sir; they didn’t.
“By the Court: —or to take the gun away from you, or anything of that kind? A. No, sir; they didn’t.”
The foregoing dialogue prompts one observation, which is, however guilty this defendant may be, the court did not succeed in getting at the truth. No person can put seven bullets through the hearts of seven persons in seven shots with his eyes shut.
Other matters urged in appellant’s behalf need only brief comment. The conduct of the sheriff in refusing access to the defendant and to unmolested and private consultation with him was peculiarly reprehensible. It was tantamount to oppression in office, of a character which standing alone would have seriously imperiled the success of the state’s case; and for which a civil action against the sheriff personally has sometimes been upheld. See notes in 23 A. L. R. 1382 and 54 A. L. R. 1220. The attitude of the county attorney toward the delinquency of the sheriff was not commendable; and the belated judicial relief obtained from the trial court or, more precisely, from the judge, to correct such situation was merely an informal letter saying that he had taken up with the county attorney the motion of counsel and understood the county attorney agreed with him, and that counsel for defendant could make arrangements with the latter to secure what they were entitled to— a convenient and sufficient opportunity to consult privately with their client.
Surely this court cannot be expected to uphold the practices which characterized the proceedings disclosed by this record. We cannot' stultify ourselves by writing an opinion to sustain them which will be printed in a book for lawyers and judges to read.
So far as concerns the “commission” appointed by the court or judge to investigate the conduct of the sheriff and county attorney and whether the defendant had made a confession of crime, and if so what or how many crimes, and whether such confession was unconstrained and understandingly made, a majority of this court hold that such a procedure was grossly erroneous, altogther unknown to and unauthorized by the penal code. We can give it no countenance whatever; and the significance given to its “deliberations” and “report” by counsel for the state only makes it perfectly clear, if that did not otherwise already appear, that the judgment entered in this case was brought about by suck a startling departure from correct procedure for the administration of justice that it cannot stand.
In, a belated supplemental brief submitted by the state a copy of what purports to be a confession verified by the defendant is set forth. But this confession was never brought into the record. The trial court never saw it; all he knew about it was something he had read about it in the newspapers; consequently it can add nothing to the validity of this judgment. In this brief, also, are citations of cases from other states where pleas of guilty were received without advice of counsel. We have examined them all. In Barnes’ Case, 92 Va. 794, the defendant was a woman, but the record does not show what was the nature of her offense. Neither is the nature of the offense disclosed in State v. Raney, 63 N. J. L. 363. In State of Louisiana v. De Serrant, 33 La. Ann. 979, the offense was grand larceny; in Baker v. State, 9 Okla. Cr. 62, the crime was larceny of live stock; in State v. Moore, 121 Mo. 514, it was burglary; and in State v. Terry, 201 Mo. 697, the plea of guilty was upon a charge of felonious assault. In none of these was the defendant a mere boy, and none of the offenses arose to the gravity of murder. Without approving or condemning the practice of accepting a plea of guilty on miscellaneous charges of crime without advice of counsel, we can see how mature criminals who know quite well what they are about may be permitted to do so; but where the charge is murder' in the first degree and the punishment necessarily imprisonment for life, and no possible advantage or leniency to the defendant could be gained by pleading guilty thereto without the advice of counsel, such a plea should only be received with great circumspection. From a seventeen-year-old boy it should not be so received at all.
The state’s brief is also concerned with the complications which will arise over the administration of the estates of this defendant’s parents if the judgment on his plea of guilty is not permitted to stand — an argument that only strengthens our conviction that other matters than that of due observance of the orderly procedure for the administration of justice in criminal cases were given too much concern throughout this case.
The judgment is reversed and the cause remanded to the district court with instructions to grant defendant’s motion to withdraw his plea of guilty and for further proceedings consistent herewith.
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The opinion of the court was delivered by
Johnson, P. J. :
This was a prosecution commenced before a justice of the peace in Rice county, Kansas, against the defendant for a violation of the prohibitory-liquor law, in which the defendant was charged in six counts with sales of intoxicating liquor contrary to the statute; also, in the seventh count, he’ was charged with keeping and maintaining a nuisance.
The first count is as follows :
“A. E. Wellman, being duly sworn, on his oath says, ■that on the 4th day of November, A. D. 1894, in the county of Nice, in the state of Kansas, one James M. Allphin, spirituous, malt, vinous, fermented and other intoxicating liquors, without first taking out and having a permit therefor, then and there unlawfully and wilfully did sell, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Kansas.”
The second, third, fourth, fifth and sixth counts are similar to the first.
The seventh count is as follows :
“And said A. E. Wellman, being duly 'sworn, on his oath says, that the wooden building located and standing on lot 89, 'Broadway street, in the city of Sterling, in said county and state,' was, and still continues to be, a place where spirituous, vinous, malt, fermented and other intoxicating liquors were, and have been, and are still continuing to be, sold and bartered in violation of an act of the legislature of the state of Kansas entitled, ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes/ to the common nuisance of the citizens and people of the state of Kansas, and that James M. Allphin, then and there, at the times above stated, unlawfully did keep and maintain, and still continues to keep and maintain, said place above described, without first taking out and having á permit therefor, to the common nuisance of the citizens and people of the state of Kansas.”
To this complaint the defendant filed a motion to quash, setting up five separate causes why the complaint should be quashed:
“ (1) That the said pretended complaint is bad for duplicity. (2) That said pretended complaint as sumes and undertakes to charge this defendant with two separate and distinct offenses under the laws of the state of Kansas. (3) That two crimes under the laws of the state of Kansas, which two crimes are totally distinct and separable, are attempted to be charged in said complaint. (4) That the sixth count in said complaint is bad for duplicity, in that it attempts to charge two distinct and separate offenses. (5) That said complaint nor any count thereof states any offense against the laws of the state of Kansas.”
This motion was argued before the justice of the peace and overruled, and defendant was tried before said justice and a jury on said complaint, and was found guilty on the first and seventh counts, and not guilty on the second, third, fourth, fifth and sixth counts, and was fined by said justice of the peace for each offense of which he was so found guilty. The defendant gave notice of an appeal, and the case was appealed to the district court of Rice county; and said motion to quash the complaint was argued in the district court and overruled, and defendant was tried upon said first and seventh counts in said complaint, which resulted in a conviction, and the defendant was fined on the first count $100 and adjudged to stand imprisoned in the county jail for 30 days, and on the seventh count was fined $100 and imprisonment in the county jail for 30 days. From the judgment imposing such fine and imprisonment on said counts the defendant appealed to the supreme court, and the case so appealed was duly certified from the supreme court to this court for its determination. The defendant having been acquitted on the second, third, fourth, fifth and sixth counts in the complaint, it is unnecessary to notice any of the objections urged against the complaint so far as these five counts- are concerned. We will treat the complaint as though it contained the two remaining counts, the first and the seventh.
The first error complained of by defendant is that the district court erred in not sustaining his motion to quash the complaint, or either count thereof. The first count charges the defendant with selling spirituous, malt, vinous, fermented and other intoxicating liquors in Rice county, in the state of Kansas, without then and there taking out and having a permit therefor. This count contains a statement of facts constituting a public offense against the laws of the state in clear and concise manner, and contains all that is necessary in charging a single offense under section 4, chapter 149, Laws of 1885, being section 386, chapter 31, General Statutes of 1889, and the objection thereto was properly overruled.
The seventh count charges that the wooden building located and standing on lot 89, Broadway street, in the city of Sterling, in the county of Rice and state of Kansas, was and still continues to be a place where spirituous, vinous, malt, fermented and other intoxicating liquors were and have been and still are continuing to be sold and bartered in violation of an act of the legislature of the state of Kansas entitled “An act to prohibit the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes," to the common nuisance of the citizens and people of the state of-Kansas, and that James M. Allphin, then and there, at the times above stated, unlawfully did keep and maintain, and still continues to keep and maintain, the said above-described place, without taking out and having a permit therefor. This count of the complaint contains a description of the place where spirituous, vinous, malt, fermented and other intoxi eating liquors have been and are continuing to be sold by the defendant, and alleges that the defendant has been and still is continuing to maintain said place, and continuing to sell such liquors in violation of law, and contains all the facts necessary to constitute a public offense under section 13 of the prohibitory act, (§392, ch. 31, Gen. Stat. 1889,) and contains but a single offense ; and the motion to quash was properly overruled.
Counsel in their brief do not complain so much about the facts stated in the complaint itself, but insist that the justice of the peace had no jurisdiction to hear and determine the seventh count in this complaint, and if the justice had no jurisdiction, then the district court acquired no jurisdiction, by appeal. Section 9 of article 3 of the constitution of. Kansas provides : “ Two justices of the peace shall be elected in each township, whose term of office shall be two years, and whose powers and duties shall be prescribed by law.” Under this provision the legislature may confer upon justices of the peace such general or special jurisdiction not in conflict with the exclusive jurisdiction vested by the constitution and laws in other courts as it shall deem wise. Section 1 of chapter 83, General Statutes of 1889, reads :
“.Justices of the peace shall have concurrent original jurisdiction with the district court, coextensive with their respective counties, in all cases of misdemeanor in which the fine cannot exceed $500, and imprisonment cannot exceed one year, except as otherwise provided by law.”
Article 1 of chapter 82, General Statutes of 1889, gives the definition of public offenses and the division thereof :
“ Public offenses are divided into felonies and misdemeanors. A felony is an offense punishable' by death or confinement and hard labor in the penitentiary ; all other public offenses are misdemeanors. ’ ’
The keeping and maintaining a place where spirituous, vinous, fermented and other intoxicating liquors are sold for other than the excepted purposes is declared to be a common nuisance, and punishable by fine of not less- than $100 nor more than $500, and by imprisonment in the county jail not less than 30 days nor more than 90 days. This makes the maintaining of such a place a public offense, and prescribes such punishment to be inflicted upon the keeper or owner thereof, whenever he may be found guilty, as to'bring the same within the definition of a misdemeanor, and the punishment for the offense is such as to bring it within the jurisdiction of a justice of the peace.
It is contended by counsel for defendant that the section of the prohibitory law under which the seventh count of the complaint is drawn does not confer jurisdiction upon justices of the peace ; that this section does not declare the offense therein named to be a misdemeanor, but says that the owner or keeper of the place shall be adjudged guilty of keeping a common nuisance. It is true that our statute, in defining what a misdemeanor is, declares that all offenses not felonies are misdemeanors; but did the legislature, in the act referred to, intend to make the keeping and maintaining a common nuisance, as therein defined, a. misdemeanor, at least, so as to confer jurisdiction upon justices of the peace? The argument of .counsel is somewhat ingenious, and is based upon the theory that the same section provides for shutting up and abating a nuisance and for restraining the party from keeping or maintaining the same, and that the order provided for in this section cannot be made by a justice of the peace ; 'that it is an elementary principle of law that the power to abate carries with it the power to restrain and enjoin the creation or maintenance; that this section in express terms gives power both to abate and to enjoin the maintenance of one ; that then the phrase in said section, “upon the judgment of a court having jurisdiction finding such place to be a nuisance under this section,” must apply to other than a justice’s court.
This section declares the place to be a nuisance, and upon the conviction of the keeper or owner it prescribes a punishment for keeping and maintaining the same, and also provides for an injunction to enjoin or restrain the party from further maintaining the nuisance. Either or both of these remedies may be resorted to for the purpose of enforcing- the prohibitory law. Justices of the peace are officers created by the constitution, which declares that they shall possess such powers and duties as shall be prescribed by law; and the law has prescribed that they shall have concurrent original jurisdiction in all cases of misdemeanors in which the fine cannot exceed $500 and the imprisonment cannot exceed one year. It was in the power of the legislature to confer jurisdiction upon justices of the peace in all cases of misdemeanors, and, within the constitutional grant, the legislature has conferred concurrent jurisdiction on justices of the peace to try and determine all cases of misdemeanor. The case of The State v. Lund, 49 Kan. 209, was a prosecution against the defendant for maintaining a common nuisance. The defendant was arrested and raleen before a justice of the peace on a complaint charging him with keeping a common nuisance. A hearing before the justice of the peace was treated as a preliminary examination, and the defendant, Lund, was bound over to the district court, and entered into recognizance with sureties for his appearance in court. The justice of the peace filed a transcript of his proceedings with the clerk of the district court. 'Thereupon, the county attorney filed an information in the district court charging the defendant'with maintaining a nuisance. The defendant filed a motion in the district court to dismiss the prosecution for the reason that the same had been commenced before a j ustice of the peace and the district court had no jurisdiction, which motion was overruled, and defendant was tried and convicted,, and appealed to the supreme court. Valentine, J., delivering the opinion of the court, says :
££ The first question presented in this court is upon the contention of the defendant that the district court did not have any jurisdiction to hear and determine the case, and this for the reason that the action had been originally commenced before a justice of the peace. It is claimed that the justice of the peace had jurisdiction to hear and determine the case finally, and no power to hold a preliminary examination with respect thereto, and that he could not properly send the case to the district court, all of which is true and correct. In other words, it is claimed that the case could not go to the district court as from a preliminary examination, and that it did not go to such court as on an appeal, all of which is also correct.”
The statute conferring jurisdiction on justices of the peace in cases of misdemeanors in express terms confers original jurisdiction upon them concurrent with the district court in all cases of misdemeanor when the fine cannot exceed $500 and the imprisonment cannot exceed six months. The express power to take jurisdiction of a criminal prosecution and render judgment therein implies that the court upon which jurisdiction is conferred may hear and determine all questions that properly or necessarily arise upon the trial of the case and affecting the party accused and involved in the action. The right of the public to be protected against the keeping or maintaining of a nuisance and the guilt of the party charged with keeping or maintaining the same are in issue on the trial of the case, and to that extent a just determination of the question involved arising on the action may be had, and, if the party be found guilty, the justice has power to assess the punishment by fine and imprisonment, and has full power to order the sheriff or other proper officers to shut up and abate the place as a nuisance. The order to shut up and abate the place as a nuisance is not a part of the punishment for the offense, but is allowed as a protection of the public against the recurrence of the same annoyance to the people, and this being the necessary sequence following the conviction of the keeper, the justice of the peace has full power to make the order to shut up and abate the place as a common nuisance. In the case of The State, ex rel., v. Crawford, 28 Kan. 744, the court uses the following language:
“ This case grows out of, and is founded upon, the same facts as the case just decided [28 Kan. 726] of this same title, except that upon the facts of this case another and additional question is raised, to wit, Is the remedy given by section 13, chapter 128, Laws of 1881, providing for shutting up and abating all places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, a civil action or a criminal proceeding? Unquestionably, we think, it is a criminal proceeding. The entire section seems to be dealing with matters of a criminal nature and not with matters of a civil nature. There is nothing in it that seems even to squint toward a civil action. Besides, the abatement of nuisances always was a matter for criminal jurisdiction, and never was, at common law, a matter for civil jurisdiction. It is true that courts of equity in rare cases have sometimes taken jurisdiction of nuisances and perpetually enjoined the same; and possibly courts of equity may have, in extremely rare cases, gone to the extent of abating nuisances ; but such cases have been so extremely rare that they need scarcely be taken into consideration when attempting to construe a statute which seemingly and apparently is nothing but a criminal statute.”
It is further insisted that the complaint is defective in not stating the precise time when the offense was committed. The first, second, third, fourth, fifth and sixth counts of the complaint charge the offense to have been committed on the fourth day of November, 1894, and are as definite and certain in the allegations of the time as it was possible to make them. The seventh count, after describing the building and the place where intoxicating liquors, were sold, charges :
“Was and still continues to be a place where spirituous, vinous, malt, fermented and other intoxicating liquors were and have been and still are continuing to be sold and bartered in violation, • . . . and that the said James M. Ailphin, them and there, at the times above stated, unlawfully did keep and maintain, and still continues to keep and maintain, the said place above described.”
Section 105, chapter 82, General Statutes of 1889, reads:
“The precise time of the commission of an offense need not be stated in the indictment or information ; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.”
In the case of Evans v. The State, 24 Ohio St. 208, where, the indictment contained two counts, the second'count charged the defendant as follows :
“The said Samuel B. Evans, on the day and year aforesaid, unlawfully, violently, and in a menacing manner, did assault the said Amelia Gilzer, then and there being, and her, the said Amelia Gilzer, then and there did beat. . . .”
On the trial the defendant was found not guilty under the first, and guilty under the second count of the indictment. The defendant thereupon filed a motion in arrest of judgment, for the reason that the second count did not state the place where the alleged offense was committed. The court, in passing on the question, says:
“Where there are several counts in an indictment, in the first of which the time and place are specifically stated, it is sufficient, under section 90 of the criminal code, to allege in the subsequent counts that the offense therein described was then and there committed.”
Section 110 of the criminal code of Kansas is precisely the same as section 90 of the criminal code of Ohio, so far as the sufficiency of the information or indictment is concerned, as to the time and place. Section 110 of the criminal code of Kansas reads :
‘‘ No indictment or information may be quashed or set aside for any of the following defects : First. For a mistake in the name of the court or county in the title thereof. Second. For the want of an allegation of the time or place of any material fact, when the venue and the time have once been stated in the indictment or information.”
The complaint was filed and sworn to on the 5th day of November, 1894. The seventh count charges that a certain building, describing it, “was and is and still continues to be a place where intoxicating liquors were and have been and now are and still continue to be sold in violation of law, and the said James M. Allphin, then and there, at the times above stated, unlawfully did keep and maintain said place, and still continues to-keep and maintain said''place. . . .” The complaint charges the defendant with keeping and maintaining the place at the time of making and filing the complaint, on the 5th day of November, 1894, and is' a sufficient charging of the time so as to inform the defendant of the offense of which he stands charged and of the time the offense was committed. (The State v. Cooper, 31 Kan. 505; The State v. Brooks, 33 id. 708; 1. Bish. Crim. Proc. § 243.)
It is contended by counsel for the defendant that the court erred in the admission of evidence, but they base their objection principally on the theory that the court, not having jurisdiction of the seventh count, erred in admitting evidence to show different sales made of intoxicating liquors, to the prejudice of the defendant on the trial, so far as the first count was concerned. We have examined the evidence given and offered on the trial of the case, and find no error in the admission or rejection of evidence.
It is finally claimed by the defendant, that the judgment- under the seventh count of the complaint is erroneous, and ought not to stand. The judgment under the seventh count is as follows : .
“ It is considered and adjudged that the said defendant . '. . be adjudged to pay a fine of $100 and be imprisoned in the county jail for a period of 30 days upon the seventh count of said complaint, which imprisonment shall commence at the expiration of the sentence of imprisonment upon the first count herein-before set forth, and that the defendant is adjudged to pay the cost of this action, taxed at $-; that he be imprisoned in the county jail until said fine and costs are paid.”
Section 250 of the criminal code reads:
1 ‘ When any person shall be convicted of two or more offenses before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.”
The assessment of the fine and imprisonment are in strict accordance with the statute, and the time at which the imprisonment shall commence is in strict conformity with section 250 of the criminal code.
There being no error on the trial of this case, the judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gab,ver, J. ;
This was an action brought by the plaintiff in error, as plaintiff, on a note executed by the defendant, McKitrick, in favor of the plaintiff. The defense set up was want of consideration. The note was given to the plaintiff for another note held by him for the same amount against J. T. McKitrick, father of the defendant, and which J. T. McKitrick had executed on account of professional services rendered by the plaintiff, as a physician, in attendance upon Mrs. Ben Fowle in her last sickness. After her death, her father, J. T. McKitrick, was appointed executor of her will, and had charge of the administration of her estate. After he had qualified as executor, he gave his personal note to the plaintiff for $135, payable in one year, “ provided it shall then be determined, after reasonable effort and due diligence on the part of said Wright, that the estate of Ella McK. Powle, deceased, is not" responsible for the bill for which this note is given.” Upon the trial, there was a conflict of evidence as to whether J. T. McKit-. rick had employed Doctor Wright to attend Mrs. Fowle, and, therefore, was personally liable for the services, or whether the note given by him, as well as the note sued on, was without consideration. Under the instructions of the court, the jury found for the defendant.
The principal contention in the case is as to the consideration of the notes. While the court presented to the jury the same legal proposition in different ways, the following portion of the instructions is sufficient substantially to show the matters of which complaint is made :
"10. You are instructed that if you find and believe from the evidence in this case that the original note given by J. T. McKitriek to the plaintiff was given without consideration — that is, for services already rendered before that time, and that the same were not rendered at the request of J. T. McKitriek, but wTere rendered for and at the request of one Fowle ; and you should further find and believe from the evidence that the note sued upon in this action has no consideration for its execution other than the surrender of the original note, then the plaintiff cannot recover, unless you shall believe and further find from the evidence that the note sued upon in this action was given by the defendant with full knowledge of all the facts, and in satisfaction of a disputed claim between plaintiff and J. T. McKitriek as to the liability of J. T. McKitriek for the medical services rendered by plaintiff in and about the medical attendance of said Ella Fowle.”
The inquiry concerning the consideration of the first note should not have been confined to such narrow limits. The court virtually held that there was no legal consideration for it, unless the maker was originally personally liable for the debt for which it was given. Under the facts of this case, such a holding was clearly erroneous ; for there are various other matters which may have entered into the transaction between the parties, and furnished a sufficient consideration for the promise of J. T. McKitriek to pay the claim. It must be remembered, too, that these were contracts in writing, for which the law presumes a sufficient consideration; and the burden is upon the defendant to overcome that presumption. As it is admitted that the surrender of the first note was the consideration for the note in suit, and the presumption of law, as to consideration, attaches to both notes, the defendant must show the want of consideration for the first note. (Sullivan v. Collins, 18 Iowa, 228; Gunning v. Royal, 59 Miss. 45.) Upon the trial, the defendant rested his defense upon the mere fact that the debt was originally not the personal debt of J. T. McKitrick, and argued that each note was therefore without consideration. In this respect he fell short of establishing his defense.
There must of course have been a legal and sufficient consideration for the first note. But it is not necessary, as was assumed by the court in the instructions, that the services should have been rendered at the special request of the maker of the note, or that any special benefit should have accrued to him; any forbearance given, or detriment or loss suffered by the payee, was sufficient. If J. T. McKitrick thought it was for the interest of the estate or would result in some benefit to himself to have this, as a claim against the estate, disposed of in a different manner from that ordinarily followed under the law, and, as an inducement for the foregoing of some proceeding or right which the law gave the claimant, personally promised in writing to pay the debt, there would be a sufficient consideration to support the obligation thus incurred. The court properly held that a naked promise to pay a debt owing by the estate, or other person, for which J. T. McKitrick was not personally liable, would not create a legal liability. It is not necessary, however, that a claim should be a strictly legal one in order that a note given in settlement thereof may be enforced ; it is enough that it have some foundation in law or equity, though the legal liability be doubtful. (Mulholland v. Bartlett, 74 Ill. 58; Foster v. Metts, 55 Miss. 77; Harris v. Cassady, 107 Ind. 158; Tucker v. Ronk, 48 Iowa, 80.)
We do not pretend to say wliat consideration there might be in this case, even if it was a promise to pay the debt of another ; and only make mention of some matters that could have entered into the transaction to show that there might have been a consideration other than that to which the court limited the inquiry.
If the first note was given for a sufficient consideration, it necessarily follows that the defendant’s note, which was given in lieu of it, created a valid and binding obligation, without regard to his knowledge of the facts as they existed between Wright and J. T. Mc-Kitrick, unless he was misled with reference thereto by the plaintiff. Upon this proposition, also, the instructions of the court were erroneous. In determining whether the surrender of the J. T. McKitriek note was a sufficient consideration for the execution of the note in suit, the court should inquire not merely who was originally liable for the plaintiff ’s services ; but the principal inquiry should be to ascertain whether there was a legal and sufficient consideration of any kind for the original note.
It follows from what has been said that the judgment must be reversed, and the case will be remanded for .a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This is an action brought by B. F. Jevons to recover damages for personal injuries sus tained by him by falling into a ditch or excavation adjacent to one of the principal streets of Clay Centre. The petition alleged that on the 2d day of August, 1890, and for a period of .more than a year prior thereto, there was
‘ ‘ a deep and dangerous excavation or ditch at and near the southwest corner of block 43 of said city, and along the outer edge of the sidewalk on the east side of Fifth street, and at and near the point where Grant avenue crosses Fifth street, -which ditch, for at least 30 feet from said corner of said block northward, is and was of the average depth of more than three feet, and at the outer angle formed by the approach of the crossings of Fifth street and Grant avenue is and was of the depth of over four feet, and thus, at said point, forming a deep and dangerous excavation, so that it was and is dangerous for persons on foot to pass along said street at said point; that s'aid deep and dangerous excavation was wilfully, carelessly and knowingly made by said city, and was, for a long time prior to said 2d day of August, 1890, wilfully, knowingly and negligently permitted, allowed and suffered to remain without any guard, fence or handrail around or along the same, tQ prevent foot passengers from falling into the same.”
The petition further alleged that on the 2d day of August, 1890, at the hour of 9 o'clock p. m., the plaintiff fell into said, excavation or ditch at the intersection of said crossings and received severe injuries, for which he claimed damages in the sum of $2,000. A demurrer to the petition being overruled, the defendant answered by a general denial, and alleged contributory negligence. Trial was had before a jury, which were allowed by the court .to be conducted to the place where the accident occurred, in charge of a sworn bailiff, under instructions that they should make the examination without conversing among themselves or any one about the place. A general verdict was returned in favor of the plaintiff for $275, and in addition thereto special findings of fact were made, including the following:
At the request of the plaintiff—
“1. Was the city guilty of ordinary negligence in not extending the plank approach leading to the sidewalk at the place of the accident further south, so as to cover the ditch to the full width of the sidewalk on the south side of the block at that point? Ans. Yes.
“2. Was the city guilty of ordinary negligence in not covering and keeping covered the ditch at the point where the accident occurred? A. Yes.”
At the request of the defendant —
“1. Did the plaintiff, at and prior to the time of said accident, know the condition of the crossing, approach and gutter at the place where the accident occurred? Ans. No.
“ 2. How long prior to the 2d day of August, 1890, had the opening in the gutter or excavation complained of existed? A. Four or five years.
"3. Had not the plaintiff repeatedly passed along the sidewalk adjacent to said gutter or drain previous to the accident? A. Yes, several times.
“4. Did he not pass by the same the evening of the accident and prior thereto, when the same was well lighted? A. Yes.
“5. For what purpose was said drain so constructed? A. To carry off surface-water.”
“7. Did the city exercise ordinary care in the construction and maintenance of the gutter at the intersection of Fifth street and Grant avenue, taking into consideration the purpose for which it was constructed, the grade of Fifth street at that time, and all the surrounding circumstances connected therewith? A. No.
“8. Was it the duty of the defendant city, in the exercise of ordinary care and precaution in regard to its streets, to place guards or a railing along said ditch or excavation to prevent persons from falling into the same? A. Yes, or cover it up.
“9. How wide was the plank approach from the crossing on Fifth street, extending over and across said gutter to the sidewalk on the east side of said street? A. Five feet lli inches.
“10. Was or was not such approach of sufficient width for the accommodation of foot passengers crossing such drain at that point? A. Yes.”
“16. Was not the gutter or drain at and along the place where such accident occurred on a regular grade with the same both above and below said point? A. Yes.
“17. Was said drain at the point in question any deeper than was ordinarily required, taking into consideration the grade of Fifth street, the extent of territory necessarily drained thereby, and the outlet thereof? A. No.”
“19. If the electric lights had not been extinguished immediately before plaintiff attempted to cross said Fifth street and the drain on the east side thereof, could he not, with the exercise of ordinary care, have crossed safely and avoided falling into said drain? A. Yes.
“20. Did the plaintiff, in crossing said street, exercise ordinary care, taking into consideration what knowledge he had of the location of such cross-walk, approach, and drain, the sudden extinguishment of the street lights, and all the circumstances surrounding him at the time? A. Yes.
“ 21. Did he, by reason of the darkness and other surrounding circumstances mentioned in the previous question, use any greater caution than a person would naturally have used if it had been light? And, if you say ‘Yes,’ in what particular? A. Yes; by walking slowly and aiming to reach the center of the sidewalk on Grant avenue.
“22. If you find that the injury of the plaintiff was the result of defendant's negligence, in what did such negligence consist? A. In not guarding or covering the ditch.”
“ 29. How long previous to the accident complained of did the street lights go out that night, and how long did they remain out? A. A moment before, and remained out from 10 to 30 minutes.
“30. Could the going out of said lights at that time have been avoided by the exercise of ordinary care on the part of the defendant city? A. No.”
“32. Did the city have notice of the going out of said lights in time to have had them lighted before the accident complained of occurred? A. No.”
The court overruled the defendant’s motion for judgment in its favor on the special findings of the jury, and for a new trial, and rendered judgment in favor of the plaintiff on the general verdict. Exceptions to the various rulings of the court were duly saved, and some of these rulings are assigned for error in this court. The alleged errors chiefly relied on are the giving and refusing of instructions to the jury, and "the overruling of the motions for judgment on the special findings of fact and for a new trial.
In one of the instructions given by the court the following language is used :
“Now, it is for you to say from all the evidence and from a view of the premises, under the general rules of law elsewhere given in these instructions, whether said street was dangerous and unsafe for travel by footmen at this point, and whether the city was guilty of negligence in allowing it to remain in the condition it was at the time the alleged injury was received ; and in so doing you may take into consideration the depth and character of the ditch or excavation,- the purpose for which it was allowed by the city to remain there, if it served any useful purpose, whether it was in a remote or unfrequented part of the city, or near the center or business part, whether it was obligatory upon the city, in the exercise of care and precaution in regard to its streets which the law requires of it, to have placed guards or railing along said ditch or excavation to prevent persons from falling into the same.”
The city claims that
“ This instruction places the view of the jury on an equality with the other evidence of the case, or, in other words, allows the jury to raise the knowledge and information obtained by the view to the dignity of preponderating or exclusive evidence.”
We do not think the language employed by the court would warrant such a construction, and are of the opinion that the court fairly indicated to the jury that the proper object of the view was to enable them better to understand the evidence offered in court.
Whether the court erred in refusing the second instruction requested by plaintiff in error is immaterial, as the jury find, in answer to the interrogatories numbered 20 and 21, that the plaintiff used greater caution than a person would naturally have used had it not been for the sudden extinguishment of the street lights. The substance of the third instruction requested to be given was covered by the general charge, and there was no evidence upon which to base the fourth instruction requested. Nor was there any error prejudicial to the city in giving that portion of instruction No. 8 which reads :
"If you further believe from the evidence that the injury sustained by the plaintiff was solely the result of the darkness caused bj*- such accidental going out of the lights of said street, and also believe that the defendant was not guilty of negligence as explained in the fourth and fifth instructions, then you should find for the defendant.”
The evidence is uncontradicted that the plaintiff sustained the injuries complained of by falling into this excavation, nor is there any dispute as to the condition of the street at the place where the accident occurred. The right to recover damages is based upon the alleged negligence of the defendant in failing to erect a guard, fence or railing along the sides of the excavation at that particular point. If the city was not negligent in this respect no recovery could be had. If, on the other hand, it was the duty of the city to have erected and maintained a guard, fence or railing at that point for the protection of pedestrians, and the injury complained of would not have been sustained but for such negligeirce, and the plaintiff was not guilty of contributory negligence, he would be entitled to recover, notwithstanding the primary cause of the injury was the sudden going out of the lights. (Palmer v. Andover, 2 Gush. 600; Iloffe v. Town of Fulton, 9 Am. Rep. 568 ; City of Joliet v. Verley, 85 Am. Dec. 342; Street Rly. Co. v. Stone, 54 Kan. 83; Mo. Pac. Rly. Co. v. Hackett, 54 id. 316; City of Rosedale v. Golding, 55 id. 167.)
The plaintiff in error also contends that, as the jury, in answer to interrogatories 1 and 2 propounded by the defendant in error, found that the city was guilty of negligence in not covering the ditch at the point where the accident occurred, it is fair to presume that the general verdict was based upon the knowledge and information obtained by the jury from the view of the premises, and the suggestion of counsel, as indicated by these special questions, instead of the evidence submitted in support of the negligence alleged in the petition. While we think the court erred in submitting these interrogatories to the jury, yet we do not think the error sufficiently prejudicial to cause a reversal of the judgment. In answer to interrogatory No. 8 propounded by the plaintiff in error, the jury say that it was the duty of the city, in the exercise of ordinary care and precaution in regard to its streets, to place guards or a railing along the ditch or excavation ‘(or to cover it up ’ ’ ; and by finding No. 22 they say that the injury to the plaintiff was the result of the defendant’s negligence in not guarding “or covering” the ditch. Of course, if the excavation had been covered, the city would not have been negligent in allowing it to remain without a guard or rail. Possibly the jury believed that the best way to protect pedestrians from falling into this excavation would be to cover it up, and we are not sure but that they would have been warranted in such belief. It is clear, however, from the findings that it was not covered up. And they virtually say, as it was not covered, it should have been guarded or railed ; that the city was therefore negligent as charged, and that the injury complained of was the result. We think the special findings may be made to harmonize with the general verdict, and that they -are supported by the evidence. And from a careful examination of the record and the authorities we are of the opinion that no prejudicial error was committed by the trial court, and that the judgment should be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The cause of action set forth in the plaintiffs’ petition is for money had and received ; that the defendant bank had collected the draft mentioned, and failed, neglected and refused to turn the proceeds thereof over to them. This is denied by the defendant in error as one of its defenses, and as a further defense, it claims that it delivered the car of cans in compliance with the letter accompanying the draft, and if there was any mistake made it was an honest mistake on its part, and it was justified in doing as it did under the terms of the instructions given. It is evident that it did not collect the draft as it made a tender of it in court; and we are inclined to the view taken by it with reference to the delivery of the car. The language used in the letter of instructions is susceptible of-two constructions, and, as there is not testimony in this case tending to establish any collusion or bad faith upon the part of the defendant in error, we do not think it should be held liable for an honest mistake which the plaintiffs in error made possible to occur. They had it in their power when choosing the language to make themselves perfectly understood, but failed to do so, and we think it is the universal rule that
“in all cases where a written contract is susceptible of two constructions, and a party has acted thereon upon a construction consistent with honest intention and good faith on his part, and the trial court gives such construction thereto, an appellate court will not overturn or set aside the judgment.”
And this is particularly true where the written instrument is,in the form of instructions, and the party required to act thereunder had no voice in the making thereof. The language therein being ambiguous, it should be most strongly construed against the maker. In this case the court made a general finding in favor of the defendant, and the rule has been adopted in this state that
“where a case is tried by the court, and a general finding is made in favor of the defendants, and no special findings are requested or made, the general finding includes every material fact necessary to sustain a judgment based upon such finding ; and where there is some evidence to support the general finding and judgment, they will not be disturbed by the supreme court.” (Mushrush v. Zarker, 48 Kan. 382.)
And there is not only some evidence to support the general findings in this case, but the evidence strongly supports every material fact necessary to be found in this case to sustain the judgment. But, on examination of the issues presented by the plaintiffs’ petition, we are compelled to affirm this judgment. The cause of action set out therein, as we have said, is for money had and received, yet the plaintiffs failed to show by any evidence that the defendant collected the sum of $862.95, the amount of the draft they claim it had refused to turn over, but retained it to its own use. There is an absolute failure of evidence to support this allegation of the petition, and the question therefore presented to us is not one of the parties’ rights upon evidence, but ujoon evidence within the issue. The most favorable construction that could be placed upon the plaintiffs’ pleadings in this case would be to say tha.t the petition presented a claim of liability upon two counts: (1) That the defendant collected the sum of $862.95, which it refused to turn over to the plaintiffs and retained to its own use ; and (2) that the defendant refused to return the bill of lading or account for the car-load of cans, reasonably worth the sum of $862.95, the market value thereof. The first claimed ground of liability was, upon the' testimony, or rather upon the lack of testimony, decided adversely to the plaintiffs, and therefore settled, and the second claimed ground of recovery, viz., the refusal to return the bill of lading or account for the cans, was abandoned by them, if they ever considered it as a ground of recovery. There is not a syllable of testimony as to the market value of the cans, nor is there any showing of the value of the bill of lading. There is, then, a total failure of proof on every material allegation necessary to support this ground of recovery, and a failure of proof (even under the liberal construction of the pleadings) of every material fact in this case, and this failure is fatal.
“A party can allege one thing and support it by proof of an entirely different state of facts.” (U. P. Rly. Co. v. Young, 8 Kan. 658.)
The judgment in this case will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
In 1888 the firm of Torrence & Kenyon entered into a contract with the First National Bank of Seneca, Kan., to erect a two-story brick building on certain premises owned by the bank. At about the same time said firm employed P. D. Kenyon to superintend the construction and purchase material for the erection of said building ; they also entered into a contract with the Whittaker Brick Company to furnish the brick for this building. P. D. Kenyon performed all the conditions of his contract, as well as did the Whittaker Brick Company; but Torrence & Kenyon failed to pay these parties the amounts they had agreed upon, and on the 19th of August, 1889, they each filed their subcontractor’s statement for a lien.
On the 20th of February, 1890, P. D. Kenyon com mencecl ail action to foreclose Ms lien against the First National Bank of Seneca, the Whittaker Brick Company and Howard B. Kenyon as defendants. The defendant the Whittaker Brick Company-filed an answer and cross-petition in this action sitting up its lien. It is shown by the pleadings of Kenyon and the Whittaker Brick Company that the contract for the erection of this building was made in 18"88 ; that the building was completed on June 21, 1889 ; that the last material furnished by the Whittaker Brick Company was October 15, 1888 ; that the last services rendered or. labor performed by Kenyon was August 25, 1888. To the petition of Kenyon and the answer and cross-petition of the Whittaker Brick Company the First National Bank filed demurrers, which were sustained by the court below, and judgment was rendered in favor of the First National Bank for its costs. The Whittaker Brick Company brings the case here for review.
As stated by the plaintiff in error, the facts in this case are not identical with those in Groesbeck v. Barger, 1 Kan. App. 61, yet the question involved is the same, viz., the application of the several lien laws of this state to the lien claimed by plaintiff in error. Upon the authority of that case, the decision and judgment of the trial court must be affirmed. As held therein, the right to a lien must be determined by the law which was in force at the time the material was furnished — that is, the act of 1872 ; but the time within which the statement should be filed to obtain a lien must be governed by the law of 1889, which took effect March 1, 1889. As the last materials were furnished more than 60 days prior to the taking effect of the law of 1889, and the building was completed thereafter, such a construction must be placed upon the law as will afford adequate remedy for such cases, and the plaintiff in error would have a reasonable time after March 1, 1889, within which to file its statement for a lien. Such reasonable time could not in any case exceed the pei’iod of time given by the statute after the day when the last material was furnished, which is 60 days. In other words, the plaintiff in error would have had 60 days' from the time the act of 1889 took effect within which to file its statement, but certainly not any greater length of time ; and as five months elapsed after the taking effect of the law of 1889 before the statement of the plaintiff in error was filed, we think it lost any right it might otherwise have had to a lien.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The findings of fact made by the trial court in this case are all sustained by the testimony. The conclusions of law are founded thereon and supported thereby. The decision in this case, therefore, will not be disturbed; and, from a careful examination of the record, we perceive no error therein. The court adjudged the tax deed invalid for several reasons — among others, that the mortgagee had the right to redeem on the 3d day of September, 1887, the date that the first tax deed was issued, and that there were excessive sums included in the amount for which' the land was sold. The final redemption notice in this case stated that the time allowed by law for the redemption of lands sold for delinquent taxes of 1883, at the sale begun and held on the first Tuesday in September, being the 2d day of September, 1884, and continued on the next succeeding days, would expire on the 3d day of September, 1887, being three years from the date first above mentioned. The court found that the mortgagee offered to redeem and tendered the proper amount of money for the redemption of these lots on the 3d day of September, 1887, and, as a conclusion of law, found that the defendant had the right to redeem at that date. We think this is correct. (English v. Williamson, 34 Kan. 212; Cable v. Coats, 36 id. 191.)
As to the excessive amounts included, while they are small, yet the record discloses that they were intentionally added and were illegal charges. There is no claim made that they occurred by an error in cal- • culation, or were occasioned by making and copying figures, or-by carrying out the various amounts, but, on the contrary, they had existed in the sale record, in the certificates of sale, and were carried out into the deeds. One of these items is evidently for the issuing of a sale certificate which was never issued. Two of these lots were assessed and sold together, and but one tax-sale certificate was issued therefor. Yet the court found, and the testimony clearly shows, that a charge was made in this instance for a certificate issued for each lot. The county paid for advertising the delinquent tax-list, the year in which these were advertised, the sum of 2 cents for each town lot. In the case of lot 24, the court found that there was also an excess charged of 2 cents. This the trial court evidently found was a double charge for advertising, and we think the testimony upholds this conclusion. A county cannot legally collect a sum in excess of the actual costs it pays or is liable for, and a tax deed founded upon a sale including such an excess will be adjudged invalid and set aside, if challenged before the running of the statute of limitations. The excess being something for which the treasurer had no right to sell the land, whatever may be the rule where a trifling mistake may have occeurred, we think the weight of authorities is to the effect that where it is plainly the purpose of the officer to include illegal sums within the amount for which the land is sold for taxes, and the sale includes such illegal sums, such circumstances render the sale void.
The plaintiff in error, however, contends that it was the duty of the court to ascertain the amount paid by her, with the interest and costs, and to award a recovery therefor. Of this we think she has no right to complain. She did not ask the court below so to do in her pleadings, or by motion, and the question is rjised for the first time in this court by her brief.
Where a question is raised for the first time in this court, it will always be looked upon with great disfavor. Only such questions as have been raised and decided by the trial court will be reviewed by this court in a proceeding in error. (Byington v. Comm’rs of Saline Co., 37 Kan. 654.)
The judgment in this case will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This is an action brought in the district court, of Rooks county by the defendant in error, as plaintiff, to, recover from the Salina, Lincoln & Western Railway Company the value of a gelding alleged to have been injured on the track of the railroad of the defendant. The petition alleges that the defendant negligently failed to inclose its track with á good and lawful fence and keep the same in repair, and that by reason thereof the said gelding, through no fault or negligence of the plaintiff, strayed upon said track, and while crossing over a railroad bridge, which is a part of defendant’s track, fell off from said bridge, receiving such injury by said fall as to render it absolutely worthless and valueless, to the damage of the plaintiff in the sum of $95. Judgment was also asked for a reasonable attorney’s fee in the case. The action is brought evidently under chapter 94 of the Laws of 1874 (Gen. Stat. 1889, ¶ 1252, et seq.), which provides that every railway company or .corporation in this state shall be liable to pay to the owner the full value of ¿ach and every animal wounded by the engine or cars on such railway, or in any other manner whatever in 'operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation. The act further provides, that in all actions prosecuted thereunder, if the judgment or verdict be for the plaintiff, a reasonable attorney’s fee for the prosecution of the suit shall be recovered. It is further provided therein, that the act shall not apply to any railway company or corporation whose road is inclosed with a good and lawful fence to prevent such animals from being on such road. The answer filed was a general denial and plea of contributory negligence. The defendant objected to the introduction of any evidence on behalf of plaintiff, on the ground that the petition does not state a cause of action against the defendant, which objection was overruled. The jury returned a verdict in favor-of the plaintiff for damages in the sum of $95 and awarded him an attorney’s fee of $25, and also returned special findings of fact which disclose no negligence save the failure of the railway company to keep the fence inclosing its track in proper repair.
Three separate motions were filed by the defendant, one to set aside the special findings of the jury, one for judgment on the special findings, and one for a new trial, all of which were overruled by the court; and these rulings, with other alleged errors occurring upon the trial, are by the railway company assigned as error in this court.
The defendant in error contends that this court has no jurisdiction to review the alleged errors, as it does not affirmatively appear from the record that the amount or -value in controversy, exclusive of costs, exceeds $100, or that this case comes within the excepted classes mentioned in section 542a of the code, which provides that "no appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed $100,” except in certain classes of cases therein mentioned. The record contains all the proceedings down to and including the order overruling the motion for a new trial, with proper exceptions to the rulings of the court, and the order granting time to prepare-and serve a case-made for the supreme court, and closes with the following statement: ‘‘The foregoing contains a true, full and correct statement of all pleadings, motions, orders, evidence, findings and proceedings upon which judgment was rendered.” • But the record does not contain the journal entry of judgment, nor is there before this court anything outside of the statement above mentioned to indicate that judgment has ever been rendered in the action, either for the plaintiff or for the defendant, nor as to whether or not the judgment,if any was rendered, included the attorney’s fee awarded to the plaintiff. In Richmond v. Brummie, 52 Kan. 247, it is held:
“Where the damages claimed in a civil action by the plaintiff exceed $100, but the judgment is for the plaintiff for $100 only, exclusive of costs, and the defendant prosecutes a proceeding in error, the supreme court has not jurisdiction, for the amount or value in controversy, as to such defendant, is fixed by the judgment.”
In this case, the damages claimed were only $95; and, as under the decision of the supreme court in A. T. & S. F. Rld. Co. v. Edwards, 20 Kan. 531, an attorney fee could not properly be recovered, if any presumption were to be indulged in, it would be that the court rendered such a judgment as the plaintiff was entitled to, which could not in any event exceed $95 exclusive of costs. The record brought to this court must affirmatively show that the court has jurisdiction. In the absence of such a showing, the petition in error must be dismissed.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
One Cornelius Reed was charged in justice’s court with malicious trespass. Fred W. Casner was the complaining witness, and virtually conducted the prosecution on behalf of the state. On January 18, 1892, a trial was had, and the jury returned a finding of not guilty, and that the prosecution was malicious and without probable cause.
Section 18, chapter 83, General Statutes of 1889, an act regulating the jurisdiction and procedure before justices of the peace in cases of misdemeanor, provides that
“Whenever the defendant, tried under the provisions of this act, shall be acquitted, he shall be immediately discharged, and if the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause, the justice shall enter judgment against the complainant for all costs that shall have accrued in the proceedings had upon such complaint, and shall commit such complainant to jail until such costs be paid, unless he shall execute a bond to the state, in double the amount thereof, with surety satisfactory to the justice, that he will pay such judgment within 30 days after the date of its rendition.”
Upon the return of the verdict and finding of the jury, the defendant was discharged, and judgment was duly entered against the complainant for the costs that had accrued in the proceedings had upon the complaint, and for his commitment to the county jail of Lincoln county until the costs should be paid. On the same day, Casner executed a written undertaking, with satisfactory security, which was approved by the justice, to pay said judgment within 30 days after the date of its rendition. Having failed to comply with the terms of the undertaking within the time stipulated therein, the county attorney, at the request of the justice, made repeated though unsuccessful efforts to induce Casner to pay the judgment; but no attempt was made in any manner to enforce its payment until June 23, 1892, when the justice, after consultation with the county attorney, and after being by him advised that he had a legal right so to do, and without giving the' complainant any opportunity to show cause why he should not be committed for failure to pay the judgment rendered against him, issued an order of commitment, under and by virtue of which Casner was taken into custody by the sheriff, and so remained until the afternoon of the same day, when he was released by the probate judge of Lincoln-county upon proceedings in habeas corpus. Thereafter, Casner paid the judgment, and brought this action for false imprisonment against W. M. Smith, the justice before whom the foregoing proceedings were had and by whom the order of commitment was issued. The jury returned a verdict in favor of the plaintiff, assessing his actual damages at $4, and judgment was rendered thereon. To reverse this judgment, the defendant, Smith, has brought the case to this court.
The real question at issue is : Did the justice have any authority to commit the complaining witness, after having approved the undertaking above referred to, and after more than five months had elapsed since the rendition of the judgment for costs, and without previous notice of intention so to do? And if the justice had. no such authority, is he liable in a civil action for the actual damages resulting therefrom? The plaintiff in error contends that the undertaking given by Casner to pay the costs within 30 days was void for the reason that no obligee is named therein. The form of the bond which the complainant is required to execute as the alternative of being committed for failure to pay the costs is not set forth in the statute. While the instrument in question names no obligee, it is otherwise formal in all respects. The obligatory part thereof reads as follows: “Now, we, the undersigned, residents of said county, bind ourselves in the sum of $225 to pay all costs which have been assessed in said action within 30 days of date.” The record shows that the form of this instrument was prepared by the justice for the signatures of Casner and his surety, and after it was executed the justice approved and filed it. It does not appear from the record that its validity or sufficiency to accomplish the purposes contemplated by the statute .had ever, been questioned by either of the parties to this action, or by any person or officer in whose favor costs were taxed, or by any other person, until upon the trial of this action an objection was interposed to its admis-, sion as evidence on behalf of the defendant in error. The plaintiff in error did not attempt to justify his act in issuing the commitment in question on the ground that this undertaking was defective in any respect, but, on the other hand, he claimed that he was justified in so doing because the defendant in error had failed to pay the judgment within 30 days from the date of its rendition, as stipulated in the undertaking approved by him. In his answer to plaintiff’s petition, he alleged that he was a duly elected and qualified and acting justice of the peace, and that whatever acts were done as alleged by the plaintiff were done by the defendant in his judicial capacity as such justice, and that he was therefore not liable in a civil action for damages. We think, in view of all the circumstances of this case, that the undertaking was properly admitted in evidence. It was executed by the defendant in error to avoid being committed to the county jail until the costs were paid. The statute provides that the justice “shall commit such complainant to jail until such costs shall be paid, unless he shall execute a bond,” etc. He did execute an instrument, the form of which was prepared and approved by the justice, and which was believed by all parties interested in or connected with the transaction to be sufficient to secure to the defendant in error immunity from commitment to the county jail, in default of the payment of the judgment rendered against him, and was treated by all parties as valid and as being in substantial compliance with the requirements of the statute. Such being true, we do not think the plaintiff in error should be permitted to question its validity in an action against him to recover the actual damages resulting from the issuance of an order of commitment for failure to comply with the terms of the undertaking.
The court instructed the jury that
“ Under the facts, which are undisputed in evidence in this case, it becomes a mere question of law whether the arrest and detention of the plaintiff, Casner, under the commitment read in evidence, was lawful or not. And I say to you that his arrest and detention at that time was not authorized by law, as, after giving the bond in the case of the state of Kansas against Reed by Casner, and its approval by the justice, the justice could not legally issue a commitment.”
We think, under the evidence, this instruction was proper, and correctly stated the law applicable to this case. We also think that, after judgment has been rendered against a complaining witness, and he has executed a bond to pay the costs within 30 days after the rendition of the judgment, and such bond has been approved by the justice, all power to issue a commitment is at once at an end, and a failure to pay such judgment within the time stipulated in the bond does not restore the right to commit the witness. The plaintiff in error contends that the act of the justice in issuing the commitment was a judicial one, and that for that reason he cannot be held liable in damages. The law is well settled that a judicial officer acting within the scope of his jurisdiction enjoys absolute immunity from liability in a civil action. (Clark v. Spicer, 6 Kan. 440; Randall v. Brigham, 7 Wall. 523.) It is also held that judges of courts of record of superior or general j urisdiction are not liable in civil actions for their judicial acts, evezz. when such acts ai’e in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction, however, is made between excess of jurisdiction and of clear absence of all jurisdiction over the subject-matter. Where there is clearly no juzúsdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible ; but when j urisdiction over the subject-matter is izivested by law in the judge or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as azry other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgment may depend. (Bradley v. Fisher, 13 Wall. 335.) But it is universally held that an inferior judicial officer is not excused for exceeding his juzúsdiction, however honest may have been his motives, azid however plainly it might appear he was intending to keep within his powers. Judge Cooley, in Ms treatise on the Law of Torts, at page 420, says :
" Why the law should protect the one judge and not the other, and why, if it protects one only, it should be the very one who, from his higher position and assumed superior learning and ability, ought to be most free from error, are questions of which the following may be suggested as the solution : The inferior judicial officer is not excused for exceeding his jurisdiction because, a limited authority only having been conferred upon him, he best observes the spirit of the law by solving all questions of doubt against his jurisdiction. The rule of law, therefore, which compels him to keep within his jurisdiction at his peril cannot be unjust to him, because, by declining to exercise any questionable authority, he can always keep within safe bounds, and will violate no duty in doing so. Moreover, in doing so he keeps within the presumptions of law, for these are always against the rightfulness of any authority in an inferior court which, under the law, appears doubtful. On the other hand, when a grant of general jurisdiction is made, a presumption accompanies it that it is to be exercised generally until an exception appears which is clearly beyond its intent. Its very nature is such as to confer upon the officer intrusted with it more liberty of action in deciding upon its powers than could arise from a grant expressly confined within narrow limits, and the law would be inconsistent with itself if it were not to protect him in the exercise of this judgment.”
.The judgment in this case was rendered on January 18, 1892. Had no bond been executed, Casner could have been legally committed to the county jail at that time ; but a bond executed by him with satisfactory surety was accepted and approved by the justice, and from that time all authority to issue a commitment ceased. So far as respects this question, it is as if no judgment for the commitment of the complaining witness had ever been entered. That part of the judgment had, in law, been satisfied. No attempt was made to enforce the collection of this judgment, either by execution or by an action upon the bond, and more than five months had elapsed from the date of its rendition before the issuance of the ■order of commitment. The defendant in error was not even cited to appear and show cause why he should.not be committed. Even if the justice had authority to issue the order on June 23, we think that the complainant was entitled to "his-day in court,” and should have had legal notice ■ of such contemplated action. At the date of the issuance' of the writ, there was no longer a case pending before the justice to be adjudicated by him. What remained was simply to carry into effect that part of the judgment' that had not been satisfied. It has been held that the issuance of an execution or an order of commitment in a case like this is a ministerial act, and not a judicial one. (Sullivan v. Johns, 2 Gray, 570; Fisher v. Deans, 107 Mass. 118; Briggs v. Wardwell, 10 Mass. 356; Doggett v. Cook, 11 Cush. 262; Allen v. Gray, 11 Conn. 95; Percival v. Jones, 2 Johns. Cas. 49; Case of Knowles, 8 Greenl. 71; Jones v. Elliott, 35 Me. 137.) But, even if such act should be construed as a judicial one, it was clearly in excess of jurisdiction conferred bylaw, and therefore void. (Hauss v. Kohlar, 25 Kan. 640; Clarke v. May, 2 Gray, 410; Piper v. Pearson, 2 id. 120; Bigelow v. Stearns, 19 Johns. 39; Briggs v. Wardwell, supra; Percival v. Jones, supra; Allen v. Gray, supra; Houlden v. Smith, 14 Q. B. 814; Perkin v. Proctor, 2 Wils. 386; Spencer v. Perry, 17 Gray, 413; Pratt v. Hill, 16 Barb. 303.) In the case last cited the court said:
“ I have no doubt the magistrate in this case acted from an honest .belief that he was authorized to make the indorsement on the back of the warrant; but, as to that, it was an excess of jurisdiction and wholly illegal, and therefore not a question of good faith, but of authority. The law watches personal liberty with vigilance and jealousy, and whoever imprisons another in this country must do it for lawful cause and in a legal manner.”
As the justice was without authority to issue the writ under which the defendant in error was taken into custody, he is liable in a civil action for the actual damages resulting therefrom.
It follows that the judgment must be affirmed.
Gilkeson, P. J., concurring.
Gakver, J., not sitting in the case, having been of counsel in the court below.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The only error assigned in this case which we will notice is that alleged to have been committed by the trial court in overruling the motion for a new trial. The evidence in this case is voluminous, and in some instances, though few, and those in minor matters, contradictory ; but since the trial court has passed upon this evidence, and the findings of fact are all supported by a preponderance of the testimony, this court will not disturb them.
The motion filed for a new trial is based upon eight grounds, all of which, however, have been abandoned in this court by the plaintiff .in error, except the seventh, viz. : “Newly-discovered evidence material for this defendant, which he could not with reasonable diligence have discovered and proven at the trial.”
In support of this motion he filed his affidavit, stating that
“he is the defendant in the above-entitled action; that when this cause was commenced by service of process upon him affiant made an examination of the plaintiff’s petition filed here, and from such examination, aided by the advice of his attorney, determined what evidence would be necessary to meet the charges set forth in said petition, and prepared his case accordingly ; that upon the trial of this cause before the court, certain evidence was introduced by. the plaintiff over the objection of this defendant, which evidence affiant is informed and believes was entirely inadmissible under the plaintiff’s petition, as is evidenced by the fact that after the said trial plaintiff was compelled to amend his petition to conform to the facts as proven thereby, and at the trial, while defendant was not only wholly unprepared to meet the same, but was wholly unadvised that any attempt would be made to introduce the same ; that after the trial of this cause as aforesaid, this affiant was for the first time informed that Mr. Gillett, Mr. Watkins, and other persons, whose testimony or affidavits are hereto attached, were in possession of the facts as set forth in their affidavits ; that immediately upon receiving such information, affiant called upon such persons, and after having obtained from them their knowledge of the case soon .afterward .procured such affidavits; that the testimony of said parties is material to the proper presentation of this case by affiant, and that affiant could not with reasonable diligence have procured such testimony in time for the last trial; that affiant had procured all the evidence he thought necessary under the allegations of said petition, and he had not the slightest information from any source that said witnesses had any knowledge of any facts needed to .be proven on said trial;, that if affiant be granted a new trial herein, he can procure such evidence to be used on such trial, and then be enabled to have justice done him ; and in support thereof has filed the aflfi davits of I. S. Watkins, James L. Rankin, diaries F. Bridge, James Gillett, and I. T. Lockard.”
After a careful examination of the testimony produced at the trial, we do not think that the court erred in overruling the motion for a new trial. At the time the amendment was made to the petition the defendant did not ask for time to meet the issues as then formed, and in fact the amendment did not substantially change the issues. The most that could be said was, that one portion thereof explained the issues as they stood prior to the amendment while the other portion merely enlarged the plaintiff’s claim for damages by setting up additional items of damage sustained. The affidavit of the defendant is very guarded in its terms, but shows, we think, conclusively, that if he had deemed the testimony then, which he now thinks, important, he would and could have produced it, and that he did produce all that he deemed necessary. While the affidavits of Watkins, Rankin, Gillett, and Lockard, might in some minor details contradict the testimony of the plaintiff, yet all of the testimony set forth in their affidavits is in reference to the transaction to which the defendant was a party, and each and every one of them testified that he was present and took part therein. The testimony of Mr. Bridge is very cumulative as to rents received, while the testimony of Mary Jones, at most, would but show that the plaintiff himself had removed from the premises some shubbery and vines. How the testimony of any of these witnesses, with the exception of Mary Jones, could be called newly discovered, we are at a loss to know; and from the affidavits of these parties it is conclusively shown that the defendant must have known and did know of all of this evidence at the time of the trial, nor does he show any diligence having been exercised by him in order to obtain these witnesses, and from aught the record discloses each and every one of them might have been brought into court by a subpoena issued during the trial. There is no allegation that these parties resided beyond the jurisdiction of the court,' and from their own affidavits we learn that they resided within the city of Topeka. It is true he states that he could not with reasonable diligence have procured such testimony in time for the trial, and this is the only allegation with reference to diligence. This is not sufficient. The rule is too well established in this state to warrant us in citing authorities thereon, that before a new trial will be granted on the ground of newly-discovered evidence due diligence prior to the trial in respect to such evidence must be shown ; and to this end it is not sufficient for a moving party to merely allege that he used due diligence, but he must state the facts so that the court can say that there was due diligence. In fact, the most that can be said of this application is, that he might on another trial produce more testimony.
The judgment in this case will therefore be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J.:
The defendant was prosecuted in the district court of Morris county for violation of the prohibitory liquor law of this state. The information was filed October 20, 1894. In the first count, the defendant was charged with keeping and maintaining a nuisance, viz., a place where intoxicating liquors were sold in violation of the statutes of this state ; while in the second and third counts he was charged with the illegal sale of intoxicating liquors. After the state had introduced its evidence and rested, the county attorney announced that the state would rely for a conviction under the second count upon a sale of two bottles of beer by the defendant in September, 1894, to .one Mads Sorenson, as testified to by the latter, of beer and brandy ; that it would rely for a conviction under the third count upon a sale of two bottles of beer to one George Leeson, in the month of September, 1894, as testified to by the said witness, Mads Sorenson; and that the state would rely for a conviction under the first count upon all the testimony introduced. The trial resulted in a verdict of guilty under the first and second counts, and not guilty under the third count. A motion for a new trial, setting up the statutory grounds, was duly filed, and overruled by the court, to which an exception was saved; and the defendant was adjudged to pay a fine of $100 and sentenced to be imprisoned in the county jail for a period of 30 days under each of the counts upon which he had been found guilty.
The defendant alleges that the court erred in its admission and rejection of certain evidence upon the trial, and in its instructions to the jury. The verdict of guilty of the charge of keeping a nuisance as set out in the information was, we think, fully warranted by -che evidence. The defendant produced, as a witness in his behalf, one Hugh Stewart, a justice of the peace of the city of Council Grove, and sought to in troduce in evidence a complaint filed with said justice of the peace in which the defendant herein was charged with selling intoxicating liquor in violation of law. The plaintiff objected to the introduction of this evidence as being incompetent, irrelevant, and immaterial to any issue in the case ; and, upon examination of the complaint, the court finding that the defendant was therein charged with having made illegal sales prior to the dates mentioned in the information, and prior to the dates of the alleged sales upon weich the state had elected to rely for a conviction in this case under the second and third counts, sustained the objection, to which the defendant duly excepted. The defendant then made the following offer :
“The defendant offers in evidence the complaint and the docket entries in the trial of the defendant, J. N. Barber, before Hugh Stewart, a justice of the peace of the city of Council Grove, Morris county, state of Kansas, charged in a complaint with two counts with a violation of the prohibitory law, which trial was had before.said Stewart, justice of the peace, before a jury on the 13th day of July, 1894, and said jury rendered a verdict in favor of said defendant, J. N. Barber, finding him not guilty as charged in the complaint.”
The state objected to the introduction of this evidence as being incompetent, irrelevant, and immaterial, which objection was sustained, and an exception thereto saved. We see no error in these rulings of the court. The trial before the justice of the peace was had on the 13th day of July, 1894, more than two months prior to the date of the particular sales upon which the state announced that it would rely for a conviction under the counts charging the defendant with illegal sales. Hence, the introduction of this evidence would not have been competent, 'relevant or material in this case when applied to the charge of selling intoxicating liquor in violation of law. There was no attempt to show that any of the evidence introduced upon the trial before the justice of the peace had any reference whatever to any of the transactions to which the witnesses testified in this case. Hence, the evidence offered would not be competent, relevant or material when applied to the charge of maintaining a nuisance by keeping a place where intoxicating liquors were sold in violation of law. 'An illegal sale of intoxicating liquors constitutes an entirely different offense from that of keeping a place where intoxicating liquors are sold in violation of law, and an acquittal or conviction under a charge of making an illegal sale is no bar to a prosecution for keeping and maintaining a place where illegal sales are made. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. In Commonwealth v. Bubser, 14 Gray, 83, the defendant, charged with being a common seller -of intoxicating liquors, pleaded a former acquittal upon an indictment for a nuisance in keeping a tenement house for the sale of intoxicating liquors. Mr. Justice Hoar, in announcing the opinion of the court, said:
‘ ‘ The gist of one offense is the keeping a tenement house for an illegal purpose, which makes it a nuisance ; of the other, the doing of certain acts which constitute an offense, to the commission of which it is not necessary that the defendant should have been the keeper of any building or tenement whatever. On the trial of the first indictment, the jury would have been properly instructed to acquit the defendant if he did not keep the tenement described, however great a number of sales of intoxicating liquors he might have made within it.”
Under the statutes of Georgia, a person was indicted for selling intoxicating liquors without a license. He pleaded a former conviction. It was shown that in the former case he had been convicted of selling liquor to a minor without the written consent of his parents or guardian, and the court held that, while the act of selling was identical in both cases, yet the offenses were separate and distinct. Two different laws were violated : one, in selling to a minor without the written consent of liis parents or guardian; the other, in selling without a license from the proper authority. Bleckley, chief justice, in concurring specially in the opinion of the court, said :
“ I have very grave doubt upon principle whether a single act, although it may have violated two statutes or two sections of the penal code, will constitute two offenses. ... I have examined the authorities to my satisfaction, and they seem to justify this sort of proceeding.” (Blair v. The State, 7 S. E. Rep. 855.)
In Ruble v. The State, 51 Ark. 126, 170, the appellant sold one pint of ardent spirits to a minor without the consent of his parents or guardian. For doing so, he was indicted for and convicted of selling liquor without a license. He was subsequently indicted for selling intoxicating liquor to a minor without the written consent of Ms parents or guardian. To the second indictment he pleaded such former conviction and not guilty, but the court sustained a conviction under the second indictment, holding that the defendant had been convicted of two separate and distinct offenses. In Commonwealth v. Sullivan, 150 Mass. 315, the court said :
‘ ‘ Selling intoxicating liquors may be evidence of the offense of maintaining a tenement used for the illegal keeping and sale of such liquor, but it is not the same offense, and a party may be guilty of the former without being guilty of the latter.' Therefore, an acquittal of the latter is not a bar to a prosecution for the former, even if it appears that the sale now relied on was given in evidence in the prosecution for maintaining the tenement.”
In Commonwealth v. Bakeman, 105 Mass. 53, the following rule is laid down:
“'The test as to the legal identity of the two offenses is to be found in the answer to this question : Could the prisoner, upon any evidence that might have been produced, have been convicted upon the first indictment of the offense that is charged in the second? ”
In The State v. Horneman, 16 Kan. 452, Brewer, J., cites with approval the following from Wharton on Criminal Law:
“It may be generally said, that the fact that the two offenses form part of the same transaction is no defense, when the defendant could not have been convicted at the first trial, on the indictment then pending, of the offense charged in the second indictment.”
He also cites with approval Russell' on Crimes, as follows :
“The acquittal on one indictment, in order to be a good defense to a subsequent indictment, must be an acquittal of the same identical offense charged in the first indictment.”
See, also, The State v. Coombs, 32 Me. 529; The State v. Wheeler, 62 Vt. 439; The State v. Stewart, 11 Ore. 52; The State v. Inness, 53 Me. 536; Arrington v. Commonwealth, 87 Va. 96; Commonwealth v. McCabe (Mass.), 40 N. E. Rep. 182.
The defendant also calls attention to a discrepancy between the election as to the particular sales upon which the state announced that it would rely for a conviction and the instructions of the court, and urges that because of this discrepancy the rights of the defendant may have been prejudiced. A sufficient answer to this suggestion is, that as the record does not show that the attention of the trial court was called to this discrepancy, and as no objections were made to the instructions as given, nor amendments offered thereto, nor other and additional instructions requested, any errors in the instructions as given must be held to have been waived, especially as it appears that the sale referred to in the election by the state and the one covered by the instructions of the court were made at the same time, and both testified to by the same witness.
And, finally, the defendant asks this court to reverse the judgment and order a new trial on the ground that the only witness who testified to the' particular sale of which the defendant was convicted admitted, upon cross-examination, that he had been furnished the money with which to make the purchases testified to by him ; that he at that time expected to be used as a witness against the defendant; that he had been hired to make the complaint and to become a witness ; that he cared nothing about the enforcement of that law; and that, in making the complaint and becoming a witness in this case, he was prompted solely by the money which had been promised him by others. In other words, this court is asked to declare, as a matter of law, that stich a witness is unworthy of belief, and that the defendant should not be deprived of his liberty, property or reputation on the unsupported testimony of a “spotter,” although such evidence was uncontradicted, and no attempt was made to impeach the witness save by showing the motives which prompted him to do what he did toward securing the conviction of the defendant. The trial court was not requested to submit to the jury an instruction embodying that proposition, and we know of no law which would have authorized such an instruction. Neither do we know of any precedent which we might follow were we to declare the rule to be as argued, even if we entertained the views expressed by counsel. The argument made before this court upon this branch of the case might, with much propriety, have been made to the jury. Great latitude in the discussion of the question as to the credibility of this witness and the reliability of the testimony given by him would undoubtedly have been allowed under the following instructions given by the court:
“ The law constitutes you the sole judge of the evidence and also the credibility of the witnesses. You must determine what faith and credit you will give to -the testimony of each witness, and you -may, for the purpose of determining their credibility and the weight to be given to their testimony, note their appearance and demeanor upon the witness-stand ; what, if any, interest they have in the prosecution, or motive to vary from the truth, or are disinterested, except as citizens desiring the enforcement of the law. It is the duty of the jury to judge the witnesses fairly and weigh all the evidence impartially, with a view to an ascertainment of the truth relative to the charges in the information, and to declare the truth as you find it in your verdict. 'If the jury believe that any witness has sworn wilfully falsely to any material fact in this case, you may disregard the whole testimony of such witness. You should view and weigh carefully and impartially all the evidence, and declare in your verdict your honest conviction of the truth, when that is held free from reasonable doubt.”
The question before this court is not as to what weight would have been given to the testimony of this witness, Sorenson, by the members of this court had they been sitting as jurors in the case, but rather, Was there any proper evidence upon which to base the verdict of the jury? The court properly instructed the jury that they were the sole judges of the evidence and the credibility of the witnesses. The trial judge approved the verdict of guilty .by the jury, and, as there was some proper evidence upon which to base the verdict, even though it be that of a mercenary witness, this court cannot disturb it.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
This was an action brought by Charles Alexander, plaintiff below, on a note and mortgage executed by J. C. B. Lewis and wife to G. W. Jones, and by Jones transferred to the plaintiff. The note was non-negotiable, and the petition alleged its execution by Lewis and the transfer by the payee, Jones, to Alexander. The plaintiffs in error claimed title to the premises under a deed executed by J. C. B. Lewis to W. R! Hill, and a deed from Hill to Pomeroy. These deeds were executed prior to the execution of the mortgage by Lewis and wife to Jones, but the wife of Lewis did not join in the conveyance to Hill.
On the trial of the case, Alexander’s ownership of the note and mortgage was not disputed, and it was agreed that the only issue to be tried was whether the land described in the mortgage was, at the time of the execution of the deed from Lewis to Hill, the homestead of Lewis, and the deed consequently void because not joined in or consented to by Nora Lewis, the wife of J. C. B. Lewis. The court found generally in favor of the plaintiff below, and rendered judgment upon the note and for the foreclosure of the mortgage, and adjudged the deeds from Lewis to Hill and from Hill to Pomeroy to be null and void, and ordered them to be canceled of record.
The errors assigned are in overruling the objection made by Hill to the introduction of evidence on the part of the plaintiff, on the ground that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff, in directing a cancellation of the deeds to Hill and Pomeroy, and in overruling the motion for a new trial.
The only thing urged against the sufficiency of the petition is, that it contains only a general allegation of the assignment and transfer of the note to plaintiff without alleging that such transfer was in writing. We know of no law that requires a written transfer of a note, whether it be negotiable or non-negotiable, in order to vest title and the right to sue in the assignee who thus becomes possessed of it. An oral assignment followed by delivery is all that is necessary. Even if a written assignment were required, the allegations of the petition were sufficient as against a mere objection to the introduction of evidence.
The whole trial proceeded upon the assumption that the plaintiff was the owner and holder of the note and mortgage sued on, and that the only matter in dispute was whether the mortgagor, Lewis, was the owner of the land when the mortgage was executed, or whether, by reason of the previous conveyance to Hill, a mortgage from Lewis created no lien. Upon ample testimony, the court found that the land in question was, at the time of the execution of the deed to Hill, occupied as a residence by the family of the owner, J. 0. B. Lewis; that his family consisted of himself, his wife, Nora Lewis, and a daughter; and that the wife did not join in, or in any manner consent to, such conveyance. It necessarily follows from this finding that the lien created by the mortgage subsequently executed by Lewis and his wife to Jones was in no way affected or prejudiced by the prior deed to Hill. The homestead can be alienated or conveyed only by the joint consent of the husband and wife when that relation exists. (Const., art. 15, §9.)
Lid the court err in directing that the deeds be canceled of record? Lewis and wife made default in the case, and did not in any way attack the validity of the conveyance under which Hill and Pomeroy claimed title. Hill and wife conveyed to Pomeroy by a deed of general warranty purporting to convey the fee-simple title to the land free and clear of all incumbrances. Between them it certainly was a valid instrument, whatever may be its legal effect. Whether the deed from Lewis to Hill, under any circumstances, can be of any force and effect as between the parties to that instrument, or whether its validity may be open to further controversy between them, it is not now necessary to decide. The plaintiff did not in his petition ask for the cancellation of these deeds, but merely that the title or interest, if any, of Hill and Pomeroy be held to be inferior and subject to the lien created by the mortgage. This is, we think, as far as the court should have gone, and the order directing the cancellation of the deeds of record should not have been made.
The judgment will be affirmed, except as to that part which directs the cancellation of the deeds to Hill and Pomeroy. In that respect the judgment is modified, and the trial court directed to enter the judgment so as to conform to the views expressed in this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
On the 9th day of February, 1887, one of the plaintiffs in error, Gfeorge L. Miller, commenced an action in the district court of Geary county to recover from Ida Blue the sum of $1,200 claimed by him as damages which he alleged he had sustained through her wrongful acts. An order of attachment was issued in said action at the instance of Miller, and on February 15, 1887, levied on lot 9, in block 39, in the city of Junction City. On the 30th day of March thereafter a trial was had in said action before a jury, which resulted in a verdict in favor of the defendant, Blue, and judgment was thereafter rendered against the plaintiff for costs. This judgment was, at the April session of the January term, 1890, of the supreme court, reversed, and a new trial was awarded, which resulted in a judgment, at the October term, 1890, in favor of the plaintiff for $1,200, and an order was issued for the sale of said attached property to satisfy said judgment. Thereafter, the plaintiff in error W. H. Mackey, jr., as sheriff of said Geary county, in pursuance of the said judgment and order of sale, duly advertised said lot 9 for sale to satisfy said judgment. On the 23d day of April, 1887, the defendant in error, Thomas Dixon, became the owner of said lot 9 by a conveyance from one Cullinan, to whom Ida Blue had prior thereto conveyed the same, and on the 13th day of December, 1890, Thomas Dixon brought this action in the district court of Geary county against the plaintiffs in error to enjoin the sale of said lot 9, alleging in his petition that at the time of the commencement of the action he was, and for a long time prior thereto had been, the owner and in possession of said premises; and that Miller, by virtue of a supposed claim in and to the same, together with the defendant Mackey, as sheriff, had caused the premises to be advertised for sale ; and, unless they were restrained from so doing, their further proceeding therein would cast a permanent cloud upon his title to the property ; and he asked that the defendant Miller be required to show what claim, if any, he had upon the premises, alleging that the same was adverse and inferior in all respects to his title; and that the defendants in that action be restrained and enjoined from selling the premises until the final action of the court. A temporary injunction was allowed upon the filing of the petition, but it was afterward dissolved upon the motion of the defendants. Upon the trial of the action judgment was rendered in favor of the plaintiff below, enjoining the defendants from selling or attempting to sell said property ; and to reverse this judgment the defendants, as plaintiffs in error, have brought the case to this court by petition in error.
.Several questions have been raised by the defendant in error as to the regularity or legality of the attachment proceedings, but, as stated by counsel for plaintiffs in error in his brief, the real question submitted to this court is as to whether or not the property attached on February 15, 1887, could be sold to satisfy the judgment that was rendered in favor of George L. Miller against Ida Blue at the October term, 1890, by the district court of Geary county; and, in view of the conclusions we have reached, we deem it unnecessary to pass upon the other questions presented by the defendant in error in his brief.
Attachment proceedings are purely statutory in their nature, and are only ancillary to the main action. The object of an attachment is to secure a fund to be applied in satisfaction of the judgment, should one be rendered, in favor of the plaintiff. The legislature has the power to declare what proceedings are necessary to be taken in order to acquire a lien on the property of a debtor before judgment in the action, and also has the power to say upon what contingencies such lien shall terminate. Sections 228 and 229 of the code of civil procedure provide the manner in which an attachment may be discharged before judgment as to the whole or part of the property attached, and by section 567 of the code provision is made for reviewing an order discharging or modifying an attachment, and for preserving the lien thereof until the decision of the case upon, proceedings in error, during which time the interests of the defendant are protected by the undertaking given upon the allowance of the attachment, which is to remain in force until the order of discharge takes effect. The attachment proceeding being ancillary to the main action, any order made with reference to the attached property does not affect the progress of the case upon the merits. Section 221 of the code provides that "if judgment be rendered in the action for the defendant, the attachment shall be discharged and the property attached or its proceeds shall be returned to .him.” This section is identical with section 46 of chapter 81, General Statutes of 1889, relating to civil procedure before justices of the peace, which was construed by our supreme court in Becker v. Steele, 41 Kan. 173, where it was held that in an action before a justice of the peace in which an attachment had issued, and in which action judgment was rendered upon the merits in favor of the defendant, and the attached property was ordered to be returned to the defendant, an appeal to the district court by the plaintiff, in which an ordi nary appeal bond was filed, did not transfer or carry the attachment proceedings to the district court, so as to authorize the constable, after the rendition of the judgment by the justice of the peace, to continue to hold the possession of the attached property, and that a mortgagee of such property claiming the same under a chattel mortgage executed «after the attachment was levied, and before judgment was rendered in the action in favor of the plaintiff, was, upon demand, entitled to the possession of the property. Section 221 of the code, in effect, provides that the rendition of a judgment in the action upon its merits in favor of the defendant operates as a discharge of the attachment; and we know of no statute which pro vides that the full force and effect of such judgment shall, in the absence of an order from the court or judge to that effect, be stayed or suspended pending proceedings in error to reverse such judgment; and as no order was made in the case of Miller against Blue preserving the lien of the attachment pending proceedings in error to reverse the judgment rendered therein, we are of the opinion that the owner of the property in controversy could, after the rendition of such judgment, convey just as good a title thereto as she could have conveyed had no attachment been levied thereon. As the defendant in error acquired title to the property in controversy after the attachment'was discharged, and before the judgment in favor of Blue was reversed by the supreme court, the title thus acquired by him was not' affected in any manner by such reversal, nor was the lien of the attachment which was discharged by the judgment in her 'favor on the 30th of March, 1887, revived by the reversal of such judgment by the supreme court, so as to subject the property levied upon to the pay ment of the judgment thereafter rendered in favor of Miller and against Blue.
As the only interest which the plaintiffs in error claimed in this action is based wholly upon the- attachment levy of February 15, 1887, and as Ida Bine had long prior to the rendition of the judgment in favor of Miller parted with all her right, title or interest in and to the property in controversy, it follows that the judgment of the district court must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Johnson, P. J. :
The first contention of counsel for the defendant under his demurrer is, that the courts of appeals have no jurisdiction in quo warranto proceedings. In the consideration of this objection it is necessary to consider the source from which the jurisdiction of this court is derived. Some of the courts of this state derive their existence directly from the constitution, which expressly defines and limits their jurisdiction and makes the jurisdiction within these limits exclusive, and provides also that they shall possess such other and further jurisdiction as may be conferred upon them by law. Where the constitution, in the creation of a court, defines its jurisdiction and makes such' jurisdiction exclusive in such court, that court alone can exercise such jurisdiction; but where the constitution in the creation of a court defines its jurisdiction without making the same exclusive, and in the same instrument gives authority for the creation of such other courts inferior to the supreme court as may be provided by law, the legislature may thereafter, under the constitution, determine what other courts, inferior to the supreme court, are necessary and proper for the interest of the people of the state, and in the creation of such courts may confer upon them such jurisdiction as is not vested exclusively in the supreme court or other courts by the constitution. The legislature may confer upon such new courts concurrent jurisdiction with the supreme court in all cases where such jurisdiction is not exclusive or inconsistent with the jurisdiction already conferred.
In framing and adopting a constitution for the state, the convention had regard to the. wants and interests then existing of the inhabitants of the territory to be included within the new state, and made provision for the judicial department of the state that was then thought to be adequate for the interests and well-being of the people, but put in a provision that, if it should become necessary to increase the judicial branch of the state government, the legislature should have power to create such other courts, inferior to the supreme court, as the requirements of the people might seem to demand. In creating the judicial department of the state, the constitution provides that the judicial powers shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts inferior to the supreme court as may be provided bylaw. (Constitution, art. 3, § 1.) In 1895, the legislature, deeming it necessary to increase the judiciary of the state, passed an act entitled “An act concerning appellate courts, defining their jurisdiction and the proceedings therein,” being chapter 96 of the Laws of 1895. Section 9 of the act creating this court defines its jurisdiction as follows :
“ Said courts of appeals, within their respective divisions, shall have original jurisdiction, concurrent with and io the same extent as is now given by law to the supreme court, in quo warranto, mandamus, and habeas corpus. . . .”
This act in terms gives the courts of appeals, within their respective divisions, original jurisdiction in cases of quo warranto concurrent with the supreme court, and the courts of appeals have jurisdiction, unless such jurisdiction is exclusive in the supreme court.
In Henderson v. Kennedy, 9 Kan. 164, Brewer, J., delivering the opinion of the court, says :
“The mere granting of original jurisdiction in an ordinary action to other tribunals does not of itself operate as exclusion. Both acts may stand — both tribunals have jurisdiction. . . . Original jurisdiction in mandamus is by the constitution given to the supreme court. The legislature granted such jurisdiction also to the district court. Such grant was sustained by this court. The constitutional grant was held not exclusive. Judd v. Driver, 1 Kan. 455.”
In Shoemaker v. Brown, 10 Kan. 392, the supreme court, by Valentine, J., says:
“The mere giving of jurisdiction to one court does not show that it must be exercised exclusively by that court. The constitution gives the supreme court original jurisdiction in quo warranto, mandamus and habeas corpus; . . . but still it has never been supposed that either of these courts had exclusive original jurisdiction of any of these matters, for the legislature has given such jurisdiction also to the district courts.”
In the case of McNab v. Heald, 41 Ill. 32, Walker, 0. J., delivering the opinion of the court, says:
“Even where courts of law have been vested by legislative enactments with equitable jurisdiction, unless there are prohibitory or restrictive words employed, the uniform interpretation is, that they confer concurrent and not exclusive authority.”
It is insisted that the grant of original jurisdiction in the supreme court to hear and determine cases of quo warranto under the constitutional provision, no matter in what county the cause of action may arise, and without reference to where the defendant may be summoned, is a grant of power to the supreme court only, and cannot be extended or conferred by the legislature upon any other tribunal or court of special or limited jurisdiction and inferior to the supreme court. The contention is that the writ of quo ivarranto and proceedings in the nature of quo warranto are abolished, and the remedies heretofore obtainable under those forms must now be had by civil action; that quo warranto, being a civil action, is local and must be brought in the county where the cause of action or some part thereof arose ; that the code of civil procedure, having provided that a civil action must be brought in the county in which the defendant or some of the defendants reside or may be summoned, prohibits the legislature from conferring jurisdiction upon the courts of appeals, where it may require a citizen to appear in a county other than that of his residence, or where he or some one connected with him in the suit may be summoned. There is no constitutional prohibition against the legislature conferring concurrent jurisdiction with the supreme court on such new courts as it may create under the constitution.
In the case of The State, ex rel., v. Allen, 5 Kan. 213, Valentine, J., speaking for the court, says :
“The legislature, by abolishing both the writ of quo tuarranto and proceedings by information in the nature of quo warranto, have not thereby destroyed the constitutional jurisdiction of the supreme court in such cases. . . . Article 29 of the code of civil procedure . . . merely provides a new method of procedure for the supreme court in such cases, but does not in the least affect its jurisdiction. The jurisdiction of the supreme court in such cases is coextensive with the state; . . . the legislature have not and cannot limit the jurisdiction of the supreme court in such cases to Shawnee county merely, and the supreme court is not therefore forced to dismiss this action . . . for the reason that the cause of action arose in Jefferson county. ”
The supreme court of course obtains its original jurisdiction in cases of quo warranto from the constitution of the state, and the legislature cannot take that jurisdiction away or limit its scope. It may change the procedure in such cases and the supreme court must follow the new mode of procedure prescribed by the legislature ; but it does not follow that because the supreme court derives its jurisdiction in quo warranto proceedings from the constitution the legislature cannot confer concurrent jurisdiction on some new court of its creation, and the act of the legislature conferring original jurisdiction on the courts of appeals within their respective divisions concurrent with the supreme court gives them the same jurisdiction within their respective divisions in quo warranto, mandamus and habeas corpus as is possessed by the supreme court. This act was passed with the full knowledge of the decisions of the supreme court holding that its jurisdiction in those cases was coextensive with the state, and the legislature, tinder the constitutional provisions and the decisions of the supreme court, simply limited the j urisdiction of the courts of appeals to their respective divisions, giving them original jurisdiction concurrent with the supreme court coextensive with the respective divisions thereof. But even if these observations are not correct and the court cannot take jurisdiction over a party residing beyond the limits of Finney county, the defendant has waived the question of jurisdiction over his person by voluntarily coming into this court and entering his appearance to the action. Of course, if he had only appeared for the purpose of objecting to the jurisdiction of the court over his person that would not be a waiver, but his appearing to contest the sufficiency of the petition by general demurrer is an appearance to the action and subjects him personally to the jurisdiction of the court, if the court has jurisdiction of the subject of the action. We do not think the facts stated in the petition constitute a local action of which the court could not take jurisdiction in some other county than the one in which the party is unlawfully exercising an office.
The second reason urged in support of the demurrer of the defendant is, that the county attorney of Stevens county is not a proper party plaintiff in a quo warranto proceeding commenced originally in Finney county; that the county attorney being a county officer, his jurisdiction is limited to Stevens county, and he could not prosecute an action on behalf of the state in any other county than the one of which he is an officer. This action is not by the county attorney as plaintiff, but is in the name of the state as plaintiff, the county attorney appearing as relator. The action is commenced under article 29, section "654, of the code of civil procedure (Gen. Stat. 1889, ¶4768), which reads as follows :
“When the action is brought by the attorney general, or the county attorney of any county of his own motion, or when directed to do so by competent authority, it shall be prosecuted in the name of the state, but where the action is brought by a person claiming' an interest in the office, franchise, or corporation, or claiming any interest adverse to the franchise, gift or grant which is the subject of the action, it shall be prosecuted in the name and under the direction and at the expense of such persons ; whenever the action is brought against a person for usurping an office, by the attorney general or the- county attorney, he shall set forth in the petition the name of the person rightfully entitled to the office, and his right or title thereto ; when the action in such case is brought by the person claiming title, he may claim and recover any damage he may have sustained.”
Paragraphs 1795, 1796, General Statutes of 1889, provide :
“A county attorney shall be elected in each county organized for judicial purposes, who shall hold his office for a term of two years. ... It shall be the duty of the county attorney to appear in the several courts of their respective counties, and prosecute or defend, on behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or their county is a party, or interested.”
This has been the law respecting the election, qualification and defining the duties of county attorneys since October 31, 1868. In the case of The State, ex rel., v. Allen, supra, the defendant objected to the authority of the county attorney of Jefferson county appearing in that case and prosecuting the case on behalf of the state .as relator. The supreme court says :
“The county attorney of Jefferson county is the proper person to commence and prosecute this action. The supreme court will not, therefore, dismiss an action because the attorney general of the state has made no appearance in the case, and does not prosecute the same.”
The statute in relation to the election, qualification and duties of county attorneys is the same now as it was when this decision was announced, and the code of civil procedure in relation to the manner in which quo warranto proceedings are to be commenced and conducted is the same as when that decision was rendered. The case of The State, ex rel., v. Majors, 16 Kan. 440, was a proceeding in the nature of quo iuarranto, commenced originally in the supreme court by the county attorney of Crawford county to oust the county treasurer of that county from office. Followring the decision of the supreme court in the case of The State, ex rel., v. Allen, supra, which was followed by The State, ex rel., v. Major's, supra, we must hold in this case that the county attorney of Stevens county was a proper person to prosecute this case in the court of appeals.
The remaining reason urged by defendant in support of his demurrer is that the petition does not state facts sufficient to constitute a cause of action against this defendant. The petition states that Stevens county is one of the organized counties of this state; that the defendant, John A. Kelly, was duly elected county treasurer of said county on the 7th day of November, 1893, and that he duly qualified and entered upon the discharge of the duties of his office as such treasurer, and that he has from time to time as treasurer of Stevens county received the public funds belonging to the treasury of said county; that large sums of money belonging to the public funds of the treasury of Stevens county came into his hands as such treasurer prior to the 5th day of July, 1895 ; and that on the 3d day of July, 1895, the board of county commissioners of Stevens county duly appointed two persons who were citizens and taxpayers of said county to assist the probate judge of said county in examining and counting the funds in the hands of the county treasurer of such county during that quarter ; and that on the 5th day of July the probate judge, together with said two persons, examined the treasury and counted the funds in the hands of the defendant, John A. Kelly, as county treasurer ; that upon such examination and counting the funds in the hands of defendant as county treasurer they found a deficiency in the funds in said county treasury in the sum of $985.56, and immediately reported the facts of said deficiency to the county clerk of Stevens county, a copy of the report being attached to the petition and made part thereof; that the county clerk immediately upon the receipt of such report notified the county commissioners of the filing of such report, and the commissioners forthwith met at the office of the county clerk to take such action as was necessary to protect and preserve the funds of said county ; that the commissioners, having met as the board of county commissioners of Stevens county, notified the defendant, John A. Kelly, that an order of the board of county commissioners had been made requiring him forthwith to appear before the board of commissioners and show why such deficiency existed ; and defendant having been duly notified of said order, and failing to appear or to in any manner account for said deficiency, that the board of county commissioners found that in their judgment that it was necessary and proper to protect the public interest that the said John A. Kelly be removed from the office of county treasurer of Stevens county ; that an order was thereupon made removing the said John A. Kelly from the office of county treasurer of said county of Stevens, and also an order appointing C. H. Wright as county treasurer of said county to fill the unexpired term of office of the said John A. Kelly; that the said C. H. Wright duly qualified as such treasurer, and that said Wright possessed all of the necessary qualifications to entitle him to said office, and that said John A. Kelly was duly notified of the order of his removal and of the appointment and qualification of his successor in office; that after his qualification the said C. Ip. Wright duly demanded of the said John A. Kelly that he turn over him, as his successor in the office of county treasurer of Stevens county, Kansas, all the moneys, papers, books and records belonging to the said office of county treasurer of said county which came into the possession of the said John A. Kelly as treasurer of said county; that said defendant refused to surrender to the said C. PI. Wright 6he office of county treasurer of Stevens county, and the said John A. Kelly is unlawfully holding and exercising the office of county treasurer of Stevens county, Kansas, after he had, by an order of the board of county commissioners of said county, been removed from said office and his successor in office duly appointed, and after said C. H. Wright is lawfully entitled to said office and to exercise the functions thereof.
The proceedings leading up to the removal of the defendant were under the Laws of 1874, being an act entitled "An act to provide for the publication of state ments showing the condition of the county treasury and examination of the same, and to prevent the improper use of public money, and for the punishment thereof.” (Gen. Stat. 1889, ¶ 1709.) There is no question made as to the validity of this law, as that question was fully settled in the case of The State, ex rel., v. Majors, supra, which held the law constitutional, and that the board of county commissioners had the right to remove the treasurer thereunder and to appoint his successor. We think the petition states such facts, if true, as authorized the board of county commissioners to remove Kelly from the office of county treasurer and appoint a successor to fill out the unexpired term.
The demurrer of the defendant is overruled, and the defendant is granted leave to file an answer to said petition on or before the first Tuesday in February, 1896.
All the Judges concurring.
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The opinion of the court was delivered by
Fromme, J.:
This claim was filed by Parsons Mobile Products, Inc. (Mobile) to recover an indebtedness alleged to be due and owing from its former employee, William F. Remmert. The short petition merely alleges that Remmert owes Mobile the sum of $4,343.33 which debt was acknowledged by Remmert in a letter, a copy of which is attached to the petition.
The letter is addressed to the president of Mobile, purports to be signed by Remmert and states:
“Please refer to your letter of August 29, 1972 concerning my personal obligation to Parsons Mobile Products, Inc.
“Inasmuch as I am still a Director and Stockholder of Parsons Mobile Products, Inc., and am in no manner being consulted about any decision making processes within the company, I would like at this time to completely sever all relations with the company.
“I desire to sell the 24 shares of stock currently now owed to the company ■ at the original purchase price of $100.00 per share. If this arrangement is satisfactory, I will remit the balance of the $4,343.33 now owing, if this is the correct balance at this time, less accumulated salaries due myself for the period July 1 through July 6, 1972.
“If this is unsatisfactory, I will continue to remit $200.00 per month, which is the only agreement ever in effect, now or at any time in the past.
“Please advise which course of action is the preferred, as soon as possible.”
Apparently the offer contained in this letter was not accepted.
The «defendant Remmert answered the petition alleging that all issues raised in the case could have and should have been resolved in Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P. 2d 428, and that such claim is res judicata.
A motion for summary judgment was filed by Remmert. The trial 'court sustained the motion and found that the claim was, or could have been, litigated in the previous case. The plaintiff appeals.
Although the exact nature of the indebtedness is not disclosed by the pleadings filed, it is apparent from the letter attached to the petition that Remmert considered the indebtedness a liquidated amount due the corporation on which he bad been paying at the rate of $200.00 per month. In contrast the case of Parsons Mobile Products, Inc. v. Remmert, supra, was an action to recover unliquidated damages allegedly caused by unfair competition and unlawful trade practices.
The doctrine of res judicata does not apply when an entirely different claim for relief is stated in a subsequent action even though the action may be between the same parties. (Hutchinson Nat’l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P. 2d 1011.) No issue concerning this personal indebtedness of Remmert was pleaded and no attempt was made to recover said amount in the prior action. The letter was not introduced in evidence in the prior action to establish the indebtedness due. The application of the doctrines of res judicata and collateral estoppel have been explored in the recent cases of Hutchinson Nat’l Bank & Trust Co. v. English, supra, and Neville v. Hennigh, 214 Kan. 681, 522 P. 2d 443. Further discussion is unnecessary in this opinion. The dodtrine of res judicata was improperly applied in the present case.
In further support of the trial courts order, the 'appellee relies on K. S. A. 1973 Supp. 60-218 (a) which reads:
“A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third-party claim, may join either as independent or as alternate claims as many claims, legal or equitable, as he has against an opposing party.”
Appellee contends that under this statute the claimed indebtedness was or should have been joined as an additional claim in the prior action. No order of consolidation was entered by the court.
Although K. S. A. 1973 Supp. 60-213 (a) provides for compulsory “counter-claims” there is no similar provision In the code for compulsory joinder of “claims.” K. S. A. 1973 Supp. 60-218, which re lates to joinder of claims and joinder of remedies, is couched in permissive terms and the statute does not require plaintiff to join separate claims in one action. In Cadwallader v. Lehman, 202 Kan. 738, 451 P. 2d 163, this court with reference to 60-218 (h) states:
“. . . It is significant that the legislature employed the permissive verb ‘may,’ rather than the mandatory ‘shall.’ In our judgment the statute affords a procedure which may be used, but does not make such procedure exclusive.” (p. 748.)
The Kansas Code of Civil Procedure was modeled after the Federal Rules of Procedure. K. S. A. 1973 Supp. 60-218 (a) is identical for all practical purposes to Federal Rule 18 (a.). The authors of Wright & Miller, Federal Practice and Procedure: Civil, § 1582, p. 794, state “Rule 18 (a) is permissive; joinder of claims is not compulsory.”
It should be noted that the doctrine of res judicata prevents the splitting of a single cause of action or claim into two or more suits. The doctrine of res judicata requires that 'all 'the grounds or theories upon which a cause of action or claim is founded be asserted in one action or they will be barred in any subsequent action. (Wright & Miller, Federal Practice and Procedure: Civil, § 1582, p. 795.)
In our present case two separate and distinct causes of action or claims were pursued in separate actions. The district court was in error in applying the doctrine of res judicata. The judgment is reversed and the case is remanded with 'directions to the trial court to proceed accordingly.
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The opinion of the court was delivered by
Fromme, J.:
This action was brought to recover royalties allegedly due from the production, extraction and sale of helium gas. The plaintiffs, Wilford L. Cline and R. Leona Cline, assigned certain oil and gas leases in Rush County, Kansas, to the defendant, George A. Angle, and reserved a royalty in any helium gas produced from the leases. The trial court after construing certain written instruments and considering stipulated facts entered a partial summary judgment in favor of plaintiffs. Defendant was ordered to account for royalty due. He applied for and received permission to perfect the instant interlocutory appeal.
We will summarize the essential facts. The original oil and gas leases were acquired by Morrison Producing Company (Morrison). Morrison acquired a large block of leases in Rush County, Kansas. A few small gas wells were drilled on some of the leases. The wells were located in an area which became known as the Reichel gas field. Morrison sold all present and future gas production from its block of leases to Kansas-Nebraska Natural Gas Company (Kansas-Nebraska). By 1960, gas development in the area appeared to be uneconomical. Morrison dropped much of the undeveloped acreage and granted Wilford L. Cline the right to farm out the balance of the undeveloped acreage.
On February 22, 1961, Cline assigned the leases on this undeveloped acreage to the defendant, George A. Angle, in return for overriding royalties and a commitment to develop the acreage. The helium content of the gas being produced in this area was around two percent (2%) of the total volume of gas produced. The as signors of the leases, Wilford L. and R. Leona Cline, reserved two different royalty interests under all the leases assigned.
The first overriding royalty interest reserved was l/16th of 7/8ths of all of the oil, gas and casinghead gas produced, saved and marketed from said leases. This was a standard overriding royalty consisting of a share of production free of expense delivered at the wellhead.
The second royalty interest was not a standard overriding royalty reservation. It called for a royalty of l/8th of 8/8ths of the helium gas separately marketed. This reservation was set out in paragraph 9 of the lease assignment agreement and it reads as follows:
“9. The parties are aware that the natural gas encountered in reservoirs similar to those expected to underly the leases in question contain small percentages of helium gas and, at present, because of the small percentage of helium and the extraordinary costs of extracting it, the gas is sold by producers in the area at the wellhead to a pipe line company without a separate purchaser or payment for the helium. If, during the life of the leases covered by this contract, the producers in the field should, in the future, be able to sell, advantageously, the helium gas by a separate sale, separately accounted for, and for a separate price stated and paid, then and in that event only the overriding royalty interest of Cline, insofar and only insofar as it applies to the helium separately marketed and paid for, shall be increased to l/8th of all (8/8) of the helium produced, saved .and so separately marketed and paid for; otherwise there shall be no obligation on Angle’s part to separately account to Cline any gas constitufent, including helium, regardless of the extent to which it may influence the price of gas at the wellhead.”
It is undisputed that neither Kansas-Nebraska nor any other purchaser in this gas field has ever paid a separate price for the helium content of the gas produced.
George A. Angle, doing business as Frontier Oil Company, commenced developing the leases by drilling wells. Ultimately, 12 gas producing wells were obtained. In February, 1962, the plaintiffs signed division orders which stated the gas was being sold to Kansas-Nebraska -under the terms of a gas purchase contract dated October 5, 1961. The division'order specified that the Clines were to receive their overriding royalty of l/16th of 7/8ths in accordance with the lease assignment contract dated February 22, 1961.
This division order required a separate helium division order be obtained in event Kansas-Nebraska, the pipeline purchaser, in the future might agree to account for a separate purchase of the helium content at a separate price.
The above division order was intended to facilitate payment of royalty on the helium content of the natural gas at such time in the future as a separate sale and separate accounting could be negotiated for the helium content of the gas at the wellhead.
In February, 1961, when the Clines assigned their leases to Angle and reserved the helium royalty, Angle had drilled no gas wells in Rush County and at that time had no proven reserves of helium bearing gas. Sometime later Angle commenced to acquire other leasehold acreages in Rush County not dedicated to any particular gas purchaser. Plaintiffs were not involved in this acreage. Angle drilled numerous gas wells thereon. By 1963, Angle had developed gas reserves containing considerable helium. He then began plans to construct a processing plant near Otis, Kansas, to extract the helium from the natural gas.
In the spring of 1966, Angle borrowed $7,000,000.00 and constructed a helium plant. At first he commenced to extract helium from the gas produced in his own gas wells. His helium extraction business was operated under the trade name of Kansas Refined Helium Company, a sole proprietorship. Kansas-Nebraska continued purchasing the gas from the wells here involved and at least part of it was resold to the Bureau of Mines to be processed in the United State’s helium plant at Otis, Kansas.
In 1968, the Bureau of Mines closed its helium plant at Otis. Kansas Refined Helium Company entered into a gas processing contract with Kansas-Nebraska which provided for the purchase of gas from Kansas-Nebraska for helium extraction purposes. There was no provision in the gas processing contract for a separate payment for the helium content of the natural gas. The gas was purchased by Kansas Refined Helium Company at the normal industrial rate for industrial gas as provided in the Kansas-Nebraska filings with the Kansas Corporation Commission. Of the gas gathered and piped to the plant only a Small portion originated from leases in which plaintiffs held royalties. Likewise, only a small portion of the helium extracted and sold was traceable to leases in which the Clines held a royalty.
In 1969, the Clines filed this suit claiming that since George A. Angle, under the trade name of Kansas Refined Helium Company, extracted and sold the helium that this constituted a separate sale of helium as contemplated in paragraph 9 of the contract which entitled the Clines to the increased royalty on the helium.
The trial court accepted the plaintiffs’ arguments and ordered the defendant to account for one-eighth (l/8th) of the helium ex tracted and sold from the leases in question. The trial court further held:
“With regard to said accounting and calculation of the principal amount, the overriding royalty specified in Paragraph No. 9 of the Agreement is not based on Defendant’s gross receipts from the sale of helium, but rather on his net receipts after deduction of his cost of operation. Further, Defendant is to be allowed a credit against the overriding royalty calculated pursuant to Paragraph No. 9 of the Agreement in the amount of that portion of the overriding royalty attributable to helium and paid pursuant to the overriding royalty provisions of Paragraph No. 1 of the Agreement.”
(Paragraph No. 1 of the agreement reserved to the Clines an overriding royalty interest of l/16th of 7/8ths of all oil, gas and casinghead gas produced, saved and marketed under said leases.)
It appears the trial court determined the share of royalty to be paid was subject to a deduction for a share of the expenses, although no formula was set forth in either paragraph No. 9 of the agreement or in the court’s journal entry by which the amount of expenses could be determined.
We are of the opinion the trial court erred in construing the reservation as requiring payment of royalty on helium gas repurchased from the pipeline purchaser and then extracted in and marketed from defendant’s helium plant.
The true nature and character of a grant or reservation of oil and gas rights is not determined solely by the name or label attached thereto by the parties. It is determined by the intent of the parties as reflected by the terms or contents thereof. Where, however, an interest in oil and gas is labeled an “overriding royalty”, the wording of the reservation of the interest must make it clear that it is something other than what the label indicates or the label will be considered as expressing the true intent of the parties. (Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, Syl. ¶ 4, 331 P. 2d 577.)
The reservation in the present case speaks of the interest reserved as being an overriding royalty. An overriding royalty is an interest or share of the oil actually produced and saved. It is generally understood an overriding royalty is delivered free of expense at the wellhead. In Campbell v. Mako Corporation, 195 Kan. 66, 402 P. 2d 771, this court said:
“An overriding royalty is a royalty interest carved out of the working interest created by an oil and gas lease. It is an interest in oil and gas produced at the surface free of the expense of production and its outstanding characteristic is that its duration is limited by the duration of the lease under which it is created.” (Syl. ¶ 2.)
The provisions of paragraph 9 of the assignment contract which created the overriding royalty in helium are entirely consistent with the generally accepted nature attributed to an overriding royalty.
Paragraph 9 recognizes that gas is being sold by the producers in the area at the wellhead to pipeline companies without separate purchasers of or payments for the helium content in the natural gas. It provides for payment of an increased amount of royalty, from l/16th of 7/8ths to l/8th of 8/8ths of the helium. The increase is to go into effect only if the helium gas is separately marketed under a separate purchase contract and paid for at the wellhead. The royalty is limited to the life of the leases covered by the contract and is tied to a separate sale of the helium content by the producers in the field. The final statement in paragraph 9, as to the nature of the interest created, is that there shall be no obligation on Angle’s part to separately account to Cline for any gas constituent, including helium unless it is separately marketed and paid for at the wellhead.
There was nothing in the reservation which would authorize deductions for the expenses of extraction and purification of the helium gas, as ordered by the court below. The owner of an overriding royalty is not required generally to pay expenses merely because he owns a share of production to be marketed at the wellhead. The trial court apparently disregarded the terms of the agreement of the parties and authorized deductions for expenses because of apparent inequities.
Words cannot be read into an agreement which impart an intent wholly unexpressed when the agreement was executed. (In re Estate of Johnson, 202 Kan. 684, 689, 452 P. 2d 286; Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442.)
If a written contract is ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are relevant to clarify the intent and purpose of the contract in that regard, but not for the purpose of varying and nullifying its dear and positive provisions. (Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P. 2d 803; Skelly Oil Co. v. Savage, 202 Kan. 239, 248, 447 P. 2d 395, 38 A. L. R. 3d 971.)
Subsequent conduct of parties to a contract may aid interpretation of controversial provisions. If parties to a contract, subsequent to its execution, have shown by their conduct that they have placed a common interpretation on the contract, this interpretation will be given great weight in determining the meaning to be attributed to the provisions in question. (Mosher v. Kansas Coop. Wheat Mkt. Ass’n., 136 Kan. 269, 15 P. 2d 421.) In addition instruments which are executed in the course of the same transaction concerning the same subject matter will be construed together by the court to determine the intent of the parties to the contract. (West v. Prairie State Bank, 200 Kan. 263, 436 P. 2d 402; Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723.)
It appears that Mr. Cline at various times has expressed his understanding that the helium royalty would accrue, if at all, on a separate sale of the known helium component in the natural gas when marketed by the producer and sold to the pipeline purchaser at the wellhead. This understanding was expressed by Mr. Cline in his discovery deposition as follows:
“Q. Did you consider the possibility that demand for helium and the Government Helium Plant might lead some pipeline purchasers to pay an additional separate price for helium at the wellhead?
“A. That was obviously the reason for wanting to receive compensation if and when it did happen.
“Q. And that is the reason you put this language in the contract in Paragraph Nine?
“A. Correct.”
On May 26, 1961, Mr. Cline wrote a letter to the Bureau of Mines exploring the possibility of obtaining a separate payment for the helium content of the gas at the wellhead in event such an agreement could be worked out with the producer and the pipeline purchaser. This letter clearly indicates that Cline felt the royalty was dependent upon obtaining a separate payment for the known helium content of the gas at the wellhead.
A similar understanding by Mr. Cline as to the helium royalty was expressed in a division order covering the North half (N/2) of Section 22, Township 17 South, Range 17 West in Rush County, Kansas. When the order was executed by the Clines a special paragraph was added by them relating to the helium royalty, as follows:
“. . . [I]f Kansas-Nebraska Natural Gas Co., Inc. shall ever account to Frontier Oil Company by a separate sale, separately accounted for, and for a separate price stated and paid for any helium that may be produced from this land, then, and in that event, separate helium division orders will be prepared and circulated for the distribution of such separate proceeds.”
It is clear from this paragraph that Cline understood the royalty was for the helium component in the natural gas when separately sold, accounted for and separately priced at the wellhead. It was specified that the royalty was to attach if Kansas-Nebraska, the pipeline purchaser, separately accounted to the producer, Frontier Oil Company, for helium content, because then and in that event a new division order would be necessary.
Another thing indicates that the parties intended the helium royalty to become due only if the helium component in the gas could be separately sold and marketed at the wellhead. Tire royalty was reserved from the rights in production created by oil and gas leases. The leases are solely concerned with production of oil and gas and not with processing. The corresponding rights in production under the lease are fulfilled when the oil or gas is brought to the surface and marketed.
It is difficult to see how the parties to a leasehold estate can create an interest in the helium component in natural gas which would continue after the gas is produced, purchased, resold and processed. The natural gas purchase contract under which Angle, the lessee-producer, sells and delivers the gas stream to the pipeline purchaser, Kansas-Nebraska, transfers the entire title and interest to the natural gas stream including the hydrocarbon, nonhydrocarbon elements and compounds, including helium. It is generally held that the purchase payments received by the lessee-producer from the pipeline purchaser constitutes payment for the entire natural gas stream measured and delivered under the contract including all constituents of the natural gas, including helium. (See Northern Natural Gas Company v. Grounds, 292 F. Supp. 619, 686 [Kan. 1968]; Reversed in part on other grounds, 441 F. 2d 704, [10th Cir. 1971].)
In the present case Kansas-Nebraska, the pipeline purchaser, acquired title to the entire natural gas stream including the helium content. We see nothing which would prevent Kansas-Nebraska from entering into a gas processing and sales agreement for a resale of the natural gas which was gathered in its system. It previously has such an agreement with the United States Bureau of Mines and we see no reason why Kansas-Nebraska’s processing and sales agreement with George A. Angle, doing business as Kansas Refined Helium Company, would not transfer full legal title to the gas stream coming into his helium extraction and purification plant as well as full legal title to the helium gas extracted therefrom.
The trial court laid stress upon the fact that Angle was both the lessee-producer under the leases and the helium gas processor owning and operating the $7,000,000.00 helium extraction plant. We do not see why George A. Angle should not be considered as operating in separate and distinct capacities, that of lessee-producer and as a purchaser-processor of helium. As lessee-producer he would remain obligated under his lease agreements and producer sales contracts and as a subsequent purchaser-processor he would be liable for his obligations incurred as purchaser-processor. We see no reason for extending his obligations as a lessee-producer beyond the initial production and sale to a later repurchase and processing merely because he is one individual operating two separate businesses.
The defendant, Angle, constructed a $7,000,000.00 plant to extract and purify helium from natural gas. Plaintiffs owned no part of this plant. When production from the wells in which the plaintiffs held a l/16th of Jsths interest was accounted for and paid by the pipeline purchaser the plaintiffs had no further claim to the gas or its components.
It has been held that where gas and oil produced under a lease agreement has an established market value at the wellhead royalties paid to a lessor should be based on that value, not the value of products refined by the producer in a plant constructed at his own expense. In Armstrong v. Skelly Oil Co., 55 F. 2d 1066 (5th Cir. 1932), lessees under an oil and gas lease erected a plant to extract gasoline from wet gas produced by the plaintiff-lessor s wells. The lessees paid royalties on the gas based on the market value of the gas, arriving at the amount thereof by measurement of the gas by meters at the wells. The lessor took the position that the royalty should be based on the actual sales price of gasoline extracted in the gasoline plant. The court held:
“. . . Appellees were under no obligation to erect a plant to treat this gas. When they did so they were entitled to deal with the lessor the same as a stranger would have done. Had the gas been sold to an extracting plant, the lessee, under the universal custom of the trade, would have received returns identically the same as those made by appellees.” (p. 1068.)
In the present oase an analogous situation exists. The Clines should not be entitled to royalties based on helium extracted by appellant d/b/a Kansas Refined Helium Company.
At the time the assignment of leases was made and the helium royalty was reserved by Mr. and Mrs. Cline, no separate price was being paid for the helium content of any of the natural gas being marketed from the Reichel field. The defendant George A. Angle owned no helium reserves in the field. Angle did not construct the $7,000,000.00 helium plant until five years after the Clines acquired their royalty. We do not believe that the parties intended for Angle to pay royalty on helium processed by him in a plant to be constructed and owned by him five years later. There was nothing in the agreement about sharing the expense of building and operating such a plant. Paragraph 12 of the lease assignment provided that nothing in that agreement should be construed to create a joint venture between Angle and Cline.
The partial summary judgment in favor of plaintiffs is reversed, the order denying summary judgment in favor of defendant is reversed and the case remanded to the district court with instructions to grant summary judgment against the plaintiffs and in favor of defendant.
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The opinion of the court was delivered by
Foth, C.:
This is a workman’s compensation case. The issue is whether the fact that the workman’s primary injury is a scheduled injury under K. S. A. 44-510d precludes compensation for a second generally disabling injury, which is the direct result of the primary scheduled injury. The trial court limited compensation to the statutory allowance for the scheduled injury,-and the workman has appealed. We vacate and remand for a redetermination of whether he suffered any other disabling injury as a result of his accident.
Prior to his injury claimant was employed as a pipline welder, laying gas pipe in the field near Hugoton. His work required him to squat and kneel when welding large pipe, to jump ditches, and to walk fairly long distances in the field. On January 30, 1971, he was working under a large pipe supported by scaffolding. The scaffolding gave way and the pipe fell on his left knee, causing a compound fracture of both bones of the lower left leg. No other portion of his body was injured at that time. He was immediately hospitalized in Hugoton and treated by Dr. M. F. Frederick. When traction failed to reduce the fractures properly he was transferred to Dodge City, where he underwent surgery at the hands of Dr. Carl Zacharias, an orthopedic surgeon. Both doctors testified in this proceeding by deposition. Dr. Zacharias finally discharged claimant in January, 1972, and it is undisputed that claimant was unable to work during the prior 50 week period. The controversy is over the nature and extent of his residual permanent disability.
Claimant testified that his left leg was still weak and sore, and he tended to favor it. He also developed, he said, a sore back and shin splints in his right leg. The combination prevents him from doing his previous work, and now he works only as an inspector of welding rather than as a welder.
Dr. Frederick found a residual defect in one of the broken bones, some osteoporosis or demineralization of the bone, and weakness in the left leg due to atrophy of the thigh muscles caused by disuse. Claimant’s back problem was a lumbar strain. This strain, and the pain in the right leg, were both the natural result of claimant’s favoring of the injured left leg. Dr. Frederick gave claimant a 40% permanent partial general bodily disability. He was not asked to and did not rate the injury to the left knee alone.
Dr. Zacharias, on the other had, found a 50% permanent partial disability to the left knee, based on pain, weakness and limitation of motion. In his opinion there will be increasingly severe arthritis in the knee which in time will probably be totally incapacitating. At that time it may require total knee replacement. Claimant complained to him about weakness in his left ankle as well as the left knee, but made no complaint to him about his back or right leg. The 50% disability to the left knee would translate into a 15 to 20% disability to the body as a whole. This latter rating gave no consideration to any possible difficulty with the back or right leg.
On this evidence the examiner awarded 50 weeks of temporary total disability and 40% permanent partial general disablity. No review having been requested, the director approved the award. The respondent and insurance carrier appealed to the district court.
There, the court observed that “The sole question presented on this appeal is whether or not an injury covered by the Workmans Compensation Act resulting in 50% permanent disability to the left knee can sustain an award of general body disability.” The court apparently concluded that even if the strain of the back and the pain in the right leg were the direct result of the injury to the left knee, compensation must be limited to that provided by the statutory schedule for half a knee, plus the statutory healing period. Such was the district court’s judgment from which the claimant has appealed.
The key to the trial court’s reasoning is found in the following excerpt from its findings:
“Both parties cite and rely on Berger v. Hahner, Foreman & Cole, Inc., 211 Kan. 541. This court concludes that the Berger case .allows compensation for traumatic neurosis as a separate and distinct injury resulting from scheduled injury but does not extend that doctrine to cover the physical effects on other parts of the body resulting from a scheduled injury. (Gallivan v. Swift & Co., 136 Kan. 234, and Cornell v. Cities Service Gas Co., 138 Kan. 607.)”
We think the trial court gave too narrow an interpretation to the Berger case. In that case the workman lost an eye — a scheduled injury. There was no other physical injury. The loss of the eye, in turn, directly caused a traumatic neurosis which was totally disabling. We held that “A workman will not be deprived of compensation for disability arising from traumatic neurosis merely because it resulted from a scheduled rather than a non-scheduled injury.” (Syl. ¶ 3.)
The operative faot in Berger was that there was a second, distinct and disabling injury which could be directly traced to the accident through the primary injury. It did not matter that the second injury was psychological rather than physical, as is demonstrated by the Berger court’s reliance on Jackson v. Stevens Well Service, 208 Kan. 637, 493 P. 2d 264.
In Jackson, the claimant suffered scheduled injuries to each hand. In addition he developed bicipital tendonitis of the right shoulder, which was found to be the direct result of the scheduled injuries to his hands. We held that the scheduled nature of the primary injuries was no bar to compensation for temporary total disability resulting from the scheduled hand and unscheduled shoulder injuries, in combination. The basis for the holding was, “When a primary injury under the Workmens Compensation Act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” (Syl. ¶ 1.)
This rule, formulated in a case where the secondary injury was physical, was the basis for allowing compensation in Berger, where the secondary injury was psychological. Hence, to the extent that the trial courts distinction between the ease at bar and the Berger case was based on a distinction between physical and psychological injuries it was not well founded. There is no distinction between physical and psychological injuries for the purpose of determining whether a workmans disability from an injury is compensable.
Since Jackson and Berger — and since the decision of the trial coml in this case — we have decided Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 527 P. 2d 1044, which is controlling here. In Bergemann claimant suffered a crushed foot, requiring partial amputation. The result was an imbalance in walking, causing in turn a strain of the low back which was admittedly totally disabling. The trial court, like the trial court here, disallowed compensation beyond that scheduled for the foot because the back injury was the direct result of the scheduled injury, and thus only an indirect result of the accident. We reversed, relying once again on Jackson and saying, “We are unable to make any logical distinctions between the facts in Jackson and the facts in the instant case, which would justify a different result.” (P. 688.) Accordingly we allowed the scheduled compensation as a minimum, but also allowed the undisputed temporary total disability caused by the combination of foot and back injuries.
In Bergemann we also expressly disapproved, as “too broad for general application,” the dictum found in Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228 — one of the oases relied on by the trial court here. The thrust of the disapproved language was that any scheduled injury naturally produces some effect on the rest of the body; such effects are not separately compensable, however, because they are to be expected and are presumed to be covered by the compensation allowed in the schedule. Followed to its logical conclusion, the disapproved language would indicate that no secondary injury, no matter how disabling, is compensable if it is the result only of a scheduled injury. Cases since Cornell, as pointed out in Bergemann, have shown this concept to have too many exceptions to be a valid general rule, and it is this concept which Bergemann disapproved as demonstrably false.
The trial court, of course, did not have the benefit of our opinion in Bergemann when it decided this case. It would appear from that portion of its findings quoted above that the trial court relied on the since-disapproved Cornell generalization when it concluded that there could be no compensation for “the physical effects on other parts of the body resulting from a scheduled injury.” The teaching of Jackson and Bergemann is to the contrary. If there is a disability flowing from a second and distinct injury, it is compensable even if the second injury’s sole cause was a primary, scheduled injury.
Respondent suggests that the result reached below is supported by substantial competent evidence, and must therefore be affirmed under familiar rules of appellate review. The difficulty with that argument is that this court cannot ascertain from the record what conclusions, if any, the trial court reached on the questions of secondary injury or general disability. Under the approach apparently taken by the trial court it was unnecessary to determine these questions; in any event, under the trial court’s rationale, there could be no compensation beyond the schedule. Thus, the trial court could have reached the result it did by finding that claimant had no injury or disability beyond that attributable to the left knee. Such was the conclusion of Dr. Zacharias. His finding of 15 to 20% general disability was based only on the left knee injury; he neither found nor considered any injury to the back or right leg. Such a finding, to be sine, is supported by evidence and if there were anything in the record to indicate that this was the basis of the judgment below we would be bound to affirm. On the other hand, because of its legal premise, the trial court could have just as easily reached the same result even if it had found a new and distinct injury, and a 40% general bodily disability resulting from the combination of injuries as Dr. Frederick’s testimony would indicate. Such a result would be erroneous as a matter of law.
We are unable to determine which of these alternatives — if either — formed the basis of the judgment rendered below. The judgment is therefore vacated and the case is remanded for further consideration of the questions of the existence of a second injury and the extent of any resulting disability, in the light of this opinion.
approved by the court.
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The opinion of the court was delivered by
Harman, C.:
This is a proceeding by an administrator to determine ownership and disposition of, United States savings bonds, series “H,” which were in the name of its decedent at the time of her death. Generally, the issue is whether a person who is under voluntary conservatorship may change the payable-on-death beneficiary on such bonds owned by her with the consent of her conservator but without benefit of an order of the probate court. The trial court held such a change was invalid and the purported beneficiary has appealed.
The determinative facts are not in dispute. During her lifetime the decedent, Marie Pierce, had purchased the bonds in question in the face amount of $22,500. These bonds were registered in her name as owner and were by her initially made payable on death (POD) to her sister, Emma Scruggs. Emma Scruggs died in 1963. In 1971, Mrs. Pierce, who was then a seventy-eight year old widow, was physically injured in an automobile accident which resulted in her hospitalization. Thereafter and on August 10, 1971, upon her own petition a voluntary conservatorship was established for her in the probate court of Sedgwick county, pursuant to K. S. A. 1974 Supp. 59-3007. One reason given for establishing the conservatorship was “because a power of attorney was not sufficient.” The court’s order, which named the First National Bank of Wichita as conservator, expressly found that Mrs. Pierce was neither an adjudged incapacitated person nor a proposed ward or conservatee. Upon this appointment the First National Bank took physical possession of all of Mrs. Pierce’s property, including the bonds in question.
On September 21, 1971, Mrs. Pierce went to the First National Bank and at her request and with the assistance of a bank official in the trust department obtained a change of the POD designee on the bonds in question from Emma Scruggs to Clara Winesberry. (The parties to this proceeding agree that Clara Winesberry is one and the same person as appellant Clara Mayberry, sister of Mrs. Pierce and her sole surviving sibling.) It appears the change of beneficiary was effected through the Federal Reserve Bank, using standard government forms signed by both Marie Pierce and the trust officer of the bank. The bonds were not cashed but were reissued in the name of Marie Pierce as owner with Clara Mayberry as POD beneficiary. The conservator did not obtain a probate court order authorizing or approving the change or the release of the bonds to Mrs. Pierce.
On September 14, 1972, the probate court, on a petition for involuntary conservatorship, found that Mrs. Pierce was then an incapacitated person and it appointed Clara Mayberry as guardian of her person and the First National Bank as conservator of her estate.
On March 31, 1973, Marie Pierce died intestate, without spouse or children, and shortly thereafter the probate court of Sedgwick county appointed the Union National Bank of Wichita administrator of her estate. The administrator bank then commenced this proceeding to obtain instructions as to the disposition of the bonds in question.
In district court trial was to the court. That court held that inasmuch as the conservator did not secure any probate court direction permitting or authorizing the change of the POD designee by Mrs. Pierce that the action of the conservator was outside and beyond the authority granted it by law and therefore void. The court directed that the bonds not be delivered to Clara Mayberry but that they be distributed by the administrator as an asset of Marie Pierce’s estate. Clara Mayberry has appealed.
In reaching its decision the trial court adopted appellee’s argument that determination of the case is controlled by K. S. A. 1974 Supp. 59-3019, which enumerates the rights and duties of a conservator. Appellee argues the change of the POD beneficiary in the absence of a probate court order compromised the conservatee’s estate; that the conservator exceeded its statutory authority in permitting the conservatee to make the change and consequently the change is a nullity.
Appellant contends a voluntary conservatee has the right to designate such a beneficiary without the approval of the conservator or the court absent a showing that the conservatee lacked the necessary mental capacity so to designate; that the change was not a disposition of any portion of the conservatee’s estate at the time it was made and did not diminish her property in any way, and that Mrs. Pierce’s only alternative to that which was done would be for her to have the conservatorship terminated, designate the POD beneficiary in the interim and then reinstate the conservator-ship by a new voluntary petition.
Our present act for obtaining a guardian or conservator or both was enacted in 1965 to take effect January 1, 1966 (now K. S. A. 1974 Supp. Chap. 59, Art. 30). This act replaced our old probate guardianship proceedings. In it distinctions are made between an incapacitated person, a ward and a conservatee and between a guardian and a conservator. K. S. A. 1974 Supp. 59-3002 supplies these definitions:
“When used in this act: (1) The term ‘incapacitated person’ shall mean any person who is impaired by reason of mental, illness, mental deficiency, physical illness or disability, advanced age, chronic narcotic drug addiction, chronic intoxication, or other cause to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning either his person or his estate.
“(2) The term ‘guardian’ shall mean any person who has been appointed by a court of competent jurisdiction to exercise control over the person of an incapacitated person or of a minor.
“(4) The term ‘conservator’ shall mean any person who has been appointed by a court of competent jurisdiction to exercise control over tire estate of any person.
“(8) The term ‘ward’ shall mean a person who has a guardian.
“(9) The term ‘conservatee’ shall mean a person who has a conservator. . . .”
K. S. A. 59-3006 provides in pertinent part:
“The probate court having jurisdiction and venue of the proceedings may appoint:
“(B) A conservator for
“(1) an adult who has made application pursuant to section 7 (59-3007) of this act;
"(2) an incapacitated person who is unable to make or communicate responsible decisions concerning his estate;
“(3) a minor.”
K. S. A. 1974 Supp. 59-3007 provides that any adult person who is neither an adjudged incapacitated person nor a proposed ward or proposed conservatee may file an application for the appointment of a conservator for himself. Other statutes provide the procedure for establishing a conservatorship.
Thus it appears a mentally competent adult who has some physical condition or disability rendering the handling of his property difficult or impossible, may voluntarily apply to the probate court for appointment of a conservator of his estate. He may do this without the stigma of having a “guardian” as was the case under our prior law, associated as that term frequently was with the concept of mental incompetency or insanity. Euphemistically, this may be of significance to the individual affected although the functions of the conservator may be identical to those of a guardian of an estate under our former law. And in many situations the conservatorship might have the advantage over the sometimes used but questionable power of attorney in that the conservator is under bond under judicial supervision (see Cobean, “The New Kansas Philosophy Relating to ‘Care and Treatment’, ‘Guardains’ and ‘Conservators’ ”, 34 KBAJ, Winter, 1965, p. 329).
K. S. A. 1974 Supp. 59-3019 generally provides for the duties of conservator as follows:
“A conservator shall be subject to the control ánd direction of the court at all times and in all things. He shall (1) prosecute and defend for his conservatee; (2) sell assets of the estate when the interests of the conservatee and his estate require the sale thereof; (3) pay the reasonable charges for the support, maintenance, and educaiton of the conservatee in a manner suitable to his station in life and the value of his estate; but nothing herein contained shall release a natural guardian from obligations imposed by law as to the support, maintenance, and education of the conservatee in a manner suitable to his debts of the conservatee and the reasonable charges incurred for the support, maintenance, and education of his spouse and children; (5) possess and manage the estate, collect all debts and claims in favor of the conservatee, or with the approval of the court compromise the same; and (6) invest all funds, except such as may be currently needed for the debts and charges aforesaid and the management of the estate, in [named securities and obligations or in a named manner].”
In its brief appellee suggests Marie Pierce may well have been mentally incompetent and subject to undue influence from Clara Mayberry at the time she made the change of beneficiary in her bonds. Those matters could have been made issues in the action in the trial court but they never were, no such adjudications were made and appellee’s suggestion now is inappropriate. Mrs. Pierce was later declared to be an incapacitated person but at the time she made the change of beneficiary she must be regarded as mentally competent for the purposes of this action.
Federal treasury department regulations defining the rights of the owners and beneficiaries of United States savings bonds have the force and effect of federal laws (Lemon v. Foulston, 169 Kan. 372, 219 P. 2d 388). The regulation pertinent here provides that if the registered owner dies without the bond having been presented and surrendered for payment or authorized reissue and is survived by the beneficiary, upon proof of death of the owner the beneficiary will be recognized as the sole and absolute owner, and payment or reissue will be made as though the bond were registered in his name alone (31 CFR 315.67). Thus it would appear the plain intent of the owner is to be given effect unless to do so would violate some statute of our own or the dictates of public policy (see In re Estate of Cornelison, 178 Kan. 607, 290 P. 2d 1016, and cases therein cited). The statute relied on by appellee here to invalidate the change action is the following portion of K. S. A. 1974 Supp. 59-3019:
“A conservator shall be subject to the control and direction of the court at all times and in all things. He shall . . . (5) possess and manage the estate, collect all debts and claims in favor of the conservatee, or with the approval of the court compromise the same. . . .”
A conservator does have the duty to take charge of the conservatee’s estate and manage and conserve it for the support of the conservatee. The conservator’s duty, however, is to manage the estate dining the conservatee’s lifetime. It is not his function nor that of the probate court supervising the conservatorship directly to control disposition after death. A guardian has no power to make a will for his charge. Execution of a will by the latter does not therefore interfere with the fiduciary’s function (see Allen, Ferster and Weihofen, Mental Impairment and Legal Incompetency [1968], p. 283).
The foregoing principle forms the basis for the rule in Kansas as well as in virtually every other jurisdiction that a person under guardianship may execute a valid will if such person possesses the requisite testamentary capacity (In re Estate of Hall, 165 Kan. 465, 195 P. 2d 612; In re Estate of Perkins, 210 Kan. 619, 504 P. 2d 564; anno: Will-Capacity — Effect of Guardianship, 89 ALR 2d 1120; 1 Bowe-Parker: Page on Wills, § 1242).
And in similar vein with respect to designation of a beneficiary in a life insurance policy the universal rule is that the mental capacity necessary for a valid change of beneficiary by an insured is the same as that necessary to execute a valid will, deed or contract (44 Am. Jur. 2d, Insurance, § 1778, p. 692). Although not strictly in point we note that in the context vis-a-vis incompetent ward and his guardian it has been held the right to change the beneficiary in a life insurance policy owned by the ward remains a personal right of the insured over which the guardian has no power (see anno: Change of Incompetent’s Beneficiary, 21 ALR 2d 1191). Here the ward or conservatee was not incompetent and the conservator consented to the change. In In re Estate of Cornelison, supra, a guardian who wrongfully sold government bonds owned by his ward was required to account for them to the POD beneficiary named by the ward prior to her adjudication of incompetency. In doing so this court commented:
“Until the owner of the bonds was declared incompetent it is clear she could have converted these bonds or changed the manner of payment.” (p. 614.)
The rationale which allows a ward to dispose of property by will without the consent of his guardian or the court would seem to be applicable to disposition of savings bonds as in the present case. We have no precedent of our own with respect to our present voluntary conservatorship but find some elsewhere on an issue similar to that raised herein. California has an act pertaining to guardians and conservators closely parallel to our own (West’s Ann. Cal. Probate Code 1973 P. P. § 1701, et seq.). A recent decision there, Estate of Wood, 32 Cal. App. 3d 862, 108 Cal. Rptr. 522, upheld the exercise of a power of appointment by a person who was mentally competent but for whom a conservator of the person and estate had been appointed. The court noted that a conservatee may not make a present gift of assets of his estate, citing Place v. Trent, 27 Cal. App. 3d 526, 103 Cal. Rptr. 841, and then that the fact there is a legal guardianship does not establish the incompetency of a ward to make a will. The court explained that where an appointment of estate assets by the conservatee has the ambulatory character of a will, the conservatorship is no. impediment to the exercise of the power because the appointment would not take effect until the death of the conservatee and the estates assets would remain available for the oonservatee’s use if necessary during his lifetime.
The same reasoning should be applicable here with respect to designation of a POD beneficiary for savings bonds. The conservator did not surrender possession of the bonds for any purpose detrimental to the conservatee’s estate. The conservator merely complied with the conservatee’s request, enabling her to do something she was mentally competent to do — make disposition of certain property upon her death. The conservatee’s estate was not thereby diminished during her lifetime. Under such circumstances it cannot be said the conservator exceeded its authority by permitting Mrs. Pierce to make the change of beneficiary or that her act was void and the trial court erred in ruling otherwise. Upon the showing made appellant is entitled to the bonds in question and it is so ordered.
The judgment is reversed.
APPROVED BY THE COURT.
Fromme, J., not participating.
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The opinion of the court was delivered by
Foth, C.:
This is a divorce action in which the controversy on appeal is over the division of property. The case was heard on three separate days in December, 1972. On December 20, the trial court granted both parties a divorce on the grounds of incompatibility, granted the wife custody of the parties’ minor child, and ordered the husband to pay child support. No complaint is made of those portions of the judgment. Property division was taken under advisement, the court expressing an intent to make the division “just as nearly equally as it’s possible to divide it.”
After some further communication between court and counsel, to be discussed later, a judgment on the remaining aspect of the oase was rendered on April 19, 1973. The wife, feeling aggrieved, filed in sequence a motion to alter or amend the judgment, an amended motion to alter or amend, and a motion for relief from the judgment. These were each in turn overruled. She has appealed from that part of the judgment and all other orders that relate to the property division. She contends primarily that the trial court failed to achieve its objective of equality by undervaluing certain assets set over to the husband.
The parties had been married for over twenty-six years. She had taught school, while he had farmed and operated a small gasoline distributing business. The trial court found their gross estate to be worth $95,005, subject to debts of $28,650. Each party was awarded personal property over which there is no dispute. The chief valuation controversy is over two farms which were awarded to the husband, subject to the debts and an equalizing payment to the wife.
The two farms, both in Atchison county, were the 169-plus acres referred to as the “Jerome” place and the 82 acres known as the “Bechtold” place. The parties bought the Jerome place in 1963 for $26,000, the Bechtold place a year or two earlier for $10,000. Three court appointed appraisers fixed their valuation in December, 1972, at $32,500 and $18,000 respectively. Those were the values employed by the court in making the property division, and which the appellant wife contends are too low. Her main thrust is directed at the Jerome place, which she contends is worth at least $50,100; she offered to have it awarded to her at that figure.
In support of her contention she offered the opinion evidence of one Milton Handke. He was a neighbor owning land adjoining the Jerome place. He had lived in the area all his life, farmed 1200 acres, and had owned the adjoining farm for twenty years. He claimed familiarity with land sales in the area. He first offered to testify that he would be willing to pay $50,100 for the Jerome place, and this testimony was rejected. He was then asked his opinion as to market value, and an objection was again sustained. A proffer of his opinion testimony that $50,100 was the land’s fair market value was also rejected.
We conclude that it was error to reject this testimony when it was put in the form of an opinion on the market value. We have frequently held that a neighboring landowner who is thoroughly familiar with a piece of land is competent to express an opinion as to its value. See Fox v. Wilson, 211 Kan. 563, 507 P. 2d 252; Hodges v. State Highway Commission, 198 Kan. 80, 422 P. 2d 570, and cases cited. While the trial court is the first judge of a witness’s competence to give an opinion, there is no reason appearing in the record for rejecting the opinion testimony of this witness. He appears to have been fully qualified to give an opinion.
In fact, it would appear from various colloquies between court and counsel that the evidence was not rejected because the witness was not qualified, but because the trial court thought that the value fixed by the appraisers was binding unless directly impeached. The court indicated that no independent evidence of value would be received unless the appraisers were first called and asked about how they arrived at their valuation. We find no support for that proposition. There is no agreement in the record that the valuation of the appraisers was to be binding on the parties, and in the absence of such agreement we think any competent evidence of value should have been admitted, to be given such weight as the court saw fit.
The same type of “neighbor” opinion testimony was proffered and rejected as to the Bechtold tract. Although in this instance the discrepancy in valuation was not as great, we think the same error occurred.
A second and distinct controversy turns on the award of a matured but unharvested crop of soybeans, valued as of the date of divorce at $12,000. In a letter to counsel dated December 29, 1972, the trial court set out its tentative decision on the property division. In it, the soybeans were awarded to the wife. The husband’s equalizing payment on all property was fixed at $19,282.50, to be paid in by January 15, 1973. If this was not done, the court proposed that the Jerome place be put up for sale on sealed bids at private sale for thirty days, with the parties having the right to bid. The court recognized that “there may be a few minors bugs in either of these plans,” but wanted to get the information to the parties promptly so they could prevent waste of the assets.
The events that followed are somewhat unclear, and counsel’s statements of them vary. As recited in the journal entry, prepared by the trial judge in April because counsel could not agree, they were as follows:
Around January 8, the husband’s counsel telephoned the trial judge and advised him that there was some difficulty in raising the required cash equalizing payment, but that it would be easier to borrow the money if he had the unharvested soybeans; the judge indicated that such a change might be arranged. On January 12, the husband’s counsel conferred personally with the trial judge. At that time the judge definitely awarded the husband the soybeans, and he immediately paid $24,208.24 into the clerk’s office. On January 15 (the original deadline for the $19,282.50 payment first ordered) the husband made an additional and final payment of $10,282.50. (The total covered an education trust fund of $3,000 and, we assume, court costs in addition to the equalization payment.) Only after the change was definitely made and all the money paid in was the wife’s counsel advised of the judge’s change of mind.
Appellant’s complaint of this ex parte dealing is bitter, and is made more so by her assertion that the soybean market was skyrocketing during this period. She asserts first that the judge’s December 29 letter to counsel, which was filed with the clerk, was a final judgment under K. S. A. 60-258, which could only be altered on timely motion under K. S. A. 1974 Supp. 60-259. We cannot agree with this contention. She concedes that whether the letter constituted a judgment depends on whether the trial court considered it so and directed its entry. Roe Village, Inc. v. Board of County Commissioners, 195 Kan. 247, 403 P. 2d 970. Here, the court in its letter set forth two plans and noted that each probably had “bugs” in it. The language used clearly implies that the letter was tentative, and subject to later modification.
Nevertheless, we cannot approve the ex parte modification made here, even though'modification was within the trial court’s authority. Compare, Smith v. Smith, 171 Kan. 619, 237 P. 2d 213. The change made here was one of substance, on which the wife had a right to be heard even if she might not prevail. The only justification offered by the husband for not making more serious attempts to notify opposing counsel was the pressure of the January 15 deadline. If this were not met, he says, he might have had to expose the Jerome place to the risk that the wife or some stranger might outbid him. We fail to' see how this helps him. If anything, it tends to indicate that the Jerome place was undervalued.
Finally, complaint is made of the valuation put on the gasoline business awarded to the husband. An item by item listing of the assets by him gave a valuation of around $10,500, although he was uncertain as to some items and thought his inventory for tax purposes was high. The trial court ascribed to the business an “adjusted value” of $6,600, which the wife says is unsupported by any evidence. We must confess that we are unable to find in the record the basis for the adjustment made by the trial court, although there may have been a perfectly sound one.
We have concluded that the cumulative effect of the factors noted above requires a new trial on the issue of property division. At that trial each party will be free to introduce such relevant evidence as may be desired bearing on the valuation of the property as of December 20, 1972, and on a just and reasonable division thereof. Because of the peculiar nature of the difficulties en countered in the first trial, we deem it expedient that the new trial be before a different trial judge, and we so direct. Although neither party complains about the exact equality of division sought by the original decree, we do not believe the new judge' should necessarily be bound by that portion of the judgment, either.
In view of our disposition of the case, other matters raised need not be considered. The judgment is reversed and the case is remanded for a new trial in accordance with the views expressed herein.
APPROVED BY THE COURT.
Kaul and Owsley, JJ., dissent.
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The opinion of the court was delivered by
Owsley, J.:
Plaintiff, Aretha Jones, appeals from a judgment of the trial court denying her action for specific performance of an oral contract to leave to plaintiff all property owned by decedent, Walter Cooper, in return for services rendered by plaintiff. The trial court found that plaintiff failed to establish by clear and convincing evidence the existence of a contract and that she performed services for the decedent in reliance on the contract. Plaintiff contends there was no evidence to sustain the trial court’s findings and a contract should not be unenforceable because of uncertainty, when one of the parties has performed his part of the contract.
Walter Cooper died intestate on June 27, 1970, leaving an estate of both real and personal property. During the year prior to his death, he became physically ill and depended on plaintiff to perform services for his benefit and to assist him in conducting his affairs. These services consisted in part of checking him out in the mornings, seeing that he had his breakfast, preparing his dinner, assisting him with his hogs, helping him in the garden, doing his washing and ironing, and doing his housework. Plaintiff was not paid for these services.
Plaintiff testified that on or about September 13, 1969, she made an oral contract with Cooper to the effect that if she would continue to look after him, he would give everything he had to her at his death. She also stated that Cooper asked her to put the agreement in writing and that he dictated to her the document subsequently introduced into evidence in the following form:
My Will
“I Walter H. Cooper in good health and sound mind do give Aretha Jones the power to take care of me in sickness and death.
“She has stood by me for over 20 yrs, and whatever I own will go to her.
“Walter Cooper
“Witnesses
“Earl E. Edlund
“Jack Moore”
Plaintiff further testified that Cooper signed this document and she retained it in her possession until a few days after his death. She stated that after Cooper’s death she took the document to Mr. Moore and Mr. Edlund, who read, signed and witnessed it.
In support of her claim plaintiff offered the testimony of seven witnesses. Earl Edlund testified Cooper mentioned to him. how good plaintiff was to him and that he would like to have his property go to her. Jack Moore testified Cooper told him on several occasions that he wanted plaintiff to have everything he left behind. Goins Jones testified Cooper told him he had turned everything over to plaintiff. Nelson Grubbs testified that on one occasion Cooper told him he wanted everything to go to plaintiff. George Ikert testified Cooper told him he wanted plaintiff to have his things because she was seeing after him and taking care of him. A. Davis Bey testified Cooper told him anything he had in his possession he would leave for plaintiff and that if he had anything left he would rather plaintiff have it. Mrs. Bey testified Cooper told her plaintiff had been awful nice to him and he would like for whatever he had to go to plaintiff because he didn’t have anyone else he wanted to have his property.
The administrator of the estate of Walter Cooper offered no evidence of testimony in defense of its position, so the sufficiency of the evidence to establish the claim of plaintiff is dependent upon the foregoing testimony.
In an action for specific performance of an oral contract with a person since deceased, the contract must be established by evidence that is clear and convincing. (Bond v. Bond, 154 Kan. 358, 118 P. 2d 549; In re Estate of Hargreves, 201 Kan. 57, 439 P. 2d 378; In re Estate of Shirk, 194 Kan. 424, 399 P. 2d 850.) “Clear and convincing evidence” is defined in Shirk as follows:
“The term ‘clear and convincing evidence’ means that the witnesses to a fact must be found to be oredible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.” (Syl. ¶ 2.)
It is not sufficient that the existence of a contract be shown by a preponderance of evidence. This strict requirement is based upon the inherent danger of fraud in claims against the estates of deceased persons. (In re Estate of Shirk, supra.)
A similar factual situation was presented in In re Estate of Duncan, 186 Kan. 427, 350 P. 2d 1112. An action for specific performance was brought to enforce an alleged oral contract between the petitioner and his deceased aunt, whereby the petitioner was to have a quarter-section of land after her death in return for the petitioner’s assistance during her lifetime. The evidence offered in support of the alleged contract was the testimony of the petitioner and a memorandum in the handwriting of the decedent which indicated the petitioner was to inherit the property in question. There was also testimony of several witnesses to the effect the decedent had told them at various times that the petitioner was doing good work, that she was pleased with him, and that he was to have the quarter-section of land at her death.
Based upon this evidence, the trial court found the alleged contract had not been established, although the court recognized the decedent probably intended to at some time will the land to the petitioner. In affirming the decision of the lower court, we stated:
. . While testimony on behalf of the petitioner was undisputed that the decedent held him in high esteem, relied upon his judgment, and appreciated the many, many favors he performed for her, and that she made statements to the effect she was going to give him the land in controversy or that at her death it would be his or that she might want to change her will, nevertheless, there was no direct or corroborated testimony that the parties entered into a contract such as alleged by the petitioner. . . .” (p. 434.)
In speaking of the requirements of an oral contract which are asserted as the basis for specific performance of a claim against the property of a decedent, we noted that to uphold the contract it must be shown that the contract is definite in its terms, its enforcement equitable, and its performance must be established on the part of the promisee; i. e., the performance must be attributable to the alleged contract as distinguished from some other relationship between the parties. The mere fact that services of a valuable character have been performed in the expectation of a legacy is not sufficient to entitle the person performing the services to enforcement of an oral contract. It must also appear the services were performed in reliance upon a specific contractual agreement.
We pointed out the memorandum in the Duncan case was testamentary in character rather than contractual. The decedent had undoubtedly intended to will the land to the petitioner, but her attempt to do so was clearly ineffective. Having failed in that endeavor, this court was powerless to change her will after death. Although there were circumstances which, if believed by the trial court, might have justified the reasonable inference that a contract was entered into, they were insufficient to require a reversal of the trial court’s judgment.
Much the same result was reached by this court in In re Estate of Shirk, supra; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354; In re Estate of Winters, 192 Kan. 518, 389 P. 2d 818; and In re Estate of Mueseler, 188 Kan. 407, 362 P. 2d 653. Each of these cases stands for the proposition that there must be evidence of a contract, and not just testimony of the decedent’s, intent to devise his property as a reward for services.
Plaintiff cites the cases of In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253; In re Estate of Hargreaves, supra; and In re Estate of Dull, 184 Kan. 233, 336 P. 2d 435, in support, of her claim. In each of the cited cases it was concluded the evidence justified a decree of specific performance. The evidence in these cases was more substantial than the evidence in the instant case. The difference in substance was to the extent that we cannot consider the cited cases as authority to support plaintiff’s contentions.
The only evidence supporting the existence of a contract in this case is the testimony of plaintiff, and whatever significance may be given to the document signed by the decedent. None of the witnesses presented by plaintiff testified as to the existence of a contract. The most that can be said as to their testimony is that they heard the decedent say plaintiff had been good to him and he wanted her to have his property. The document signed by decedent does not provide the essential elements of a contract. The document is more testamentary in context than contractual. It evidences a desire of Cooper to reward plaintiff for services rendered rather than a fulfillment of an agreement. Some significance could be given to the fact plaintiff was not paid by decedent for her services. The failure to pay for services is consistent with the existence of a contract, but this fact in itself does not prove a contract was made.
There was no testimony that plaintiff performed services for the decedent in fulfillment of the oral contract. To the contrary, there was testimony that plaintiff performed the same services and assisted the decedent in much the same manner prior to the date of the oral contract. As previously stated, in order to enforce an oral contract on the basis of the performance of the promisee, it is essential that the performance be attributable to the alleged contract as distinguished from some other relationship.
It was the function of the trial court to determine from all the facts and circumstances whether there was a contract between the parties. Under the facts in this case we cannot say the trial court’s conclusion was contrary to the evidence or that there was no. evidence in the record to support it. We realize the effect of the trial court’s decision was a determination that plaintiff had failed to meet the burden of proof. We considered this point in Fox v. Wilson, 211 Kan. 563, 507 P. 2d 252, and developed the following rule:
“The effect of a negative finding is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the trial judge, the finding cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” (Syl. ¶ 8.)
We conclude the finding of the trial court should not be disturbed and the judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from a district court judgment denying the application of the Kansas commission on civil rights for an order directing the state labor commissioner to comply with a subpoena duces tecum issued by the civil rights commission.
The proceeding grows out of a complaint filed April 20, 1972, with the KCCR by Beulah Van Burén, a black American, wherein she alleged that the job opportunity center at Hutchinson had discriminated against her because of her race in its job referral practices, in violation of the Kansas act against discrimination (K. S. A. 44-1001, et seq., as amended). The job opportunity center is an agency of the employment security division, state labor department, established to provide employment office services to the public. The same complaint by Mrs. Van Burén had been the subject of litigation in Reno county under an ordinance of the city of Hutchinson, which litigation was on appeal to this court while this proceeding was pending in the trial court and was decided December 8, 1973 (City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P. 2d 117).
During the course of its investigation of the complaint with which we are here concerned, and on February 9, 1973, the KCCR issued a subpoena duces tecum upon appellee Darrell D. Carlton, state labor commissioner and chief officer of the state labor department. This subpoena, issued pursuant to authority granted the KCCR by K. S. A. 1974 Supp. 44-1004 (5) was served upon Mr. Carlton by leaving a copy with a secretary in his office. The subpoena duces tecum requested the following items:
“1. Complainant’s Kansas State Employment Service No. 511 Card or application card to the Kansas State Employment Service, Hutchinson Job Opportunity Center. All Kansas State Employment Service No. 511 Cards of persons who were referred to the jobs that the Complainant was referred.
“2. Test scores of Complainant and test scores of all applicants referred to the same job and/or jobs that former was referred.
“3. All job orders received by Kansas State Employment Service, Hutchinson Job Opportunity Center from six months prior to the Complainant’s first application to January 19, 1972. These job orders shall include job bank and local job orders that were received by the Hutchinson Job Opportunity Center.
“4. Records or computer read-outs for the year January 1971 to January 1972. These read-outs shall show the number of referrals, number of disadvantaged referrals, number of placements. Also, this read-out information shall show the number of referrals to $1.00 to $1.50 an hour jobs; $1.50 to $2.00 an hour jobs; $2.00 to $2.50 an hour jobs; $2.50 to $3.00 an hour jobs; $3.00 to $3.50 an hour jobs and $3.50 an hour and up jobs. This shall include the number of minority referrals to each category and total number of referrals in each category as well.
“5. Testimony from employees of Hutchinson Job Opportunity Center, Kansas State Employment Service who referred the Complainant to the various business establishments mentioned in the complaint.”
Mr. Carlton did not comply with the subpoena and on February 23, 1973, the KCCR initiated the present proceeding by filing an application in the trial court pursuant to 44-1004 ( 5) for an order directing Mr. Carlton to comply with it. The KCCR sought an ex parte order on the date the application was filed; however, the trial court declined to issue such an order and directed the labor commissioner be given notice of the filing of the application and an opportunity of being heard upon it. The commissioner responded with a variety of motions seeking to avoid the issuance of a compliance order. He also filed an answer in which he asserted the application was not made by the real party in interest in that it should have been made by the investigating commissioner; that no claim upon which relief could be granted had been stated; that improper service had been had upon him and. the court had no jurisdiction because service had not been had upon him as a state officer by service upon the attorney general. He also alleged items three and four of the subpoena were immaterial and irrelevant and that item five asked for testimony of employees of the Hutchinson job opportunity center. Additionally Mr. Carlton filed a “third party complaint” asking that the members of the KCCR be enjoined from proceeding further until the city of Hutchinson case pending before this court was decided — this on the assertion that under the doctrine of concurrent jurisdiction the district court of Reno county had obtained primary jurisdiction over the entire matter concerning Mrs. Van Buren’s complaint of discrimination. The trial court heard the matter and on June 18, 1973, rendered its decision in a memorandum opinion. It sustained a motion by the KCCR to strike the third party complaint. It ruled that although an ex parte order had been requested it was vested with discretion to require notice and hearing before requiring compliance with a subpoena issued by the KCCR; that service of such a subpoena must be made on the party required to respond and K. S. A. 1974 Supp. 60-304 (d) requiring service of summons upon state agencies to be made on the attorney general was not applicable; that the Reno county action was brought under the limited provisions of a city ordinance and the Reno county district court was not in a position to determine the whole controversy nor afford complete relief, by reason of which the priority principles of concurrent jurisdiction were inapplicable; that items one and two of the subpoena duaes tecum were proper; that items three and four were overbroad, oppressive and unreasonable, and that item five was too broad unless modified; that the trial court did not have power to modify the subpoena and because portions of it were too broad, the application for an order directing compliance had to be denied. The trial court rendered judgment accordingly.
The KCCR appealed from the rulings adverse to it and the labor commissioner filed notice of cross-appeal from those adverse to him. However, the latter failed to perfect his cross-appeal and it was dismissed by the trial court.
Before dealing with appellant KCCR’s points upon appeal certain procedural matters urged by appellee-state labor commissioner in support of- the trial court’s judgment should be considered.
Appellee renews his contention the subpoena was defective because it was signed by the executive director of KCCR rather than an investigating commissioner who had responsibility for the investigation of the particular complaint. K. S. A. 1974 Supp. 44-1004 (5) simply provides that the commission may issue subpoenas, etc. There is no statutory requirement that a subpoena shall be issued or signed by an investigating commissioner or any other particular type of commissioner or officer. The subpoena here was in the name of the Kansas commission on civil rights, signed by its executive director, Anthony D. Lopez. The executive director is a statutory officer whose duties with KCCR are fulltime (K. S. A. 1974 Supp. 44-1003). From the nature of the position signing a subpoena issued by the commission manifestly would be included among his functions as the commission might prescribe. Appellee’s contention is without merit. Nothing said herein should be construed to mean that no one other than the executive director of KCCR may properly sign subpoenas issued pursuant to 44-1004 (5).
Appellee contends the subpoena duces tecum was invalid be cause it was not served upon the attorney general as required by K. S. A. 1974 Supp. 60-304 (d). That statute provides:
“Summons; personal service. The summons and petitions shall be served together. The plaintiff shall furnish the clerk such copies of the petition as are necessary. Service shall be made as follows:
“(d) Governmental bodies. . . . upon the state or any governmental agency of the state, when subject to suit, by delivering a copy of the summons and petition to the attorney general or an assistant attorney general.”
This statute provides a method of service of summons once a petition is filed in an action against the state or a state agency. The document in question here is not a summons as that term is used in connection with the commencement of a lawsuit under K. S. A. 60-301 — it is a subpoena requesting appellee to furnish appellant with certain documents. Other statutes provide for service of a subpoena. Appellee is a state officer but the statute relied upon by him on its face is not applicable to a subpoena and the trial court properly ruled that is was necessary only to serve the subpoena upon the person asked to respond, the appellee.
Appellee also asserts the subpoena was. defective and invalid because it was not served on him but instead was served on a secretary in his office. Appellant responds to' this contention, and we think correctly so, that this point was not raised in the trial court but is raised for the first time on appeal and hence the irregularity is to be deemed waived. It is true appellee’s answer alleged improper service had been had upon him but this was asserted only in connection with the failure to serve a copy of the subpoena upon the attorney general. The record on appeal contains a transcript of the argument before the trial court upon the issue of improper service but there is no' mention therein of service upon a secretary rather than upon appellee. In presenting his point that service had not been had on the attorney general counsel for appellee specifically pointed out that service had been had on appellee personally rather than as a state officer. Our rule that an issue not presented to the trial court cannot be a subject for appellate review is particularly appropriate here because had it been raised the irregularity could have been promptly remedied without further ado. The same can be said of appellee’s belated contention that notice to him of appellant’s application in district court was improperly served on a secretary rather than on him.
Appellee also points out in his brief that our employment secur ity law contains limitations on disclosure of information. Here again this issue was not pleaded in appellee’s lengthy answer. Had it been, it would not have been applicable by reason of an exception stated therein. The statute relied upon, K. S. A. 1974 Supp. 44-714 (f), provides in pertinent part with respect to the keeping of certain work records and reports:
“Information thus obtained or obtained from any individual pursuant to the administration of this act, shall, except to the extent necessary for the proper presentation of a daim, be held confidential, and shall not be published or be open to public inspection (other than to public employees in the performance of their public duties) in any manner revealing the individual’s or employing unit’s identity. . . .”
Appellant is a public agency seeking the information in question in the performance of its public duties and is within the exception.
We turn now to the three points raised by appellant on its appeal. It first contends the trial court had no authority to require that notice and corollary right to be heard be given appellee of the filing of appellant’s application for an order directing compliance with the subpoena duces tecum. Appellant sought an ex parte order at the time it filed its application. Its argument is it should be no more difficult or burdensome on the KCCR to obtain a court order for compliance with a KCCR subpoena than it is for a party to a civil suit to obtain a subpoena. Appellant then points to language in K. S. A. 1974 Supp. 60-245 (a) stating that -the clerk of the district court shall issue a subpoena to the party requesting it, who shall fill it in before service. However, the statute in question here is significantly different. K. S. A. 1974 Supp. 44-1004 generally authorizes the civil rights commission to receive and investigate complaints alleging discriminatory employment practices, to subpoena witnesses, compel their appearance, require the production for examination of records, documents and other evidence or possible sources of evidence and further provides:
“• . . . In case of the refusal of any person to comply with any subpoena, interrogatory or search warrant issued hereunder, or to testify to any matter regarding which he may be lawfully questioned, the district court of any county may, upon application of the commission, order such person to comply with such subpoena or interrogatory and to testify; and failure to obey the court’s order may be punished by the court as contempt. . . .” (Emphasis supplied.)
Without laboring the matter, we think the statutory language just quoted admits a measure of discretion in the trial court as to whether or not such an order should be issued ex parte. We find nothing in any other portion of the statutes not quoted or cited which suggests a different interpretation or that there is any single exclusive method whereby a recalcitrant respondent may have his day in court as to whether the commission is acting arbitrarily or in excess of its authority. Our holding is, a district court has discretion as to whether notice and right to be heard shall be given a respondent of the filing of an application by the commission on civil rights for an order directing compliance with a subpoena issued by it.
Appellant asserts the trial court erred in finding that items three and four of the subpoena were too broad in scope, unreasonable, oppressive and representative of an unwarranted fishing expedition. Item three sought all job orders received by the Hutchinson job opportunity center for the six month period prior to Beulah Van Buren’s first job application up to January 19, 1972. Item four sought records or computer read-outs for the year January 1971, to January 1972, showing the number of job' referrals, number of “disadvantaged” referrals and number of placements, the number of referrals to the jobs classified by six different hourly pay scales and die number of minority referrals in each category.
In Yellow Freight System, Inc., v Kansas Commission on Civil Rights, 214 Kan. 120, 519 P. 2d 1092, we were concerned with the scope of KCCR’s subpoena power. As adopted there the test of relevancy to be applied for documents subpoenaed is that the inquiry must be one which the civil rights commission is authorized to make, the demand for production must not be too indefinite and the information sought must be reasonably relevant. See also Atchison, T. & S. F. Rly. Co. v Lopez, 216 Kan. 108, Syl. ¶ 6, 531 P. 2d 455. In Yellow Freight System, Inc. we further held:
“Where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry.” (Syl. ¶ 4.)
In his answer appellee simply alleged items three and four were “immaterial, irrelevant and incompetent”. He did not allege the requests for this information were oppressive or that it was unreasonable for him to comply with them nor was any showing to that effect made by him. At the hearing before the trial court, appellant’s counsel asserted that appellee’s employees at the Hutchinson office had sometime previously prepared, and had ready for delivery if ordered by the court, the requested material. This assertion, repeated in appellant’s brief, has gone unrefuted by appellee, at the hearing and in his brief. The subpoena on its face stated it was in furtherance of the complaint of Mrs. Van Burén against the labor commissioner. Her complaint was she had received discriminatory job referral treatment. This is a subject within KCCR’s statutory authority. That which was necessary in investigating the charge was initially to determine whether the services rendered by appellee to the complainant were the same or similar to those rendered to others similarly situated. Comparisons necessarily are brought into play and it would appear the records sought were relevant for that purpose. The trial court made no specific finding of irrelevancy although it did characterize these items as fishing expeditions. In Atchison, T. & S. F. Rly. Co. v. Lopez supra, this court held:
“Administrative subpoenas which have previously been condemned as ‘fishing expeditions’ are now permitted, and .administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.” (Syl. f 7.)
The principal objections and argument raised by appellee against disclosing the information requested in items two and three appear really to be based on the premise the labor department has not in fact discriminated against the complainant, Mrs. Van Burén. That could be the case but that is exactly the issue appellant is trying to investigate and determine further down the road and it is within appellant’s statutory duty and competence SO' to do. Our conclusion is the trial court erred in ruling as it did with respect to items two and three of the subpoena.
Appellant finally urges the trial court erred in concluding it had no authority to modify a subpoena in this type of proceeding either by rewording or by striking particular sections. The court held the subpoena had to stand or fall in its entirety. As already indicated, appellee had no objection, other than procedural, to the request for the information contained in items one and two, although it apparently was never supplied, and the trial court held those items were proper. It did invalidate the requests contained in items three and four and held that item five as worded by appellant was too broad unless modified. The court evinced special concern as to that which was sought in item five and after hearing evidence by appellant to the effect 'that by the word “testimony” in item five was meant written statements or records already compiled and in the file in the form of written memoranda, it concluded item five would be proper if worded as follows:
“Any written statements from employees of Hutchinson Job Opportunity Center, Kansas State Employment Service who referred the Complainant to the various business establishments mentioned in die complaint that refer to Beulah Van Burén or others referred to the same jobs.”
K. S. A. 1974 Supp. 44-1004 (5) provides that the “commission may issue subpoenas . . . and may issue interrogatories to a respondent to the same extent and subject to the same limitations as would apply if the subpoena or interrogatories were issued or served in aid of a civil action in the district court”. In Yellow Freight System, Inc. v. Kansas Commission on Civil Rights, supra, this was stated:
“The code of civil procedure provides upon application of one against whom a subpoena is issued the court may quash or modify a subpoena if it is unreasonable and oppressive. (K. S. A. 1973 Supp. 60-245 [b].)” (Emphasis supplied.) (p. 125.)
It appears a district court has power to modify a subpoena and thus remove any objectionable features from it while preserving the remainder. See 9 Wright and Miller, Federal Practice and Procedure: Civil § 2457, pp. 437-438. We know of no reason why a district court should not, a fortiori, have the same power with respect to a subpoena duces tecum issued by KCCR and we so hold.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
approved by the court.
Fromme, J., not participating.
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Prager, J.
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The opinion of the court was delivered by
Fromme, J.:
This action was brought against a former employee and director of a corporation for violation of the trust imposed in him as an employee and director of Parson's Mobile Products, Inc. (Mobile). The employee and director, William F. Remmert, resigned his office as president and general manager of Mobile and then actively initiated the organization of a similar business, Parsons Custom Products, Inc. (Custom). The newly formed corporation was joined in this action. Both corporations were formed for the purpose of building special mobile units such as ambulances, bookmobiles and recreational vehicles. Mobile and its directors Baugh, Echols, Conder, and Jones filed claims against Remmert and Custom for damages and for a permanent injunction to prevent further alleged -unfair competition and unlawful trade practices.
After a full trial to the court judgment was entered in favor of the defendants, Remmert and Custom. The plaintiffs appeal.
The trial court made detailed findings of fact and the points raised on appeal are directed toward the sufficiency of the evidence to support the trial court’s findings. We will address ourselves to the points raised after we set forth some of the background facts giving rise to the controversy.
Mobile was incorporated in 1967 for the primary purpose of customizing special purpose motor vehicles. Its office and principal place of business was in Parsons, Kansas. It employed fifteen to twenty people. The original incorporators were from the Parsons community. By 1970 certain debts had accumulated until it became necessary to obtain new capital for the business. Remmert, as director and general manager of Mobile, announced a sale of stock. Four businessmen from Texas (Baugh, Echols, Conder and Jones) became interested in Mobile and purchased all of the outstanding stock except 24 shares retained by Remmert. There was a full disclosure of the financial status of the company before the sale. The company was losing $5,000.00 to $7,000.00 per month.
After the sale Remmert was elected president and continued as general manager of Mobile. Three of the Texas directors and Remmert then arranged for a $200,000.00 loan from a Texas bank to raise the necessary operating capital for the company. Each of the four directors, including Remmert, assumed personal liability for the loan up to a maximum of $50,000.00.
The company continued to operate at Parsons and continued to lose money. Its debts exceeded its assets by a substantial sum. Early in 1971, the Texas directors began to talk about moving the company to Texas. Remmert remained loyal to Parsons. He did not want to move the company to Texas. The Texas directors continued discussions on the subject and it became apparent to Remmert in March of 1972, that a move to Texas would occur. Remmert then began to make inquiries and in April, 1972, he wrote to the Parsons Chamber of Commerce to ascertain if there was sufficient local interest in the business to form a corporation and continue the business in Parsons. This was prefaced upon the assumption that Mobile would become inactive or move to Texas.
As a result of Remmert’s efforts articles of incorporation were prepared and executed by three local businessmen and Parsons Custom Products, Inc. was organized with authority to begin business on July 18, 1972. Remmert did not own stock in the new company but it was understood that he could, at his option, acquire eaual ownership with the original incorporators.
Remmert as president and general manager of Mobile had been instructed by the board of directors in May, 1972, not to accept orders for vehicles which could not be completed before July 15, 1972, the date fixed for the corporation’s move to Texas. However, Mobile did continue manufacturing vehicles in Parsons until August 17, 1972, at which time all employment in Parsons was terminated. No director’s meetings have been recorded in the books of the company since July 6,1972.
On July 6, 1972, the Texas directors of Mobile requested the resignation of Remmert as president and general manager of Mobile. His resignation was immediately given and thereafter Mobile operated without a general manager until the orders previously accepted by it were completed. On August 17, all work on such orders was completed and all employees were notified that their employment with Mobile was terminated.
Remmert had been employed by Custom the day after his resignation was requested and accepted by Mobile. On July 10, in anticipation of the foregoing events, Remmert was elected to the board of directors and was made president and general manager of the newly organized corporation (Custom). It was at this time that he began seeking work orders for Custom. None of the orders obtained by Remmert for Custom were to be completed before the cut off date of July 15.
Seven former employees of Mobile were hired by Custom in August after their employment had been terminated by Mobile. A bookkeeper and one other employee did begin work for Custom in the evenings prior to the time they were terminated by Mobile. These two employees “moonlighted” at Custom in the evenings while working for Mobile during the daytime. As a result of the efforts of Remmert the newly organized corporation became actively engaged in customizing motor vehicles in Parsons shortly after July 18, 1972. The older corporation, Mobile, ceased to do business arid moved to Texas. It remained dormant after employment in Parsons was terminated on August 17,1972.
Now let us review some of the basic rules of law applicable to the present appeal. This case was tried to the court. On appeal it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is concerned only with the evidence which supports the trial court’s findings and not with the evidence which might have supported contrary findings. (Rymph v. Derby Oil Co., 211 Kan. 414, Syl. ¶ 3, 507 P. 2d 308.) When a case is tried to the court and the evidence is heard orally the district court’s findings in the case have the force and effect of a jury’s verdict and if supported by substantial evidence the findings will not be disturbed on appellate review. (McAdam v. Firemans Fund Insurance Co., 203 Kan. 123, Syl. ¶ 1,452 P. 2d 851.)
The officers and directors of a corporation occupy a position of trust, sometimes referred to as a fiduciary position, with respect to the corporation and its stockholders. (Meinhard v. Salmon, 249 N. Y. 458, 164 N. E. 545.) By reason of the position of trust which an officer or director holds the law will not permit him to manage the affairs of the corporation for personal or private advantage. The duty imposed by this position of trust requires an officer or director to work for the general interests of the corporation. (Abbott v. Inland Oil Inc., 161 Kan. 316, 167 P. 2d 287.) It is generally recognized in the absence of an agreement not to compete that a director or officer on termination of his position with the company will not be precluded from entering into and engaging in a business enterprise independent from, though similar to, that conducted by the corporation itself, provided in doing so he acts in good faith and does not interfere with that business enjoyed by the corporation. (19 Am. Jur. 2d, Corporations, § 1282, p. 690.) At the time a director or officer is removed or resigns from the corporation his position of trust with the corporation is terminated. It is generally held in such case that even before termination he is entitled to make arrangements to compete, except he cannot properly make use of confidential information peculiar to the corporations business and acquired therefrom. Thus, he may purchase or initiate a rival business before the end of his relationship as an officer or director and upon termination of his employment immediately compete. (United Aircraft Corp. v. Boreen, 413 F. 2d 694; Spring Steels, Inc., Aplnt. v. Molloy., 400 Pa. 354, 162 A. 2d 370.) This is a country of free enterprise based upon competition. The essential inquiry on any charge of unfair competition is good faith. Good faith will insulate a former officer or director from liability unless it is shown the rival business was intentionally operated for the purpose and in such a way as to be unfair and detrimental to the former employer-corporation. (Tovrea Land and Cattle Company v. Linsenmeyer, 100 Ariz. 107, 412 P. 2d 47.)
Appellant, Mobile, contends the evidence established that Remmert interfered with the operations of Mobile by hiring its employees, using its property and interfering in the continued operations of the corporation.
The trial court made the following finding in this regard:
“. . . [T]hat in conducting such activities, defendant Remmert, individually or as agent of defendant corporation, did not interfere with the remaining operations of plaintiff company by hiring plaintiffs’ employees, using plaintiffs’ property, or interfering in any other manner. The Court finds that defendant Remmert in fact encouraged employees to stay in plaintiffs’ employment to finish projects currently under construction. The Court finds that the only evidence of use of plaintiffs’ equipment by defendants is a small temporary use of an air compressor and saw, the value of which cannot be ascertained by the Court from the evidence. The Court finds that there is no substantial evidence that defendants took possession of any of the buildings or property of plaintiffs or hindered plaintiffs in any way in the operation of their business.”
The appellants next contend the evidence established that Remmert made false public statements about the plaintiff corporation for the purpose of causing it to lose existing business contracts. The trial court specifically found that no false public statements were made by Remmert.
The appellants contend the evidence established that Custom used advertising materials which were the exclusive property of appellants and subject to the protection of the law.
Generally it is recognized that copying or imitating circulars and advertisements is strong evidence of fraud and unfair competition, especially where the advertisement is calculated to deceive the public and to pass the goods off as those of another. (87 C. J. S., Trademarks, Etc., § 119, p. 402.) Where one manufactures a product similar to his former employer’s product and sells such goods without distinguishing marks, using similar sales methods and advertisements in order to appropriate his good will, a charge of unfair competition has been sustained. (Plastics Research v. Norman, 243 Ark. 780, 422 S. W. 2d 121.)
The trial court found:
“. . . [T]hat after commencing business, the defendants caused to be prepared and circulated in publications advertising materials similar to that of plaintiff corporation. The Court finds that the various advertising materials were not exclusively property of plaintiff corporation and were not of such a nature to be confidential information subject to protection by law; that because of its special nature, the advertising for all such equipment manufactured by different companies is very similar in nature and is published in the same news media and circulated to similar sources.”
In the present case the charge made against Custom does not involve trademark or copyright material. Mobile had discontinued business in the area four months before the publication of the advertisements complained of and it has since remained dormant. The advertising used was of a standardized nature for that general type of business.
A charge of unfair advertising is not sustained when the com plaining company previously discontinued business in the area, when the advertisements are more or less standard for that type of business, when no trademark or copyright is involved and when said advertisements are not used to deceive the public or pass the goods off as those of another.
The appellants next contend that Remmert on behalf of Custom improperly solicited and took over orders and contracts from customers of Mobile. The trial court found:
“. . . [T]hat sometime in the latter part of May or June of 1972, when the individual plaintiffs as directors of plaintiff corporation were considering moving to Texas or closing the plant operations due to continued losses, the defendant Remmert was instructed by them to accept no work that could not be produced by July 15th, and that they would make a definite decision at a later time with regard to future production. Plaintiffs then decided to complete nine units of production for the State of Alaska and these units were produced and completed by the middle of August, 1972; that all manufacturing operations of plaintiff corporation terminated at that time and there has been no manufacturing activity of plaintiff corporation since. The Court finds that because of the decision to terminate production by July 15th, or on completion of the Alaska units, that plaintiff corporation could not have produced the two units for the Cerebral Palsy Foundation which were contracted for and produced by defendant corporation.
“The Court finds that while defendant Remmert served as president and manager of plaintiff corporation, he had no written contract of employment and plaintiff corporation had the right to discharge him as manager or he had the night to resign at any time; that there was no provision prohibiting defendant Remmert, in case of his resignation, from setting up an independent business of the same character as that of plaintiffs or from soliciting customers of the plaintiffs for such business.
We have made a careful review of the record and there is substantial evidence to support each of the above findings of the trial court. It is apparent from the evidence that Remmert’s purpose in initiating the new corporation was not to compete or to force Mobile to cease operations in Parsons, Kansas. Custom was initiated and organized as a backup corporation to begin business if and when Mobile terminated its business and ceased employing workers in Parsons. Termination of business operations in Parsons by Mobile was imminent when the new corporation was formed. Even after Remmert resigned he urged the employees of Mobile to remain at work and to complete existing orders. In the course of finishing the last existing orders of Mobile, employees of Custom assisted the employees of Mobile in solving technical difficulties they encountered. This was done with the knowledge and approval of Remmert.
When the customer list of a business is not confidential and the business is of such a nature as to rely on open competition to secure orders a former employee may solicit former customers of his employer without being guilty of unfair competition. (Garst v. Scott, 114 Kan. 676, 220 Pac. 277, 34 A. L. R. 395; 42 Am. Jur. 2d, Injunctions, § 112, p. 860.) It cannot be said in the present case that Remmert deprived Mobile of customers or orders. July 15, 1972, was the date which Mobile’s directors set as the cut off date for its manufacturing operations in Parsons. The orders for the two units ordered by the Cerebral Palsy Foundation were not to be completed and delivered until after this cut off date. By setting the cut off date, July 15, 1972, Mobile in effect refused to accept these two Cerebral Palsy orders. Therefore, Custom did not deprive Mobile of such orders.
An officer or director is not chargeable with lack of good faith toward his corporation in regard to a contract previously held by it once the corporation has refused to renew or accept that contract. In such a case the officer or director is free to form a new company and secure a contract for the new company. (3 Fletcher, Cyclopedia of Corporations, § 856, p. 217; c. f. Abbott Redmont Thinlite Corporation v. Redmont, 475 F. 2d 85; American Window Cleaning Co. of Springfield, Mass. v. Cohen, 343 Mass. 195, 178 N. E. 2d 5.)
Under all the evidence it appears that Remmert acted in good faith in initiating and operating the new business. Custom was not organized as a rival business and was not actually and demonstrably the cause of Mobile’s termination of business in Parsons.
Appellants argue that although Remmert resigned as president and manager of Mobile he remained a director and his actions constitute a breach of fiduciary duty owed as a director in that he failed to work for the general interests of the corporation.
After the Texas directors asked for and received the resignation of Remmert they held no further director’s meetings. As late as September 11, 1972, Remmert tried to resign as director and wrote Mr. N. H. Conder, president of Mobile, stating that he “would like at this time to completely sever all relations with the company.” No answer to- the letter was forthcoming. Remmert was not consulted by the Texas directors after July 6, 1972, and they thereafter wound up the business of Mobile in the Parsons’ plant without consulting him.
. It would appear that the Texas directors by their actions in excluding Remmert from the decision making process of the corporation effectively terminated his position of trust with the company. It should be emphasized that no director’s meetings were called after July 6,1972. The corporation was insolvent at that time and remains so. After July 6, Remmert was a director in name only. The other directors who held title to all of the stock, except that owned by Remmert, excluded him from further participation as a director. Under such circumstances it cannot be said that Remmert violated a viable position of trust as a director of Mobile.
The findings of the trial court are supported by substantial evidence and the judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a conviction of murder in the second degree (K. S. A. 21-3402). Defendant was charged and tried on a two count information. In' count No. 1 he was charged with murder in the first degree (K. S. A. 21-3401) and in count No. 2 with rape. Defendant was convicted of murder in the second degree on count No. 1 and acquitted of the charge of rape on count No. 2. Defendant’s defense at trial was that the killing was in self-defense and that the alleged rape was a voluntary sexual agreement between the victim and himself.
The state’s evidence consisted of a statement made by defendant, the testimony of several police officers, and the testimony of Debra Chase, the alleged victim of the rape and the wife of the murder victim, Roosevelt Chase. Although there was considerable conflict in the testimony, the sufficiency of the evidence is not challenged on appeal.
The events giving rise to the charges occurred during the night of July 11, 1973. Defendant resided in an apartment house in Kansas City, Kansas. His apartment was on the same floor and across the hall from the apartment occupied by the Chases.
Debra Chase testified that during the evening in question defendant confronted her in her apartment and forced her to accompany him to his apartment where he bound her with an extension cord, taped her mouth, and raped her. Defendant’s version was that Debra made overtures, voluntarily accompanied him to his apartment, and engaged in sexual intercourse. While these events were taking place Debra’s husband (Roosevelt) returned to the apartment building, knocked on defendant’s door, and inquired if his wife was there. Defendant unsuccessfully attempted to convince Chase that his wife was not in defendant’s apartment. Failing to convince Chase, defendant went out into the adjacent hallway where he was met by Chase who, defendant said, was carrying a gun. Debra testified that defendant had the gun at the time he raped her and also had a knife with which he had threatened her.
According to defendant, he and Chase had previously arranged to handle some marijuana which he had hidden in his sister’s garage. According to defendant’s statement, after the confrontation with Chase in the hallway, defendant went out to his car, which would not start; then he came back into the apartment house and told Chase, whereupon Chase offered to drive defendant to his sister’s house. After defendant and Chase arrived at the sister’s house an argument ensued — first outside the house and later in the garage, where defendant and Chase got into' a fight. According to defendant he was armed with a knife and Chase was armed with the gun. In the course of the ensuing scuffle, defendant got the gun away from Chase and shot him once; Chase fell in a corner of the garage, behind an automobile. Defendant at this point had the gun in one hand and the knife in the other. Defendant said that after Chase was shot he commenced shouting for help and trying to get back on his feet. At this point, defendant said — “I got scared and stabbed him again in the chest three or four times.” Defendant stated that he left the garage and proceeded to the basement of his sister’s house where he took a shower and changed clothes.
Defendant’s brother-in-law, Clarence Williams, came down to the basement where defendant told him what had happened. Defendant turned over the .38 caliber revolver to his brother-in-law. Defendant’s sister, Carmen Williams, and her husband, Clarence, persuaded defendant to accompany them to the police station. Before reaching the station, however, defendant jumped out of the Williams’ car and ran to a girl friend’s apartment. Mrs. Williams later contacted her brother and again persuaded him to agree to call the police and surrender himself. Mrs. Williams was with defendant when he gave his statement to Detective Parks.
At the police station Detective Parks immediately had defendant sign a waiver of rights and began interrogating him concerning the killing. After the statement was completed, charges were filed against the defendant.
Defendant’s first point of error is that his statement was erroneously admitted into evidence. Defendant advances several arguments in this regard. As we have noted, the statement in question was taken by Detective Parks of the Kansas City Police Department, and that, prior to any interrogation, defendant was given a full “Miranda warning” about which there is no dispute. Defendant challenged the statement by a motion to suppress before trial (K. S. A. 22-3215). After hearing evidence the trial court denied the motion. Defendant’s first argument on this point is that Detective Parks, by promising to speak to the judge if defendant cooperated, induced him to make the statement. As narrated in the record, the testimony of Parks is that after a brief discussion about the killing of Chase, Parks told defendant that if he cooperated with the police that Parks would make the fact known to the judge. Parks further testified during the hearing on defendant’s motion to suppress that he did tell the trial judge of his promise to defendant. Parks made no representation to defendant that the court might be more lenient nor did Parks make any representation which could have generated any hope of immunity on the part of defendant. When a trial court, pursuant to the provisions of 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused and determines the statement was freely, voluntarily and intelligently given, and admits the statement into evidence at the trial, this court, on appeal, will accept such determination if it is supported by substantial competent evidence. (State v. Law, 214 Kan. 643, 522 P. 2d 320; State v. Brunner, 211 Kan. 596, 507 P. 2d 233; and State v. Harden, 206 Kan. 365, 480 P. 2d 53.) Statements by interrogating officers, similar to that made by Detective Parks, have been held not to be such an inducement as would vitiate a confession. For example in Hargett v. State, 235 Ark. 189, 357 S. W. 2d 533, the interrogator told accused he would “help him all I could” if he confessed. In The People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33, cert. den. 380 U. S. 961, 14 L. Ed. 2d 152, 85 S. Ct. 1104, the officer told defendant it would go easier in court for you if you confessed. (See, also, Brooks v. State, [Del.], 229 A. 2d 833, and The People v. McGuire, 39 Ill. 2d 244, 234 N. E. 2d 772, cert. den. 393 U. S. 884, 21 L. Ed. 2d 160, 89 S. Ct. 193.) The record discloses that defendant had given a part of his confession before he asked Parks to convey the fact of his cooperation to the judge. While there was some conflicting testimony surrounding the giving of the statement, we believe there was ample evidence to support the trial court’s determination.
Concerning his statement, defendant also complains that Parks rephrased some of defendant’s words. Parks testified that defendant had ample opportunity to read the statement, that some changes were made, but that defendant initialed each change, signed each page, and signed the statement after reading it in its entirety. We find no merit in defendant’s argument in this regard.
Defendant makes the further argument that his excited mental state, at the time, precluded the .admission of his statement. The general rule concerning the effect of a defendant’s mental condition is stated in 2 Wharton’s Criminal Evidence (12th Ed.), § 386:
“Evidence tending to establish that a confesser was ill or in a hysterical condition, and therefor not in full possession of his facilities at the time he confessed his guilt, does not affect the admissibility of the confession, but bears on the weight and effect to be given the confession.” (pp. 119-120.)
A similar matter was considered in State v. Brunner, 211 Kan. 596, 507 P. 2d 233, wherein we held:
“The mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact.” (Syl. ¶ 5.)
We find no error shown in the admission of defendant’s statement on any of the grounds urged.
Defendant's second point relating to the admission into evidence of pictures of the victim’s body has been abandoned on appeal.
In his third point on appeal, defendant claims error in the ad mission of the record of prior convictions in Allen County for assault with intent to do great bodily harm to a man and a separate count of felonious assault on a woman. Defendant contends the introduction of his prior convictions was used only to prejudice the jury, rather than as proof of any of the permissible elements of an offense enumerated in K. S. A. 60-455. Defendant further argues that the Allen County assault offenses are not so similar to rape and murder as to be admissible under 60-455. Defendants contentions are directed only 'to the admission of the evidence in question. He makes no complaint concerning the court’s 'limiting instruction which was submitted to the jury in connection with the admission of the prior convictions.
We note first the record does not show that defendant lodged an objection to the introduction of the evidence as required by K. S. A. 60-404 in order to secure appellate review. The statute provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objeotion.”
See, also, State v. Cantrell, 201 Kan. 182, 440 P. 2d 580, cert. den. 393 U. S. 944, 21 L. Ed. 2d 282, 89 S. Ct. 315; and State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S 1025, 16 L. 2d 1030, 86 S. Ct. 1981.
Nevertheless, we have examined the record in this regard. The Allen County offenses consisted of an assault with a gun upon a man who was shot several times and a felonious assault upon his female companion with the intent to rape her. In the instant case the defenses asserted were self-defense as to the murder charge and voluntary sex as to the rape charge. Thus, intent and motive were at issue. Under such circumstances we believe the probative value of the prior offenses was not substantially outweighed by the prejudicial nature of the recitation of the prior crimes. (State v. Johnson, 210 Kan. 288, 502 P. 2d 802.)
Defendant next contends the trial court committed reversible error in submitting instruction No. 18, which instructed that if defendant were found guilty of murder in the first degree the punishment prescribed is death or imprisonment for fife, and that it was the jury’s duty to determine which of the 'two punishments the defendant should receive under the provisions of K. S. A. 21-4501. Defendant admits no objeotion was made, but contends that since a constitutional issue is involved the question is properly before us. At oral argument the district attorney informed us that at the time of trial he was not aware of our decision in State v. Randol, 212 Kan. 461, 513 P. 2d 248. In Randol we considered the case of Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726, and held the death penalty provision of our statute to be constitutionally impermissible. We pointed out that a trial oourt, in a Class A felony case, should no longer instruct a jury as to the death penalty. However, we said in Randol:
". . . [T]he instruction ... in the present case did not constitute prejudicial error since the jury fixed a penalty of life imprisonment.” (p. 471.)
Since the jury’s verdict in 'the case at bar was murder in the second degree, we do not believe the instruction in question rises to the degree of reversible error under the 'circumstances.
In his last point defendant argues the verdict rendered by the jury was inconsistent. The substance of defendant’s theory is that since the jury did not believe Debra’s testimony concerning the alleged rape it was inconsistent for the jury to believe her testimony concerning the 'altercation preceding the killing of Chase. We cannot agree with defendant’s rationale of the jury’s verdict. The only evidence concerning the rape charge was the conflicting testimony of defendant and Debra Chase. As to the murder charge, Debra’s testimony was only prefatory to the critical events surrounding the killing of Chase. The evidence produced by the state, both circumstantial and direct, was sufficient to prove all of the elements of second degree murder. There was latitude in the evidence for the jury to find defendant guilty of murder and not guilty of rape. The jury simply did not believe Debra’s testimony as to the rape charge. When confronted with a similar contention in State v. Freeman, 198 Kan. 301, 424 P. 2d 261, we cited the landmark case of Dunn v. United States, 284 U. S. 390, 76 L. Ed. 356, 52 S. Ct. 189, 80 A. L. R. 161, and held a verdict of guilty on a robbery charge not 'to be inconsistent with a verdict of not guilty on a charge of forcible rape. (See, also, State v. Hund, 115 Kan. 475, 222 Pac. 766; State v. Hobl, 108 Kan. 261, 194 Pac. 921; and State v. Wheeler, 95 Kan. 679, 149 Pac. 701.)
We find no error warranting a reversal, therefore the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by James Cross, Jr., (defendant-appellant) from a conviction of voluntary manslaughter (K. S. A. 21-3403). The primary point asserted on appeal controlling our decision concerns the admissibility at the trial of a prior conviction pursuant to K. S. A. 60-455.
On April 2, 1973, one Joe Forte was stabbed to death at his home located at 2320 North 9th Street in Kansas City, Kansas. At that time the defendant lived with Forte on a rental basis and did various odd jobs about the household. The information charged that the defendant willfully and deliberately with premeditation and malice aforethought murdered Forte by stabbing, while in the perpetration or attempt to perpetrate the crime of robbery (K. S. A. 21-3426), contrary to K. S. A. 21-3401.
The record on appeal discloses very little of the state’s evidence. As far as we can gather from the record and briefs, the defendant made at least three statements to the police, all in varying degrees of incrimination. The defendant was identified as the person who cashed Forte’s pension check on the evening of the crime; and the defendant was identified as the person who emerged from Forte’s home on the evening of the crime carrying articles of personal property and the pension check belonging to Forte.
During the state’s case in chief a conference was held by the court with the attorneys for the defense and state regarding the state’s desire to introduce into evidence Exhibit No. 12, which purported to be a 1958 order from the State of Michigan sentencing the defendant to imprisonment for three to fifteen years for robbery while armed with an automatic weapon. The state urged the prior conviction was admissible under K. S. A. 60-455 to show knowledge, intent and lack of mistake in taking the pension check and personal property from Forte. The defendant contended the fifteen-year-old conviction was too remote to the offense charged to be relevant.
Tony Kovac, a booking officer with the police department, testified that the defendant’s fingerprints were identical to the fingerprints attached to Exhibit' No. 12 (the 1958 Michigan conviction). At this point the exhibit had not been identified before the jury or offered into evidence.
After Kovac’s testimony, a proceeding was held outside the hearing of the jury. The defendant again objected to the admission of the prior conviction on the grounds that the only reason it was being introduced was to prejudice the jury; it was irrelevant; too remote in time; and the exhibit was vague and indefinite as to the particulars of the crime. The state intended to offer Exhibit No. 12 into evidence and told the court that a witness would verify the document’s authenticity. The court took the matter under advisement at that time.
After the state rested its case, Dr. Shufang Chang, a psychiatrist working with the Wyandotte County Health Center at the time of the trial, testified for the defense. Dr. Chang had previously served on the staff at the Osawatomie State Hospital where she had examined and treated the defendant in August of 1971, when he had been admitted to the hospital in a drunken condition. The defendant remained hospitalized and under the doctor’s care until November of 1971. The defendant was given medication to sober him up and then was put on librium which he continued to take up to the time of the trial. The doctor testified that while the defendant was a patient at Osawatomie he was cooperative and never violent. Dr. Chang considered the appellant to be a highly suggestive person based on the fact that he followed directions so well. The witness also testified that if the defendant drank liquor and took medication on the same occasion he would become very confused and disorganized and would black out for a period as long as 72 hours, during which he would not realize what he was doing, but afterward there would be a possibility he would remember what he had done during the black out period.
Also testifying on behalf of the defendant was Edward Watson, a real estate broker and owner of a retail liquor store, who had known the appellant for about ten years. On direct examination Watson testified in response to questions that he trusted the defendant; recognized the defendant had a “drinking problem”, but nevertheless considered him a “fine fellow” and honest; he did not believe the defendant committed the crime; and he had never known the defendant to be violent when he was either drunk or sober.
On cross-examination of Mr. Watson the prosecutor asked the following question:
“I will just ask you this, Mr. Watson. Would it change your mind any if you knew this man had been convicted of an armed robbery with an automatic weapon in the State of Michigan?”
The defendant immediately interposed an objection and the court admonished: “The jury will not consider that.”
Thereafter, a conference was held between the court and the attorneys out of the hearing of the jury. The court then said to the prosecuting attorney:
“I don’t think you can go into that until you decide whether this is a properly authenticated record [Exhibit No. 12] and what it amounts to. I don’t know yet whether it will be in evidence. So I would advise that you not get into it. I have something to check here.” ,
The prosecutor argued the defendant had put his character in issue and, therefore, it was proper to inquire whether the character witnesses were aware of the prior conviction. The court then stated that he would “have this decided by morning, and you [the prosecutor] will have plenty of chance to get into it if I admit it.”
The following morning the court advised counsel that he had decided to receive Exhibit No. 12 into evidence for the limited purposes of showing appellant’s motive, intent, and lack of mistake or accident under K. S. A. 60-455. The defendant once again objected that the prior conviction should not be admitted because it was too remote in time, and because there was no similarity be tween the 1958 conviction and the alleged crime for which he was then being tried. The appellants counsel explained that with respect to the 1958 conviction the defendant pleaded guilty where three or four people were involved in the crime and some other party in the group had the weapon.
During the same conference the prosecutor inquired if he would be permitted to cross-examine the appellant on the witness stand about the previous conviction. The court ruled that since he was reluctant to admit the prior conviction anyway, he would not allow the prosecutor to question the defendant about the prior conviction, if the defendant did not attempt to explain or discuss it in his direct examination. In ruling on this matter the court said:
"... I am a little reluctant to let these things in, anyway, because my own personal feeling is that despite these limiting instructions, some of what Mr. Brunk says is true. They consider it for broader purposes. This is a 15-year-old deal. I would say that if he doesn’t attempt to explain, you will not be permitted to question him about it.”
A little later the court said: “The thing I want to avoid here . . . is an overamplification of this 15-year-old conviction which I think we could easily blow clear out of proportion here.”
No attempt was made by the prosecuting attorney out of the presence of the jury to show the circumstances or similarity of the prior crime, evidenced by Exhibit No. 12, to the charges for which the defendant was on trial. On this point the court said:
“Well, the document speaks for itself. It is in, and it will be in. Of course, anything he goes into, you have a right to cross-examine him about it.”
The defendant took the stand and testified that he had been admitted to the Larned and Osawatomie State Hospitals on several occasions because of a “drinking problem”. For four or five years previous to the trial the defendant had experienced black outs. He took medication that Dr. Chang had prescribed for him and when he drank a large amount of liquor while on medication he would “go into a coma.”
The defendant testified that around noon on April 2, 1973, Forte returned to the residence they shared. Forte had received a pension check in the mail that day, and when the defendant said he was going down to 10th Street for a while and then to his dentist’s office, Forte gave defendant the pension check and told him to pick up some groceries while he was out.
While visiting with some friends in front of a liquor store on 10th Street, the defendant began drinking and continued until sometime that night. The defendant did not remember when he quit drinking except that it was night. The next thing the defendant remembered was being awakened in the living room of Forte’s house by one George Bright, who told the defendant Forte was dead in the kitchen. According to the defendant he got up and looked at Forte; then Bright convinced him they ought to get out of the house so they departed in Bright’s automobile. As they drove around Bright encouraged the defendant to cash Forte’s pension check (which he still had) but the defendant refused, though he allowed Bright to cash it at a gasoline station.
After Forte’s death was discovered by the authorities, the defendant and Bright were put in jail together. While in jail, the defendant made various statements to the police in which he admitted killing Forte in self-defense. However, at the time of the trial, the defendant contended he did not kill Forte under any conditions. He accounted for the discrepancy between his previous statements and his testimony at the trial by testifying that while in jail George Bright and another unknown individual convinced him he should not “snitch” on the actual killer, or the defendant’s young daughter would be in danger and the defendant himself would be subject to an accident, such as falling from some high place, once he got to Lansing. According to the defendant, these threats were the reasons for his original statements to the police.
Additional light is thrown upon the admission of Exhibit 12 in evidence by the following remarks of the trial judge:
“I will give an instruction that will attempt to limit this for one purpose as having some bearing on his intent, his lack of mistake or accident.
“Now, I am a little puzzled in this case when I get down to the instructions. It comes down to this. The State contends he committed the killing while attempting a robbery. There is little evidence on that.”
After the defense rested the trial court instructed the jury, among other things, that the defendant could be found guilty of murder in the first degree for maliciously killing Forte in an attempt to commit the crime of robbery, and the defendant could be found guilty of voluntary manslaughter if he intentionally killed Forte by stabbing him during a sudden quarrel or in a heat of passion.
The trial court also gave an instruction to the jury limiting its consideration of Exhibit 12, under 60-455, as bearing upon the defendant’s motive, intent, or absence of mistake or accident in connection with the incident involved in this case.
In closing argument the prosecuting attorney referred to Exhibit 12 and made the following argument:
“I direct your attention to State’s Exhibit 12, which shows you in 1958 this man was convicted of armed robbery with an automatic weapon, not a toy gun, not anything. In the State of Michigan this man, who has been painted to be so nonviolent, they beat him up, takes checks and sits there not fighting back, he was capable in 1958 of committing the crime of aggravated armed robbery with an automatic weapon. That’s this nonviolent, nice young man sitting here.”
No objection was made by defense counsel to this argument, but in his brief counsel for the appellant argues: an objection and argument on the point would have served only to overemphasize and exaggerate the prior conviction to the appellants disadvantage.
One of the most troublesome areas in the trial of a criminal case is the admissibility of prior convictions of the defendant for the limited purposes authorized under K. S. A. 60-455. From the motley of cases decided by this court since the enactment of the New Code of Civil Procedure, which became effective on January 1, 1964, an attempt will be made to analyze some of the more recent decisions designed to give guidance to trial courts in the application of the legislative intent expressed in 60-455.
K. S. A. 60-455 provides:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The foregoing section was first before this court in State v. Wright, 194 Kan. 271, 398 P. 2d 339, and the defendant contended that evidence of prior convictions, offered against him was barred by the rule that the prior conviction had no relevant purpose, other than to show his disposition to commit crime as the basis of an inference that he committed the crime for which he was being tried. The court, however, held that the evidence was admissible as tending to prove identity of a person committing the forgery in question and other elements of the offense. In the opinion the court stated the rule of evidence set forth in 60-455, supra, as applied to criminal proceedings had not materially changed the case law as it had developed in Kansas prior to the enactment of 60-455, supra.
Since State v. Wright, supra, the statutory rules of evidence have been stated in amplifying language which indicates a more conservative approach in the admission of evidence of prior convictions, particularly on the element of intent. There must be a marked similarity of pattern from which an inference of intent may be drawn, where the issue of intent is in doubt and not established from the facts giving rise to the commission of the present offense.
The former conviction must have some peculiar significance, other than its force in showing a disposition of the defendant to commit crime, as a circumstance to support the charge of guilt in the present case. The offer of a previous conviction to prove intent, where intent is a necessary element of the crime charged, may be the same thing as offering it to show the defendant’s bad character and thus a disposition for criminal intent — a result which is not permissible under the 60-455, supra.
Relevancy must first be established before a former conviction may be received to prove some element of the crime charged. Relevancy, although the primary test, is not the only test. The trial judge is under a duty to weigh the probative value of such evidence for the limited purpose for which it is offered against the risk of undue prejudice, in keeping with the philosophy expressed in K. S. A. 60-445 and the fundamental rule of discretion.
K. S. A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
Thus, in State v. Davis, 213 Kan. 54, 515 P. 2d 802, the defendant was convicted on two counts of selling heroin. The prosecution’s witness testified as to two prior convictions when he purchased heroin from the defendant. This court held relevancy to prove some material fact was not the only test of admissibility of evidence of past crimes under 60-455. The thrust of the court’s opinion is that the probative value of evidence of past crimes must first be weighed against its prejudicial nature, and even though relevant to some issue of material fact, it must not be admitted if the risk of prejudice to the defendant is greater than the probative value of the evidence.
The Davis case was followed by State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022, where the defendant was charged with first degree robbery and a prior conviction, offered for the purposes of K. S. A. 60-455, was a plea of guilty to assault with intent to rob. In the opinion the court said:
“. . . On the basis of the record before us we must conclude that the prior conviction only tended to prove disposition to commit crime and it should not have been admitted in evidence in the present case. Its relevancy is questionable, its probative worth as to any of the eight statutory factors of proof is highly suspect, its prejudicial impact seems out of proportion to its probative value and confusion from proof of the prior crime may reasonably have resulted in prejudice to the defendant. (See State v. Motley, 199 Kan. 335, 430 P. 2d 264.)
“When the trial court admitted evidence of this prior crime to prove all eight of the statutory factors of proof without considering how and in what way they might be relevant to prove the crime charged it abused its judicial discretion. The case must therefore be reversed and remanded for a new trial.” (p. 528.)
The relevancy of a prior conviction to the offense charged is linked in the similarity of the two offenses. In State v. Johnson, 210 Kan. 288, 293, 502 P. 2d 802, similarity of prior offenses with the present charge was held to be sufficient to establish relevancy on the issue of identity. The prior convictions were first degree murder and the offense charged was first degree murder. The evidence presented at the trial disclosed the previous homicides were similar to and, in fact, almost identical with the characteristics of the offense for which the defendant stood charged. The victims in the previous homicides were stabbed with a knife at numerous places on their bodies. In the opinion the court said:
“. . . Where one or more of the elements or incidents of an offense numerated as exceptions under K. S. A. 60-455 is an issue in the case, we have repeatedly held that the similarity of the two offenses makes the previous conviction relevant. . .
Former convictions of burglary and conspiracy to commit burglary were held not sufficiently similar to the illegal possession of firearms, and thus not admissible under 60-455, supra. Neither was conspiracy to commit burglary so similar to conspiracy to commit robbery as to make evidence thereof admissible under 60-455 in State v. Sullivan & Smith, 210 Kan. 842, 849, 504 P. 2d 190.
Perhaps the best statement of the rule regarding similarity of the prior conviction to establish relevance to the charges for which the defendant is being tried is set forth in State v. Gunzelman, 210 Kan. 481, 488, 502 P. 2d 705:
“Evidence of unrelated offenses is generally inadmissible under the statute. The requirements of the statute should be strictly enforced. To justify departure from this general inadmissibility the trial court should conduct a hearing in the absence of the jury to determine probative value as to one or more of the eight elements to which such evidence must be relevant, i. e. motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. When in the discretion of the court there is a pattern, similarity or connection between the facts surrounding the prior offense and the one with which the accused is presently charged which has relevance in proving specific matters in issue, the prior conviction may then be admitted. Such evidence may only be admitted with proper limiting instructions. (See State v. Motley, 199 Kan. 335, 337, 338, 430 P. 2d 264, and State v. Taylor, 198 Kan. 290, 424 P. 2d 612.) The state did not attempt to have the evidence of prior offenses admitted in accordance with K. S. A. 60-455.” (Emphasis added.)
Generally the remoteness in time of a prior conviction if otherwise admissible, affects the weight of the prior conviction rather than its admissibility. In other words, the probative value of a prior conviction progressively diminishes as the time interval between the prior crime and the present offense for which the defendant is on trial lengthens. Thus a seventeen-year-old conviction admitted at a trial before a jury was permitted in State v. Fannan, 167 Kan. 723, 207 P. 2d 1176; a 28-year-old conviction was excluded because it had no probative value in State v. Owen, 162 Kan. 255, 176 P. 2d 564; a conviction approximately twenty years old at the time of the trial was admitted in evidence and affirmed on appeal in State v. Jamerson, 202 Kan. 322, 449 P. 2d 542; and two offenses, one eleven years and the other sixteen years old, were admitted before a jury as prior offenses in State v. Finley, 208 Kan. 49, 490 P. 2d 630.
In State v. O’Neal, 204 Kan. 226, 461 P. 2d 801, the defendant was convicted of second degree murder at a trial where a 29-year-old prior conviction for felonious assault was admitted under 60-455, supra. The trial was to the court, and on appeal it was held remoteness of the prior conviction did not render it inadmissible, but there was no showing of similarity between the prior conviction and the present charge, so the prior conviction should not have been admitted. In the opinion the court said:
“The determination of relevancy is a matter left to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense.
“The prosecution in the present case urged the prior conviction to prove intent to commit the present crime and to show the shooting did not occur through mistake or by accident. The prior conviction was for felonious assault. The authenticated copies of the conviction do not show the facts, circumstances or nature of that assault or the means by which it was accomplished. From the record before us we cannot say a weapon was used in the prior assault. There may or may not have been similarities in the facts of that case which would be relevant to prove intent or absence of mistake in the present case. (See State v. Taylor, [198 Kan. 290, 424 P. 2d 612]; State v. Motley, 199 Kan. 335, 430 P. 2d 264; State v. Owen, [162 Kan, 255, 176 P. 2d 564]; State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Frizzel, 132 Kan. 261, 295 Pac. 658.) On the basis of the record before us we conclude the prior conviction for felonious assault should not have been admitted in evidence in the present case.” (p. 231.) (Emphasis added.)
For a rather exhaustive review of the cases decided by this court under K. S. A. 60-455 and an enlightening discussion on the subject see, Gard, Kansas Code of Civil Procedure, 1974 Supp. § 60-455.
A summary of some of the basic principles announced in our decisions interpreting 60-455 may be found in State v. Bly, 215 Kan. 168, 523 P. 2d 397.
Turning now to the facts in the instant case it is readily apparent the trial court was concerned with the admission of the fifteen-year-old prior conviction of the appellant. Exhibit No. 12 was established to be a duly authenticated copy of a 1958 order from the State of Michigan sentencing the appellant to imprisonment for three to fifteen years for robbery while armed with an automatic weapon. The authenticated copy of the conviction did not show the facts, circumstances or nature of the robbery. It was admitted in evidence by the trial court as relevant because “the document speaks for itself”. No effort was made by the prosecution to establish the facts, circumstances or nature of the prior offense. The trial court admitted the exhibit with no knowledge of the facts surrounding the prior offense. Under these circumstances the probative value as to one or more of the eight elements to which such evidence must be relevant was not established. The only enlightenment in the record tending to indicate the nature of the prior offense was the statement of counsel for the appellant in arguing the dissimilarity of the prior offense. The appellant’s counsel explained that the appellant entered a plea of guilty in the 1958 conviction, where three or four people were involved in a robbery and some other party in the group had the weapon. Assuming these facts the similarity of thé two offenses is not sufficient to establish relevance. At the trial the issue of intent was in doubt, but there was no showing of a marked similarity of pattern concerning the prior offense from which an inference of intent could be drawn. The admission of the prior conviction placed in evidence to prove intent had no peculiar significance other than its force in showing a disposition of the appellant to commit crime, a result prohibited by 60-455.
Here the appellant was charged with felony minder — the murder of Forte by stabbing, while in the preparation or attempt to perpetrate the crime of robbery. The trial court in its comment noted “there is little evidence on that”. The parties to this appeal have not seen fit to favor this court with the state’s evidence introduced to prove the offense charged, and the various statements made by the appellant while in custody have not been set forth in the record.
As previously stated, the remoteness in time of a prior conviction, if otherwise admissible, affects the weight of the prior conviction rather than its admissibility. There is no hard and fast rule by which it can be determined when evidence of prior crimes, if otherwise admissible, becomes irrelevant because of intervening time and the matter is left largely to the discretion of the trial judge. (State v. O’Neal, supra.) Clearly, the relevancy of a prior crime to prove any of the elements in K. S. A. 60-455 diminishes as the time interval between the prior conviction and the present charge lengthens. Considering the remoteness in time of the prior conviction admitted in the case at bar coupled with the failure of the state to establish the similarity of the prior offense with the charge for which the defendant was on trial, we believe the prejudicial nature of the prior conviction far outweighs its probative value as evidence. As heretofore noted there is “little evidence” that at the time of the alleged murder the appellant was perpetrating or attempting to perpetrate a robbery. Under the circumstances the prejudicial impact of the prior conviction upon the jury was far out of proportion to its probative value, if any, to establish the statutory factors for which the trial court admitted it in evidence.
Other points asserted by the appellant have been carefully reviewed but on the record presented are found to be without sufficient merit to warrant discussion in this opinion.
The judgment of the lower court is reversed with directions to grant the appellant a new trial.
Fatzer, C. J., and Fromme, J., dissent.
Fontron, J., concurs in the result.
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The opinion of the court was delivered by
Harman, C.:
Ronald E. Carson was convicted by a jury of the offense of attempted burglary. He now appeals from the judgment and sentence imposed.
Certain trial errors alleged require review of the prosecution’s evidence. The property which was the subject of the offense was a building occupied by Pruitt’s Pawnshop in Augusta. On June 15, 1973, at about 8:10 p. m., two Augusta police sergeants saw appellant standing in front of the pawnshop. He was observed to take something from his pocket with which he appeared to be prying on the hasp of the screen door. When appellant noticed the police officers watching him he entered an automobile and left the scene. Sometime after 9:00 p. m. that same evening a woman saw appellant standing inside the screen door of the pawnshop with what looked like a jack handle in his hand; it appeared he was trying to get the inside door open. The woman immediately notified the police, giving a description of appellant and his clothing. Two policemen arrived at the pawnshop at 9:20 p. m. They observed the door partially open; the lock had been torn from the screen door and a small window above the door knob on the inside door had been knocked out. A substance that appeared to be blood was on the sidewalk, the threshold, the door knob and on pieces of broken glass lying inside the door.
A few minutes later a police sergeant received a call that the suspect, Ronald Carson, had been located at the Augusta Recreation Center. Proceeding there the sergeant found appellant in the presence of three other police officers. He was bleeding from a laceration on his right index finger. The sergeant asked him how he cut his finger. Appellant replied he had locked himself out of his car and had cut his finger on the right door glass while trying to get the car door unlocked. The sergeant inspected appellant’s vehicle and found that the right window glass on it was missing. The entire window was gone but there were no particles of broken glass to be found and there was dirt in the window track which indicated the window had not just been knocked out.
Appellant was taken to the police station where he was informed of his constitutional rights and arrested for burglary. Appellant’s blue jeans which appeared to have blood stains on them were taken from him and these as well as pieces of glass, tools and scrapings from the door knob were all sent to the Wichita police forensic laboratory for examination.
Appellant’s first specification of error derives from testimony respecting the examination of these articles. The officer who collected them testified that the glass and other articles appeared to have blood stains on them. The officer then testified twice upon direct examination he had sent them to the laboratory for the purpose of determining whether the stains on them were human blood and that the tests were made. He twice testified a report from the laboratory had been made and that he had seen the report. Then the following occurred:
“Q. Has anything come to your attention since June 15, 1973, that would indicate to you that this was not blood on this glass?
“No.”
The result of the laboratory tests was not otherwise put into evidence. Appellant’s motion to strike the testimony quoted above as hearsay and for want of proper foundation was overruled. A statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible, with certain exceptions (K. S. A. 60-460). Had the sergeant testified the laboratory report stated the stains on the exhibit were blood his testimony would have been inadmissible. Instead the sergeant testified he had seen the report and that nothing had come to his attention to alter his conclusion the stains were blood. No exception to the hearsay rule exists with respect to a written report of the result of a laboratory blood test. In order to receive such a report into evidence a foundation must be laid as to the identity of the report and the manner of examination (State v. Foster, 198 Kan. 52, 422 P. 2d 964). The testimony here circumvented these rules, deliberately it would appear, inasmuch as it was elicited twice in most instances as a result of leading questions put to the witness by the then county attorney. A lawyer should not by subterfuge put before a jury matters which it cannot properly consider (Code of Professional Responsibility, ABA, Ethical Consideration 7-25). Our conclusion is the trial court erred in permitting the challenged testimony to be considered by the jury.
Appellant also urges the trial court erred in admitting, over objection, the testimony of the other police sergeant concerning statements made by appellant as to how he had cut his hand, in the absence of any prior Miranda warning as to the right to remain silent, use of any statement made and right to the presence of an attorney. Elaborating the evidence already related, this sergeant was one of the two officers who earlier in the evening had observed appellant standing in front of the pawnshop apparently prying on the screen door. This officer also had later, after a police report and description of appellant had been broadcast, gone to the pawnshop where broken glass and bloodstains were plainly visible. He testified that at about 9:47 p. m. he received a radio message that “the suspect, Ronald Carson” had been located at the recreation center; he then went to that location; “The Defendant was not under arrest when I first saw him at the recreation center but he was in the custody of three armed officers. ... I had an indication at the time I asked the Defendant how he cut his hand that he had been at Pruitts”. (Emphasis supplied.) The sergeant gave no Miranda warning prior to eliciting by direct questioning appellant’s statements as to how he had cut his hand.
In Miranda v. Arizona, 384 U. S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602, 10 ALR 3d 974, it is stated:
“. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (p. 444.)
The state contends the officer’s concern in his questioning of appellant as to how he cut his hand was merely for the latter’s welfare; that at the time appellant was not yet sufficiently suspect; the questioning occurred at the investigatory stage and did not constitute custodial interrogation of one accused of crime. The picture presented belies the state’s arguments. It is true Miranda recognizes that general on-the-scene questioning of citizens in the fact finding process does not constitute custodial interrogation requiring advice of rights but this generality does not lead to the state’s conclusion. Custodial interrogation may occur outside the police station (Orozco v. Texas, 394 U. S. 324, 22 L. ed. 2d 311, 89 S. Ct. 1095). However, there must be some polioe-instigated restraint before a suspect can be regarded as being in the custody of the officers (State v. Brun ner, 211 Kan. 596, 507 P. 2d 233). In an annotation entitled, “What Constitutes ‘Custodial Interrogation Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of his Federal Constitutional Rights Before Custodial Interrogation”, 31 ALR 3d 565, the following appears:
“It is submitted that most of the important circumstances mentioned by the courts as bearing on whether the person questioned was subjected to ‘custodial interrogation requiring Miranda warnings can be classified under the following general headings: (1) the nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of the interrogation.” (p.577.)
The interrogating sergeant was one of the two police officers who had seen appellant behaving suspiciously at the pawnshop earlier in the evening. Later another witness had seen appellant at the pawnshop and had relayed to the police her information with appellant’s description. The interrogating officer investigated the breakin at the pawnshop where blood stains were much in evidence. Based upon information the police had this officer in his testimony referred to appellant as “the suspect”, as well he might for at that time he had the essential information relied upon by the prosecution for appellant’s conviction. However, the fact the investigation had focused upon appellant is not the same as finding that he was in custody, thereby triggering the need for a Miranda warning (State v. Brunner, supra). The question whether an investigation has focused on a suspect as derived from Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1758, is not the wholly determinative test whether the suspect is in custody. The fact the suspect is the focus of the investigation, standing alone, does not trigger the need for a Miranda warning (United States v. Hall, 421 F. 2d 540, cert. den., 397 U. S. 990, 25 L. ed. 2d 398, 90 S. Ct. 1123; State v. Brunner, supra; Kamisar, “ ‘Custodial Interrogation’ Within The Meaning of Miranda,” Criminal Law and the Constitution [1968] 335, 338). Nonetheless, the fact the investigation has focused on a particular individual is still frequently one of the determinative factors in arriving at a decision whether a Miranda warning is required (Brown v. Beto, 468 F. 2d 1284). In the ALR annotation referred to above this statement appears:
“Although no longer the sole test as it was under the Escobedo decision, the progress of the investigation — whether it has ‘focused’ on a particular suspect as the accused — remains, for many courts, an important factor in determining whether ‘custodial interrogation’ has occurred.” (p. 578.)
In United. States v. Hall, supra, it was stated:
. . we do think it suggests that in the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the police, and the consequent acuity of their ‘focus’ is irrelevant. The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda, and vice versa. But this is simply one circumstance, to be weighed with all the others.” (p. 545.)
In the case at bar the spontaneity of the interrogation is not present as in the usual situation considered to be on-the-scene questioning. For example, in State v. Phippen, 207 Kan. 224, 485 P. 2d 336, a police officer, having just arrived at the scene of a homicide, observed the deceased and asked what had happened. The question was held to be a non-custodial investigatory inquiry. In State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, a police officer stopped a car for the purpose of checking the operator’s driver’s license. The officer noticed a mound in the rear of the vehicle covered by a coat from which protruded sleeves of clothing with price tags attached. The officer inquired what was under the mound and was told by the defendant it was her clothing. It was held the question was on-the-scene fact finding not requiring a Miranda warning. See, also, State v. Hill, 211 Kan. 239, 505 P. 2d 704.
In the present case appellant was the prime suspect from the time police learned of the breakin. The interrogating officer had virtually all the facts respecting it and he knew what to look for. As specifically testified to by him when appellant was questioned at the recreation center “he was in the custody of three armed officers”. There can be no doubt appellant was deprived of his freedom of action in a significant way. The officer correctly assessed the situation in his testimony — appellant was in the custody of three armed policemen and was being detained by them until the arrival of the officer who had all the information. The subsequent statements by appellant were the product of “custodial interrogation”, they were inadmissible in the conceded absence of any Miranda warning and should have been stricken by the trial court.
We have now noted two trial errors in the admission of evidence. It is not always easy to say when error is so harmful as to require reversal. Sufficiency of the evidence to sustain appellant’s convic tion was not made a point upon appeal — with the result the record does not contain all the evidence adduced at trial. In this situation our conclusion is that the combined effect of the two errors was such that appellant was deprived of a fair trial and the errors therefore cannot be deemed harmless. New trial is in order. A third trial error alleged by appellant need not be considered since it arises out of an incident virtually certain not to reoccur.
The judgment is reversed with directions to grant appellant a new trial.
approved by the court.
Fatzer, C. J., dissents.
Fromme, J., not participating.
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Prager, J.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether the appellants are “health facilities” embraced within the meaning of the Regional Health Programs Act. The answer determines whether the appellants have a statutory right to appeal from a decision of the Mid-America Comprehensive Health Planning Agency granting a certificate of need to the Shawnee Mission Medical Center, Inc., to expand its facilities.
An appeal has been perfected by Extendicare, Inc., (a foreign corporation but authorized to do business in Kansas as of October 16, 1973), Donald B. Bletz, M. D. (a licensed Kansas physician), and Physicians Associated, Chartered (a Kansas corporation formed by Dr. Bletz and composed of other Kansas physicians) from a district court order holding that none of the appellants are “health facilities” as defined by K. S. A. 65-2a01 (b) in the Regional Health Programs Act.
The facts are not in dispute. Sometime prior to March 28, 1973, Extendicare filed an application for a certificate of need to construct a 400-bed hospital in Johnson County, Kansas. Under K. S. A. 65-2a02 the “appropriate planning agency” (as defined in K. S. A. 65-2a01 [d]) determines whether a request should be approved or disapproved. The planning agency having jurisdiction over Johnson County, Kansas, is the Mid-America Comprehensive Health Planning Agency (MACHPA). On March 28, 1973, MACHPA denied Extendicare’s application. Thereafter an appeal was taken by Extendicare and on May 17, 1973, an appeals panel reversed MACHPA’s decision and granted a certificate of need to Extendicare. Subsequently, the decision of the appeals panel was appealed to the District Court of Johnson County by Shawnee Mission Medical Center and others. The district court affirmed the decision of the appeals panel, and an independent appeal is presently being pursued to' this court from the decision of the district court.
Sometime prior to August 29, 1973, Shawnee Mission Medical Center applied to MACHPA for a certificate of need to authorize the construction of a 150-bed addition to its facility. A public hearing concerning the application was scheduled for August 14, 1973, by the agency, and the agency was advised by counsel that all three of the appellants desired to enter an appearance at the hearing to present evidence, cross-examine witnesses and review the evidence presented. The appellants’ counsel made several written requests to' MACHPA for copies of, or permission to examine, Shawnee Mission’s application in order to evaluate it and properly prepare for the public hearing. MACHPA, however, refused to provide copies of the documents. Feeling they could not make a meaningful presentation without previously being apprised of the contents of the application, the appellants failed to appear at the public hearing. After the hearing MACHPA granted the application.
Thereafter each of the appellants filed a notice of appeal as provided by K. S. A. 65-2a07 from MACHPA’s decision with the Kansas Coordinating Council for Health Planning, MACHPA, and the appropriate licensing agency and requested a hearing by an appeals panel.
An appeal from a planning agency’s decision on the matter in question is controlled by the following language in K. S. A. 65-2a07:
“The approval or disapproval by a planning agency may be appealed by the applicant or by another health facility who believes its interests are adversely affected. . . .” (Emphasis added.)
A “health facility” is defined in K. S. A. 65-2a01 (b). It reads:
“ ‘Health facility’ means any health or medical facility that is licensed under the laws of Kansas, local health departments, or regional local health services.” (Emphasis added.)
On September 26, 1973, Mr. Raymond Solee, on behalf of the State of Kansas Coordinating Council for Health Planning, notified each of the appellants that they did not have standing to appeal under K. S. A. 65-2a07 because they were not health facilities within the meaning of the Act.
The appellants thereafter instituted a mandamus action which resulted in an Order of Mandamus enjoining the State of Kansas Coordinating Council for Health Planning, MACHPA, Kansas State Board of Health and Raymond Solee from granting a certificate of need to Shawnee Mission Medical Center until an appeals panel was convened and ruled whether the appellants had standing to appeal.
Thereafter, an appeals panel was convened pursuant to the district court’s order, and on November 13, 1973, ruled that the appellants had no standing to appeal from MACHPA’s decision, since they were not “health facilities” as contemplated by K. S. A. 65-2a07.
Subsequently, the appellants appealed to the Johnson County District Court from the decision of the appeals panel. K. S. A. 65-2a08 authorizes “the applicant or other health facility” to appeal the approval or disapproval of an appeals panel to the district court of the county in which the aggrieved party is located or is to be located. After hearing arguments on the matter, the district court permitted Shawnee Mission Medical Center to intervene in the action pursuant to K. S. A. 60-224 (b). Thereafter, Shawnee Mission moved to dismiss the appeal on the grounds that none of the appellants were “health facilities” as defined in K. S. A. 65-2a01; the appellants’ counsel had judicially admitted Extendicare was not a “health facility”; Dr. Bletz and Physicians Associated fall within the definition of a person (K. S. A. 65-2a01 [i]) and, therefore, are not “health facilities”; and whatever rights the appellants claim were waived by the fact that they did not enter an appear anee at the August 14, 1973, public hearing. The State of Kansas Coordinating Council for Health Planning joined this motion.
Thereafter, on December 12, 1973, the district court ruled that none of the appellants were “health facilities” as defined in K. S. A. 65-2a01 and as contemplated by K. S. A. 65-2a08, and sustained the motion to dismiss. For the reasons hereafter assigned we affirm the decision of the district court.
It cannot be said the Regional Health Programs Act is a model in the art of legislative draftsmanship. In fact, it leaves much to be desired if the Act is to be efficiently administered. Nowhere is the legislative purpose of the Act stated. Obviously “health facilities” affect the public health. Nowhere in the Act do we find a “certificate of need” defined. Presumably the purpose of the Act is to require the issuance of certificates of need by planning agencies for additional health or medical facilities in the State of Kansas. To resolve the limited issue here presented it is necessary to find an answer to the query: “For what are certificates of need under the Regional Health Programs Act issued?”
The difficulty encountered in the case at hand is to ascribe meaning to the word “facility”. A resort to the various dictionaries indicates the word “facility” has many meanings and is very broad in scope. Among the various definitions Webster’s Third New International Dictionary (1961) gives one as follows:
“. . . 5a: something that promotes the ease of any action, operation, transaction, or course of conduct . . . b: something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.”
The parties to this appeal illustrate the difficulty in construing the Regional Health Programs Act by the respective positions taken in their briefs. The appellees contend when the legislature referred to a “health facility”, it was referring to an inanimate object that is licensed by the state, not personnel. The appellants on the other hand contend the meaning of the word “facility” is not limited to inanimate bodies or things, in that men are often “facilities”. (Citing 35 C. J. S., Facility, p. 489; and 16 Words and Phrases, Facilities, p. 18.)
A resort to cases from other jurisdictions indicates the word “facility” is a very broad term and is intended to' embrace anything, including human agencies which aid or make easier the performance of activities. (Cheney, Commr. v. Tolliver, 234 Ark. 973, 356 S. W. 2d 636 [1962]; The People v. Bunge Bros. Coal Co., 392 Ill. 153, 64 N. E. 2d 365 [1946]; Nekoosa-Edwards Paper Co. v. Railroad Comm., 193 Wis. 538, 213 N. W. 633 [1927]; and State v. Cave, 20 Mont. 468, 52 Pac. 200 [1898].)
We think what the legislature intended in the Regional Health Programs Act by the word “facility” when it used the expression “health facility” lies somewhere between the extremes asserted by the appellants and the appellees.
It is conceded the standing of the appellants in this case to appeal depends upon whether they come within the statutory definition of a “health facility” under K. S. A. 65-2a01 and 65-2a08, or whether the Regional Health Programs Act otherwise provides them the right to appeal.
The Regional Health Programs Act defines “health facility” as “any health or medical facility that is licensed under the laws of Kansas, local health departments, or regional local health services.” (K. S. A. 65-2aOI [&].) (Emphasis added.)
Extendicare is not a “health facility” within the meaning of the Act because it does not have a license to operate a hospital under the laws of the State of Kansas at this time.
It is argued in the appellants’ brief that Extendicare has a vital interest in Johnson County and is entitled to constitutional protection, the right to be heard in this case. It has a certificate of need subject only to the appellate proceedings in progress in the district court. Thus, it is argued, Extendicare is equitably entitled to a right to an appeal because it is in a position where it has been granted a right to build a hospital in Johnson County, and to deny Extendicare the right to be heard on Shawnee Mission’s application would deny it due process of law.
Beyond the equity which favors Extendicare’s rights to appeal, the appellants argue, the Act contemplates that an applicant whose request for a certificate of need has been approved, is a “health or medical facility” within the meaning of the statute.
We'fail to see merit in the appellants’ argument with respect to Extendicare. Extendicare is not licensed under the laws of Kansas and therefore, by definition, is not entitled to appeal the agency’s determination of the Shawnee Mission Medical Center, Inc., application for a certificate of need.
It may be argued under K. S. A. 65-2a08 that the language “the applicant or other health facility” classifies the applicant as a health facility. From the use of the words “another” and “other” modifying health facility, it can be argued, there is an implication that once the applicant’s request for a certificate of need is granted, it becomes a health or medical facility, if it was not already classified as such before making its application. We do not think the legislature intended to depart from its stated definition of a “health facility”. Health facilities that have already been licensed under the laws of Kansas make application for expansion of their facilities. The application of Shawnee Mission Medical Center, Inc., is an example. This accounts for the language employed. Other applicants who have never done business in the State of Kansas are not licensed under the laws of Kansas. The application of Extendicare is an example. The mere fact that Extendicare is “an applicant” for a certificate of need under the Act does not permit Extendicare to appeal because Extendicare is aggrieved by the determination of the planning agency on Shawnee Mission’s application. The statute reads: “the applicant”. This means the applicant, whose own certificate of need is under consideration by the agency, is entitled to appeal if it is aggrieved by the agency’s determination on its own application.
Our attention will now be focused upon the appea of Donald B. Bletz, M. D., and Physicians Associated, Chartered.
The appellant, Donald B. Bletz, M. D., is a physician licensed under the laws of Kansas; and the appellant, Physicians Associated, Chartered, is a professional association of physicians formed under Kansas law, all of whose members are physicians licensed to practice in Kansas. The articles of incorporation disclose that Donald B. Bletz, M. D., is the resident agent and incorporator. Are these appellants’ health or medical facilities licensed under the laws of Kansas?
While the physicians comprising this group are all licensed as medical doctors under the laws of Kansas, we do not think either Doctor Bletz or Physicians Associated may be considered health or medical facilities as contemplated by the Regional Health Programs Act. The whole Act is exclusively addressed to something more than the need of the citizens of Kansas for individual physicians or their services.
K. S. A. 65-2a04 inferentially recognizes that the state is divided into areawide planning regions, and before a new heahh facility can be constructed or a health facility can have a project in excess of 5% of the health facility’s operating budget, or $350,000 whichever is the lesser or if the licensed bed capacity is to be increased (K. S. A. 65-2a05), it has to apply for a certificate of need.
The pre-licensing request for a certificate of need and the information required under K. S. A. 65-2a06 lists among other things, the projected cost estimates of capital expenditures and operating expenses and the projected staffing of the service.
K. S. A. 65-2a01 under the Regional Health Programs Act lends additional assistance by defining “licensing agency”. It reads:
“(a) ‘Licensing agency’ means state bo.ard of health with reference to facilities licensed pursuant to K. S. A. 39-927 and 65-428, and the state board of social welfare, with reference, with reference to facilities licensed pursuant to K. S. A. 75-3307b. . . .”
Reference to the above cited sections indicates the legislature has reference to licensing statutes for adult care homes, hospitals and mental health hospital facilities.
Viewing the Regional Health Programs Act in its entirety, we are confident the legislature did not intend individual doctors or a professional corporation consisting of doctors to be embraced within the term “health facility”. Accordingly, the appellants Donald B. Bletz, M. D. and Physicians Associated, Chartered, had no right to appeal the decision of MACHPA to an appeals panel under the Regional Health Programs Act.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Kaul J.:
In a court trial defendant (Raymond Lawrence) was found guilty of aggravated burglary (K. S. A. 1973 Supp. 21-3716) and aggravated robbery (K. S. A. 1973 Supp. 21-3427).
The defendant’s sole point on appeal is whether he should have had the right to a jury trial reinstated after a voluntary waiver of that right before jeopardy attached.
Defendant, who was represented by counsel at all times pertinent, appeared before the Honorable Howard C. Kline, administrative judge of the eighteenth judicial district, on March 15, 1972. Defendant was served with a copy of the information and through his counsel waived arraignment and entered a plea of not guilty. Defendant’s case was set for trial on April 3, 1972, when, on call of the docket, he waived a trial by jury personally and through his attorney. Defendant was informed by the court that waiving a jury meant that he would either enter a plea or be tried by a judge. The defendant responded that he understood. Defendant’s case was then set for 9:00 a. m. April 10, 1972.
On April 10, 1972, as scheduled, defendant appeared before the administrative judge when his case was called and requested that he be permitted to withdraw his waiver of a jury trial. The administrative judge denied defendant’s request noting that there were no jury panels available on that day. Defendant’s case was assigned for trial to the court in division No-. 4 on April 12, 1972.
On April 12, 1972, defendant appeared before Judge Riddel in division No. 4 and renewed his request to- withdraw his waiver. Defendant’s request was denied and the case proceeded to trial before the court. Defendant was convicted and thereafter filed a motion for a new trial asserting as error the court’s refusal to permit him to withdraw his waiver of a jury trial. After hearing arguments, the motion was denied by the court and this appeal ensued.
The right of a defendant to withdraw the waiver of a jury trial has been considered by this court in two recent cases. The general rule was announced in State v. Blanton, 203 Kan. 81, 453 P. 2d 30, wherein we held:
“A waiver of a trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he was doing, cannot afterward be withdrawn except in the court’s discretion, in the exercise of which the court may consider timeliness of the motion to withdraw and whether a delay of trial or inconvenience to the witnesses would result from granting such motion.” (Syl. ¶ 1.)
At a time of the trial in Blanton the effective statute concerning waiver of a jury trial was K. S. A. 62-1401, which was repealed and restated in K. S. A. 1973 Supp. 22-3403(1) in our new Code of Criminal Procedure enacted in 1970.
Subsequent to the adoption of the new Code, the rule announced in Blanton was reaffirmed in State v. Pruett, 213 Kan. 41, 515 P. 2d 1051. The same standard is applied in almost all American jurisdictions. (See 46 A. L. R. 2d, Annotations, p. 919.)
The standard has been adopted by the American Ear Association and published in the Standards for Criminal Justice relating to Trial by Jury, § 1.2(c). The standard reads:
(c) A defendant may not withdraw a voluntary and knowing waiver as a matter of right, but the court, in its discretion, may permit withdrawal prior to the commencement of the trial.” (p. 28.) (See, also, Comparative Analysis of American Bar Association Standards for Criminal Justice with Kansas Law, Rules and Legal Practice, p. IX-6.)
In the instant case defendant’s counsel was not informed of defendant’s change of mind until the docket call on April 10. Since both the state and defendant expected a guilty plea, no witnesses had been subpoenaed and neither party was ready for trial. Under these circumstances, defendant says, the state was not inconvenienced in any manner by his change of mind. The state, on the other hand, points out that on April 3, when defendant’s case was first called, seven jury panels had been called to attend the divisions of the court. By reason of waivers of jury trials, and the failure of two defendants to appear, it was necessary to release three of the jury panels, one of which would have been available for defendant’s trial had he not waived. Because of these circumstances no juries were available on April 10, when defendant changed his mind. The state says that if defendant’s request had been granted on April 10, the court would have been required to alter its jury trial schedule and the administrative judge would have been required to alter future divisional schedules and the summoning of additional jurors might have required. In support of its argument the state has reproduced a certificate of the administrative judge setting out the condition of the court docket and pertinent matters relating to the scheduling of trials. The certificate reads in pertinent part as follows:
“The above noted case was called for arraignment on March 15, 1972, and on said date Michael Wilson, who represented the defendant at the preliminary hearing was re-appointed at the defendant’s request to represent him in the District Court. The defendant was served a copy of the Information personally and through his counsel waived arraignment and entered a plea of not guilty. I assigned the case for trial at 9:00' a. m., on Monday, April 3, 1972. Thereafter, on Monday, April 3, 1972, on the call of the trial docket, the defendant appeared personally and by his attorney. At this time the defendant waived trial by jury personally and through his attorney, and requested a bench trial. I accepted said waiver and continued the case for bench trial to 9:00 a. m., on April 10, 1972.
“On April 3, 1972, jury panels had been summoned individually by each of the seven divisions of the District Court, assigned to try civil and criminal jury trials, Divisions 4, 5 and 7 were assigned to try criminal cases and each division summoned jurors for that purpose. Four other divisions of the Court were assigned to try civil cases and each summoned sufficient jurors for that purpose. On Monday, April 3, 1972, eleven criminal cases were set for trial on the criminal trial docket. On the call of the docket one case was continued to April 17, 1972, on motion of the defendant for good cause shown, and on said date, seven defendants waived jury trial including the defendant in this case. Further, that on said day defendants in two cases failed to appear and their bonds were forfeited. That the one remaining case announced for trial and was tried. In addition, on said day, only three civil cases went to trial because tire others assigned settled or were continued. It was therefore necessary to release three jury panels on Monday, April 3, 1972.
“On Monday, April 10, 1972, the defendant requested that he be permitted to withdraw his waiver of jury trial. However, there were no jury panels available on that day.”
While the inconvenience to the state may not appear to be of great significance; it is made clear that permitting defendant to withdraw his plea would have caused a delay in his trial. We are aware of the fact that the efficient and prompt administration of justice in a busy district court comprised of nine divisions requires an orderly assignment and scheduling of cases. A week’s time elapsed after April 3 during which time defendant might have made known his change of mind. By his own admission defendant waited until thirty minutes before his case was called before he informed his counsel of his decision. In a district court wherein over eleven hundred criminal cases and more than six thousand civil cases are disposed of in a year, if an appreciable number of criminal defendants were permitted, at the last minute, to withdraw a waiver merely because of a change of mind the administration of .justice would be seriously disrupted. Defendant makes no complaint, and there is no indication in the record, of any bias or prejudice on the part of either Judge Kline or Judge Riddel, such as that appearing in the record of State v. Pruett, supra. Defendant does not offer any excuse or explanation of his tardiness; he merely states that he changed his mind.
We are unable to find that abuse of discretion is shown on the part of either of the two judges who ruled upon defendant’s motion.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by Rex L. Vickers (plaintiff-appellant) against the City of Kansas City, Kansas, and the Kansas State Highway Commission (defendants-appellees) for damages based upon the alleged negligence of the defendants, the creation and maintenance of a nuisance by the defendants and inverse condemnation of plaintiff’s real property. During the discovery stage of the lawsuit and prior to docketing the case for trial, the motion of the City for an order pursuant to K. S. A. 1973 Supp. 60-237 dismissing the cause of action was sustained by the trial court for what was held to be the plaintiff s willful refusal to comply with the court’s order to produce certain documents and items for the City to inspect and copy. The plaintiff has duly perfected this appeal, contending (1) the trial court abused its discretion in dismissing the action, and (2) there is no competent evidence to support the trial court’s conclusion that the plaintiff willfully refused to comply with the order to produce.
The question here for review is whether the trial court abused the exercise of its power of discretion in the dismissál of the plaintiff s cause of action.
The appellees contend the dismissal was based upon the plain tiffs failure to comply with an order of the court for production of documents.
This action was commenced by the filing of a petition on May 28, 1971. The first count of the petition alleged that in the process of constructing and maintaining the connecting line in the highway system known as 1-635 the natural surface of all the nearby real property was altered, existing waterways were changed and overloaded beyond their capacity, the runoff of surface waters was accelerated and drainpipes and channels were clogged, stopped up and changed which caused waters to accumulate and collect on said highway and the surrounding properties as well, and caused the waters to precipitate in great volume and with great force into, upon and through the plaintiffs real property, damaging the dwelling house situated thereon and every other thing standing in then way. Count One further alleged actual damages in the sum of $5,500, which included the loss of three hot water heaters, two furnaces, sump pumps, tools, supplies, more than 500 yards of sod, rentals from the subject property, the expense of digging out mud, hauling trash, grading and ditching on plaintiff’s property, and mental anguish, emotional strain and upset sustained by the plaintiff.
The second count alleged the City of Kansas City has maintained a nuisance in and near the plaintiff’s real property since April 24, 1956, by maintaining inadequate and improper drainage facilities in the vicinity of the plaintiff’s real property. In the alternative, the plaintiff alleged that both defendants created a nuisance in the process of constructing the city connecting line as described in Count One, to the plaintiffs actual damage in the sum of $5,500.
The third count of the petition alleged the defendants, without plaintiffs consent, and without condemnation, as in the law of eminent domain provided, and without any authority whatsoever, unlawfully appropriated the plaintiff’s real property to* their use for drainage of the highway right-of-way.
After answers and cross claims were filed by the appellees, the appellant, on November 18, 1971, propounded interrogatories to the City, which were answered in due course. Thereafter, on January 20, 1972, the trial court sustained the appellant’s motion for production and permission to copy certain documents in the possession of the City.
The City began discovery procedures by deposing the appellant on December 9, 1971. We are informed the notice for deposition called only for the appellant’s personal appearance and did not request him to bring documents evidencing the special damages claimed in the petition. In substance, the excerpts from the deposition which are contained in the record on appeal disclose that during the deposition the appellant testified that he had made various expenditures as a result of the flooding on his property; such as, having a trench dug, new water heaters, new furnace units and duct work, a new sump pump, tools, etc. However, he did not have cancelled checks or receipts with him at the time of the deposition to document each expenditure, but stated he would produce the documents referred to therein through his counsel. On occasion there was some equivocation by the appellant as to whether or not he actually did possess documentation for particular expenditures, but generally he did state that he would produce the information.
Nothing further occurred in the lawsuit until June 22, 1972, when the appellant filed a praecipe to set the matter for trial, by stating the case was at issue and discovery had been completed. Apparently, no action was taken with regard to the praecipe.
Subsequently, on July 5, 1972, the City moved for an order requiring the appellant to permit the City to inspect and photograph “All receipts, bills, checks paid and invoices for all special damages allegedly suffered by the plaintiff” including, but not limited to “the items discussed in plaintiff’s deposition taken on December 9, 1971. ” An affidavit by the City’s counsel attached to the motion declares that during the appellant’s deposition, appellant stated he would produce each of the documents referred to in the motion for production; that repeated demands have been made for production of these documents; and that it is believed all of the documents requested for production are relevant to ascertaining the measure of the appellant’s damages and further to eliminate surprise and to narrow the issues. The trial court sustained the City’s motion on October 2, 1972. No record was made of this proceeding.
The appellant once again filed a praecipe for a docket setting on April 13, 1973. Nothing occurred with respect to this praecipe.
On July 24, 1973, the City moved the court for an order pursuant to K. S. A. 1973 Supp. 60-237, to compel production of documents and items for copying and inspecting, or in the alternative to grant a default judgment in favor of the City and against the appellant for failure to comply with the court’s order entered on October 2, 1972.
On August 7, 1973, the appellant filed his third praecipe for trial, but no action was taken concerning it.
On August 9, 1973, a hearing was held on the City’s motion to dismiss the appellant’s cause of action. After hearing arguments of counsel, the court granted the appellant “additional time until the court’s regular motion calendar in September, and that if the plaintiff did not produce in accordance with this court’s order that at the time of the hearing on the motion the defendant’s motion would be sustained.”
For some reason not disclosed by the record on appeal the trial court’s regular motion day was not held in the month of September, but was heard by the court on October 5, 1973. At that time, Mr. John H. Fields, the attorney who was handling the appellant’s case, had a schedule conflict, so a member of the same firm, Mr. David Boal, appeared on behalf of the appellant, though he was not particularly familiar with the case. No record was made of this hearing. Mr. Boal tendered a packet containing a number of documents and, according to the record of a later hearing on the matter, counsel for the City stated Mr. Boal made the statement that the packet contained only a portion of the documents which had been ordered to be produced by the court, and they were dilegently attempting to find the remainder of the documents. Apparently Mr. Boal was not aware of the packet’s contents and neither the court nor either counsel looked into the packet. The court sustained the City’s motion to dismiss the action and found the appellant had “willfully refused to comply” with the court’s order dated October 2, 1972.
At this point we note the order of October 2, 1972, merely “sustained” the City’s motion for production of documents. The City in its motion did not by request specify “a reasonable time, place, and manner of making the inspection and performing the related acts.” as required by K. S. A. 1972 Supp. 60-234.
Counsel for the appellees in their brief admit the hearing on October 5, 1973, (the regular motion day in September 1973 not having been held) granted the appellant an additional month to produce the documents.
A short time later, the appellant moved the court to set aside the October 5, 1973, order dismissing the appellant’s cause of action. The motion states:
“In support of this motion plaintiff advises the court that it is prepared to produce those items in plaintiff’s possession which the court has ordered pro duced. Plaintiff further advises the court that there are some items which the court has ordered produced which, after diligent search, have not been located by plaintiff. It is plaintiff’s intention to continue to locate such items and, immediately upon their being discovered, to produce them in compliance with this court’s order.”
The hearing on this motion was held November 2, 1973, and a record was made for the first time in the matter. Appellant’s counsel explained to the court that during the summer of 1973 he assigned a law clerk employed for the summer to the task of getting together with the appellant to assemble the documents called for in the order for production, and that on August 22, 1973, the appellant mailed a packet of documents he was able to locate to the law clerk. The law clerk returned to school in the latter part of August 1973 and the packet of documents was placed in the case file, where they remained until the October 5, 1973, hearing when Mr. Boat tendered the packet to the court. The packet contained 39 documents sought by the production order, and they were all tendered at the October 5, 1973, hearing. It was argued that the appellant had submitted all of the material he could find and that even though some of the receipts and checks could not be found, the failure to produce those items could not constitute willful failure to comply with the court’s order. After considering the arguments the court overruled the appellant’s motion.
The 39 documents in the packet tendered in open court on October 5, 1973, are appended to the record on appeal. The appellees’ motion to strike these documents from the record has heretofore been denied with leave to renew the motion at the hearing on the merits. The appellees have renewed the motion to strike and it is overruled.
To narrow the issue in the instant case the complaint is not that the plaintiff failed to produce, but rather that he failed to produce all of the documents he originally thought he had. In his deposition the plaintiff was testifying from memory as to the items contained in his records, and there were a few documents mentioned during his deposition testimony that were never located and hence never produced.
It is the appellant’s position, where he testifies from memory at his deposition as to items contained in his records, that he should not be held to do so at the peril if the accuracy of his recollection concerning the items in his records is not absolutely correct — that his cause of action be subject to an involuntary dismissal.
The question concerning the propriety of the order requiring production of the documents in the instant case is not put at issue. The trial court’s order requiring the appellant to produce the documents was in response to a motion filed in accordance with K. S. A. 1972 Supp. 60-234. The motion to compel discovery or, in the alternative, for default judgment (dismissal of plaintiff’s cause of action) and subsequent orders are governed by K. S. A. 1973 Supp. 60-237.
It is the appellee’s position that the order of dismissal entered by the trial court was a just order, and that the entire record before the court illustrated a definite attempt to disregard the court’s orders and provided a sufficient basis for the trial court in the exercise of its judicial discretion to dismiss the appellant’s cause of action.
It is an elementary principle of law that the purpose of discovery rules is to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; to make available, in a simple, convenient, and inexpensive way, facts which otherwise could not be proved except with great difficulty; to educate the parties in advance of trial as to the real value of their claims and defenses; to expedite litigation; to safeguard against surprise; to prevent delay; to simplify and narrow the issues, and to expedite and facilitate both preparation and trial. (23 Am. Jur. 2d, Depositions and Discovery, § 156, p. 493.)
The legislature of our state had seen fit to promulgate discovery rules and regulations by the passage of K. S. A. 60-226 through K. S. A. 60-237. Throughout the statutory procedure the trial court is vested with large amounts of discretion in its direction of pre-trial discovery. Likewise, the trial court is vested with considerable discretion in the enforcement of its previously issued discovery orders and in the assessment of sanctions against noncomplying parties.
K. S. A. 1973 Supp. 60-237 provides to a trial court a series of sanctions, varying in severity, which the court may use against parties unjustifiably resisting discovery. (See, B. F. Goodrich Tire Company v. Lyster, 328 F. 2d 411 [5th Cir. 1964].)
The City’s motion to compel discovery was filed on July 24, 1973. It is therefore subject to K. S. A. 1973 Supp. 60-237. The pertinent portions of that statute are:
“(a) Motion for order compelling discovery. A party . . . may apply for an order compelling discovery as follows:
“. . . [T]he discovering party may move for an order . . . compelling inspection in accordance with the request. . . .
s # * # «
“(b) (2) If a party . . . fails to obey an order to provide or permit discovery . . . the judge before whom the action is pending may make such orders in regard to the failure as are just, and among others the following:
# 8 » # #
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from, introducing designated matters in evidence;
“(C) An order strikng out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
« tt a e e
“In lieu of any of the foregoing orders or in addition thereto, the judge shall require the party failing to obey the order ... to pay the reasonable expenses, . . . caused by the failure, unless the judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis added.)
It should be noted that the foregoing section specifically spells out certain sanctions which are said to be “among others”. (See further, K. S. A. 1973 Supp, 60-237 [d] [3].)
The above statute is identical to Federal Rule 37. Kansas decisions in point are limited or do not exist, so federal decisions must be relied upon heavily for authority in the construction of the statute. (Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P. 2d 248.)
The statute specifies that a judge “may make such orders in regard to the failure [to comply] as are just.” This language on its face compels the conclusion that the legislature intended to vest discretion in the trial judge to decide among the various alternative orders available to him, and to choose the most appropriate sanction suitable to the history and circumstances of the case before him. The Fifth Circuit Court of Appeals has stated this proposition as follows:
“. . . [T]helanguage of Rule 37 (d) makes clear that the application of sanctions is entrusted to the discretion of the trial judge. . . .” (Diaz v. Southern Drilling Corp., 427 F. 2d 1118, 1126 [5th Cir. 1970].)
In Reedy v. Reedy, 175 Kan. 438, 264 P. 2d 913 judicial discretion is defined as:
. . Discretion may be defined as the freedom to act according to one’s judgment. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration and not arbitrarily, . . .” (p. 440.)
The guideline given trial courts as to when they have abused the discretion granted them was rather succinctly stated in Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, as follows:
“. . . [Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by trial court then it cannot be said that the trial court abused its discretion. . . .” (p.562.)
Exactly what type of failure to comply with the trial court’s discovery orders allows a judge, in the exercise of his power of judicial discretion, to grant the most severe sanction available to him (see, Williams v. Consolidated Investors, Inc., supra) appears to have historically been a battle of semantics in the federal courts. The United States Supreme Court and the various Federal Circuit Courts of Appeals and district courts have in the construction of the pre1970 amendment to Rule 37 of the Federal Rules of Civil Procedure (K. S. A. 60-237 was amended effective on January 1, 1973, by the Supreme Court to comply with the 1970 federal amendment) attempted to construe the word “refusal” in its context in Rule 37. The question before these courts has been whether “refusal” requires “willfulness.” (Roth v. Paramount Pictures Distributing Corporation, 8 F. R. D. 31 [W. D. Pa. 1948]; Campbell v. Johnson, 101 F. Supp. 705, 707 [S. D. N. Y. 1951]; and Hinson v. Michigan Mutual Liability Company, 275 F. 2d 537 [5th Cir. 1960].) This question now appears to have been settled by the 1970 amendment to Federal Rule 37 and the 1973 amendment to K. S. A. 60-237 by the substitution of the word “failure” for the word “refusal” throughout these legislative amendments. Substitution of “failure” for “refusal” throughout Rule 37 was designed to eliminate confusion and bring the rule into harmony with Societe Internationale v. Rogers, 357 U. S. 197, 2 L. Ed. 2d 1255, 78 S. Ct. 1087.
In 1958 the United States Supreme Court held in Societe, supra, that a party “refuses to obey” a production order simply by failing to comply with it, and that willfulness was not required. The court went on to determine that a dismissal of an action under Rule 37 was not a proper sanction if the failure to make discovery was “due to inability” and not due “to willfulness, bad faith or any fault” of the party who failed to comply with the order for production.
This court discussed the rule in 60-237 (b) (2) in Williams v. Consolidated Investors, Inc., supra, as follows:
“The penalties permitted by 60-237 (b) (2) are not to be imposed for the failure to comply with a production order in the absence of an ability to produce, where a party’s failure to produce is shown to be due to inability fostered neither by his own conduct nor by the attendant circumstances of the case. (Read v. Ulmer, 308 F. 2d 915.) While 60-237 (b) (2) applies to all failures to comply, either willful or not, the presence or lack of good faith in the parties is relevant to the orders which should be given and the severity of the sanctions imposed. (B. F. Goodrich Tire Company v. Lyster, 328 F. 2d 411, 415.) The sanction of judgment by default for failure to comply with a production order is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited. However, where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court and the efficient administration of justice, the application of a stringent sanction is fully justified and should not be disturbed. (Trans World Airlines, Inc. v. Hughes, 332 F. 2d 602.) See, also, Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P. 2d 118.” (p. 733.)
Rules of procedure are a means of attaining justice and not an end to justice. In final analysis, a court has a responsibility to do justice between man and man. General principles cannot justify denial of the parties their day in court except upon a serious showing of willful default (Gill v. Stolow, 240 F. 2d 669 [2d Cir. 1957]).
Where a party fails to comply with a production order in the course of discovery proceedings, the trial court is required in the exercise of its power of judicial discretion to determine which of the variety of available sanctions it will impose by its judgment. In making this determination the trial court should consider whether or not the documents to be produced go to a dispositive issue in the case, and whether the party seeking discovery may therefore be protected by the imposition of a sanction short of dismissal. (Bernat v. Pennsylvania R. Co., 14 F. R. D. 465, [E. D. Pa. 1953].) Another factor to consider in making this determination is whether the party ordered to produce has failed to comply due to his inability to comply with the order, and not due to willfulness or bad faith. (Societe Internationale v. Rogers, supra.) .
On the facts in this case the documents in question do not go to a dispositive issue in the case, but are merely corroborative of the deposition testimony of the appellant concerning items of special damage alleged in the negligence and the nuisance counts of his petition. By a third count in the petition the appellant sought relief for the taking of property by inverse condemnation — the taking of a permanent drainage easement across his property. The documents in question are totally irrelevant to this third count. Dismissing the appellant’s cause of action for failure to comply with the production order was the most severe sanction which the court could impose.
As we read the record the appellant made a good faith effort to comply with the order of the court by tendering 39 documents which had been ordered. These documents were tendered within the time period authorized by the trial court’s order of production. The statement made by Mr. Boal at the hearing on October 5, 1973, that the tendered documents were only a portion of the documents which had been ordered to be produced and that plaintiff was diligently attempting to find the remainder of the documents, was subseqently clarified by Mr. Fields, who was familiar with the case, at the hearing on November 2, 1973, on the appellant’s motion to set aside the court’s order of October 5, 1973. It is significant to note that although the 39 documents were tendered at both the October 5, 1973, hearing and November 2,1973, neither the trial court nor counsel for the City expressed any interest in examining them.
In opposing the motion of the appellees for default judgment the appellant made it known that he had searched diligently for the documents but was unable to locate all of them. He further stated, through counsel, that he would produce the remaining documents immediately should they be located. Under all of the circumstances presented by the record herein we do not believe a dismissal of the action was required or warranted. The provisions of 60-237 (b) (2) gives the court discretion to grant other relief. An order prohibiting the appellant from introducing any exhibit at the trial not produced or any testimony concerning an item of special damage which was the subject of the motion for production as authorized in 60-237 ( b ) (2) (B), supra, would have been an effective sanction, if imposition of any sanction was appropriate in these circumstances. Inasmuch as the appellant has the ultimate burden of proof, and inasmuch as the documents in question merely corroborated his testimony and make it more believable, the appellant is in no position to gain by his inability to find and produce all of the documents in question. This factor was recognized in Socíete Internationale v. Rogers, supra, where the court said:
“This is not to say that petitioner will profit through its inability to tender the records called for. ... It may be that in a trial on the merits, peti tioner’s inability to produce specific information will prove a serious handicap in dispelling doubt the Government might be able to inject into the case. . . . But these problems go to the adequacy of petitioner’s proof and should not on this record preclude petitioner from being able to contest on the merits.” (pp. 212, 213.)
We find the trial court abused the exercise of its power of discretion in dismissing the appellant’s cause of action.
The judgment of the lower court is reversed with directions to reinstate the appellant’s cause of action.
Fromme, J., concurs in the result.
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The opinion of the court was delivered by
Btjrch, C. J.:
The appeal brings up for review orders of the district court, made in the exercise of its equity power, respecting confirmation of sale of land in a mortgage foreclosure case.
The Union Central Life Insurance Company commenced an action to foreclose a real-estate mortgage given by Arthur L. Blanehat. By virtue of foreclosure of a second mortgage, the Danville State Bank had become owner of the land, and was made a party defendant. On October 8, 1934, judgment was rendered in favor of plaintiff and against Blanehat for $6,662.87, and for sale of the land. The judgment bore interest at the rate of ten percent per annum. The land was sold at sheriff’s sale on December 31, 1934, to plaintiff, for $5,761. Plaintiff filed a motion to confirm the sale, which was heard on January 14, 1935. At that time interest had accumulated on the judgment, the total amount of which was then approximately $1,069 more than the sale price. After a hearing the court declined to confirm the sale unless half of this sum, $534.50, were credited on the judgment. The purchaser declined to make the credit, and the motion to confirm was denied. Blanehat and the bank then moved to set aside the ruling denying plaintiff’s motion to confirm, and themselves moved to confirm. The motions were denied. A second order of sale was issued, and the land was sold to plaintiff for $7,181.15, a sum sufficient to pay the judgment, with interest, and to pay taxes and costs. This sale was confirmed, and the bank appealed.
The bank states the question for decision as follows:
“May the court over the objection of the owner of the equity of redemption and the judgment debtor refuse to confirm a sale regularly had unless an arbitrary sum be credited on the judgment, thereby taking away the right of the owner of the equity of redemption to redeem for the amount sold?”
The district court proceeded according to the statute, R. S. 1933 Supp. 60-3463a, and this court is unable to say the sum required to be credited on the judgment as a condition to confirmation was arbitrarily fixed.
Witnesses valued the land at $5,500, $5,700, and $6,100. The assessed value was $4,675, which, according to the witnesses, could not be the true value. If the basis of assessment were two thirds of the true value, the land was worth $7,000. The court saw the witnesses, judged their qualifications to give the divergent opinions they expressed, and evidently concluded the largest estimate of value was too conservative. The valuation of $6,100 was $339 more than the sale price. The credit required by the court was less than $200 more, and there is nothing to indicate the court did not exercise its best judgment with respect to what equity required.
It is not material that the judgment debtor joined with the landowner in asking for confirmation of a sale which would leave a large deficiency judgment against him, something which the legislature manifestly deprecates. (R. S. 1933 Supp. 60-3463a.) The landowner had no standing in equity to ask that a sale should be confirmed merely to afford opportunity to redeem for a small sum. (Gordon v. Doss, 142 Kan. 860, 52 P. 2d 376.)
The land did sell for enough to pay judgment, interest, taxes and costs, and in view of the entire proceeding, this court is not authorized to say the district court abused its equity power.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
These appeals were taken by the inheritance tax commission, and by the county treasurer of Mitchell county, from judgments of the district court of Mitchell county abating inheritance taxes and ordering inheritance taxes already paid to be refunded.
Alexander T. Rodgers and his first wife had a daughter, Gertrude, who married R. W. Dockstader. The Dockstaders had three children, Noel, Elizabeth, who married Kagey, and Doris, who married Rooney. The first wife died, and the daughter, Gertrude, died. Alexander T. Rodgers then remarried, and subsequently died, leaving as his heirs his second wife, Anna, and his three grandchildren, children of his daughter, Gertrude.
Rodgers had two life insurance policies issued by the North western Mutual Life Insurance Co., one for $3,000, and one for $5,000. Gertrude Dockstader was one of the payees named in each policy, and a dispute arose between the widow and the grandchildren respecting payment of the policies. This dispute was composed by agreement as follows:
“It is hereby agreed by party of the first part (widow) and parties of the second part (grandchildren) that the proceeds of both of said policies may be paid by the Northwestern Mutual Life Insurance Company to Mrs. Anna Rodgers, in such manner as she and said company shall determine, and in consideration of such arrangement, and in full accord and satisfaction of the claims of parties of the second part, the said Anna Rodgers hereby agrees with the parties of the second part, that she will make and execute a last will and testament, and, under the terms of said last will and testament, she will give and bequeath to the said parties of the second part the sum of $4,000, which amount shall be and become payable out of the estate of said Anna Rodgers to the parties of the second part, to be equally divided- between them, . . . and the said Anna Rodgers shall have the right at any time during her lifetime to pay to parties of the second part the said sum of $4,000, or any part thereof, ...”
Anna Rodgers died in April, 1933, leaving a will containing the following bequest:
"Fourth: I give, will and bequeath the sum of four thousand dollars ($4,000) to.be divided equally, share and share alike, between Noel R. Dockstader, Elizabeth (Dockstader) Kagey and Doris Dockstader, grandchildren of A. T. Rodgers, late of Beloit, Kan., . . . ; this bequest being made in full settlement of, and in compliance with one certain contract dated September 6, 1920, between this testatrix, Anna Rodgers, and R. W. Dockstader as father and natural guardian of the beneficiaries under this paragraph.”
The grandchildren took under the will. Inheritance taxes were charged against the grandchildren’s shares, and litigation followed, resulting in the judgments from which the appeals were taken.
The statute involved reads as follows:
"All property, corporeal or incorporeal, and any interest therein, within the jurisdiction of the state, whether belonging to the inhabitants of the state or not, which shall pass by will or by the laws regulating intestate succession, or by deed, grant or gift made in contemplation of death, or made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust, except in case of a bona fide purchase for full consideration in money or money’s worth; . . . shall be taxed as herein provided.” (R. S. 79-1501.)
The decision of the district court was based on the exception relating to deed or grant intended to take effect in possession or enjoyment after death of the grantor, to a bona fide purchaser for full consideration in money or money’s worth.
For a claim to insurance money the grandchildren took a promise from Anna Rodgers. The promise was that she would make a will, giving them a stated sum of money. She reserved privileges to pay in her lifetime if she chose, but the definite thing which the grandchildren got was a promise to make a will. The grandchildren surrendered whatever claim they had to insurance money. When the contract became effective they had no insurance money or claim to insurance money, and all the insurance money, when collected, became property of Anna Rodgers, to use or spend as she pleased.
There was no stipulation that the claim of the grandchildren to insurance money was valid. Whether the claim was enforceable cannot be determined from the record. So far as this court knows, Anna Rodgers may merely have bought her peace, or may merely have been generous to her husband’s grandchildren. Therefore, statements contained in the brief for the grandchildren, to the effect that Anna Rodgers’ will merely fixed the time when the grandchildren would receive money which belonged to them all the time, cannot be accepted.
The contract was not a deed. It contained no present grant to the grandchildren of $4,000, or of any other sum, to take effect in possession or enjoyment after death of Anna Rodgers. It merely provided for future execution of an instrument which would secure to them payment of the sum of $4,000 after death of Anna Rodgers.
While the contract was supported by sufficient consideration, the value of what the grandchildren gave up for the promise of Anna Rodgers to provide by will for payment to them of $4,000 out of her estate, after her death, is not disclosed. There is no certainty that the grandchildren paid “full consideration,” that is, paid the equivalent in value of $4,000 in money’s worth.
None of the terms of the exception in the statute having been met, and the sum of $4,000 having, in fact, passed by will, the sum was subject to the succession tax.
It is suggested the grandchildren were creditors of Anna Rodgers at the time of her death, and that a bequest in payment of debt is not taxable. The subject need not be discussed. Usually a creditor is a person to whom a debt is owed by another person, who is the debtor. In that sense, the grandchildren were not creditors. Frequently the term “creditor” has a broader meaning. The legislature, however, did not use the term “creditor.” It stated,its own excep tion in its own way. The grandchildren filed no claim against the estate of the testatrix. They chose to take under her will, and having done so, the succession was subject to tax:
“Where persons assume to take property by virtue of a will bequeathing it to them, they are liable for the inheritance taxes imposed on the exercise of their right of succession under the will, and it is immaterial that they might have otherwise established their right to the property through a contract or as cestuis que trust, following The State v. Mollier, 96 Kan. 514, 519, 152 Pac. 771.” (The State, ex rel., v. Gerhards, 99 Kan. 462, syl. ¶ 2, 162 Pac. 1149.)
See, also, Daum v. Inheritance Tax Comm., 135 Kan. 210, 9 P. 2d 992.
The grandchildren cite and rely on a paragraph appearing in the opinion,, in the case of Nelson v. Schoonover, on rehearing, 89 Kan. 779, 784, 132 Pac. 1183. From what has been said, it is clear the paragraph would not apply, if authoritative. It is not, however, authoritative. In the opinion in the Daum case, supra, it was shown the paragraph was not merely dictum, but dictum of the most inexcusable kind, and it was disapproved for the purpose of the Daum decision. The paragraph is now withdrawn.
The judgments of the district court are reversed, and the causes are remanded with direction to set aside the judgments and to enter judgments in favor of the inheritance tax commission and the county treasurer.
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The opinion of the court was delivered, by
Burch, J.:
The action was one by the Municipal Power Transmission Company to compel specific performance of a contract of the city of Lyndon to purchase and pay for electric current. The court returned findings of fact and conclusions of law pursuant to which judgment was entered for defendant. The findings of fact and conclusions of law follow:
“1. That the cities of Lyndon and Quenemo are cities of the third class, under the laws of the state of Kansas, and that the plaintiff is a corporation duly organized and doing business under the laws of said state.
“2. That prior to March 30, 1922, and for a short time thereafter, Lyndon was the owner of and operated an electric light plant for the benefit of said city and its inhabitants, and also furnished electric current to the city of Quenemo and the city of Melvern, for the benefit of said cities and their inhabitants.
“3. That sometime prior to March 30, 1922, Quenemo was the owner of a transmission line between the city of Quenemo and the city of Lyndon, over which Lyndon furnished electric current to Qiienemo, and which transmission line was about said time purchased and rebuilt by Lyndon.
“4. Electric current generated in Lyndon was furnished to the city of Melvern, another city of the third class located near by. The service to the towns of Quenemo and Melvern was under contracts by such cities with a private corporation which in turn purchased the current so used from Lyndon.
“5. The generating plant of the defendant was found not to be adequate, and beginning as early as 1920 requests were made of the mayor and council of Lyndon to improve such service. On October 4, 1920, the records of the city show that a petition signed by A. B. Crum and sixty-four others was presented to the city council, asking that the city proceed with as much haste as possible to furnish citizens with 24-hour service, either by change in the city generating plant or purchase of current elsewhere.
“6. On October 1, 1921, the city of Quenemo entered into contract with the city of Ottawa, Kan., under the terms of which it was to buy electric current for the city and its inhabitants from the city of Ottawa, and arranged to build a new transmission line from Ottawa to Quenemo to transmit such current. Such contract appears in evidence.
“7. At the time the city of Quene.mo arranged for the building of its new transmission line to Ottawa, it was planned to take down the transmission line owned by Quenemo and connecting it with Lyndon, and use the materials from that line in the building of the new line, and to build such new line of merely sufficient weight and capacity to carry the electric load necessary for Quenemo.
“8. On November 7, 1921, at a regular meeting of the council of Lyndon, the following action was taken:
“ ‘Motion by Swisher, seconded by Rogers, that the city of Lyndon, through its mayor and council, buy the transmission line owned by the city of Quenemo and extending from the city of Lyndon to the limits of Quenemo, for the sum of $3,500, and acceptance of the offer of the city of Quenemo to supply current delivered on the switchboard at the city of Quenemo to supply current delivered on the switchboard at the city of Lyndon for 4% cents a kilowatt, the purchase and acceptance, however, conditioned upon the electors of the city voting bonds of the city of Lyndon in the sum of $10,000. The city attorney was instructed to draw an ordinance calling an election to vote bonds of the city of Lyndon in the sum of $10,000 to purchase and equip the transmission line from Lyndon to Quenemo. Motion was adopted.’
“9. That shortly thereafter the city of Quenemo built a transmission line from Quenemo to the city of Ottawa, Kan.
“10. On November 14, 1921, the following appears on the records of the minute book of the council of Lyndon:
“ ‘The council of the city of Lyndon met in the office of the city clerk November 14, 1921, with the councilmen of the city of Melverm Ways and means of securing 24-hour service were discussed, and the two cities mutually agreed upon a plan by which current could be secured from Quenemo.’
“11. On December 12, 1921, a resolution was duly adopted by the mayor and councilmen of the city of Lyndon as follows:
“ ‘Whereas, the mayor and councilmen of Lyndon, Kan., for the purpose of supplying the city of Lyndon, Kan., and its inhabitants with electric lights, have entered into a contract with the mayor and councilmen of the city of Quenemo, Kan., to purchase the electric transmission line extending from the city of Lyndon to the city of Quenemo, and to extend and equip such transmission line with new insulators, meters, transformers, a third wire, and such other equipment necessary for a three-phase service,
“ ‘And whereas, the city of Lyndon, Kan., by the terms of such agreement with said city of Quenemo, Kan., has become liable to the city of Quenemo, and has obligated itself in the amount of $10,000 for the purchase aforesaid, and
“ ‘Whereas, an indebtedness to the amount of $10,000 has been created by the city of Lyndon in the manner and for the purpose aforesaid:
“ ‘It is therefore resolved and determined by the mayor and councilmen of the city of Lyndon, Kan., that the indebtedness so created be paid by the issuance of bonds of said city of Lyndon in the 'amount of $10,000, as provided in section 864, General Statutes of 1915.’
“12. That on said December 12, 1921, ordinance number 265 of the city of Lyndon was duly passed. This was an ordinance calling an election of the electors of the city of Lyndon to vote bonds for the purpose of purchasing an electric line to the city of Quenemo, Kan., for the purpose of transmitting electric current to said city of Lyndon.
“13. Due notice of such election was given by publication in the manner provided by law, and such election was held on January 2, 1922. On January 3, 1922, the mayor and councilmen of the city of Lyndon met to canvass the votes cast at such election. In the record of such meeting the following appears:
“ ‘Council proceeds to canvass votes according to law cast at special city election held on January 3, 1922, Submitting the following propositions:
“ ‘Proposition No. 1: A proposition to vote bonds of the city of Lyndon to the amount of $10,000 for the purpose of purchasing lines of wire, poles, and other equipment and appurtenances connecting the city of Lyndon with the city of Quenemo, Kan., for the purpose of procuring or supplying electric lights for the city of Lyndon and its inhabitants.
“ ‘Total number of votes cast................................. 262
For the proposition.................'....................... 210
Against the proposition .................................... 48
Void ballots ............................................... 1
Blank ballots .............................................. 3’
“The mayor and councilmen at such meeting declared that such proposition was duly carried.
“14. That upon January 24, 1922, ordinance number 267 of the city of Lyndon was duly passed. This ordinance provided for the issuance of bonds of the city of Lyndon to the amount of $10,000, for the purpose of purchasing the transmission line from the city of Quenemo to the city of Lyndon.
“15. That upon March 6, 1922, the mayor and councilmen of Lyndon duly authorized the city clerk to secure the services of Prof. F. Ellis Johnson as constructing engineer in the equipment of such transmission line from Lyndon to Quenemo. Mr. Johnson made a survey of the line, and presented to the mayor and councilmen of Lyndon at regular meeting a written report concerning the rebuilding of the line. This report was accepted, and the transmission line was rebuilt, under the direction of Mr. Johnson (for the purpose of securing thereover electric current from Quenemo to Lyndon).
“16. That after such bond election, an instrument was prepared covering the furnishing of electric current from Quenemo to Lyndon at the rate of 4% cents per kilowatt metered at the switchboard in Lyndon. This instrument was discussed by the mayor and council of Quenemo and signed by the mayor and city clerk with the seal of the city attached. This purported contract was sent to and taken up by the mayor and councilmen of Lyndon at a meeting, but the evidence does not show what formal action was taken thereon. The mayor and city clerk of Lyndon testified that all the councilmen of the city of Lyndon at this meeting expressed themselves as being satisfied with the purported contract; following such meeting both of said original purported contracts were signed by the mayor and city clerk of Lyndon, one copy was returned to Quenemo and filed with the city clerk, the other was retained by the city clerk of Lyndon.
“17. That the journal of the proceedings, of the city councils of said cities of Quenemo and Lyndon contain no record of any action having been taken by the governing body of said cities authorizing the execution of said written instrument.
“18. That the oral testimony of A. W. Logan, the then mayor of the city of Quenemo, who signed said instrument as mayor Quenemo, and also of D. R. Morris, who was at that time one of the councilmen of the city of Quenemo, shows that said instrument was agreed to and authorized by the city council of the city of Quenemo (by unanimous vote of the council).
“19. That the oral testimony of C. T. McDaniel and J. EL Yearout, the then mayor and city clerk of the city of Lyndon, and who signed said instrument as such mayor and clerk, shows that no vote was ever taken by the city council of Lyndon on the adoption of said instrument, but that all of the councilmen, at a regular meeting of the council, expressed themselves as favorable to the provisions of said instrument.
“20. That at the time of the execution of said instrument, and for several years prior thereto, the city of Quenemo did not own or operate an electric light plant for the production of electric current (but did own a system of poles, wires, transformers, and insulators, by whiqh it distributed electric current to its inhabitants and lighted its streets).
“21. That said purported contract between Quenemo and Lyndon was never published in the official city paper of the city of Lyndon or elsewhere, prior to its execution.
“22. That Quenemo, by ordinance No. 154 of said city of Quenemo, with the agreement thereto attached and marked ‘A’, attempted to assign said purported contract to the plaintiff herein, and also sold and transferred to plaintiff all of its lines, poles, transformers, electric equipment, and its transmission line between Quenemo and Ottawa.
“23. That thereafter plaintiff gave to defendant a notice of its acquisition from the city of Quenemo of said property, by a letter to the city clerk of Lyndon.
“24. That thereafter no formal action was taken by the governing body of the city of Lyndon consenting to the assignment of said purported contract by the city of Lyndon.
“25. On May 1, 1922, the city of Lyndon paid to the city of Quenemo the sum of $3,500 for the transmission line from Lyndon to Quenemo and took possession thereof. Under the direction of Professor Johnson the city of Lyndon then proceeded to expend the greater portion of the remainder of the proceeds of the sale of the bonds in the rebuilding of said transmission line. All of said expenditures were authorized by the mayor and council of Lyndon (and were made for the sole purpose of securing electric current from Quenemo).
“26. That because of the fact that Lyndon and Melvern were to take their current from Quenemo, said city of Quenemo built its transmission line from Ottawa of such capacity to carry an additional load, at an increased cost of $5,000.
“27. Said transmission lines were completed sometime about August, 1922, and service commenced to be furnished thereover during that month. About September 1, 1922, the city of Lyndon paid to the city of Quenemo the first monthly bill for electric current furnished. Such bill was computed at 4% cents per kilowatt, metered at Lyndon, Kan., and monthly thereafter, until the city of Quenemo sold its electrical property to the plaintiff as hereinafter stated, the city of Lyndon paid to the city of Quenemo for electric current which it received during the preceding month. All of such bills were computed at the rate mentioned above. During all such time the city of Lyndon did not question the validity or effect of the purported contract between said two cities. Such bills were allowed by the mayor and councilmen at regular meetings.
“28. During the month of May, 1925, the plaintiff purchased all of the electrical property of the city of Quenemo, including the rights of Quenemo under the purported contract with Lyndon. This sale was approved by the public service commission of Kansas and the plaintiff authorized to engage in the utility business with relation to such property. The plaintiff took possession of such property in July, 1925, and in writing notified the city of Lyndon of its purchase of such property and the assignment of said contract to it, and that it would faithfully fulfill such contract. Such city made no objection thereto, and beginning with the month of August, 1925, the' city of Lyndon paid to the plaintiff the monthly bills for electric current furnished to it by the plaintiff. All of such bills were computed upon the rates given above, and were allowed at regular monthly meetings of the mayor and council, and payments made direct to the plaintiff.
“29. That the chief consideration which induced the cities of Quenemo, Lyndon and Melvern to join in taking current from Ottawa was the mutual benefit to be received by them in furnishing electric current to their respective inhabitants.
“Conclusions of Law.
“1. That the purported contract between Lyndon and Quenemo was entered into by Lyndon without authority of law, and is void.
“2. That the purported contract between Lyndon and Quenemo was entered into by Quenemo without authority of law, and is void.
“3. That Quenemo had no right to assign said contract to the plaintiff herein, and that plaintiff has acquired no rights thereunder.
“4. That the defendant, the city of Lyndon, is not estopped to assert, the invalidity of said contract by reason of having accepted and paid for current thereunder.
“5. That the plaintiff is not entitled to the relief sought, and the injunction should be denied.”
The first conclusion of law is based on the twenty-first finding of fact. Chapter 136 of the Laws of 1903 empowered cities of the second and third classes to obtain water, heat, light and power. Sections 1 and 2 related to the granting of franchises to persons, companies and corporations to perform the service. Section 3 related to performance of the service by municipalities themselves, and enabled them to make contracts to that end. Publication was not required of either franchise ordinances enacted under section 1, or of contracts entered into under section 3. In 1909 what is now R. S. 12-841, relating to franchises, was substituted for sections 1 and 2 of the earlier act, and those sections were repealed. The new law required publication of franchise ordinances, and under certain conditions referendum elections. Section 3 was not affected in any particular, and cities remained free to contract without publication, as before.
Section 3 of the act of 1903 did not empower cities to purchase electric current. In 1911 the section was amended by including that commodity among those which cities might purchase, and the section became R. S. 12-842. No publication limitation was placed on the power to contract, there is no such limitation, and the first conclusion of law is unsound.
By R. S. 12-842 the city was authorized to supply electric current by means of a plant purchased or constructed and operated by the city itself. The city was also granted full power and authority to contract for and purchase electric current to be delivered (to the city) where purchased or elsewhere, and to maintain wires and other equipment for distribution of current from place of delivery to such points within or without the city as might be desirable, for the purpose of supplying “said city, its citizens and others” with light, power, or heat for domestic use “or other purposes.” The city was also authorized to place its distribution wires and other equipment on public roads, highways, and streets of the state. Under this grant of power the city could buy electric current. It could buy current to supply its own corporate needs. It could also buy current to be supplied to citizens of the city and others, which of course means it could sell purchased current. “Said city and its citizens” embraces all the territory within the corporate limits. The word “others” has no meaning unless it applies to purchasers outside the city limits, and the courts have no authority to strike the word from the statute. The legislature placed no restriction on classes of purchasers indicated by the word “others,” or on localities. Under the ejusdem generis canon of interpretation the city could supply current to other cities and'to other than its own citizens, which is sufficient for this case. Application of the canon is not needed, however, to know that the city could sell to outside corporations, whether public or private.
The end which the legislature had in view was wide distribution of electric current through municipal agency at a time antedating such service by private corporations. The statute of 1903 provided, as it still does, that a city may purchase natural gas wells, may secure natural gas lands by lease, contract, or purchase, may purchase natural gas, and may construct and maintain pipe lines for transportation of natural gas to supply the city, its citizens, and others with natural gas. In providing for future needs a city having access to a natural gas field would likely produce and have at its disposal a surplus of gas, which it could pass on to other cities less fortunately located and thus enable them to share nature’s bounty. Njo distinction was made .between a city producing gas from its own wells and lands and a city purchasing its gas. The result was that, for example, producing city Ottawa could sell in large volume to Quenemo, Quenemo, purchasing at an economic advantage, could supply Lyndon, which would otherwise be without gas, and Lyndon could supply Melvern. Apparently the legislature was satisfied with the result of this extension of normal municipal function, because in 1911 power to buy and sell gas was extended to include electric current. The statute, being a remedial public-welfare statute having a purpose beyond the mere government of an incorporated city, is to be liberally construed.
As indicated, R. S. 12-842 applied to cities of the second and third classes only. Cities of the first class were not included. In 1911 and 1913 the following statutes were enacted:
“All cities of the state owning their own electric-light, heat or power plant are hereby authorized and empowered to furnish electric light, heat or power to districts lying outside of the limits of such cities, and charge for such service such rates as may be provided by ordinance.
“Any city operating waterworks, fuel, power, or lighting plant may sell and dispose of water, fuel, power or light to any person within or without said city.” (R. S. 12-806 and 12-808.)
These statutes contained initial grants of corporate power to cities of the first class, and may or may not have been regarded as enlarging the statutory powers of other cities operating their own plants. The statutes were not restrictive of any power enjoyed by cities of the second and third classes, and took nothing from the power of cities not operating producing plants to buy and sell electric current. Besides that, the lines, poles, transformers, and other equipment of Quenemo, constructed, operated and sold to the transmission company, constituted a distribution plant, and by liberal interpretation might be said to constitute a plant operated by Quenemo, within the meaning of the 1913 statute, the purpose of which clearly was to broaden to the fullest extent the field of electrical distribution. The result is, the second conclusion of law is unsound.
The third conclusion of law was based on R. S. 12-1649, which reads:
“That any city of the second or third class possessing any equipment, machinery, apparatus or personal property that its governing body desires to sell, trade or exchange for other property better suited to the city’s needs, or to use the cash received therefor in purchasing such other property, may dispose of the same, and in the event of receiving cash in the transaction, deposit the proceeds thereof in the general fund of the city.”
The section applies to the specific kinds of transactions enumerated. It has no application to the outright sale by Quenemo to the transmission company of Quenemo’s property, including the contract with Lyndon, made with qo purpose to acquire other property better adapted to the city’s needs, whether with cash received or otherwise. Such sales have been authorized since 1872:
“Each city shall be a body corporate and politic, and shall have power:
“ ‘Third. To sell and convey any real or personal estate owned by the city, and make such order respecting the same as may be deemed conducive to the interests of the city, and to provide for the improvement, regulation and government of the same.’” (R. S. 12-101.)
Lyndon contends the contract was not assignable because of the special trust and confidence which Lyndon reposed in Quenemo. The court did not so find. The twenty-ninth finding is that the contract was induced by expectation of mutual benefit to be derived from it. On Lyndon’s side the contract was entered into because its plant had broken down, and electric current could be procuréd from Quenemo. The subject of assignment of the contract was considered when the contract was negotiated. Lyndon was expressly prohibited from assigning without Quenemo’s consent. No restriction was placed on assignment by Quenemo. The result is, the third conclusion of law is unsound.
The fourth conclusion of law is clearly unsound. .The contract was entered into by Lyndon by virtue of its private business power, ■and not as a public governmental matter. Lyndon performed for three years before the assignment by Quenemo to the transmission company became operative, and for more than two years afterward. Both cities had power to contract and to perform, and informalities in making the contract were cured by performance.
Lyndon is also estopped, even if it be conceded Quenemo lacked power to contract. The contract on Quenemo’s side was not illegal ■or immoral. It was simply unauthorized. Quenemo sold and assigned the contract to the transmission company, the sale was approved by the public service commission, and the transmission company notified Lyndon of the sale and of the transmission company’s purpose to perform. No impediment to contract between Lyndon and the transmission company existed. Notwithstanding the original defect of power on Quenemo’s side, the contract was not .a complete nullity. It had valuable potentiality.
“Though the act under which a city contracted with complainant for the furnishing of gas for 25 years at a fixed rate was invalid, yet, where the validity of the contract was for many years recognized by municipal authorities after the enactment of a new charter, under which it would have been valid, the city cannot thereafter question the contract.” (Omaha Gas Co. v. City of Omaha, 249 Fed. 350, 351, syl. ¶ 5.)
“Where city, in reliance on contracts with power company to furnish it with electricity at specified rates, dismantled its own power plant, and the company recognized the validity of the contract by furnishing electricity thereunder for more than five years, and until after the enactment of a statute empowering the city to enter into such a contract, the company subsequently thereto was estopped from claiming that the contract was void because ultra vires at the time it was entered into.” (Central Power Co. v. Central City, Neb., 282 Fed. 998, syl., C. C. A. 8th Cir.)
In the hands of the transmission company the contract was capable of ratification by Lyndon. Lyndon chose to treat the contract as valid and binding, and continued for two years to perform on its side. Common honesty forbids repudiation now.
It follows from the foregoing that the fifth conclusion of law is unsound.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff on the findings of fact.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit arose out of the purchase of two small tracts of defendant’s land by the state highway commission and out of a contemporaneous written contract by the parties thereto.
The controlling facts were these: Defendant owned a tract of land and a filling station and related equipment situated thereon in the city of Walton. This property abutted on a highway which the state highway commission desired to widen. To do so, it was desirable to purchase two narrow strips of defendant’s land and to induce him to remove his pumps and related equipment therefrom. Accordingly defendant sold to the state highway commission the desired land, aggregating .09 of an acre, and executed a collateral agreement the controversial terms of which read:
“4-28-32
“This agreement by and between the Kansas State Highway Commission and L. W. Ames of Walton, Kansas, whereby L. W. Ames for the sum of twenty seven hundred and fifty dollars agrees to move pumps and piers owned by him near sta. 330 plus 30, 50-S 24-F A 357 C, on north side of road as required by said Kansas State Highway Commission and to deed to said Kansas State Highway Commission right of way. . . .” [Italics ours.]
The consideration, $2,750, was paid. Defendant moved his pumps and piers off the land he sold to the plaintiff, and reset them at a distance of one foot from the widened limits of the highway.
The gist of this lawsuit is plaintiff’s contention that he did not move them “as required” by the commission; that to conform to the requirement of the commission he should not have reset them closer to the widened highway than twelve feet. The state highway commission had a rule to that effect.
Defendant asserted below and still asserts that the collateral agreement is not fairly susceptible of the construction contended for by the state highway commission. The trial court held otherwise and gave judgment in favor of plaintiff. The judgment was virtually a mandatory injunction requiring defendant “to move his pumps and-piers” for a distance of “at least twelve feet outside the right-of-way line.”
Defendant raises various objections to this judgment, first contending that the collateral agreement was ambiguous; and he invokes the rule of law to the effect that specific performance will not be decreed where the contract is subject to that infirmity. The rule is sound enough, but what is vague or ambiguous about this contract? Plaintiff agreed to move his pumps and piers “as required by the state highway commission.” Certainly that language is clear and understandable. True, the contract did not specifically state what the commission’s requirement was, but that did not render the contract ambiguous or uncertain. Whatever the requirement was, defendant had agreed to abide by it. And there was no mystery about that requirement. Defendant was advised of it repeatedly and in more ways than one. Moreover, if he did not know the terms of the requirement, it-was his duty to ask the commission. It is a maxim of the law which comes down from that remote time when lawyers and judges used the Latin tongue, “Id certum est quod certum reddi potest.” 2 Bouvier, p. 2136, translates this maxim thus: “That is certain which may be rendered certain,” and Blackstone, Kent, and early American decisions are cited. This maxim is as potent today as ever, and it is undeniable that the intendment of the phrase “as required by the state highway commission” was readily capable of being rendered certain. If defendant’s obligation did not bind him to conform to the commission’s requirement in the removal of his pumps and piers, then the language wherein he agreed to move them “as required by the commission” served no purpose in the contract.
In the instructive case of Bates v. Harris, 144 Ky. 399, 138 S. W. 276, 36 L. R. A., n. s., 154, the action was to compel specific performance of a contract to sell a defendant’s farm described as “her Muddy creek farm.” One defense pleaded was insufficiency of description to identify the subject matter of the contract. In affirming a judgment for plaintiff, the court applied the maxim quoted, saying—
“Parol evidence cannot be introduced to vary, enlarge, or restrict the written terms of the contract. But frequently it is the case that application of apparently vague descriptions must be by parol testimony which puts before the court the facts and circumstances surrounding the parties when the contract was made or is to be executed, that its terms may be interpreted by the light from such surroundings. From this rule springs the maxim, ‘That is certain which can be made certain.’ ” (p. 402.)
In our own recent case of Marsh v. Brown-Crummer Inv. Co., 138 Kan. 123, 23 P. 2d 465, one defense to the action which was on a contract to repurchase bonds was that the contract did not specify what bonds defendant had agreed to repurchase, but this court held the contract enforceable, citing 25 R. C. L. 218 et seq., and 23 R. C. L. 1282, and adding that—
“The maxim ‘id certum est, quod certum reddi potest’ has been held applicable in many cases of the character of the one under consideration here.” (p. 127.)
Nothing is more common than the incorporation of rights and obligations in one written instrument by reference to recitals in other written instruments or which are otherwise to be “rendered certain.” Typical of these are contracts for the construction of buildings, roads, and bridges, in accordance with plans and specifications on file in some designated place or in the custody of some designated person. We think that the contract for the removal of the pumps and piers as required by the state highway commission was not ambiguous, and having accepted and retained the seemingly generous award for his land and agreement, defendant ought to have performed it without quibbling.
Defendant next contends that the state highway commission had no authority to make the contract requiring defendant to remove his pumps and piers for a distance of twelve feet from the right of way. Without deciding that point, it is perfectly clear that defendant cannot raise this question. Mayhap defendant could have raised it if he had not accepted and retained the quid pro quo he obtained from the plaintiff. But with $2,750 of plaintiff’s money in his pocket he cannot do so. It is elementary that pleas of ultra vires cannot be •effectively lodged against the enforcement of a contract by a litigant who has accepted and retained the benefits of the contract. (Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465; Kelly v. Insurance Co., 101 Kan. 91, 98, 99, 165 Pac. 806, L. R. A. 1918 C, 1170; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 208, 237 Pac. 913; Tennant v. Long, 138 Kan. 132, 23 P. 2d 477.)
The judgment of the district court was correct, and it is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced in the district court of Marion county by the trustees of the estate of the Chicago, Rock Island and Pacific Railway Company against the county treasurer of Marion county and the'Cottonwood Valley drainage district of Marion county for the recovery by the plaintiffs of drainage-district taxes for the year 1932, which the plaintiffs claim to have been unlawfully assessed and collected, and paid by them under protest. The county treasurer and the drainage district filed separate general demurrers, which were sustained by the district court, and from such ruling the plaintiffs appeal.
The petition sets out the way and manner in which the railroad was assessed by the Kansas state tax commission in the year 1932, enumerating in detail the many things taken into consideration by the tax commission in arriving at the assessed valuation of the railroad in Kansas on the mileage basis, among other things including the right of way, track, roadbed, sidetracks, depots, ipachine shops, other buildings, rolling stock of many kinds, market value or actual value of the capital stock, bonded indebtedness, tools, material for repairs and all other personal property.
The petition alleges that for the year 1932 the state tax commission considered all the various properties located in fourteen states and allocated to the state of Kansas and to the various counties, townships and cities therein such valuation upon a mileage basis. That the county clerk of Marion county “used said mileage basis value as the basis for extending taxes over the property of these plaintiffs for the use and benefit of the Cottonwood Valley drainage district of Marion county.” That the plaintiffs have within the boundaries of said drainage district 4.82 miles of main track and 1.12 miles of side track. That the county clerk extended over the property of the railway company in said drainage district a valuation of $229,171. “That said bases included numerous properties and values, tangible and intangible, not within the said drainage district. That the value of all property of these plaintiffs for the year 1932 within the district did not exceed $40,000.” That the value used by the tax commission for rolling stock, tools, material and supplies for that year was $6,528 per mile. That with the exception of lines of railway, telephone and other public utilities and city lots and property, all of the land within the drainage district is used for agricultural and géneral farm purposes and was valued at not to exceed $60 an acre, including improvements thereon.
Appellants first urge that the levying and imposing of taxes and the extension of the same in a drainage district is limited by statute to property within the boundaries of the district, citing the fact that this geographical restriction is contained in each of three subdivisions of R. S. 1933 Supp. 24-407, authorizing such a levy, viz., subdivisions 11, 12 and 13. This restriction is similar to other territorial limitations and restrictions. For example, it is said in R. S. 79-1801:
“The governing body of any city, the trustees of any municipal township, the board of education of any city, and the school-district boards in the county, are hereby required to cause to be certified to the county clerk the percentage by them levied on the real and personal prop'erty in such corporation, as returned on the assessment roll of the county. ...”
See R. S. 14-402 in this connection as to cities of the second class where levy is authorized “on all real, mixed and personal property within the limits of said cities.”
Individuals are required to list property such as money, credits and stocks in the cities or townships in which they reside (R. S. 79-306 and 79-307), although the money may be deposited in a distant bank, a note may be given by one in another state or county, and corporation stock issued in Delaware or some other state and none of it be physically in the county, township, school district or drainage district in- which the taxpayer resides.
The petition nowhere alleges facts that would bring the assessment, of which complaint is made, under subdivision 12 of R. S. 1933 Supp. 24-407, showing that the assessment is against certain real estate in the district that has been benefited, but the allegations are sufficient to bring the assessment under the provisions of either of the other two subdivisions, 11 or 13. Both these subdivisions refer to “property” within the district, while subdivision 12 refers to “real estate” within the district. So if the assessment is not for a particular benefit under subdivision 12, we shall not be limited to the consideration of real estate only.
Appellants cite Atchison, T. & S. F. Rly. Co. v. Drainage District, 133 Kan. 586, 1 P. 2d 253, where it was held that the railway real property within the drainage district was in that case to be regarded as land, just the same as the realty of other proprietors within the district. That was a drainage district that had been abandoned after it had incurred the expense of organization and survey, and this “percentage” tax that was approved was for the purpose of liquidating the preliminary expense before its abandonment.
Appellants cite in the same connection Jefferson County Comm’rs v. Stonehouse Drainage District, 127 Kan. 833, 275 Pac. 191, and Railroad Co. v. Jefferson County, 114 Kan. 156, 217, Pac. 315. The first of these cases was where the county sought to enjoin the drainage district from assessing and levying a tax ágainst the improved county and state highway within the drainage district. It was there held that the act under which the district had been organized provided specifically how moneys shall be acquired for the general fund and for improvements to be made in the drainage district, and omitted to charge any part of such expense of highway improvements to the county. It further distinguished between a railroad right of . way and a highway by calling attention to R. S. 24-422 with reference to special taxes and assessments upon each tract of land benefited, that the railroad right of way shall be deemed, treated and considered as real estate. In Railroad Co. v. Jefferson County, supra, which was a road-benefit-district case, where the Union Pacific Railroad Company sought to enjoin Jefferson county from levying a special assessment on the railroad property to pay for a paved road in that benefit road district, the court held the railroad was liable for such assessment on its “real property and the improvements thereon,” under the provision of the road-benefit-district law. This also seems to be dealing entirely with special assessments and special benefits accruing to the owners of property. Appellants also cite Kimmel v. Wolf River Drainage Dist., 138 Kan. 209, 25 P. 2d 585, which was also a special benefit-district case, and a number of road-benefit-district cases which we think do not greatly assist us in reaching a determination of the matter here involved.
In the case of Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855, the drainage-district assessments were under consideration, and it was there held:
“Two methods are provided for making improvements under the drainage act, one by special assessment upon the real estate that may be benefited by the improvement and in proportion to the benefit, and the'other by the levy of a general tax on taxable property of every kind in the district.” (p. 78.)
R. S. 79-102, being the beginning of the taxation statutes, defines property as follows:
“That the term ‘property/ when used alone in this act, shall mean and include every kind of property subject to ownership.”
The assessment in this case not being alleged to have been a special or benefit assessment, it is not limited to real estate but to property generally, as above defined, and therefore the valuation of the state tax commission on the mileage basis was proper, and the demurrers of the defendants to the petition were properly sustained.
We are not shown or persuaded as to the constitutional rights of the plaintiff being in any way violated by the use of the same method of arriving at the mileage assessment for the drainage district as was used for state, county, city and township purposes.
Defendants filed a counter abstract which covered matters not contained in the petition, and on one particular feature in effect modified or tended to contradict a certain allegation in the petition, and one of the demurrers attempted to raise the question as an issue of law in the case. The plaintiffs moved to strike the counter abstract from the files. That motion is sustained, and the counter abstract is stricken from the files. On the hearing of a demurrer to a petition the allegations of the petition must be accepted as true and correct. The information contained in the counter abstract was not and should not be considered in determining the sufficiency of the petition.
The ruling of the trial court sustaining the demurrers to the petition is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for plaintiff. Defendant appeals.
The action was. started in the city court of Arkansas City. The bill of particulars alleged that defendant operated a high-power electric line running across the east side of plaintiff’s property. The bill of particulars alleged further that defendant “while trespassing upon plaintiff’s property” trimmed certain trees belonging to plaintiff in such a manner that some were killed and others would die on account of defendant’s unlawful, willful, negligent and careless trimming. The bill of particulars further alleged that defendant did not have any right to come upon plaintiff’s property and that at the time it trimmed the trees it was trespassing upon plaintiff’s property. The bill of particulars prayed for damages in the sum of $900.
On the day the case was set for trial defendant filed its bill of particulars, in which after admitting its incorporation and that it was operating an electric line it denied the other allegations of the bill of particulars of plaintiff. This bill of particulars further alleged that it was operating a pole line for the transmission of electric current along the road adjacent to the property of plaintiff; that there was a row of trees along the side of the land, the branches of which extended into the highway and that the branches of the trees came in contact with the poles, crossarms and transmission lines of defendant, causing these wires to short-circuit and break, destroying continuous transmission of electric current to Arkansas City and other cities; that it was the duty of the plaintiff to remove this nuisance; that plaintiff failed to do so — hence, by reason of this failure, it became necessary for defendant to abate this nuisance which it did with the acquiescence of plaintiff; and! that defendant expended the sum of $25 in so doing.
For cross petition against plaintiff defendant alleged that plaintiff caused this case to be set for February 21, 1935, and so advised defendant; that defendant, relying on this advice, prepared for trial by causing witnesses residing in Wichita to be at Arkansas City on February 21; that when defendant appeared in court on that day ready! for trial it was notified that on a date prior to February 21 plaintiff had appeared in court and caused the case to be continued to a date subsequent to February 21 and had not notified defendant of the change; that defendant expended $56.90 in having the witnesses in attendance in court and it was entitled to recover that sum from plaintiff. The bill of particulars of defendant prayed that plaintiff take nothing by this action and that defendant have judgment for $25 and for $56.90. At the same time that this bill of particulars was filed the defendant objected to the jurisdiction of the city court to try the case as made up by the pleadings. This objection was overruled and on that date the case was tried on its merits and a judgment rendered against defendant in the sum of $600 and costs. Later defendant filed its motion to set aside the judgment on the ground that the court had no jurisdiction to render such a judgment. This motion was overruled and defendant perfected its appeal to the district court of Cowley county. In that court defendant filed a motion to dismiss the action for the reason that the pleadings showed that the city court and the district court were without jurisdiction to try the action. This motion was overruled. From that order defendant appeals.
R. S. 61-106 limits the jurisdiction of a court such as the city court of Arkansas City in cases for trespass on real estate to $100. If this bill of particulars stated a cause of action for trespass upon real estate it asked and pleaded damages in excess of $100 — hence the city court was without jurisdiction.
This court has said that every action must be based on some legal theory. (See Davis v. Union State Bank, 137 Kan. 264, 20 P. 2d 508; Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; and McDowell v. Geist, 134 Kan. 789, 8 P. 2d 372.)
An examination of the bill of particulars of plaintiff discloses that it is founded upon the theory that defendant went upon the land of plaintiff where it had no right to go and that while thus unlawfully on the land of plaintiff it damaged some trees. Title in the plaintiff is alleged. This allegation carries with it a presumption of possession. (See Land & Lumber Co. v. Tie Co., 79 Mo. App. 543.) Trees are a part of the real estate. No particular words are necessary to state a cause of action for trespass on real estate. (See 63 C. J. 978, § 149.) Clearly this bill of particulars stated a cause of action for trespass on real estate.
We have concluded, therefore, that the court erred in not dismissing the action on account of lack of jurisdiction of the city court. The judgment of the trial court.is reversed with directions to dismiss the action.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order of the district court sustaining a motion to strike plaintiff’s amended petition from the files.
The action was brought to recover damages for obtaining by means of false and fraudulent representations a certain royalty deed, conveying to defendant a one-half interest in oil and gas and other minerals in plaintiff’s land, and also a one-half interest in the oil and gas rentals accruing to plaintiff under a previous lease held by another party, the Argus Production Company.
This action was filed in January, 1934. The petition contained, in addition to the charges of fraud and misrepresentation, the following statement concerning the royalty deed here involved:
“Plaintiff further says that the $160 recited in said mineral deed was not in fact the true consideration for the execution and delivery thereof, and plaintiff hereby offers to restore said sum to defendant, upon the rescission of said deed.”
On February 10, 1934, defendant leveled a motion against the petition consisting of two parts. The only portion of the motion involved here reads:
“That plaintiff be required to allege what was the true consideration for the execution and delivery of the royalty deed, and whether or not the same was in lieu of or in addition to the $160 recited in said deed.”
On April 23, 1934, the motion was sustained. On June 9, 1934, defendant filed a motion to dismiss for want of prosecution. Three days later, and before that motion to dismiss was heard, plaintiff filed his amended petition, omitting entirely the allegation concerning rescission of the deed, which the court had directed to be made definite and certain. On August 11th the court denied defendant’s motion to dismiss the amended petition. In denying the motion the court said:
“I have carefully considered the motion to dismiss in the above-entitled action, and am convinced that the court has ample authority to dismiss an action under the circumstances of this case, if the order to amend is upon an essential element of the suit. The order to amend in this case was a matter of small consequence, probably not even material to the issues, and for that reason the motion to dismiss should be and the same hereby is overruled. Defendant will be given ten days to plead or twenty days to answer plaintiff’s amended petition.”
On August 15th defendant moved to strike the amended petition from the files. It appears that notice of hearing of the motion to strike was had by leaving a copy thereof at the home of plaintiff, and that counsel for plaintiff did not learn of it until the 18th day of October. Counsel for plaintiff not appearing on the day set for the hearing of the motion, the hearing was withheld until September 1, the next regular court day in Stevens county. Counsel for plain tiff was not present on the opening day of the regular term and the motion to strike the amended petition was sustained. On October 22 plaintiff filed his motion to set aside the order striking the amended petition from the files. On December 11 the court sustained plaintiff’s motion and set aside the order of September 1 striking the amended petition. A hearing was then immediately had upon the original motion to strike. The court sustained the motion and in so doing said:
“I am sustaining the motion on the ground that the order of the court on sustaining the motion to make more definite and certain was not complied with in the amended petition.”
Upon call of the docket in January, 1935, at the regular January term, the cause was dismissed upon oral motion of defendant for want of prosecution. On June 3, 1935, plaintiff perfected his appeal from the order of December 11, 1934, striking his amended petition from the files.
On behalf of appellee it is contended the order striking the amended petition from the files is a moot question for the reason the trial court subsequently dismissed the action for want of prosecution. The order striking the amended petition from the files is a final order and appealable. (R. S. 60-3302, 60-3303.) Appellant had six months from the date of the order within which to perfect his appeal. (R. S. 60-3309.) The right of appeal was not defeated by the subsequent order made within the period allowed for appellate review.
In the case of First National Bank v. Smith, ante, p. 369, 55 P. 2d 420, it was held:
“A ruling sustaining a demurrer to an amended petition is a final order, and where the pleader is granted additional time within which to file a second amended petition, but does not elect to take advantage thereof, and thereafter the action is dismissed for failure to prosecute the same, held, plaintiff is not precluded from a review of such order, having perfected an appeal therefrom within the statutory period.” (Syl. ¶ 1.)
For the same ruling, under slightly different circumstances, see Bringle v. Gale Township, 127 Kan. 115, 272 Pac. 126.
Appellee further contends the trial court had a right to strike the amended petition from the files by reason of appellant’s failure to comply with the order of the court. The pertinent portion of R. S. 60-3105 reads:
“An action may be dismissed without prejudice to a future action: . . . Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.”
In further support of appellee’s contention we are referred to Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40; Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797; Insurance Co. v. Etchen, 111 Kan. 545, 207 Pac. 782; Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459.
True, an action may be dismissed for disobedience to an order, under proper circumstances warranting such drastic action. A reading of the above cases will, however, disclose circumstances quite dissimilar to those involved here. In the Burdick case it was held it would have constituted error for the trial court not to have sustained defendant’s motion. Under those circumstances failure to comply with the court’s order justified the dismissal of the action. In the Anderson case a proper order was made requiring plaintiff to make his petition definite and certain. The order pertained to matters which defendant had a right to be definitely informed about in order to properly prepare its defense. In the insurance company case the order to make an answer definite and certain was highly proper. The order was acquiesced in by defendant. Repeated requests for time to comply were granted. Defendant failed to comply within the time originally allowed and within the repeated extensions. An answer was finally filed containing trivial interlineations which in no respect complied with the order, which was properly made. In the Van Deren case it was held:
“An order of the trial court requiring plaintiff to make this petition more definite and certain in some particulars is one within the sound discretion of the trial court, from which ordinarily no appeal will lie, and in the instant case no prejudicial error appears.” (Syl. ¶ 3.)
The appeal in the instant case is not from the order requiring the petition to be made definite and certain but from the order striking the petition from the files for failure to comply with such order.
The question here'is, Was the order striking the amended petition from the files a proper order under the circumstances in this case? Under the provisions of the code plaintiff may amend his petition, without leave, at any time before the answer is filed, without prejudice to the proceedings. (R. S. 60-756.) Appellant filed his amended petition before answer was filed and served a copy thereof on appellee. Defendant’s motion to dismiss was filed June 9, 1934, and predicated upon plaintiff’s failure to file the amended petition. On June 12, 1934, three days later, and after the. motion to dismiss had been served on appellant’s attorney, the amended petition was filed. The court overruled that motion, and in so doing said:
“The order to amend in this case was a matter of small consequence, probably not even material to the issues, and for that reason the motion to dismiss should be and the same hereby is overruled.”
Just why the trial court later changed its position as to the importance of the motion to make definite and certain, to the extent that he ordered the amended petition stricken from the files, by reason of plaintiff’s failure to comply with the order to make the petition definite and certain, does not clearly appear. We are impressed with the correctness of the court’s first impression and ruling on the subject. The amended petition in no way prejudiced the defense of appellee. It contained additional allegations of fraud and omitted entirely that portion of the original petition which the motion requested plaintiff to make more definite and certain. That portion of the original petition dealt with rescission of the royalty deed. The petition disclosed the royalty deed had been conveyed to a third party. It would appear appellant may have concluded that under those circumstances he was not entitled to rescission. In the amended petition the rescission feature was completely abandoned. The amended petition was grounded solely on the theory of an action for damages. It was based on fraud and misrepresentation. Just how defendant could be prejudiced by the complete abandonment of the rescission feature is not clear. On the other hand, if appellant had in fact received other and additional consideration for the deed than the $160 such fact would only reduce his total recovery. Appellee could be in no wise misled. The amount appellee had in fact paid appellant was a matter plainly within appellee’s own knowledge. It would constitute an offset to any damages appellant might recover. To such extent it was a proper defense. Appellant should not have been required to plead matters in defense of his action.
In the light of all the circumstances it would appear the action striking the amended petition from the files was not proper. Of course, if appellant should insist upon unnecessary delay in the prosecution of this action, it will be subject to dismissal. The dismissal of the action entered subsequent to the order to strike the amended petition from the files, could not, however, defeat appellant’s right of appeal on the order to strike. For the reasons stated the order to strike must be reversed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from a conviction under R. S. 21-435. His abstract contains no specifications of error, but we shall discuss the contentions made in his brief.
It is not necessary that a complete statement of facts be made. It is sufficient for our discussion to say the state’s evidence showed that one Hopkins and another man and his wife and their two children left Protection, Kan., in a motor car on the night of March 9, 1935, and started for their home, which was in Oklahoma, one mile south of the north state line and about fifteen miles from Protection. On their way they passed defendant’s home. About that time they noticed a car following them which ultimately caught up with them. As it passed, defendant was standing on the running Board with a revolver in his hands. He called to them “Stop, you — ” Hopkins either stopped momentarily, backed and then drove around, or immediately drove around the car in which defendant was riding and went on down the road. The car in which defendant was riding pursued and three or four shots were fired; after making a turn in the road other shots were fired, one of which hit the car, was deflected and stopped in the upholstery. The pursuit continued. The Riner car attempted to pass the Hopkins car which, instead of turning into his own gate, passed on down the road and finally went through a wire gate at the farm home of a Mr. Hagen. In going through the gate, the radiator on the Hopkins car was injured, a tire was punctured and the car soon stopped. The Riner car came up and there was an altercation between Hopkins and Riner. Riner’s version was that when the car in which he was riding first attempted to pass the Hopkins car, he had no gun but he tried to wave them down; that they then followed the Hopkins car and couldn’t overtake it, and Riner picked up the gun and said he would shoot a tire; that he first shot once and after the turn he shot once more. His version was that after the cars stopped at the Hagen ranch he approached the Hopkins car with his gun in his hand, threw down the gun and pulled Hopkins out of his car and'in the scuffle Hopkins struck him and Hopkins got loose and ran, and Riner remarked: “W'ell, we know who the . . . are that have been stealing my stuff.”
Thereafter Riner was arrested and subsequently tried on an information charging an offense under R. S. 21-431. At the trial the above evidence, with much other evidence, was received. The jury found defendant guilty of assaulting Hopkins under circumstances which would constitute murder or manslaughter if death had ensued, as defined by R. S. 21-435.
Defendant complains the trial court erred in not permitting him to show that articles were being stolen from' his home, his motive in pursuing the Hopkins car, his motive in shooting, and that he did not fire the shots at any human being. Although defendant argues at length the question of the admissibility of the evidence which he says he desired to introduce, so far as the abstract shows, it was all oral and was not presented to the trial court on motion for a new trial by affidavit or otherwise, as the code provides. (R. S. 60-3004.)
The same question was considered in State v. Crane, 136 Kan. 181, 14 P. 2d 634, where it was held:
“The offered and excluded evidence must be brought to the attention of the trial court by affidavit or otherwise at the hearing of the motion for a new trial, before its exclusion can be considered on review as an error.” (Syl.)
And see the cases cited in the opinion.
Two instructions of the jury are complained of as being erroneous. Although there is no showing that objection was made to the instructions as given, or that any other or different instructions were requested and refused, we shall consider the complaint briefly. The appellant has seen fit to abstract only two instructions, and we are not advised as to the content of the others. Instruction 4 advised the jury, in part, that —
“Every sane man is presumed to intend the natural and ordinary consequences of any act intentionally done. This presumption, however, is not'a conclusive one, and will not prevail if the jury, from a consideration of all the evidence bearing upon the point, entertain a reasonable doubt whether such intent existed.”
The complaint is not so much the instruction misstates the law, but that defendant having admitted he shot at the car and, from his version, that his subsequent conduct showed he had no intention of injuring or harming anyone, but only wished to identify the occupants -of the car, and the trial court having refused to permit him to show claimed thefts from his home, etc., it was error to instruct that every sane man is presumed to intend the natural and ordinary consequences of any act intentionally done. Without regard to the excluded testimony as to motive, and the thefts from defendant’s premises, the circumstances, as to the shooting were fully developed, as well as what happened from the time the pursuit started until it finally stopped at the Hagen ranch, as has been briefly shown. The state gave its version and the defendant gave his. Under those versions, the instruction was correct.
The complaint as to the sixth instruction needs only to be stated to show it is not substantial. The court instructed:
“Before the defendant can be convicted . . . the state must prove to your satisfaction and beyond a reasonable doubt, each and all of the following essential elements of such an offense, to wit: (Setting out three elements).
“If the state has so proven each of the foregoing essential elements, you should return a verdict finding the defendant guilty . . . But if the state has not so proven or if the evidence offered by the defendant is sufficient to raise a reasonable doubt in your minds as to the guilt of the defendant, then you cannot find the defendant guilty,” etc.
It is first claimed the instruction is erroneous because in the last paragraph the court did not say:
“If the state has so proven each of the foregoing three essential elements to your satisfaction and beyond a reasonable doubt, you should,” etc. (Italics ours.)
We have had occasion to say that all instructions cannot be given in one paragraph, and that all must be read together. Now it seems necessary to say that there,is no need to repeat in one instruction a statement clearly made in an earlier part of''the same instruction, especially where the entire instruction is clearly and concisely stated. The other portion of the instruction complained of is that reading:
“Or if the evidence offered by the defendant is sufficient to raise a reasonable doubt in your minds,” etc.
it being contended this places on the defendant the burden of establishing his innocence. The instruction is not susceptible of the interpretation placed on it by the defendant. The entire instruction clearly placed on the state the burden of proving to the satisfaction of the jury beyond a reasonable doubt three elements of the offense before a conviction could be had, and that if the state had not met that burden or if the defendant’s testimony raised a reasonable doubt, the jury should acquit. The quoted language might better have been omitted, but its inclusion is not shown to have affected any right of the defendant.
And finally, our attention is also directed to discrepancies in the evidence as given by various witnesses for the state. It is not necessary to detail them. It was the jury’s duty to reconcile the testimony and determine who spoke the truth, and that it has done. Its verdict does not lack support in the testimony. Neither are we much concerned with the previous criminal record of the complaining witness, or of his subsequent delinquencies, if any. The jury undoubtedly considered all of this, as it did the previous criminal record of the defendant.
No error has been made to appear, and the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from an order overruling his demurrer to a part of defendant’s answer and from an order sustaining a demurrer to evidence adduced by him on trial of the action.
The petition alleged plaintiff met the defendant Hanna and entered into a partnership agreement. Hanna stated to plaintiff, if plaintiff would provide his car for transportation and give his time, they would -go out together, get up a block of leases for an oil well and make some money; that plaintiff provided the car and he and Hanna worked together; that plaintiff was to receive an interest with Hanna and share and share alike in the leases and what was made from them; that leases were obtained on certain described tracts and on thirty-two acres in the northwest corner of the northwest quarter of section 13, township 17, range 9, Ellsworth county, Kansas; that the lease on the last tract was taken in the name of John W. Stark, who came into the partnership to help promote a well on the southwest quarter of said section 13. That at all times in the promotion of the drilling of the well on the lease in the southwest quarter of section 13 and in securing other leases and selling them to obtain money for drilling, plaintiff furnished his car for transportation and gave his full time to the work; that drilling operations were started on October 10, 1934, and on November 20, 1934, a commercial well was brought in, and that a well was brought in on a lease on another piece previously referred to, making the properties very valuable; that-the defendants still hold their interests, but refuse to recognize plaintiff has any interest, or that he is a partner in the venture; that no accounting has been had; that he is a partner and entitled to his prorata share; that because of the partnership working agreement plaintiff is the owner of one half of any leases or interests now in possession of defendant Hanna, and the owner of a one-third interest in any lease standing in the name of the defendants, as co-owners, or in the name of Stark, defendant, covered in the real estate referred to. The prayer was for determination of the partnership, for an accounting, etc.
The defendants filed a verified answer making certain admissions, not here material, denying any partnership of either or both defendants with plaintiff, and alleging that on November 20, 1934, plaintiff definitely and finally elected to make and assert his claim, if any, on a quantum meruit basis, and to seek recovery from defendant Hanna on a money basis and a lien on the leases described in the petition, and not to claim any right, title or interest in such leases and not to claim any partnership; that on November 20,1934, plaintiff executed and filed for record in the office of the register of deeds of Ellsworth county a verified notice of lis pendens, a copy being attached to the answer. That at the time plaintiff had a right to choose one of two methods of redress, and elected to assert his claim as one for money, and not a claim of partnership; that the claim as made in the petition is contradictory of and inconsistent with the claim and election asserted in the notice of lis pendens, and the election made is final and conclusive, and that plaintiff now is estopped from asserting he is or was a partner as claimed in his petition. The document denominated “Lis Pendens” is summarized: It gives notice to all interested in the described real estate that R. K. Curtis is about to commence an action against John B. Hanna, who has an interest in oil and gas leases on the said property, for work and labor performed, claiming a lien for $10,000 under an agreement with Hanna in securing the leases and labor and services performed therein. The document was duly verified. Plaintiff’s demurrer to that part of the answer alleging election of remedies as not constituting a defense was overruled. Defendants’ motion for judgment on the pleadings was denied, and the cause came on for trial. At the conclusion of plaintiff’s introduction of evidence in support of his petition, defendants demurred on the ground the evidence failed to prove a cause of action and there was a fatal variance between pleading and proof. The trial court sustained the demurrer, and plaintiff appeals.
We shall discuss plaintiff’s assignments of error in the order presented in his brief.
Insofar as fatal variance between pleading and proof is concerned, the record does not disclose it was for that reason the trial court sustained the demurrer, and we are of opinion it was not. The. appellee insists the appellant relied upon and attempted to prove a partnership in the trial court, and in his brief now insists he proved a joint adventure. The abstracts do not show what arguments were made to the trial court, and we are not advised as to just what was urged. We assume, however, that the trial court, if the matter was specifically called to its attention, took note of the similarity between a partnership and a joint adventure (see 15 R. C. L. 500, 33 C. J. 841, Annotations in 48 A. L. R. 1055, 63 A. L. R. 909, Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952, and cases cited), and concluded the variance was not material, there being under the circumstances no showing the adverse parties had been misled to their prejudice (R. S. 60-753). In any event, if the trial court’s ruling on the demurrer was otherwise correct, it makes no difference whether it considered the matter of variance fatal or otherwise, and we therefore consider the question whether a cause of action, either on the theory of partnership or joint adventure, was proved.
Whether a partnership or a joint adventure is relied on, the best evidence consists of the agreement or contract between the parties, but it may be proved by any competent evidence, the burden being on the party asserting the relation to exist. (33 C. J. 870, 47 C. J. 718, 20 R. C. L. 847.) In the proof presented, no specific agreement or contract was proved, and if there was proof otherwise, it is to be deduced from statements about conversations coupled with what the parties did. A careful examination of the abstracts shows that relations started in April, 1934, plaintiff’s statement being:
“Mr. Hanna stated that he had been talking to my uncle, R. V. Curtis, again about going to Russell county and he advised that Mr. Hanna and I could go out there and ship leases in to R. V. Curtis in view of the fact that R. V. Curtis was a salesman and a good man to handle them and the fact that I had a good car and we could go together and R. V. Curtis would share my expenses.”
The trip was made, with what result the record does not show. Later plaintiff drove Hanna about while Hanna sought and obtained leases. Hanna paid the hotel bills and for gasoline. Plaintiff says he paid for the oil. At all of these times plaintiff knew that Hanna was taking leases in his own name as the result of individual dealings in which plaintiff, although usually present, took no part, nor did he have anything to do with any sales of leases or contracts for drilling. On November 19, 1934, the first well came in. About that time Hanna asked him to go out and get some leases north of the pool, and plaintiff then stated to Hanna he would not do so, that he had his interests in the pool on which they had been working, that Hanna denied plaintiff had any interest and plaintiff said he was going to Wichita to protect himself, that he had had no conversation at any time with Hanna as to the percentage of interest which he had in the lease; that he went to Wichita and consulted an attorney; the affidavit (lis pendens) was prepared. There was much testimony about the number of miles plaintiff drove, where he and Hanna went, etc., but which does not prove any agreement as to the arrangement under which they may have been working. Plaintiff made no attempt to explain the lis pendens filed in Ells-worth county, nor to avoid any force or effect it may have had. So far as defendant Stark is concerned, there is an entire lack of any evidence showing an agreement of any nature between him and the plaintiff.
We deem it unnecessary to attempt to define precisely the terms “partnership” and “joint adventure.” They have much in common; to a considerable extent a joint adventure is a partnership, not general in its field of operation and length of duration, but limited to a particular enterprise or venture. (33 C. J. 842 and citations above.) In Rains v. Weiler, 101 Kan. 294, 166 Pac. 235, there was dispute between partners as to the duties and obligations, and it was there said that parties may be as firmly bound by implied contracts as by those expressed in formal language, and lacking formal expression the agreement may be found in the mutual acts and conduct of the parties. The plaintiff made no claim that he ever had an express agreement with Hanna, rather he said that at no time was there any conversation about shares. There was no testi-' mony tending to prove an intention to enter into a partnership or joint adventure relation. What can be deduced from the testimony? Plaintiff showed he furnished transportation to Hanna and accompanied him when leases were acquired. With one or two slight exceptions, when he was sent to obtain execution of specific documents, that is all he did. When the first commercial well came in, plaintiff then asserted an interest therein. The exact nature of the claim, that is, whether it was partnership or joint adventure, is not shown and probably was not mentioned, for immediately Hanna denied that plaintiff had any interest. Had plaintiff then and there insisted on his claim as a partner or joint adventurer, there might be ground for saying that from the actions of all parties such a relation existed, but plaintiff promptly proceeded to make a formal declaration of his right to recover the value of his work and labor “under an agreement with the said John B. Hanna in the securing of the leases thereof and labor and services performed therein.” We mention this, not as an election of remedies, but as a statement of conduct in the course of dealing between plaintiff and defendant, and as an element in determining whether plaintiff’s evidence tended to prove a partnership or joint adventure. Summarized, the evidence failed to show an express contract, it showed performance of services compatible with the claim made in the notice of lis pendens, there was no showing the services were performed under any other or different arrangement or understanding, and in our opinion plaintiff failed to sustain the burden of showing either a partnership or joint adventure relation, and the trial court properly sustained the demurrer to his evidence.
It is not necessary that we discuss whether or not the filing of the lis pendens constituted an election of remedies precluding the plaintiff from maintaining this action nor whether the trial court ruled correctly on plaintiff’s demurrer to that part of the defendant’s answer with respect thereto.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for breach of an alleged oral contract to supply plaintiff with ice at wholesale prices to be retailed at specified retail prices during the season of 1934. Plaintiff prevailed, and defendant appeals.
The controlling facts as pleaded and developed by plaintiff’s evidence were to this effect. In 1934 plaintiff operated a small grocery in a Wichita suburb. He conceived the idea that he could retail ice profitably in connection with his grocery. To that end he made an oral contract with defendant through its principal managing officer, C. M. Beachy, to supply him with ice at thirty cents per hundredweight, and which he agreed to sell to his retail trade at not less than forty cents per hundredweight. On the faith of that agreement he constructed a dock by the side of-his grocery at an expense of $100. About April 10, 1934, defendant commenced to deliver ice to plaintiff at thirty cents per hundredweight to supply his retail trade, but on May 12, 1934, it ceased to do so. Plaintiff pleaded various items of damage and prayed judgment for $1,703. In respect to the specific terms of the contract plaintiff testified:
“I met Mr. Beachy in his office, . . . the conversation was with refer ence to the sale of ice. ... I told him I . . . had contemplated going into the . . . retail ice business. ... I said to Mr. Beachy, ‘I don’t want to build the ice dock and go to this expense unless I am absolutely assured I can secure ice for the entire summer.’ Mr. Beachy advised me that he would furnish me all the ice that I could sell in the year 1934 if I would go ahead and build this ice dock at my expense. Mr. Beachy asked me to buy exclusively from the ice dock there behind his office or at the Polar Ice station and advised me for the present to buy ice at his ice dock on East Central and later to buy ice at the Polar Ice station on Thirteenth street. I told Mr. Beachy I would buy ice from his plant at Steffen’s or at the Polar station. Mr. Beachy said the price would be thirty cents a hundred and I was to retail the ice at not less than forty cents a hundred. . . . The approximate expense up to the time I began to handle ice was $100. I talked to Mr. Beachy and told him I had completed the dock and that I was ready to get ice. He said, 'Go over to the dock and get the ice,’ and I went over and got 600 pounds that morning. ... I got my first ice at Steffen’s about the 10th of April. I started buying ice there daily and at times it was required to keep my stock of ice around 600 pounds at the store and we continued to buy ice down there every day until the 12th of May. On the morning of May 12th I bought 1,200 pounds of ice before ten o’clock. . . . The attendant at the dock told me that Mr. Beachy wanted to see me in his office, and I went up to the office to see him. Mr. Beachy told me that I could not secure ice at his dock any more. He said that I could have that load, 600 pounds, but no more that day or after. He told me he had had complaints from the other companies of selling ice to a new dock. He said that they had had an agreement amongst the dealers not to furnish any ice to new docks. . . .
“Q. You were not able to get ice at the City Ice Company? A. No, sir.
"Q. Did you try at other places? A. Every ice dealer in town.
“Q. Were you able to get it at any other place in the city? A. I was unable,' sir.”
Plaintiff also testified that during the brief period in which defendant supplied him with ice his retail sales grew from 600 pounds to 2,500 pounds per day, and—
“The ice retailed at forty cents per hundred from the dock, and I paid thirty cents per hundred at the Steffen’s Ice Cream Company’s dock.”
Defendant demurred to plaintiff’s evidence on various grounds, one of which was that plaintiff’s evidence disclosed that the contract sued on was contrary to law.
This demurrer was overruled, and defendant adduced evidence, the substance of which will not affect the result this court will be compelled to reach so it need not be summarized, here.
Plaintiff’s testimony tended to prove that defendant breached its alleged contract with him to make its business operations conform to an agreement it had made in restraint of trade with other whole salers of ice. (State v. Smiley, 65 Kan. 240, 69 Pac. 199.) But that feature, of the evidence, however, is not of controlling significance here. (Ice Co. v. Wylie, 65 Kan. 104, 107, 108, 68 Pac. 1086.) The matter of primary concern in this lawsuit is the nature of the contract between plaintiff and defendant, whose breach is the basis of plaintiff’s action, and whose validity must be scrutinized under the provisions of our statutes in restraint of trade, the most pertinent paragraph of which reads:
“That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material . . . and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, . . . are hereby declared to be against public policy, unlawful arid .void.” (R. S. 50-112.) (Italics ours.)
While defendant denied the making of the oral contract .alleged, the jury chose to give credence to the testimony of plaintiff touching the making of such contract and its terms. Plaintiff was to buy all the ice he would require from defendant at thirty cents per hundredweight, and he agreed to retail the ice at not less than forty cents per hundredweight. Such price-fixing agreement in restraint of trade was the familiar and typical one which usually results in the buying public, the consumer, having to foot the bill. A manufacturer of ice may fix the price at which he will sell his product, but the law will not permit him and his buyer to agree as to the price the latter will charge when he in turn sells that product to third parties. Indeed, such an agreement would be illegal without a statute to denounce it. (Restatement, Contracts, § 515, and illustration 11, p. 992.)
Plaintiff testified that during the interval when defendant supplied ice to him at the agreed price of thirty cents he faithfully kept his end of the agreement by retailing the ice to his customers at forty cents. Clearly this contract was made and carried into effect for about a month in plain violation of the statute quoted above, and likewise in breach of other pertinent provisions of statute dealing with-combinations in restraint of trade. (R. S. 50-101 et seq.; State v. Smiley, supra; State v. Wilson, 73 Kan. 334, 80 Pac. 639; Id., 73 Kan. 343, 84 Pac. 737; Patterson v. Glass Co., 91 Kan. 201, 137 Pac. 955.) In Mills v. Ordnance Co., 113 Kan. 479, 215 Pac. 314, the action was for damages for breach of a contract pertaining to the purchase and sale of farm tractors. Among the contract terms was one to the effect that in the sale of tractors to the retail trade the plaintiff would maintain the list prices prescribed by the defendant. The trial court held the contract unenforceable, and, in affirming the judgment, this court said:
“The contract reveals that the parties to it studiously sought to avoid making a contract of agency. They made a contract for .the purchase and sale of tractors. They tried to have the contract apply to a restricted territory, and apparently attempted to give to the plaintiff the exclusive right to sell tractors in that territory. In doing so, the parties fixed the price at which the tractors should be sold by the plaintiff after they had been purchased from the defendant. They could not legally make such a contract because it violated the law of this state. Such a contract is unenforceable, and damages for its violation cannot be recovered. (Patterson v. Glass Co., 91 Kan. 201, 137 Pac. 955; 13 C. J. 492-497.)” (p. 481.)
The syllabus, in part, reads:
“A contract for the purchase of tractors providing that the purchaser shall maintain the seller’s published list prices violates the antimonopoly statutes of this state, is unenforceable, and damages cannot be recovered for its violation.” (IT 1.)
In Patterson v. Glass'Co., supra, it was said:
“It was the intention of the antitrust act of 1889 (Laws 1889, ch. 257, and the acts amendatory thereto) that the courts should not be used to enforce any agreement or contract entered into in violation of that law. In Barton v. Mulvane, 59 Kan. 313, 317, 52 Pac. 883, it was said: ‘Obviously the legislature intended that parties engaged in such an unlawful combination or trust should not use the law and its machinery to promote the unlawful combination or conspiracy, nor to enforce any agreement or contract growing out of it.’ ” (p. 207.)
Counsel for the appellee cite various decisions of this and other courts which touch upon the subject of monopoly, but none of them is authority for the proposition that such a contract as that pleaded and proved by plaintiff is valid or that damages would be awarded for its breach. Indeed the statute (R. S. 50-107) expressly forbids such a recovery. (See, also, 13 C. J. 492-497.)
The other matters urged in the briefs are of no present concern. The judgment is reversed, and the cause remanded with instructions to enter judgment for defendant.
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The opinion of the court was delivered by
Dawson, J.:
Mary Podpechon was convicted of the offenses of having unlawful possession of intoxicating liquor and of maintaining a liquor nuisance. She complains of several prejudicial irregularities which occurred at her trial, some of which are noted below.
It appears that the husband of Mary, one Bias Podpechon, was a bootlegger who resided with his family in Crawford county on premises owned by him situated immediately west of the state line road between Kansas and Missouri. His family consisted of his wife Mary, the defendant herein, two sons 16 and 18 years old and a daughter of 15 years. After his premises had been repeatedly raided by deputy constables Bias Podpechon pleaded guilty to two counts charging violation of the prohibitory law, and was fined $200 and was incarcerated in jail for 60 days. Shortly thereafter, and while Bias Podpechon was in jail, the deputy constables again searched the premises and found nine quarts of “home brew” or “chock,” but there was no evidence to connect defendant with their possession other than that as wife and mother she was naturally and legally the mistress of the premises while her husband was in jail.
In addition to nine quarts of “home brew” or “chock” found on the Podpechon premises, the deputy constables discovered three jugs partly filled with whisky concealed in a pasture field situated immediately across the state line road in the state of Missouri. The Podpechon family milch cow was kept in that pasture.
One of the errors assigned is based on the testimony which, over objection, was permitted to go to the jury concerning the discovery of the jugs' of whisky found across the state line in Missouri. This point is well taken. Even if the possession of that whisky was vested in Mary it was not a breach of the penal laws of the state of Kansas. So, too, Mary’s possession of the whisky in Missouri would constitute no element of the offense of maintaining a liquor nuisance in Kansas. If there had been any evidence that Mary was maintaining a liquor nuisance in Kansas, there might be some corroborative force in the fact that she had a convenient supply of intoxicating liquor for its maintenance at a place some 200 feet southeast of its location on other premises to which she had access, and the fact that such supply was in storage just across the state line, would not lessen its force or its competency.
Among other errors assigned by defendant is one based on the limitations placed by the court on defendant’s right to cross-examine the deputy constables who testified against her. This case is a companion to those of State v. Bozick, 122 Kan. 517, 253 Pac. 554, and State v. Gendusa, 122 Kan. 520, 253 Pac. 598, where this court was compelled to reverse judgments freighted with such error and also because of prejudicial error in the instructions. In this case the instructions contain the same error, but as that matter was fully treated in the Bozick and 'Gendusa cases, supra, they need not be again discussed. Another instruction, however, requires special comment. There was no evidence touching the intoxicating qualities of the “home brew” or “chock” found on the Podpechon premises, but the trial court gave the jury this instruction:
“5. Intoxicating liquor under our law is defined to be any spirituous, malt, vinous or fermented liquors, and this definition includes . . . chock beer, home brew.”
Whisky, rum, gin, brandy and the like may properly be denounced as intoxicating without any evidence because it is a matter of common knowledge that such is the fact. But the conventional statement of the law concerning beer is that it is presumed to be intoxicating. As to “chock” or “chock beer,” or “home brew,” the law books are silent. Doubtless a lot of such stuff is intoxicating, but until those decoctions are somewhat better known the wise course for a trial court is to let their intoxicating character be determined by the jury in the light of the pertinent evidence.
There is also a complaint of the conduct of the prosecuting attorney which cannot justly be overlooked. In his argument to the jury he referred to the fact that the husband of the defendant, Bias Podpechon, did not testify in defendant’s behalf. Defendant’s objection to this line of argument was ignored, and he continued thus:
“Where is Bias Podpechon, the husband of this defendant — why did he not take the witness stand and testify in her behalf if the whisky belonged to him? That he did not take the witness stand and testify because the claim of the defendant was untrue, and that she herself was the owner and has possession of said whisky.”
This was an improper line of argument to 'pursue, since nobody knew better than the prosecuting attorney why Mary’s husband could not be on hand to testify in her behalf, however willing he might be to do so, for the simple reason that he .was then in jail. Moreover, the whisky referred to was that which was concealed in the pasture on the east side, the Missouri side, of the state-line road.
Neither the present county attorney nor the attorney-general has seen fit to file a brief or make an argument to uphold the judgment in this case — an attitude that does not surprise us. And similarly it is too much to expect this court to do so.
The judgment of the district court is reversed and the cause remanded for disposition as suggested in State v. William, 106 Kan. 778, 781, 189 Pac. 906.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff when defendant’s truck capsized in the roadside ditch of a public highway.
The controlling facts were mainly these: Defendant was the owner of a farm truck equipped with a stock rack for hauling cattle. On November 3, 1932, he left his home near Neodesha to attend a cattle sale in Parsons, Plaintiff accompanied him as his guest. Defendant bought two head of cattle at the sale, loaded them on the truck, and about 6 o’clock p. m. the two men started for home.
About three miles from Neodesha they turned into a northbound road which at first had a slight rise and then went down a long gradual decline. The photographic exhibits attached to the abstract indicate that it was a typical country road. There was a ditch from one to four and one half feet deep on the east side of the road.
When the truck had passed the crown of the rise and was beginning to descend the long northward slope an automobile with very bright lights came from the north at high speed. Defendant’s truck lights were comparatively dim. To avoid the likelihood of a collision defendant veered his truck northeastward, somewhat close to the roadside ditch, put on his brakes and stopped. When the automobile had passed defendant discovered that the right front wheel of his truck was so close to the ditch that if he should release his brake and attempt to back his truck it would probably go forward into the ditch of its own momentum. So he said to plaintiff, "Get out and get a rock to chock it so I can release my brake to back out.” Plaintiff did as requested. It was dark, but he found a rock about 6 or 8 inches long, 4 inches wide, and 4 inches thick. He placed this rock under the right front wheel. Plaintiff testified:
“Jake [defendant] hollered and asked me if I had it. I said, ‘No; wait until I can get a larger rock.’ I got hold of a larger rock and heard the sears or something and the next thing I knowed it was on top of me. At the time I got down in the ditch to pick up this first rock the truck was standing still. The first rock was put under the right front wheel nearest to the ditch edge.
“Q. And [you] finally located a larger rock? A. I located a little larger one than I had.
“Q. Did you ever get it under the wheel? A. I did not.
• “Q. Now, what happened then? A. As I started to turn with this rock I heard the gear or something — engine go in gear — and about that time it caught my leg and was on top of me.
“The car started to move forwards and the first thing I knowed it was just on top of me, caught my leg and I grabbed the fender. The wheel caught my right leg between the knee and the ankle. As soon as it dropped on me and caught my leg here I grabbed the fender and went on down the ditch, and when it finally stopped it was away up here. I wouldn’t say how far I hung on down the ditch. Finally, when the truck stopped on me, it turned over, leaning on me. It turned over on its right side.”
Plaintiff was held fast between the truck and the ditch embankment for quite a while, but eventually a number of men came from a meeting in a schoolhouse half a mile away. They released plaintiff and he was taken to a hospital, where he was confined for several months. There was no issue raised as to the extent or gravity of his injuries.
In his action for damages plaintiff charged defendant with gross and wanton negligence. Defendant joined issues of fact. Counsel for both parties, and likewise the trial court, were agreed that the “guest statute” controlled, and the trial court so instructed the jury. A general verdict for $8,000 in favor of plaintiff was returned by the jury, which also answered certain special questions, viz;
“1. Was the defendant guilty of gross and wanton negligence? A. Yes.
“2. If you answer question No. 1 in the affirmative, then state specifically of what this gross and wanton negligence consisted? A. Attempting to shift gears without warning to Mr. Cohee.
“7. How far did the truck move northward with the two right wheels in the ditch along the east side of the road? A. About 10 feet.
“8. Did the defendant release the brakes and put the engine in reverse in an attempt to back up after Mr. Cohee left the cab of the truck and before the right front wheel came to rest on his body? A. Yes.
“A. Did plaintiff place a rock under the front wheel of the truck soon after ho got out of the truck? A. Yes.
“B. Was plaintiff turning with a second rock to place same under the front wheel of the truck just before the front wheel of the truck went against him? A. Yes.
“C. If you answer the above question ‘Yes,’ then state whether defendant, E. W. Hutson, knew or had good reasons for believing that plaintiff'was making an effort to place a second rock under the front wheel of the truck. A. Good reasons to know.
“D. If you find that the defendant changed the gear just before the truck went into the ditch, then state whether defendant gave plaintiff any warning before changing the mechanism of his truck? A. No warning.
“E. If you answer ‘D’ that defendant did change the mechanism of his truck at said time, without previous notice to plaintiff, then state whether such change, without such notice, constituted reckless indifference for the rights of plaintiff? A. Yes.”
Defendant filed all the usual motions. These were overruled; judgment was entered on the verdict, and defendant brings the case here for review.
The principal error assigned centers about the question whether the act of defendant in shifting gears without warning to plaintiff constituted gross and wanton negligence. Defendant maintains that it does not; plaintiff maintains the contrary.
It ought to be clear that the usd of denunciatory adjectives in a pleading, an argument, or a jury’s special verdict, is not of controlling importance. The jury’s conception of those adjectives, “gross and wanton,” is reflected in their second special finding— that it was an act of gross and wanton negligence for defendant to shift the gears of his truck without first warning the plaintiff.
To curb a practice which was bringing the administration of law and justice into disrepute — that of passenger guests suing their chauffeur hosts for damages sustained in motor-car accidents — our legislature in 1931 enacted the following statute:
"That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” (R. S. 1933 Supp. 8-122b.)
The'meaning of this statute has been frequently considered and expounded in motor-car accident cases arising since the enactment. The most recent of these are: Aduddell v. Brighton, 141 Kan. 617, 42 P. 2d 555; Murrell v. Janders, 141 Kan. 906, 44 P. 2d 218; and Anderson v. Anderson, 142 Kan. 463, 50 P. 2d 995. In Koster v. Matson, 139 Kan. 124, 30 P. 2d 107, the action was by a guest against the driver of an automobile for injuries sustained in a motorcar accident in Nebraska. The pertinent Nebraska “guest” accident statute was substantially similar to our own. It was pointed out that wantonness is essentially different from negligence, not merely in degree but in kind of conduct.
“In. this state, and apparently in Nebraska, reckless or wanton conduct differs not in degree but in kind from negligent conduct, and such a thing as wanton ‘negligence’ cannot exist. If the conduct be wanton it is not negligent. If it be negligent it is not wanton. Reckless or wanton conduct also differs from intentional conduct, because intent to injure is not present. However, in this state, for the practical purpose of an action for damages, recklessness or wantonness puts the wrongdoer in the same class with a willful wrongdoer. [Citing;] . . . Railway Co. v. Lacy, 78 Kan. 622, 629, 97 Pac. 1025.” (p. 128.)
In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, the action was one to recover damages sustained in a motor-car accident. It was controlled by the guest statute, which was discussed in our opinion written by Mr. Justice Harvey. It was said:
“This statute is the outgrowth of a thought which had become common among our people, that it was too easy, under our law relating to liability for negligence, for one riding in an automobile as a guest of the driver to recover damages for injuries sustained in an automobile casualty. Similar statutes have been enacted in other states. Cases arising under such statutes are collected in the annotations in 74 A. L. R. 1198 and 86 A. L. R. 1145. . . .
“[In] our statute . . . the words ‘gross and wanton negligence’ finally chosen, were not especially well selected. For many years in the earlier history of our state our statutes and decisions recognized three degrees of negligence — slight, ordinary and gross. (U. P. Rly. Co. v. Henry, 36 Kan. 565, 569, 14 Pac. 1; C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462.) This classification of negligence into degrees lacked a firm basis for its existence, for the injuries sustained by one injured by the negligence of another were not increased or diminished by the classification into degrees of the negligence which caused the injuries. (Kennedy v. Railway Co., 104 Kan. 129, 179 Pac. 314.) This classification caused much trouble to courts and litigants in attempting to apply their respective definitions to the facts of a particular case. Finally, inj harmony with sounder reasoning and with the law of most other jurisdictions, the classification of negligence into degrees was taken out of the law of this state. (Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346.) Due care became and is the sole test, and the lack of due care is negligence. Due care in respect to specific circumstances is thought of as that care which an ordinarily careful, intelligent, prudent person should and would normally exercise under like circumstances. The failure to exercise such due care 'is negligence, which failure may arise from acts of commission or from omission. Negligence, properly speaking, does not include willful, intentional injury. Negligence resulting in injury gives rise to an action for damages. . . .
“Of those matters which give rise to a civil action for damages when an injury results therefrom, we recognize in our law negligence, meaning by that the lack of due care. We also have willful injury, as where one willfully strikes another, or willfully destroys property of another, or intentionally does any act with the purpose and intent of causing such injury. Among the activities of individuals are acts or omissions which give rise to civil actions for damages where injuries result therefrom, which are subject to more severe censure than negligence and yet which are something less than willful injury. The law applies to such acts the general term of wantonness. Wantonness is defined in 40 Cyc. 294 as—
“ ‘Action without regard to the rights of others; a reckless disregard of the rights of others; reckless sport; willfully unrestrained action, running immoderately into excess; a licentious act by one man towards the person of another, without regard to his rights; a conscious failure to observe due care; a conscious invasion of the rights of another; an intentional doing of an unlawful act, knowing such act to have been unlawful; the conscious failure of one charged with a duly to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.’ ” (pp. 389, 390.)
Tested by any of our decisions since the guest statute of 1931 was enacted, it seems clear that the shifting of the truck gears by defendant (finding 2) without warning to plaintiff (finding D.) when he had good reason to know that plaintiff was making an effort to place a second rock under the right front wheel (finding C) did not constitute wantonness, nor “gross and wanton negligence” as contemplated by the statute. It was by no means obvious that the truck would go forward after the first rock had been placed under the wheel, nor that the truck would capsize if it did go forward. Defendant’s natural concern for his own safety, and for the safety of his own property, his truck, and his cattle, as well as all the other circumstances revealed by the record, precluded any assumption that he shifted his truck gears with reckless unconcern whether plaintiff might be injured thereby. No semblance of wantonness appears either in the pertinent jury’s special findings or in any evidence adduced upon which those findings could be supported. Finding No. 1 is a mere conclusion predicated on finding No. 2. The result is the judgment cannot stand.
The judgment is reversed with instructions to enter judgment for defendant.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover on an accident and health insurance policy, and from a judgment in favor of the plain tiff the defendant appeals. Its assignments of error are that the trial court- erred in overruling its demurrer to plaintiff’s evidence, in not giving a requested instruction to, the jury, and in denying its motion for a new trial.
Appellant in its abstract makes no statement that plaintiff failed to prove any element of his case. It prints verbatim about three pages of questions and answers with reference to a transcript, from which references we learn there were at least forty pages of plaintiff’s oral testimony in the transcript. We are left to surmise what the unabstracted portions contained.-
After the defendant offered its proof, the jury rendered its verdict in favor of plaintiff and answered four special questions favorably to him. There was no motion to set aside any answer as being unsupported by or contrary to the evidence. For aught the record shows, if there was any defect in plaintiff’s proof it was cured by defendant’s evidence. It has not been made to appear the trial court erred in ruling on the demurrer to plaintiff’s evidence.
There is no showing as to what instructions the court gave the jury. The absence of an abstract makes it impossible for us to determine whether the requested instruction should have been given in any case, or whether if proper, the substance of it was not included in the instructions given.
The motion for a new trial covers every statutory ground, and we are left to assume that the grounds urged to the trial court were the ruling on the demurrer and the refusal to give the requested instruction to the jury. If so, it has not been made to appear the trial court erred in denying the motion.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by two defendants from convictions of misdemeanors.
Two brothers, Frank and Paul Pfeifer, were charged and tried jointly on three counts. They were acquitted on the third count, and it is not involved in this appeal. In the first count they were charged with simple assault and in the second count with disturbing the peace of one Dreiling, a Catholic priest. Paul was convicted on both counts and Frank was convicted only of disturbing the peace.
A contention which applies to Frank alone is, there was no evidence to support his conviction. This contention requires analysis only of the evidence which tends to support the verdict.
A reading of the record discloses that ill feeling existed between defendants and the priest prior to the particular incident here involved. It appears that at least part of the bad feeling arose concerning the financing of public and parochial schools. The immediate occasion for the instant trouble apparently concerned an announcement by the priest on this Sunday morning that a wedding ceremony of defendants’ brother Mike would not occur on the scheduled date. Whether the defendant, Frank, was guilty of a disturbance of the peace cannot be satisfactorily answered by an attempt to completely separate his conduct from that of his brother Paul. Defendants went to the rectory together. It is clear the joint excursion was not prompted by friendly motives on the part of either of the defendants. The disturbance occurred on a Sunday following church services. The priest was in the rectory and in conference with defendants’ father and the son Mike concerning Mike’s marriage ceremony.
One witness testified: he saw defendants drive to Father Dreiling’s house, and that before the car stopped they had both doors open; they got out and walked as fast as they could straight into the father’s house; as far as he could see, they did not knock; after they came out he saw both defendants waving their arms.
The priest testified, in substance: “They rushed in, savage-like; defendants were together; they did not knock; Paul cursed, and I asked them to leave; they refused; Paul said, 'No, we are not going out; we are going to settle that today.’ I told the girl (the housekeeper) to get the sheriff; defendants’ father told them everything was settled; that he and I had agreed; their father asked them to leave, but they refused.”
Defendants’ father testified: “While the priest was pushing Frank out, Frank caught hold of the priest’s shirt.” Frank testified he was going to leave the rectory when he got ready; when the priest shoved him out he grabbed hold of some of his clothes and part of his body in order to keep from falling. Paul testified: “Frank -was the man who tore the priest’s shirt.”
It is unnecessary to relate the details concerning the cursing by the defendant, Paul, and the encounter which ensued between the defendants and the priest. That the evidence disclosed an assault by Paul is not disputed. His contention is that his conduct was in self-defense. Defendants both insist they had a right to be in the rectory, for the reason that was not only the priest’s parsonage home, but a place where the business of the church was transacted. The gist of the charge, however, is not the character of the building, but the conduct of defendants. The business feature of the place did not justify the conduct of either defendant. Had the building been devoted exclusively to the business of the church, the acts and demeanor of both defendants nevertheless clearly constituted a disturbance of the peace. The conduct of defendants wras highly unbpcoming on any day. Especially did it constitute a disturbance of the peace on a day dedicated to religious worship, peace and quiet.
The defendant,. Paul, contends the trial court erred in admitting evidence on his cross-examination over objection concerning the commission of unrelated offenses other than that with which he was charged. He was asked whether he had broken into a store and stolen some merchandise. When his counsel objected to the question, defendant spurned the protection of his lawyer, and said, “That’s all right.” He then admitted the offense. The offense had been committed about twenty years ago. Defendant now insists the admission of the evidence was error. Evidence was also admitted on cross-examination, over objection, concerning several fights he had about eleven years ago. It is contended this constituted error. In support of the contention we are referred to State v. Reed, 53 Kan. 767, 37 Pac. 174, and State v. Kirby, 62 Kan. 436, 63 Pac. 752. The cases are not in point. In the Kirby case a witness, defendant’s wife, and not the defendant, was cross-examined, and over objection required to testify concerning other unrelated offenses of the defendant. In the Reed case the defendant did not insist upon answering a question which this court held to have been improper cross-examination. Cases in which other witnesses than defendant testified, either on direct or cross-examination, concerning defendant’s previous conduct, have no application whatever to cases involving the cross-examination of a defendant who offers himself as a witness.
A defendant, when questioned in good faith, may be cross-examined with a view of impairing his credibility, concerning previous offenses and subjects involving him in degradation and disgrace, although they do not pertain to the charge for which he is then on trial. (State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Killion, 95 Kan. 371, 148 Pac. 643; State v. Bowers, 108 Kan. 161, 194 Pac. 650; State v. Roselli, 109 Kan. 33, 198 Pac. 195; State v. Bolton, 111 Kan. 577, 207 Pac. 653; State v. Patterson, 112 Kan. 165, 210 Pac. 654; State v. Smith, 114 Kan. 186, 217 Pac. 307; State v. Shanahan, 114 Kan. 212, 217 Pac. 309.)
The extent of cross-examination touching the credibility of a defendant in a criminal action rests in the sound discretion of the trial court. (State v. Pfefferle, supra; State v. Rhoades, 113 Kan. 455, 215 Pac. 291; State v. Shanahan, supra; State v. Winters, 120 Kan. 166, 241 Pac. 1083; State v. Nossaman, 120 Kan. 177, 243 Pac. 326; State v. Reuter, 126 Kan. 565, 268 Pac. 845; State v. Gibson, 131 Kan. 570, 292 Pac. 931; State, ex rel., v. Christensen, 132 Kan. 192, 294 Pac. 892.)
In the instant case, as stated, defendant, Paul Pfeifer, insisted upon answering the question concerning the remote and unrelated offense. Having taken that position, he will not now be heard to complain the trial court abused its discretion in permitting him to do so. Concerning defendant’s cross-examination of his more recent conduct, his fights with other parties, there was no abuse of discretion. They were less remote, of similar character to the charge on trial, and tended to disclose his inclination toward such conduct.
It is further insisted by the defendant, Paul Pfeifer, the state was bound by his answer concerning a purely collateral subject. That is correct, and the state would not have been permitted to contradict such answer by the testimony of other witnesses. (State v. Alexander, 89 Kan. 422, 131 Pac. 139; State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853; Tersina v. Insurance Co., 102 Kan. 87, 169 Pac. 559; Lutz v. Peoples State Bank, 135 Kan. 115, 9 P. 2d 997.)
There was no attempt in the instant case to contradict or rebut any denial of the defendant, Paul Pfeifer, concerning his previous conduct by any other witness. All the state did was to cross-examine him more closely after his first denial of a certain fight with a specifically named person. The state was not precluded from pursuing a thorough cross-examination of defendant on that subject.
The defendant, Paul Pfeifer, who was convicted of assault, contends he was entitled to an instruction on self-defense. The contention is without merit. He and his brother did not embark on this mission as peacemakers. They provoked the disturbance and the ensuing assault in the rectory, the parsonage home of the priest. There was evidence they rushed into the rectory and that Paul cursed and used abusive language. His -entire attitude was hostile and of a threatening character. This alone constituted a disturbance of the peace. (R. S. 21-950; State v. Hebert, 121 Kan. 329, 246 Pac. 507). He was asked to leave the rectory. He refused to withdraw from the disturbance he and his brother had created. The evidence discloses he cursed and shoved his fist into the priest’s face and continued to threaten him. A scuffle resulted in the attempt to evict defendants from the rectory. Clearly, the defendants, but especially Paul, began, invited and provoked the affray. He was not entitled to an instruction on self-defense. In State v. Schroeder, 103 Kan. 770, 176 Pac. 659, it was held:
“The general rule is that the right of self-defense does not imply the right of attack, and one who is the aggressor and who provokes or brings on an affray in which he kills or inflicts bodily harm to his adversary, or who produces the occasion which makes it necessary for him to commit homicide or inflict the injury, cannot justify his act on the plea of self-defense.” (Syl. If 3.) Italics inserted.) See, also, State v. Ball, 110 Kan. 428, 204 Pac. 701.
In 1 Wharton’s Criminal Law (12th ed.), 828, the rule is stated thus:
“ ‘A man has not,’ as is properly said by Breese, C. J., ‘the right to provoke a quarrel and take' advantage of it, and then justify the homicide.’ Self-defense may be resorted to in order to repel force, but not to inflict vengeance. Non adsumendam vindictam, sed ad propulsandam injwiam. ‘There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor and then shield himself on the assumption that he was defending himself.’ ”
In 1 Bishop on Criminal Law (9th ed.), p. 602, it is said:
“If one'has it in his power to avoid the necessity of an allowable self-defense, prudence dictates that he should; for he encounters the collision only at extreme peril. Not that he may not resist an attack, or that he must endanger his safety by playing the coward; but if two paths are open for him, the one leading from a conflict and the other to it, and he chooses the latter, he can escape the penalties of the law only by keeping within its exact lines.”
Defendants contend the trial court committed error in the restriction of cross-examination of the priest. This contention pertains to inquiries concerning troubles of the priest at churches he formerly served. They were designed to disclose the priest was a trouble-maker and a disturbing influence. In a lawsuit such as this it would appear this cross-examination was perhaps somewhat unduly restricted. The extent of such cross-examination, of course, rests in the sound discretion of the trial court. In the light of the entire record we are not inclined to disturb the judgment on this ground.
Defendants further contend the trial court erred in an instruction which referred to the rectory as the residence of the priest. The complaint is not well taken. The rectory was the priest’s residence. It was the parsonage home provided for him by the church. The fact he also transacted church business there did not deprive it of its residential character. Furthermore, the conduct of defendants supported the charge had the acts occurred in a place reserved exclusively for business purposes.
Other complaints have been noted and considered but are not deemed of sufficient importance to require discussion. They could in no way alter the conclusion reached. The judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether certain land sought to be levied on under an execution was the homestead of the judgment debtor.
For many years LeRoy Baker and his family lived in Comanche county. His daughter, Ina D. Baker, kept house for a brother for some time prior to 1909, but then returned to her father’s home, and by 1911 all the other members of the family had either died or established their homes elsewhere. For many years prior to 1927 LeRoy and Ina had occupied lands rented by the father. Each had acquired some personal property. In 1919 Ina purchased the real estate in question. In 1927 the owner of the land on which they resided sold the same and about that time the father erected a house on Ina’s land and they moved to that house. Ina’s land had only fifteen acres in cultivation and the remainder was used for pasture. At that time Ina was about forty-five years old and the father was eighty-nine. Notwithstanding his age, he rented another eighty acres on a crop basis and with a hired man he farmed and operated both places. Both the father and daughter owned cattle, and each had an account in the bank. The father purchased the groceries. The daughter assisted him with the outside work and looked after the house.
Sometime prior to 1930 the father borrowed money from the appellant bank, giving his note therefor, and later Ina signed either that note or a renewal of it. In 1930 the father died. We are not advised as to the note subsequently further than that March 15, 1933, the plaintiff bank recovered judgment against Ina D. Baker, and later caused an execution to issue. Ina’s land was levied upon and subsequently sold by the sheriff. When his return was presented to the trial court the bank moved to confirm the sale, and Ina D. Baker moved to set it aside on the ground that both before and after the sale she had notified the sheriff the land levied on was her homestead, and in her motion she claimed the land as her homestead. On the hearing of the motion the defendant offered evidence from which the above statement of facts with respect to the relations between her father and herself and the occupancy of the farm is taken. The court denied plaintiff’s motion to confirm the sale and allowed defendant’s motion to set it aside. The plaintiff appeals.
Under the admitted facts, Was the land in question the homestead of Ina D. Baker?
The homestead provision of our constitution (art. 15, sec. 9) and the exemption of homestead provided in the code of civil procedure (R. S. 60-3501) are identical, and, so far as necessary to our discussion, read:
“A homestead to the extent of one hundred and sixty acres of farming land . . . occupied as a residence by the family of the owner . . . shall be exempted from forced sale under any process of law,” etc.
and have received the consideration of this court in many cases and under many situations not here necessary to notice.
Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, is a well-considered case in which some of our previous decisions were reviewed and authorities from other jurisdictions were quoted. It was there held:
“. . . a right to exemption cannot originate without the existence of a family — of a household consisting of more than one person, yet, when the homestead character has once attached, it may persist for the benefit of a single individual (either the husband or the wife) who is the sole surviving member of the family.” (Syl. ¶ 1.)
and Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529, where a contrary conclusion was reached, was later overruled. It was also held:
“Where a wife after the death of her husband continues to reside upon the family homestead, although she is its sole occupant, it is exempt against her own creditors as well as against the creditors of her husband’s estate, irrespective of the time the indebtedness was incurred, and without regard to which spouse held the legal title to the property during their married life.” (Syl. IT 2.)
The right of a single person to maintain a homestead right was again considered in Koehler v. Gray, 102 Kan. 878, 172 Pac. 25. In that case the husband had died owning the involved real estate and leaving a wife and an adult daughter surviving him. The widow died and thereafter the administrator sought to sell the real estate to pay his debts. The probate court made an order to sell, and on appeal to the district court its decision was affirmed. The daughter appealed to this court, which noted the trial court had followed Battey v. Barker, 62 Kan. 517, 64 Pac. 79, which justified the order made. Again, former decisions were reviewed, among them Weaver v. Bank, supra, the court saying:
“There the survivor was the widow of the former owner, and the rule as stated was limited to the survivorship of the husband or wife. We think, however, upon the same reasoning it should be extended to any member of the family. The exemption is for the benefit of the family as a whole, and of each individual composing it, so long as the relation is not severed. (13 R. C. L. 545.) The circumstance that a daughter has arrived at majority should not, in our judgment, prevent her from being considered a part of her father’s family. . . . Nor is it necessary to that relation that there should be a legal duty to support her.” (p. 881.)
The court concluded:
“Property occupied as the homestead of the owner and his family remains exempt from sale for the payment of his debts after the death of himself (intestate) and his wife, so long as an unmarried daughter of full age, who had lived with him as a part of his family, continues her residence thereon without interruption. Battey v. Barker, 62 Kan. 517, 64 Pac. 79, overruled.” (Syl. J[ 2.)
It is principally upon the two cases above noted that appellee relies to support the trial court’s judgment.
In times past there has been some confusion as to the extent homestead rights would continue and to whom they were available, but the above decisions have largely clarified the situation. But what is the effect of their holdings as applied to the facts in the instant case? It is clear that when LeRoy Baker and Ina D. Baker moved on the land in controversy in 1927, they constituted a family, but whose family was it? We are advised by appellee’s brief that LeRoy Baker, his wife and four children came to Comanche county in 1884 and that the family gradually decreased in numbers until 1911 when it consisted of himself and Ina, who was the youngest child, and that it so continued to 1930, when LeRoy died. The mere statement of the facts shows it was the family of LeRoy that persisted, it was not the family of Ina. She never had a family of her own, her father was not dependent upon her, and if she is now the family it is only because she is the sole remnant of her father’s family. Assuming that LeRoy, because of improvements made by him, had homestead rights in the involved land, those homestead rights might persist and go to Ina as the sole survivor of the family, but the exemption would pertain to the father’s debts and not to Ina’s.
Although'the facts therein were different, the reasoning and holding in Solomon Nat’l Bank v. Birch, 121 Kan. 334, 246 Pac. 1007, are persuasive here. There adult sons sought to assert a homestead exemption claim against their own, not their ancestor’s debts. In the opinion it was said:
“The general purpose of a homestead exemption is that upon the death of the owner a certain share of his property shall be exempt from his debts to his surviving spouse and minor children who constituted his family. The central idea of an exemption to the family is that of dependence upon the head of the family, the dependence of persons who ' are under his roof and control and to whom he furnishes shelter and protection because of some legal or moral obligation to them. Express provisions of statute may, of course, limit or extend the membership of a family, but the element of dependency enters largely into what is called the family relation, and that relation must exist in order that the exemption may apply. (Elliot v. Thomas, 161 Mo. App. 441.) In many of the states it is held that adult children cannot claim the benefits of the homestead. (29 C. J. 1004.) These rulings depend in part on statutes defining exemptions. In our state the homestead benefits have been extended to an adult daughter who was and had remained a member of the family as it existed in the lifetime of the father and mother. (Koehler v. Gray, 102 Kan. 878, 172 Pac. 25.) The exemption there awarded to the adult unmarried daughter was from a sale of the home for the debts of her intestate father. The exemption has been applied to the debts of the spouse of the deceased homesteader as well as to his debts. (Weaver v. Bank, 76 Kan. 540, 94 Pac. 273.) There is a reason, however, for this extension of benefits because of the oneness of the husband and wife, and that each of them share in the control and management of the children of the family, but the exemption has never been extended to the property of adult children from sale for the payment of their own debts. It is unreasonable to think that it was within the intention of the lawmakers that the property of a deceased homesteader which descended to adult children should be exempt from sale for the payment of their own debts because they still lived on what was once the homestead of the deceased father. On the theory of defendants they can carry on business until they are four-score years old and claim exemptions against their own debts as members of the family of their father, who died a half century before.” (p. 337.)
and it was held:
“Upon the death of an intestate, who with his family had been in possession of a tract of land as his homestead, the title to certain shares descended at once to his widow and the children composing his family, and was exempt to the family as against the debts of the intestate and his widow, but the shares of the adult sons were not exempt from sale for their own debts.” (Syl.)
In the case before us, we. have a single adult person who never had a family, seeking, as against her own creditors, to establish homestead rights by virtue of the fact that she was a member of her father’s family and now lives as the sole survivor thereof. We need not consider what homestead rights the father may have had, for no claim is being made for or against him. We do not believe it was the intention of the framers of our constitutional homestead provision in drafting that provision, or of the legislature in enacting the identical language in that part of the code of civil procedure dealing with exemptions, to declare that a single person, not the head of a family, could acquire lands and have them occupied by the family of which he or she was a member, and after the family had by death or removal dispersed so that the owner alone remained, could under claim of homestead hold those lands exempt from his or her creditors. There is good reason for liberal interpretation of the homestead provisions in all circumstances; there is good reason for interpretation that will protect the widow and children in order that the family may not be broken up; but we do not believe it ought to be said that under the circumstances and facts existent in this case, the daughter has a homestead exempt from execution for her debts.
It may be noted that there is no claim the judgment upon which execution issued was invalid in any respect, nor is there any claim the sale was for an inadequate amount.
The trial court erred in allowing the motion to set aside the sale, and its decision is reversed. The cause is remanded with instructions to confirm the sale.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Burch, J.:
Garber was arrested on a warrant charging him with arson.. At the preliminary examination the examining magistrate found the crime had been committed, and there was probable cause to believe Garber was guilty. Garber commenced an action of habeas corpus in the district court to procure his discharge from custody, his contention being that the evidence was not sufficient to justify the examining magistrate in holding him for trial. The district court remanded petitioner to the custody of the sheriff, and he appeals.
It would serve no useful purpose to spread the evidence introduced at the preliminary examination on the pages of the Kansas reports. The evidence justified a finding that the crime of arson had been committed, and that there was strong probability the petitioner was guilty.
The appeal is dismissed for want of merit.
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The opinion of the court was delivered by
Gilkeson, P. J. :
In December, 1889, the plaintiff in error filed its petition for an injunction against the defendants in error to restrain the collection of certain alleged illegal taxes, and a temporary order of injunction was granted by the judge of the district court at chambers. On the 22d of April, 1890, the plaintiff filed an amended petition, upon which the case was finally tried, to which the defendant filed its answer. The petition alleges, and the answer admits, that the taxes sought to be enjoined were levied under and pursuant to the act of the legislature of March 11, 1887, entitled “An act providing for the improvement of county roads,” being chapter 214 of the Laws of 1887; that the total amount of taxes apportioned against the property of the plaintiff was $6,122.65, divided into five equal installments.
The case was submitted and tried upon an agreed statement of facts. Paragraph 7 of this agreed statement of facts reads as follows :
“That a tax has been levied upon the plaintiff’s property of $1,224.53 for the year 1889, to pay for these improvements, and a like tax for the same amount for the same purpose was levied against the plaintiff for the year 1890, and a tax for the same amount each year will be levied for the years 1891, 1892, and 1893, unless restrained by the injunctional order of this court.”
The court below dissolved the temporary order, and refused an injunction. To this ruling, decision and judgment the plaintiff duly excepted, and prosecuted its appeal to the supreme court. All of these proceedings were had prior to the enactment of chapter 96 of the Laws of 1895, entitled “An act concerning appellate courts, defining their jurisdiction and proceedings therein.” Subsequently, said case was certified to this court for review.
The jurisdiction of the courts of appeal is defined in section 9 of said act, which, among other things, provides: “And from all final orders and judgments of such courts, within their respective divisions, where the amount or value does not exceed $2,000 exclusive of interest and costs/’ Before this court will review a judgment of an inferior court it must appear that it has jurisdiction over the subject-matter thereof ; otherwise its judgment would be of no validity or binding force. The record in this case shows, we think, that the amount in controversy exceeds the jurisdiction and limit of this court, it being the amount due at the time of the trial, viz., the taxes for the years 1889 and 1890, amounting in the aggregate to the sum of $2,449.06. The case seems to have been tried in the district court upon the theory that the whole assessment of $6,112.65 was involved. If that were true it would unquestionably be beyond the limit of this court; but, for the purpose of retaining jurisdiction if possible, we have selected the smallest possible amount claimed by the plaintiff in error, -but-even this would place it beyond-the jurisdiction of this court. The case, therefore, is not properly here, and the record will be by the clerk returned to the supreme court with a copy of this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Harvey, J.:
This was an action to construe the will of Dora E. Clancy. Omitting the formal opening, the will reads:
“I want Mrs. Lillian Flanagan appointed executrix of this will.
“Now, when all just 'debts are paid and this estate is to be settled, I want all bonds to stand, as far as possible, as they are. There is one insurance policy in the Security Benefit Association and one in the Metropolitan Insurance Company. There is also money in the post office. Mrs. Lillian Flanagan is to have the distributing of this to be held as her own.
“$500 to M. F. Mickey, Chicago, 111.
“$500 -^o David Mickey, Junction City, Kans.
“$500 to Miss Bernice Robinson, Junction City, Kans.”
The instrument was properly signed and witnessed and was duly admitted to probate. The property of the testatrix consisted of household goods, appraised at $348; two bonds of a building corporation; fifteen certificates of preferred stock in utility corporations, a participating certificate in a failed bank, six postal savings certificates, two life insurance policies, and two accounts; all appraised at $6,920.01; and two tracts of real property, one appraised at $600 and the other at $2,000.
The trial court held the will bequeathed to Lillian Flanagan the personal property above mentioned, appraised at $6,920.01, the bequest being charged with the payment of $500 each to M. F. Mickey, David Mickey and Bernice Robinson, and that the testatrix died intestate as to the real property.
Plaintiffs are sisters and heirs at law of the testatrix. They have appealed, and contend the testatrix died intestate as to all her property except the three $500 bequests. Lillian Flanagan, by a cross appeal, contends the will bequeathed and devised to her all the real and personal property of the testatrix, charged with the payment of the three $500 bequests.
The testatrix was the widow of a former United States army officer; one of her sisters lived in Texas, the other in Illinois; she left no children surviving her. Mrs. Flanagan was a friend and neighbor of testatrix. The will was executed about two weeks before the death of the testatrix, and while she was a patient in the Station Hospital at Fort Riley, suffering from cancer, chronic heart ailment and pneumonia. She dictated the will to a nurse, who is a stenographer. The will is in the language of the testatrix; it appears she had no instructions or advice from anyone as to the wording; the punctuation is that of the stenographer.
Our duty, like that of the trial court, is to interpret this will and to determine what the testatrix meant by the language used. The first paragraph of the will nominates Mrs. Lillian Flanagan as executrix; no question is raised about that. Taking up the next paragraph: The first sentence reads, “Now, when all just debts are paid.” This indicates that testatrix intended and fully expected that her just debts would be paid out of her property before anything else would be done with it — as the law provides — “and this estate,” obviously meaning my estate, “is to be settled, I want all bonds to stand, as far as possible, as they are.” This expresses a wish of the testatrix. The inventory, which we may look to as an aid to interpretation of a will drawn under the circumstances this one was (Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998), perhaps discloses the reason for this wish. The two bonds, appraised at $800, had a face value of $1,000. The shares of preferred stock, which the trial court found the testatrix meant to include in the term “bonds” as used in the will — a question we find unnecessary to decide — were appraised at 25 to 27 percent of their face value. Obviously the financial depression had greatly decreased the market value of such property. Perhaps testatrix knew this and thought it good business not to sell them at once. But whatever the reason for it, she simply expressed the wish that they “stand;” that is, be held by whoever got them, “as they are,” and not be sold, unless necessary, at the time her estate should be settled. The next two sentences, as the will is printed, simply serve to advise the executrix of some of the property of the testatrix which the executrix otherwise might not know about — two life insurance policies, with the names of the insurance companies, and “money in the post office.” This, no doubt, refers to the six postal-savings certificates, of the value of $2,400, shown in the inventory. Up to this point the will has not bequeathed or devised any property to anyone. The parties agree that the remainder of the will makes three specific bequests of $500 each. This was the view of the trial court, with which we agree. The word “this” was construed by the trial court as meaning the “bonds” (including certificates of stock), the proceeds of the insurance policies, and the “money in the post office” mentioned earlier in the paragraph. We see no reason why it does not refer back to the words “this estate,” meaning the estate of the testatrix, used earlier in the paragraph, and such is our interpretation. The thought that Mrs. Flanagan was personally bequeathed and devised “this,” with full title to be held as her own individual property, is not consistent with the thought that she “is to have the distributing of this,” and is also inconsistent with what follows.
Naturally, we presume the testatrix had some definite thing in mind wdiich she desired to express with reasonable clearness. Since the testatrix in dictating the will gave no attention to punctuation, we, in interpreting the will, may ignore or change the punctuation marks used by the typist if by doing so we can get a more intelligent understanding of the language used. (Holt v. Wilson, 82 Kan. 268, 272, 108 Pac. 87.) It is clear the period after the word “own” should be a comma or semicolon; otherwise what follows is simply a tabulation, disconnected from words indicating a gift, or directing distribution of the sums mentioned to the parties named.
A testator is presumed not to have intended to disinherit his heirs at law, but this presumption yields to the manifest intention of the testator gathered from the express words of the will. (28 R. C. L. 229; Godfrey et al. v. Epple et al., 100 Ohio St. 447, 126 N. E. 886.) This will contains no words which clearly express such an intention.
It is also the rule, rather than the exception, that a gift in a will to an executor is deemed to be to him in his official capacity instead of being given to him personally. In Thomas v. Anderson, 245 Fed. 642, the pertinent headnote reads:
“It is a cardinal rule that a devise of property to an executor is presumed to be given to him in trust, and not privately, and, in order to justify a court in reaching a contrary conclusion, there must be language in the will which clearly expresses such an intent.”
See, also, 3 Jarman on Wills (7th ed.), p. 1599; 69 C. J. 223; Beakey v. Knutson, 90 Ore. 574, 177 Pac. 955; Christman v. Roesch, 198 N. Y. 538; In re Megrue’s Estate, 237 N. Y. Supp. 523; Gilman v. Gilman, 99 Conn. 598, 122 Atl. 386; Thayer v. Fairchild, 25 R. I. 509, 56 Atl. 773; F. A. Billingslea v. W. B. Moore, 14 Ga. 370; Helsey et al. v. The Convention of Prot. Epis. Church et al., 75 Md. 275, 23 Atl. 781; Patton v. Williams and Wife, 3 Munf. (17 Va.) 59; General Clergy Relief Fund v. Sharpe, 43 App. D. C. 126; Finklea v. Jordan, 14 Rich. Eq. (73 S. C., old series) 160.
These authorities sustain the view that while a testator may make a bequest or devise to a person nominated in the will to be the executor, with the intention that the person individually will be the absolute owner of the property bequeathed or devised — a thing which is done frequently — the language used in the will must clearly express such' an intention. The will in question does not use language which clearly expresses an intention of the testatrix to give her estate, or any specific part of it, to Mrs. Flanagan to be her sole and separate property. It is only when one attempts to give such a meaning to the language used that confusion arises, bringing up such questions as: What was bequeathed or devised to Mrs. Flanagan — the entire estate of the testatrix, or only a part of it; and if so, what part? What did the testatrix mean by saying that Mrs. Flanagan is to have the distributing of this? If all the personal property other than the household goods was to belong to Mrs. Flanagan individually, was she to pay the three $500 specific bequests out of that property, or are those items to be paid out of the household goods and the real property? These confusing.questions can none of them be answered with certainty. We avoid all this confusion by. following the view that any gift to an executor is deemed to be to him in his official capacity, unless a contrary intention clearly appears from the language used. Rewriting the last part of the will before us with these authorities in mind, and correcting the punctuation, it will read:
“Mrs. Lillian Flanagan is to have the distributing of this [estate] to be held [for the purpose of distribution] as her own; $500 to M. F. Mickey, Chicago, Ill.; $500 to David Mickey, Junction City, Kans.; $500 to Miss Bernice Robinson, Junction City, Kans.”
These three specific bequests dispose of $1,500 of the testatrix’s estate. Since she did .not name the other persons to whom the remainder of her estate should be distributed, and since her heirs at law are entitled to it, under the law, the distribution of the remainder of the estate should be made to the heirs at law. Mrs. Flanagan has no right or title to any of the property except for the purpose of making distribution. We regard this as the correct interpretation of the will, and it is in harmony with the legal principles and the authorities above mentioned.
The judgment of the trial court will be reversed with directions to enter judgment in harmony with the views herein expressed. It is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover $5,079.30, the amount claimed to be owing to him from the defendants as the result of certain partnership transactions in buying and selling live stock. Judgment was rendered in favor of the plaintiff for $1,461.35 and costs. Frances Bunn, one of the defendants, appeals.
The petition alleged—
“2. That prior to October 1, 1924, and up to and including the time of the filing of this petition the plaintiff and defendants were partners engaged in the business of buying and selling live stock with their principal place of business at Independence, Kan.
“3. The plaintiff alleges that on or about October 1, 1924, that plaintiff entered into an oral agreement with the defendants whereby he was to furnish his time, work and labor in buying live stock and helping take care of them and selling them, and the defendants agreed on their part that they would furnish necessary money to buy said live stock and would assist in taking care and feeding said stock and help sell said stock, and that the net profits, after all expenses were paid, should be divided equally between the plaintiff and the defendants.”
Responding to those allegations of the petition, the joint answer to the defendants contained 'the following:
“Said defendants jointly and severally admit . . . that on or about October 1, 1924, plaintiff and defendants entered into a certain partnership arrangement, substantially as alleged and set forth in paragraph three of plaintiff’s petition, whereby they as such engaged in the business of buying and selling live stock, and that their principal place of business was at Independence, Kan.”
The answer further alleged that the plaintiff was indebted to the ■defendants as a result of the partnership transactions, asked for an accounting and asked that the defendants recover from the plaintiff what might be found to be due to the defendants. Sullivan Lomax, of Cherryvale, was appointed referee to hear the evidence, try the action, and make his report to the district court. The referee made the following findings of fact, among others:
“1. Sometime prior to October 1, 1924, the plaintiff, the defendant, C. Bunn, and one Fred Stover were doing business in Montgomeiy county, Kansas, as partners, it being a three-way partnership.
“2. On October 1, 1924, this partnership of Bunn, Stover & Lawrence was ■dissolved and wound up, and it was found that the plaintiff, Lawrence, was indebted to the defendant, Bunn, for the sum of $550.
“3. On October 1, 1924, a new partnership was formed by the plaintiff and the defendants, C. Bunn and Mis. C. Bunn. It was an oral arrangement by which the Bunns agreed to furnish all the necessary working capital, and Lawrence was to do all the work of managing and conducting business, which was that of buying and selling live stock, and to devote his entire time thereto. Lawrence was to receive one-half of all the profits and the Bunns the other half.”
The referee made conclusions of law, the fifth one of which was as follows:
“The plaintiff is entitled to have judgment in his favor against the defendants and each of them for the sum of $1,461.35, one thousand four hundred and sixty-one dollars, 35-100.”
When the referee made known to the parties his tentative findings of fact and conclusions of law, Frances Bunn openly protested that she was not a partner with plaintiff and Charles Bunn, her husband, and that there was no evidence which tended to prove that she was such a partner. She afterwards filed verified exceptions to the report of the referee in which she again stated that she was not a partner of the other two parties to the action; that there was no evidence tending to prove she had been a partner; that her attorneys, without her knowledge or consent, had in the answer admitted she was a partner with Arthur G. Lawrence and Charles Bunn; that she had no knowledge such an allegation was contained in the answer until the referee made known his tentative findings of fact and conclusions of .law; that she never admitted the partnership; and that the allegation had been fraudulently inserted in the answer.
The judgment, entered December 3, 1927, on the exceptions taken and on a motion to set aside and modify the report of the referee, recited:
“That the affidavit of Frances Bunn is untrue; that the defendant, Frances Bunn, at the time her answer was filed herein, knew that the plaintiff claimed .and was claiming that he and the defendants, Frances Bunn and C. Bunn, were partners in the transaction in controversy in this action, and that prior to the answer of the defendants, Frances and C. Bunn, being filed herein, the •defendant, Frances Bunn, advised her attorney, S. H. Piper, that she was a partner of the said A. G. Lawrence, together with her husband, C. Bunn; that there was no fraud committed nor practiced by anyone connected with this .action, upon the defendant, Frances Bunn, and that the exceptions of the defendant, Frances Bunn, and her motion for a modification of the report of •the referee should be overruled.”
The motion was denied and the exceptions were overruled.
Afterward, on December 6, 1927, Frances Bunn filed her motion for a new trial, in which she again raised the question of her partnership with the plaintiff and her codefendant. Affidavits were introduced by her which tended to prove that she was not a partner -with the other two persons named, and that she had not told her .attorneys who had prepared the answer that she was such a partner. Her attorneys were examined' and cross-examined in open court on the hearing of that motion. One of them, the one who prepared the ¡answer, stated positively that Frances Bunn had told him that she was a partner with the plaintiff and her codefendant in purchasing ¡and selling live stock. The motion for a new trial was denied.
On December 14, 1927, she 'filed a motion for leave to file an amended answer, which was overruled on January 7, 1928, the •court making the following finding:
“Thereupon, in support of said motion, the said Frances Bunn introduced the affidavits of Geo. T. Guernsey, J. N. Masters, C. Bunn, Frances Bunn, •J. F. Sanford, J. W. Moss, Alford B. Prescott, Lester Prescott, Georgia Prescott, Fred Stover, Art Cole, and Nancy Gibson, to the introduction of such parts -of said affidavits as were conclusions and opinions of the witnesses, the plaintiff objected, which objection was by the court sustained, and the court, after having considered said motion and the evidence offered by the defendant, Frances Bunn, in support thereof, and the argument of counsel thereon, and 'being fully advised in the premises, finds that said motion for leave to file .an amended answer should be overruled.”
The complaint of Frances Bunn is chiefly that there was no evidence to show that she was a partner. In response to that complaint the plaintiff has filed a partial abstract of a few pages of the tran•script. That partial abstract shows a portion of the testimony of ¿he plaintiff, Arthur G. Lawrence, as follows:
“Q. Are you acquainted with Charles Bunn and Frances Bunn, his wife? A. Yes, sir.
“Q. How long have you known them? A. Since about 1914 or 1915, possibly 1915.
“Q. Have you been engaged in any business with these parties since October, 1924? A. Yes, sir.
“Q. What has been the nature of that business? A. Partnership business in live stock; handling, buying and selling live stock.
“Q. Now October 1, then, 1924, you began the arrangement you have worked under since that time? A. Yes, sir.
“Q. We have set out in the petition and it is admitted in the answer that this partnership existed and we have stated in there that your arrangements were that.you were to buy the live stock and take care of it, and sell it, and that Mr. Bunn was to furnish the money and that you two were to split the profits, was that the arrangement? A. Yes, sir.”
The trial court did not believe Mrs. Bunn when she stated that she was not a partner of the plaintiff and her husband, and that she had not so informed her attorneys when the answer was prepared. The defendants were claiming a large sum of money from the plaintiff as the result of the partnership transaction. The evidence showed that the defendants, husband and wife, were having domestic difficulty and that a separation was contemplated. If a judgment should have been obtained in favor of the defendants, Mrs. Bunn would have been interested therein and would have been entitled to receive a part of it. When the judgment went the other way, she was interested in escaping liability thereunder. The issues presented by the exceptions to the report of the referee, the motion to modify that report, and the issues of fact presented by the motion for a new trial were for the determination of the trial court on the evidence. That court determined those issues on evidence which supported the conclusions reached, and those conclusions are binding in this court.
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a trust deed securing an issue of bonds. Judgment was entered denying the relief prayed for in an answer and cross petition of one of the defendants. That defendant appeals.
The facts are about as follows: About October 1, 1925, one Bee-son and wife executed a trust deed to certain real property to the Guarantee Title and Trust Company. Bonds were issued and sold under this trust deed. Some time in April, 1930, this trust deed became in default. About August 30, 1930, the Guarantee Title and Trust Company closed its doors. Standish Hall was appointed successor in trust to the Guarantee Title and Trust Company. For some time after the defaults in that trust deed Standish Hall endeavored to cause the defaults to be removed. He threatened foreclosure, conducted bondholders’ meetings and endeavored to work out a satisfactory adjustment or extension of the mortgage.
While these efforts were under way some of the bondholders sought to work out their troubles independently of Hall. As a result of these efforts a trust deed to the same real property covered by the former trust deed was executed to E. A. Wohlgemuth as trustee. Bonds were issued under this trust deed. All but $1,400 of the bonds issued under the first deed were exchanged for bonds issued under the second deed. At all times while the negotiations just described were being carried on, Standish Hall was asserting right and duty to remain in office as long as there were any of the old bonds unpaid.
Finally the bonds that were issued under the second trust deed became in default. This action was brought to foreclose that trust deed.
Standish Hall was made a party defendant in the action. He pleaded the facts in an answer and cross petition about as they have been stated here. While this action was pending in the trial court the $1,400 bonds that have been spoken of under the first mortgage were paid.
In all his efforts to cause the defaults that, have been described to be met, Standish Hall relied upon the right of reimbursement claimed by him against the trust estate for any expense incurred by him for attorneys’ fees, traveling expenses and the like, and upon the lien claimed by him upon the trust estate for his own reasonable compensation and for his expenses reasonably incurred, including expenses for attorneys’ fees. This contention was raised in the lower court-by proper pleading.
The trial court found the facts about as they have been stated and gave judgment that the trust deed sued upon by Standish Hall had been satisfied and discharged, and foreclosed him from any claim against the real estate in question. From that judgment this appeal is taken.
The question is whether or not a trustee in a trust deed has a lien upon the real estate to pay for the reasonable value of his services.
In the case of Hall v. Goldsworthy, 136 Kan. 247, 14 P. 2d 659, this court considered an analogous question. There the question was whether the mortgagor was liable for trustee’s expenses in a case of foreclosure of a deed such as we have here. This court pointed out that R. S. 60-3107 provided that in an action to foreclose a mortgage judgment shall be rendered for the amount thereof, with interest, and that the court shall tax the costs and expenses which may accrue in the action, and held the mortgagor not liable. The trustee is not an officer of the court, consequently his 'fees and expenses do not come within the terms of the statute. They are not costs or expenses accruing in the action. This reasoning applies with great force to this case. Once it is established that the mortgagor is not liable for these fees and expenses it must follow that there can be no lien on the trust estate to pay them. If suc-h a lien should be held to exist in a case such as we have here, then the only person who would pay it would be the mortgagor. Thus the spirit of the statute and of Hall v. Goldsworthy would be violated.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries which plaintiff sustained in a fall in a hall or stairway alleged to have resulted from defendants’ negligence in not having the hall properly lighted and a proper handrail. The trial court overruled a demurrer to the petition, and defendants have appealed.
In the petition, as far as is material here, it was alleged that the Farmers & Merchants State Bank of Concordia failed, and the defendant receiver was appointed in November, 1931; that as a part of the assets which came into his hands as receiver was the two-story bank building, the first floor of which was used for bank purposes and the second floor for office rooms; that there was a common stairway and hall to such office rooms, one of which was occupied by an attorney; that on January 3,1932, plaintiff and her husband, having gone to the attorney’s office room and having consulted him concerning legal matters, left his room after dark; that plaintiff was then unable to see the steps of the stairway and being unfamiliar therewith fell and received injuries for which she seeks to recover; that the defendant receiver and his employees who cared for such building under his directions were negligent “in failing to properly light said hall and stairway, and in failing to keep said hall and stairway in a reasonably safe condition for the use” of those who rightfully visited the offices upon the second floor, and because thereof plaintiff fell down such stairs and received injuries. Defendants moved that the plaintiff be required to make her petition more specific, definite and certain by stating specifically what defendants did, or failed to do, which resulted in the hall or the stairway being or remaining in an unsafe condition, and by stating specifically the facts upon which plaintiff concluded the hall or the stairway was not kept in a reasonably safe condition. This motion was sustained. Thereafter plaintiff filed an amended petition stating her cause of action against defendants in the wording of the original petition, with this added:
“Said hall and stairway were not in a safe condition at the time the plaintiff was injured because of insufficient light and because of the absence of rails and other protection in the hall leading to and upon the said stairway, and all of which were necessary to make the said hall and stairway reasonably safe for the users thereof at the time the plaintiff was injured.” (Italics ours.)
It will be noted this amended petition limits the time of the existence of the alleged unsafe condition of the hall and stairway to the time of plaintiff’s injury. In view of the general nature of the allegations in plaintiff’s petition, the motion to make it more specific, definite and certain, and the ruling of the court sustaining that motion, it must be assumed plaintiff stated the time of the existence of-the alleged defects as definitely as the facts would warrant. In this situation the petition should be construed with respect to the specific negligence alleged rather than with respect to the general allegations therein. (Adams v. Reeves, 136 Kan. 66, 68, 12 P. 2d 731.) Appellee argues that the general allegations of the original petition, repeated in the amended petition, may be construed as alleging absence of lights or other safety provisions at a time prior to the injury, hence, that the amendment made to the petition limiting the allegations to the time of the injury should not be controlling. The rule is well settled that when a motion to make a petition more specific, definite and certain is resisted by the pleader and overruled the petition cannot be upheld as against a general demurrer unless it fairly states a cause of action without resort to inferences which may be drawn from the construction of doubtful language. (Mergen v. Railroad Co., 104 Kan. 811, 812, 180 Pac. 736.) There is much more reason in this case to construe plaintiff’s cause of action as being predicated upon the alleged negligence at the time of the injury, for here the court required plaintiff to plead specifically the negligence upon which she relied, and in response to that order the only time referred to was the time of the injury. There is no allegation that the hall or stairs were unlighted or in an unsafe condition at any time before plaintiff’s injury.
It may be conceded that this =was a stairway and hall for the common use of tenants on the second floor of the building, and that defendants were under the duty to use due care to keep them in a reasonably safe condition (Hinthorne v. Benfer, 90 Kan. 731, 733, 136 Pac. 247), and that they would be liable if, by the exercise of reasonable care, they could have discovered the unsafe condition and the risk involved therein, and could have made the condition safe. (See Restatement, Torts, §§ 357, 358, 359, and comments thereon.) There is no allegation in the petition that the defendants knew of the unsafe condition of the hall and stairway, or that such a condition had existed long enough for them to have known about it and had an opportunity to make the condition safe.
In this respect the petition is much like that considered by the court in Given v. Tobias, 137 Kan. 58, 19 P. 2d 472. It was there held that a demurrer to the petition was properly sustained. No reason suggests itself why a different rule should apply here.
While another point is argued it is not deemed necessary to pass upon it.
The judgment of the court below is reversed with directions to sustain the demurrer to the petition, and to enter judgment for defendants.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the conversion of four bonds of the state of Kansas of the face value of $1,000 each. The trial court made findings of fact and rendered judgment for plaintiff. The defendant has appealed.
The pertinent facts may be stated as follows: Jane Kurtz.and Helen Kurtz are minors. On February 1, 1927, Charles W. Bruce was duly appointed and qualified as the guardian of their estate by the probate court of Bourbon county. Thereafter, with the approval of the probate court, he purchased for the estate of such minors, and with their funds, six State of Kansas Soldiers’ Compensation bonds of the face value of $1,000 each, bearing 4% percent interest and due July 1, 1937. This action, as it reaches this court, involves four of those bonds. Thereafter and about January 26, 1929, Bruce resigned as guardian of the estate of such minors, and James G. Sheppard, of Fort Scott, was duly appointed and qualified as such guardian. Bruce delivered the six bonds to Sheppard and took his receipt therefor. On February 8, 1929, Sheppard caused the bonds to be registered in the office of the state treasurer, as authorized by R. S. 10-601, as the property of “Helen and Jane Kurtz’s Estate, James Sheppard, Guardian.” At that time the bonds were presented to the state treasurer and he perforated each of them, “Registered — Kansas Treasurer,” and stamped on the back of each bond, “This bond is registered on line No. [5257], Book 2.” The stamp on each bond, of course, showed its individual line number. On June 2, 1931, Sheppard made a report to the probate court in which he claimed credit for $6.90 under the notation, “Kansas State Treasurer, for registration of bonds.” At the time he made this report Sheppard had the six bonds with him and exhibited them to the court.
On June 16, 1932, Sheppard borrowed $750 of the defendant bank and executed a collateral note for the amount due in thirty days. The note is a lengthy instrument and among other things recites that the maker pledged to the bank as collateral security for the payment’of the note a “State of Kansas Soldiers’ Compensation bond No. 13,255,” which Sheppard, by the instrument signed, represented to own. The bond described is one of those belonging to the estate of the minors above mentioned. The bond was handed to the bank with the collateral note. It showed the perforation made therein and the endorsement stamped thereon by the state treasurer when it was registered. The bank made no inquiry of the state treasurer as to who was the owner of the bond as shown by his record of its registration. The evidence discloses this loan was made and Sheppard received credit for its proceeds on June 16, 1932, but for some reason the note was dated and the loan entered on the bank’s records June 18, 1932. In the meantime and on the date of June 17, 1932, an entry was made on the proper lines of book 2 of the state treasurer’s record showing an assignment of these six bonds from the estate of Helen Kurtz and Jane Kurtz, James Sheppard, guardian, to James G. Sheppard, 824 Crawford street, Fort Scott, Kan., personally. On that date the treasurer wrote Sheppard at his Fort Scott address as follows:
“In accordance with our conversation, I am herewith enclosing the six assignments for line No. 5257, 5258, 5259, 5260, 5261 and 5262 which have been assigned to ‘James G. Sheppard, 824 Crawford street, Fort Scott, Kansas.’ ”
In the ordinary course of the mail this letter would have reached Fort Scott June 18, 1932. This letter and such other evidence as there is bearing on the point tends to show that Sheppard appeared personally at the state treasurer’s office and caused the entry to be made in the treasurer’s books showing the transfer of the bonds to him personally. Whether he had the bonds with him is not disclosed by the evidence. The method of handling such assignments at that time in the state treasurer’s office it seems did not require the bonds to be presented at the time the assignment was entered in the treasurer’s records, although sometimes they were presented with the assignment. The state treasurer, as authorized by statute, had prepared a form for the assignment of registered bonds. That blank form is as follows:
“assignment op registered bonds
“-Date-19-
“For value received —— -- hereby assign, to-bond No.of-in county, state of Kansas, issued - — , due-for $-, registered in the state treasurer’s office on the-day of-, 19-, on line No.-of said records in the state treasurer’s office, and I hereby authorize the transfer thereof on the state treasurer’s records.
Signature.1
This is followed by a form of acknowledgment. The evidence shows that the method used for the assignment of registered bonds was for the owner, as shown by the registration books of the state treasurer, to fill out this blank by dating it, putting in the name and address of the assignee, the number of the bond, the issuing body, the date it was issued, the date due, the amount of the bond, and the date and line on which it was registered, and to sign and acknowledge the signature before some officer authorized to take acknowledgments of written instruments. When this assignment is properly filled out and presented to the state treasurer it is the practice for him to make on his records the appropriate entry showing the date and to whom the bond was assigned. It seems the treasurer did not keep these assignments, and perhaps usually, as in this case, returned them to the person to whom the bonds had been assigned. Presumably in this instance an assignment for each of the bonds had been made out by Sheppard and presented to the state treasurer. The assignments, however, were not attached to the bonds, as is sometimes the practice, and what became of them after they were sent by the state treasurer to Sheppard at Fort Scott is not disclosed by the evidence.
The evidence discloses that the probate court never at any time, by an order made, or in any other manner, authorized James G. Sheppard, as guardian, to have these bonds assigned to himself personally, or to the defendant bank, or to anyone else. It was clearly shown that his act in causing them to be assigned to himself personally, and his act in putting them up with the bank as collateral security for his personal debt and representing to the bank that he owned them, were entirely unauthorized. There is no contention to the contrary. Parenthetically, it may be added, the evidence discloses that Sheppard was later charged with the embezzlement of these bonds, entered a plea of guilty to the charge, and was sentenced to the penitentiary. We may also say that his trustee was a party defendant to this action, and plaintiff recovered judgment against the trustee for the conversion of the six bonds; but since there is no appeal from that branch of the case it need not be further noted. This appeal involves the liability of the bank on its alleged participation in the conversion of four of the bonds.
Getting back to the evidence, insofar as it involved the bank, we have stated the evidence respecting the loan made to Sheppard June 16, 1932. On July 16 the bank made Sheppard an additional loan of $700, taking another one of the bonds in question as collateral security. On September 12, 1932, these two loans were merged into a loan of $3,000, the additional amount being paid to Sheppard, and the two bonds previously pledged to the bank on the earlier loans and two additional bonds were pledged as security for the $3,000 loan. On December 12, 1932, the loan was increased to $3,600, secured by the same four bonds as collateral. Later the bank loaned Sheppard $400 on his straight note. This indebtedness of $4,000 continued until January 13, 1934, at which time the bank sold the four bonds which had been pledged as collateral, and from the proceeds paid, the notes it held and placed the balance of $5 to the credit of Sheppard.
On August 24, 1932, the bank wrote the state treasurer advising him that a depositor presented two registered bonds, describing the two bonds then pledged with it, and asked to be advised in whose name the bonds now stand, and that it be sent appropriate forms for having the bonds assigned. The treasurer replied: “Our records show these bonds registered in the name of James G. Sheppard, 824 Crawford street, Fort Scott, Kan.,” and enclosed blank forms for assignment. On September 13, 1932, the bank sent to the state treasurer assignments for these bonds executed by James G. Sheppard. There was a little delay in making the entry because of a defect in the assignment, but on September 17 the entry was made in the office of the state treasurer showing an assignment of each of the four bonds in question from James G. Sheppard to the defendant bank.
In July, 1933, the probate court received notice that the bonding company which was surety on Sheppard’s bond had become insolvent. The court asked him to give a new bond, which he did not do. The court then asked him to file a report, which he did December 19, 1933. This showed a sum due the estate which obviously included the amount of these bonds. In his report Sheppard requested that he be relieved as guardian. His resignation was accepted and W. W. Patterson was appointed and qualified as guardian in his place. The court made an order that Sheppard turn over to the new guardian the property and money of the estate as shown by his report. This he did not do. The court then made an order for W. W. Patterson as guardian to bring this action.
Turning now to the legal questions argued. Appellant contends that the bonds were negotiable instruments in a commercial sense; that the negotiable character of thé bonds was not destroyed by their registration with the state treasurer, and that it is a holder of the bonds in due course. Appellee contends that the registration of the bonds with the state treasurer destroyed their negotiability in the commercial sense; that thereafter they were payable only to the rightful owner, as shown by the registration, and that in any event appellant is not a holder in due course, for the court eventually found that it took the bonds under circumstances amounting to bad faith. We do not find it necessary to recite in detail all the evidence which appellee contends supports the finding made by the trial court with respect to the good faith of appellant. The trial court found in effect that the registration of the bonds with the state treasurer destroyed their characteristic of negotiability in the commercial sense. Appellant contends this is an incorrect view of the law. We therefore go directly to that question. The statute providing for the registration of bonds, as enacted in 1923 (Laws 1923, ch. 225), contained five sections,'which later became R. S. 10-601 to 10-605. The second section of the act was amended by chapter 93 of the Laws of 1927. The first section of the act (R. S. 10-601) and the second section, as amended in 1927 (R. S. 1933 Supp. 10-602), read as follows:
“That the state treasurer shall register any state, county, city, township, or school district, or drainage district bonds which the holder thereof may present to him, making a record thereof in a book kept for that purpose, showing the municipality issuing the same, the series of the bonds, the date, amount, number, maturity, and purpose for which such bond was issued, together with the name and post-office address of the holder thereof. That on registering any bond the state treasurer shall notify the municipality issuing the same of its registration and the same shall be payable on its maturity by the municipality to the state treasurer. When the state treasurer shall so register any bond, he shall stamp through said bond with a perforating stamp the words ‘Registered, Kansas treasurer.’
“That after the registration of any bond it shall be negotiable only by formal assignment before a notary public, identifying the bond assigned by the name of the municipality issuing the same, the number, date, amount, and said assignment shall be acknowledged the same as conveyances of real property. All assignments of bonds shall be forwarded to the state treasurer for endorsement on his records, which record shall set forth the name and address of the assignee, except when it is the desire of the registered owner to release the bond from registration and further assignment, in which case the bond shall be assigned to ‘bearer,’ and by the state treasurer so endorsed upon his records. The state treasurer shall have printed such forms as may be necessary for use in making such assignments which shall be delivered to persons desiring the same on request.”
Appellant points to the word “negotiable,” used in the statute, and contends that by the use of this word the legislature intended that notwithstanding the registration of the bonds they should continue to be negotiable in the commercial sense. We cannot agree with that view. The context indicates that the word is used in the sense of transferable, which would make the statute read that after registration the bonds are transferable by assignment. Other language in the statute is in harmony with this view.
More than that, the wording of the bonds indicates clearly that the bonds are to be no longer negotiable in the commercial sense after registration, unless, of course, they are again assigned to bearer. The wording of the bond is that the state “promises to pay the bearer, or if registered, to the registered holder thereof, the sum of . . .” This language, with the use of the disjunctive “or,” makes it clear that the bonds are payable only to the registered holder, if they have been registered.
On this point we agree with the trial court that the registration of the bonds with the state treasurer destroyed their negotiability in a commercial sense. They were thereafter transferable by assignment by the owner. The statute provides a way, by an assignment to bearer, by which the negotiability of the bonds in a commercial sense could be restored, but neither Sheppard nor the bank made any attempt to act under that provision of the statute. In reaching this conclusion we need to go no further for authorities than the statute and the wording of the bonds. These seem to require this result. The statute heretofore has not been passed on by this court, and but few decisions from other jurisdictions bearing on the question are cited. Benwell v. Newark, 55 N. J. Eq. 260, 36 Atl. 668, dealing with registered city bond, and Grosfield v. First Nat. Bank, 73 Mont. 219, 236 Pac. 250, dealing with a U. S. registered bond of the Third Liberty Loan, and authorities cited in those cases, are in accord with this view.
Appellant cites Graham v. White-Phillips Co., 296 U. S. 27, 80 L. Ed. 62, dealing with the liability of a purchaser of stolen bonds. The bonds in that case had not lost their characteristic of negotiability in the commercial sense, hence the case is not in point. Some other cases cited are not in point for the same reason. Railroad Co. v. Nation, 82 Kan. 345, 108 Pac. 102, cited by appellant, had to do with the registration of bonds by the state auditor with respect to the regularity of their issue. It had nothing to do with registration as to ownership with the state treasurer under R. S. 10-601. Prudential Inv. Co. v. National Reserve Life Ins. Co., 137 Kan. 659, 21 P. 2d 373, is cited. That decision construed R. S. 52-1801 and had to do with the liability of one who endorsed bonds in harmony with that statute. Nothing said in that opinion is out of accord with our conclusion here.
Appellant next contends that in any event it is entitled to hold the coupons. This contention is based on R. S. 10-605, which reads:
“That this act shall not affect the negotiability of the coupons attached to any registered bond, said coupons to be negotiable without assignment or formal transfer.”
This is one of the sections of the original statute (Laws 1923, ch. 225) for the registration of bonds with the state treasurer as to ownership. It is argued the registration of the bonds did not destroy the negotiability of the coupons, hence that appellant became the owner of all the coupons on the bonds. With this contention we cannot agree. Coupons are placed on bonds to facilitate interest payments and receipts therefor. They do not have an independent standing until their maturity, and the coupons were not listed in the collateral notes signed as having been pledged. The statute cited is designed to prevent the registration of the bonds from interfering with the normal method of collecting coupons. That method is to detach the coupons from the bonds when they are due, or shortly before, and to present them, usually through banking channels, for payment when they are due. It is in evidence in this case that the marketing or handling of bonds due some years in the future, with all coupons detached, is a thing unknown in commercial circles. We decline to give the statute the construction contended for by appellant.
We find no material error in the record. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action involves a suit for money judgment on a written contract for the sale of undivided interests in real estate, attachments of defendants’ interests therein, an attempt to set aside alleged fraudulent deeds conveying such interests from defendants to interveners, and an attempt by plaintiffs to collect rents to apply on their judgment, which rents defendants and intervenors appropriated from the lands in question, beginning with the date of the execution of escrow deeds.
Some of the rents had been appropriated and withdrawn by defendants and interveners. Some of them are on deposit with the clerk of the district court pending final determination of this action. The trial court rendered a money judgment in favor of plaintiffs and against defendants for the unpaid purchase price, set aside the alleged fraudulent conveyances and sustained the attachments, but refused to render judgment directing defendants and interveners to return rents appropriated, and refused to direct the application of rents in the hands of the clerk to the unsatisfied portion of the-judgment. The trial court also refused to allow damages claimed by plaintiffs in the nature of expenses incurred in prosecuting this and other actions and reasonable attorney fees. From the judgment involving the rents and damages plaintiffs appeal. Interveners appeal from the judgment setting aside the conveyances. The issues on this appeal are therefore between plaintiffs and interveners.
Prior to the execution of the contract on which plaintiffs' suit is based, the parties who had undivided interests in the real estate involved were the plaintiff, Mabel Benson Sakis, the defendants, Mary T. Sawyer, and Rosalie B. Peterson. These two defendants named are sisters of the four Bensons brothers, interveners. Plaintiff George P. Sakis is the husband of plaintiff Mabel Benson Sakis. Defendant C. A. Sawyer is the husband of defendant Mary T. Sawyer, and defendant Harry T. Peterson is the husband of defendant Rosalie B. Peterson. For convenience, interveners will be referred to as the Bensons, and the other parties as plaintiffs and defendants.
The trial court made findings of fact and conclusions of law. The findings of fact read:
“1. On December 1, 1928, the defendants, Mary T. M. Sawyer and Rosalie B. Peterson, were each owner of an undivided one-sixth (%) interest in all of the above-described real estate.
“2. On November 9, 1929, and other dates, Mary T. M. Sawyer, on her own behalf and as attorney in fact for Rosalie B. Peterson, executed and delivered warranty deeds conveying their interest in the above-described property to their brother, Ben S. Benson, as trustee; that these deeds were absolute on their face, although it is the claim of the interpleaders that at the time they were delivered they were given as security for a preexisting debt.
“3. The court believes that the evidence warrants, and therefore finds, that at the time of the execution and delivery of the aforementioned deeds Mary T. M. Sawyer and Rosalie B. Peterson were not indebted to any of the interpleaders in any sum whatsoever; that Mary T. M. Sawyer had, some years prior to that date, obtained some financial assistance from the inter-pleader, Ben S. Benson; that the money advanced was not intended as a loan but as a gift, and did not exceed the sum of one thousand dollars ($1,000).
“4. That no deficiency existed under the agreement offered in evidence, dated June 4, 1925, between the defendants and interpleaders, and at the time the confession of judgment was obtained the defendants were not liable to the interpleaders in any sum whatsoever; that the deeds above referred to were given for the purpose of defeating the claims of the plaintiffs, and in an attempt to save the above property from levy to satisfy such claim; that they were given without consideration.
“5. That after the execution and delivery of the deeds aforementioned the interpleaders received their one-sixth (%) share of the rents from the above-described land; that the aforementioned deeds were executed and delivered by the defendants to the interpleader, Ben S. Benson, as trustee, for the purpose of hindering, delaying and defrauding the plaintiffs who were creditors of the defendants, and that such facts were known to both defendants and inter-pleaders.”
The conclusions of law read:
"1. That the plaintiffs are entitled to a decree setting aside and holding void the deeds to the aforementioned Kansas land executed by defendants in favor of Ben S. Benson, trustee.
“2. That the proceeds of the sale of the crops raised on the above described land, which proceeds are now in the hands of the clerk of the district court of Gove county, Kansas, are not subject to the attachment order herein.
“3. That the plaintiffs should be entitled to have the interest of the defendants in the above-described property sold to satisfy the judgment herein; that the costs herein should be taxed against the defendants and interpleaders jointly, and that such costs are a lien upon the proceeds of the crops now in the hands of the clerk of the district court of Gove county, Kansas.”
Plaintiffs filed exceptions to certain findings and conclusions and requested supplemental findings of fact and conclusions of law which were overruled, except as to one finding of fact which the court embodied in the final judgment. That additional finding of fact reads:
“That the interpleaders have no right, title, lien or other interest in or to the following-described real estate, to wit: (description), and that any and all instruments executed by any of the defendants conveying or attempting to convey any interest in or to any or all of said real estate to Ben S. Benson, trustee, shall be and they are hereby canceled, set aside and held for naught; that all of such purported deeds were made without consideration and for the purpose of hindering, delaying and defrauding the plaintiffs, who were at the time of the execution and delivery of such deeds creditors of the defendants, and such deeds were executed for the purpose of hindering, delaying and defrauding the plaintiffs from the collection of their claims against the defendants, and that such was known both to the defendants and interpleaders; that such instruments were executed without consideration and should be set aside and held for naught. The court further finds that the interest of the defendants, Mary T. M. Sawyer and Rosalie B. Peterson, and the inchoate interests of their respective husbands, are subject to attachment lien herein, and that such lien should be, and the same is hereby sustained.”
Tbe pertinent portion of the final judgment from which plaintiffs appeal reads:
“The court further finds that the attachment lien herein does not cover the crops grown on said land; that the plaintiffs did not.have a lien on said crops by virtue of said attachment; that the court is without jurisdiction to render a judgment or enter any order affecting said crops or the proceeds thereof, which are now in the hands of the cleric of this court.
“The court further finds that it does not have jurisdiction to determine the question of damages as raised by the reply of the plaintiffs to the interplea of the interpleaders in this action.”
The Bensons requested certain findings of fact and conclusions of law and also filed a motion requesting the court to set aside certain findings and to render judgment in their favor. These were overruled. Both parties filed motions for new trial which were also overruled.
We shall first consider the complaint of the Bensons, the alleged fraudulent grantees. The court found the conveyances from defendants to the Bensons were without consideration and fraudulent. It specifically found the deeds were executed and delivered with the purpose and intent of hindering, delaying and defrauding the plaintiffs. The Bensons accepted those deeds. The court expressly found the fraudulent intent of the defendant grantors was known to the Bensons. Does the evidence support the findings of the trial court? The action was tried to the court. The parties have devoted about 122 pages solely to pointing out where the record was misstated by the other party. The result is we have been obliged to largely abandon the abstract of both parties and examine a voluminous transcript and numerous exhibits. The findings of fraud are based on both direct and circumstantial evidence. Some of the evidence was sharply conflicting. This condition of the record presented a question for the determination of the trial court. It would require many pages to relate only the most essential facts. . They would add little or nothing to the opinion. The court determined the credibility of the witnesses and the weight of the evidence. After a careful examination of the record we cannot say the trial court erred in its findings of fraud. There was an abundance of competent evidence, if believed — and it was believed — to support the court’s findings. In this condition of the record we are not permitted to disturb the findings of the trial court.
With regard to the circumstantial evidence the trial court was obliged to do just what a jury would have been required to do. In the case of Chapman v. Farrell, 96 Kan. 659, 153 Pac. 511, it was held:
“No error was committed in instructing the jury that direct and positive evidence of fraud is not required, or in telling the jury that—
“ ‘It is rare, indeed, that fraud can be proved by direct and positive testimony of reliable witnesses. It is an almost invariable rule that it can only be deduced from a consideration of many facts and circumstances; from the conduct, statements, dealings and surroundings of the parties, from their relationship to each other, and from the many little doings of the parties which indicate their secret motives, which as a rule are studiously concealed from those it is intended to wrong. Any unusual or extraordinary methods, if any, which they adopted in conducting business; any secrecy or concealment in business and any unusual methods or acts connected with the transactions in question in the case are proper to be considered in determining whether fraud in fact exists in connection with the transactions.’ ” (Syl. ¶ 3.)
The conveyances could have been set aside even though the intent had not been to ultimately defraud plaintiffs, but in fact had only been to hinder and delay them in the collection of their debt. (Buck v. Vickers, 93 Kan. 766, 145 Pac. 904; Chapman v. Farrell, 96 Kan. 659, 153 Pac. 511; Security Benefit Ass’n v. Swartz, 141 Kan. 227, 232, 40 P. 2d 433.)
Where a grantee has knowledge of the fraudulent transfer he acquires nothing by virtue of the conveyance. In Chapman v. Farrell, supra, it was held;
“In a transfer of property from a husband to his wife, where it was charged that it was done to hinder, delay and defeat the enforcement of a judgment against the vendor or the collection of a debt, the facts and circumstances of the transaction aré to be closely scrutinized to see that it is free from fraud; and if the evidence shows that the sale was made by him to hinder and delay creditors it amounts to a fraud on his part, and if she had knowledge of his purpose or of facts and circumstances from which such knowledge may be inferred and cooperated with him in carrying out the purpose the transfer is invalid as to her.” (Syl. ¶ 1.) (Italics inserted.)
In dealing with the question of the rights of a fraudulent grantee to retain rents converted, Bump, in his work on Fraudulent Conveyances (4th ed., §§ 625, 626) says:
“The grantee may be charged with the rents and profits of the lands. This was the Roman law, and it is true under our own system of jurisprudence.
“It certainly is not consonant with the principles of the law that the grantee should derive any advantage from his fraud-. Consequently, he may be compelled to account for the profits from the time of the transfer. An account may also be taken of what has been received as compensation for the use of the property.”
In the case of Allen v. Berry et al., 50 Mo. 90, it was held:
“The fraud renders the deed absolutely void as to creditors, and plaintiff is entitled to recover the property and its rents, etc., as though no such fraudulent deed ever had been made.” (Syl.)
In the instructive and well-reasoned case of Loos et al. v. Wilkinson et al., 110 N. Y. 195, 214, it was said:
“Judgment creditors of a fraudulent grantor may compel the fraudulent grantee to account for the rents and'profits of the real estate conveyed from the time he enters into possession under the conveyance.” (18 N. E. 99, headnote ¶ 6.)
In the case of Kitchell, Adm’r, v. Jackson, 71 Ala. 556, it was held:
“In cases of actual fraud a fraudulent grantee must be considered as a trustee of the rents and profits, as well as of the corpus, of the property conveyed, and as holding them in the right, and for the benefit of attacking creditors; and hence, where a conveyance of land has been declared void for actual fraud, on bill filed by creditors of the grantor, the grantee is chargeable with rents.” (Syl. ¶ 1.)
In the case of Salt Springs Nat. Bank v. Fancher, 36 N. Y. S. 742, it was said:
“Where the grantee had the use of the land, he was chargeable with its rental value, though he received no rent ” (Headnote ¶ 3.)
In the case of Jones et al. v. McCleod et al., 61 Ga. 602, it was said:
“It seems to us that it is a thousand times more equitable to saddle, in this way, a trust upon the rents and profits, than for creditors to go unpaid. And if resort to this means of satisfaction be allowed only in cases of absolute necessity, the receiver of the rents and profits, who took his title, or pretended title, with notice of the fraud, has no reason whatever to complain. It is treating him quite as leniently as he has any just right to expect. He is made a trustee to prevent injustice, not to the fraudulent grantor, his heirs or representatives, but to the innocent creditors of the grantor.” (p. 607.)
Although the Bensons acquired no interest in the property, they did in fact collect and convert rents from the property to which they were not entitled. The profits derived are the immediate result, and flow directly out of the fraud in which the Bensons participated by knowingly accepting the fraudulent deeds. From the record it appears defendants received the sum of $3,400, and the Bensons the sum of $6,800, from crops for the six years from 1929 to 1934, inclusive. The trial court refused'to render judgment against the Bensons and defendants for the proceeds of the crops so converted, on the ground plaintiffs did not have an attachment lien on the crops. The principle of applying rents fraudulently converted, in this situation, is not based upon rights under an attachment lien. It is grounded in equity. This was a suit in equity. It was brought to set aside fraudulent conveyances and essentially to compel the specific performance of a-contract to pay for land purchased. Sit ting as a court of equity, the court had adequate power and authority to do full and complete justice by the parties with regard to all matters flowing directly from the fraudulent transaction. Neither defendants nor the Bensons should be permitted to profit by their own fraud in withholding the proceeds from the crops. The same is true with regard to a fund now on deposit with the clerk of the district court, the exact balance of which does not clearly appear. It consists of proceeds from the sale of some crops and apparently some wheat-allotment money which was due to the rightful owner of the land. This fund was deposited upon stipulation pending the final determination of this suit, with the provision such deposit should not prejudice the rights of the parties. Under stipulation, checks were, also drawn on this amount for taxes on the land and for the removal of bindweed. The court refused to apply this fund to the unpaid balance of plaintiffs’ judgment on the ground it had no jurisdiction over the fund. In the nature of this action and under the circumstances narrated, the court had full jurisdiction over the fund. The land was sold under the attachment lien. It did not bring enough to satisfy the judgment. In order to prevent the consummation of the fraud, both the rents converted by defendants and by the Bensons, and the fund on deposit, should have been and are hereby ordered applied to the unpaid balance of plaintiffs’ judgment. Judgment is hereby ordered in favor of plaintiffs and against defendants, for the amount of rents converted by them in the sum of $3,400, and against interpleaders, the Bensons, for rents converted by them in the sum of $6,800, upon the condition that only so much thereof be collected as together with the amount on deposit with the clerk of the district court will fully discharge the unpaid balance of plaintiffs’ judgment.
In determining the amount due plaintiffs the trial court is directed to calculate interest at six percent on the original judgment of $35,-000, from the first day of April, 1929, to the date of the attachment sale. On the amount of principal and interest then due the court is directed to credit the amount of the purchase price, less all costs of the action and sale, including any taxes which may have been paid out of the proceeds of such sale. The new principal is to bear interest at six percent from date of sale. The rents converted by defendants and the Bensons, together with the fund on deposit, are directed applied on the unpaid balance of plaintiffs’ judgment and total costs to the extent necessary to satisfy the unpaid balance thereof.
It is so ordered.
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The opinion of the court was delivered by
Burch, C. J.:
The action in the district court was instituted to contest two orders of the probate court, one refusing to admit to probate a will made in 1930 and the other admitting to probate a will made in 1919. The district court reversed the probate court. The beneficiary of the earlier will, who is also executor, appeals.
The will of 1919 was the joint will of J. K. Johnson and his wife, Maria Johnson. The will devised and bequeathed the property of each to the other. The will of 1930 was the separate will of Maria Johnson, which made certain specific bequests of personal property, devised one half of her estate to her husband, and devised the other half to two of her daughters. Maria Johnson died April 26, 1933. The surviving husband filed a cross-petition alleging the will of 1919 was contractual, and praying for relief accordingly. Relief was denied, and Johnson appeals.
J. K. Johnson and Maria Kelly were married in November, 1904. Maria Kelly was the widow of Edgar Kelly, deceased. She had three daughters, Effie, Alice and Ella, now Effie St. Denis, Alice Bobett and Ella Brummett. Effie and Alice were the plaintiffs in the present action.
Edgar Kelly died intestate, leaving an estate consisting of about 400 acres of land, on which there was a mortgage of $1,200, and some personal property. The estate was not probated, and the property descended, one half to the widow, and one half to the three daughters, subject to the mortgage on the land.
In 1904 J. K. Johnson was a bachelor, and was bridge and building supervisor for the Missouri Pacific Railroad Company, a position which he had held since 1896 and which he still holds. The extent of the property he possessed was not definitely shown, and the amount of his salary was not disclosed. It was not long, however, until-he had furnished the money to buy the interests of the Kelly girls in their father’s estate and to pay off the mortgage on the Kelly land.
Johnson met Maria Kelly in the fall of 1903, and, as indicated, they were married in the fall of 1904. He was 32 years old. Mrs. Kelly’s age at the time of the marriage was not definitely established. Mrs. Kelly told Johnson she was 47. In an application for appointment of a guardian for his wife, to be noted later, Johnson said Mrs. Johnson was bom in 1851. If so, she was 53 when they were married. In a communication dated April 29, 1932, and admitted in evidence as written and signed by Maria Johnson, she said she was then 79. If so, she was born in 1853, and was 51 when she married Johnson. Effie St. Denis testified her mother was 84 or 85 when she died. A neighbor said they called her 86. If so, she would have been 55, or 56, or 57, when she married Johnson. The court- went one better, and found she was 58. If the union were one between December and May, Mr. and Mrs. Johnson lived together until she died in 1933, and there is no evidence they did not live happily together, at least until 1930.
In 1925 Mrs. Johnson suffered an accident which rendered her quite helpless, and she declined physically until the time of her death. Part of her later affliction consisted of inability to talk so that she could be readily understood. After the accident Effie St. Denis, who had been married and divorced, came to the Johnson home and lived there until her mother’s death, fulfilling all the functions of companion, chauffeur, servant and nurse.
In 1908 or 1909 the husband and wife made a joint will, which gave the daughters of Mrs. Johnson one dollar each, and then devised and bequeathed the property of each testator to the other. In 1919 the will of 1909 was missing, and the husband and wife made another joint will, as nearly as possible a duplicate of the first one. This will did not get lost, and is the will of 1919, referred to above as admitted to probate after Maria Johnson’s death.
On June 30,1930, while Mrs. Johnson was riding in an automobile with Effie St. Denis, she saw Johnson riding in an automobile with a woman. On July 3 Effie St. Denis took her mother to a lawyer’s office and the lawyer prepared a will for Maria Johnson, which was duly executed later that day at her home, and which revoked the will of 1919. This is the will which the probate court refused to admit to probate. The district court found that Mrs. Johnson told the lawyer she was changing her will because she had seen Johnson with another woman.
The court admitted in evidence a copy of a letter written by Mrs. Johnson to her daughter, Alice, who lived in Fairfield, 111. The letter stated, among other things, that Mrs Johnson had caught Johnson out with another woman, and that she had changed her will. The letter was dated July 8, and was mailed July 10. With great prudence and foresight, a photostatic copy of the letter was made. Later the letter was lost, and the copy was introduced in evidence.
Johnson testified the woman with whom he was riding had been doing his washing and cleaning. He went to her house for a suit of clothes he had left to be dry cleaned, got the suit, and then took the woman about nine blocks to the Missouri Pacific depot, where he left her, and he went on home. The testimony contradicted material portions of the letter. The court returned the following finding of fact:
“There was nothing wrong in the actions of J. K. Johnson with the woman that he was seen riding with, as she was his laundress and he was taking her to the Missouri Pacific station.”
The mare’s nest of catching Johnson with a woman was the sole occasion for the will of 1930, which was kept secret from Johnson until February, 1932.
The Johnsons were thrifty and accumulated some money, which was deposited in the First National Bank of Wichita on certificates of deposit in the name of Mrs. Johnson. On July 10, 1930, the day the letter to Alice was mailed, and a week after the new will was made, Effie St. Denis took her mother to the bank, and new certificates to the amount of $5,750 were issued, payable to “Maria Johnson, or Effie St. Denis, or Alice Bobett, or either, or the survivor.” The next day, July 11, Doctor Burkhead, Mrs. Johnson's physician, called Dr. C. H. Curtis and they went to Mrs. Johnson’s home to make a diagnosis and to determine Mrs. Johnson’s mental condition. They reported she was of sound mind and memory.
Some matters occurring subsequent to the closely related events which have just been narrated may be mentioned.
In December, 1931, Johnson had Doctors Edgerton and Bishop examine his wife with respect to her mental condition. In their opinion she was, and for a long time had been, mentally incompetent. Effie St. Denis was present. After the examination she composed, from memory, fifty-two questions propounded to her mother by the doctors, and her mother’s answers. The written document was interlarded with comment and description. Two examples follow:
“22. What day of the month is this? She writes, 4th. (It was the 11th.) Todd and Johnson laugh.
“23. What year is this? Writes, 1922. Todd and Johnson are doubled up in merriment. Standing up, towering over her the whole time of the questioning.”
Effie St. Denis was a witness at the trial, and told how the document was prepared. After Doctors Edgerton and Bishop had testified, this document was admitted in evidence in rebuttal, over objection, and without the sanction of any known rule of evidence or trial practice.
On February 3, 1932, the sheriff of Sedgwick county served a notice on Johnson, signed by Mrs. Johnson, stating she had decided to and had revoked the will of 1919 and had made another will. This was the first information Johnson had of the will of 1930.
On February 9, 1932, Johnson made application to the probate court for appointment of a guardian for his wife. After a hearing before a jury she was found to be feeble-minded and incapable of managing her affairs, and Johnson was appointed guardian. On appeal to the district court there was a hearing before a jury, and Mrs. Johnson was found to be feeble-minded and incapable of managing her affairs. An appeal to this court was dismissed after Mrs. Johnson’s death.
In December, 1931, Johnson commenced an action, in the name of his wife, against Effie St. Denis to recover the certificates of deposit which had been issued on July 10,1930. Later the action was dismissed by Johnson, as guardian, who had obtained possession of the certificates and had procured a reissue of them to himself, as guardian. After Mrs. Johnson’s death Effie St. Denis and Alice Bobett commenced an action against Johnson to recover the certificates. After a trial the jury returned a verdict for Johnson and against the plaintiffs. One special finding of the jury was that on the 10th day of July, 1930, and a few days prior thereto, when arrangement was made to have the certificates of deposit issued to Mrs. Johnson, Effie St. Denis and Alice Bobett, or either, or the survivor, Mrs. Johnson did not understand the nature, extent and consequences of her act. Judgment was rendered for Johnson. An appeal was taken to this court, which this court subsequently dismissed.
At the conclusion of the hearing on the applications to probate the wills of 1919 and 1930 the probate court returned the following findings of fact:
“That prior to or at the time of the- marriage of Maria Johnson unto J. K. Johnson they entered into an agreement to the effect that if the said J. K. Johnson would furnish the necessary money to pay off the mortgage upon the land, which constituted the estate of the said Kelly, and also to purchase the interest of the said daughters in the estate of their father, the said Kelly, that the said Maria Johnson and J. K. Johnson would get married and thereafter enter into a will giving to each other all of their respective properties in the event of death.
“That after the said Maria Johnson and J. K. Johnson were married and the said J. K. Johnson furnished unto Maria Johnson the money with which to satisfy the mortgage upon the aforesaid land and also to buy out the interest of the aforesaid daughters in the estate of their father, Maria Johnson and J. K. Johnson thereafter and on or about 1909 made and entered into a joint will wherein each devised and bequeathed unto the other, in the event of death, all of their respective properties.
“That in the year 1919 the will which the said Johnsons had made in 1909 was lost or destroyed, and because thereof and in order to carry out the agreement which they had made at or about the time of their marriage, they made another similar joint will, which will has ever since remained in existence and is the instrument dated November 3, 1919, now offered'for probate. This will, as the former one, gives unto J. K. Johnson all of the property of the said Maria Johnson; save and except one dollar ($1) to each of Maria Johnson’s daughters, to wit, Mrs. Ella Brummett, Mrs. Alice Bobett, and Mrs. EfRc St. Denis.”
The district court returned the following finding of fact:
“18.. There was some evidence, introduced that prior to the marriage of Maria Kelley and J. K. Johnson they entered into a contract to make a joint will, but the evidence regarding this contract is not clear and convincing and the court does not find that there was such a contract.”
It will be observed the court did not find a contract to make a joint will had not been made. All the court did was to find there was some evidence introduced concerning a contract to make a joint will which was not clear and convincing. Thereupon the attorneys for Johnson requested the court to make the finding specific by stating whether the court did not believe the witnesses, or whether the testimony was not of the quality required to prove such a contract. This the district court declined to do, and it becomes necessary for this court to examine the testimony offered in support of the contention the will of 1919 was contractual.
In the case of Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065, a paragraph of the syllabus reads:
“A testamentary instrument jointly executed by husband and wife, stated to be ‘our last will and testament,’ and containing reciprocal testamentary dispositions of the separate property of each, is not necessarily contractual in character, either as a matter of fact or as a matter of law.” (Syl. ¶ 2.)
In that case the court had before it a will and extrinsic evidence. The will was not excluded from consideration in determining its nature and character, and the next paragraph of the syllabus reads:
“A will of the character indicated, and the extrinsic evidence, considered, and held, nonexistence of a contract between the devisors making the revocation by the wife after the husband’s death wrongful, was proved.”
In the case of Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421, the court considered a joint will of husband and wife, in which each gave a life estate to the survivor, with remainder to children. In the opinion the court said:
“The defendant says that there was no evidence to show that T. W. Lewis and Betsy A. Lewis ever entered into any contract to make the will, and that there was no finding of the court that such a contract was made. How could such a will be voluntarily executed if there was no agreement or understanding that-it would be made? The will itself, its terms, and its execution, are evidence that such a contract was made.” (p. 273.)
The will of 1919 did not just happen to be as it was. It was a duplicate of a will made in 1909, which was lost. The conduct of husband and wife indicates they had a settled purpose that disposition of their property at death should be governed by will of a definite kind; and reassertion of the terms of the earlier will confirmed the evidence afforded by the instrument, that it was the product of contract. The finding of the district court ignored the two j oint wills and what they indicated.
Because the will of 1919 was a duplicate of the will of 1909, the will of 1919 is to be fitted into the situation of the parties in 1909. On death of Edgar Kelly, Maria Kelly had a half interest in his estate, and her daughters owned the other half, all subject to a $1,200 mortgage. Maria Kelly married Johnson. Within six months after the marriage, Johnson had furnished the money to purchase the interests of Effie St. Denis and Alice Bobett. In October, 1905, he furnished the money to pay the mortgage, in the sum of $1,272. He later furnished the money to purchase the interest of Ella Brummett, her deed being dated January 18, 1908. The interests of the three daughters were conveyed, not to Johnson, but to their mother, who, after Johnson’s expenditures, possessed the entire Kelly estate, free from incumbrance.
It would be idle to contend Johnson did what has been described without any agreement between himself and Maria Kelly. All that was done was manifestly done pursuant to a definite plan. As soon as might be after marriage, after purchase of the interests of the daughters, and after payment of the mortgage, Johnson and Mrs. Johnson executed a joint will, the last act essential to consummation of the plan.
Looking backward from the first will, which evidenced a contract, and which was confirmed by the second joint will, the circumstantial evidence of plan, including conduct of the parties., beginning with marriage and ending with will, is sufficiently clear and satisfying to warrant the findings of the probate court. It is quite apparent the district court did not consider the circumstantial evidence, concern ing which there is no dispute, which rendered definite the contract-evidenced by the two joint wills.
Picking out a sentence occurring in an opinion of this court in which lack of proof of definite offer and acceptance was noted, plaintiffs say there must be proof of definite offer and acceptance to establish a contract. Such is not the law. In the opinion by former Chief Justice Johnston in the case of Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396 (1908), it was said:
“An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made, and to satisfy the court of its terms, and that there would be no inequity in its enforcement, it is enough.” (p. 700.)
This enunciation of principle has not since been departed from by this court, and is applicable here.
In 1917 Mrs. Maude L. White moved to the same block in Wichita in which the Johnson home was situated. Mrs. White became acquainted with Mrs. Johnson soon afterward. When Mrs. Johnson was burned in 1925, Mrs. White was the first woman to reach her. Mrs. White helped Mrs. Johnson into the house, called the doctor, and later went with Mrs. Johnson to the hospital. The two women would meet on the street, in the store, and Mrs. White was in Mrs. Johnson’s home a number of times. Along in 1919 Mrs. White had a conversation with Mrs. Johnson on the sidewalk outside the Johnson home. Mrs. White testified:
“We stopped and were visiting and she said, ‘Mrs. White, I want to ask you a question; you have been married before?’ I said I had. She said, ‘I would like to know how you and Mr. White have your business taken care of in case of death?’ I said, ‘Mrs. Johnson, we have a joint will’ and she said, ‘So have we.’ I said, ‘Mrs. Johnson, I don’t know whether that will hold good in your case or not because you have children.’ She said, ‘Well, I will tell you,’ she said, ‘it is just the same as if we didn’t have children, because Mr. Johnson and I made a contract before our marriage that we would be married and that these children would be paid off and then we would make our'joint will and whatever was left at his death would be mine and at my death would be his; and this contract was carried out and those children have been paid off in full.’ She said they had made their will.”
Ella Brummett received nothing but a dollar under the will of 1919, and nothing but a dollar under the will of 1930. She testified as follows:
“I am a daughter of Maria Johnson. I was living in Ohio at the time my mother married J. K. Johnson. I visited them in either 1907 or 1908 and next saw my mother in 1919. I had been living in Ohio. I came to Wichita in December of 1919 to make arrangements to buy some property on Riverside. I had a conversation with my mother with respect to a transaction she had had with Mr. Johnson. 'She told me of this transaction while we were sitting in the living room. She said she wanted to tell me something, and said, ‘You know before Johnson and I was married, we made an agreement that if he would pay you gills off and pay the mortgage off, why we would make a joint will and if anything happened to him, I was to get what he had and if anything happened to me, that he was to get what I had.’
“She told me her will had disappeared and that she thought Effie had taken it but that it was not going to do Effie any good because she and Johnson had made another one just like it and put it where Effie couldn’t get her hands on it.
“The conversation I had with my mother in December, 1919, lasted about two or three hours; we were just talking like anyone would about a lot of things.”
This is doubtless the evidence which the district court said was not clear and satisfactory. Why this evidence, considered alone, was not clear and satisfactory is not apparent, and looking at the finding as a whole, the court must have meant this testimony was not sufficiently clear and satisfactory to the court to base a finding of contract on the testimony. Otherwise the declination of the court to find a contract was purely arbitrary.
In considering the question whether a contract existed, the testimony of Mrs. White and Mrs. Brummett could not be ignored. The conversations which they related occurred in a perfectly natural way, one between neighbor and neighbor, and one between mother and daughter. There is no basis in the record for doubt that conversations did occur, which were remembered, and which were reported as the witnesses remembered them. Mrs. White did not mention payment of the mortgage as an element of the contract. Mrs. Brummett named all the elements of the contract. The veracity of the witnesses was not impeached in any way, and their testimony was entitled to consideration in connection with all the other evidence bearing on the subject of existence of contract.
If the testimony of Mrs. White and Mrs. Brummett be ignored entirely, the result is just the same. Without it, the will of 1919 was proved to be contractual, and there was no evidence to the contrary. The attorney who drew the wills of 1909 and 1919 testified Johnson and Mrs. Johnson did not tell him they had entered into a contract for a will of the kind he prepared. Whatever they said or did not say, he prepared wills which the Johnsons executed, and which the evidence as a whole shows were contractual.
A matter of procedure necessitating Johnson’s cross petition must be noted, which is a survival from the days when law developed through deductive logic, instead of the facts of experience. To be a will, the thing called a will had to be ambulatory during the lifetime of the testator. Therefore, it could be revoked. It could be revoked even although the testator was under contract which forbade revocation. Expressed bluntly, an irrevocable will was revocable. To prevent injustice consequent upon this anomaly, equity came to the rescue, and to state the matter bluntly, enforced the revoked will. This was done under the guise of enforcing the contract, and the beneficiary of the revoked will got just what the will gave him. So the matter stands today, and Johnson is entitled to what the will of 1919 gave him.
The probate court found Maria Johnson was not competent to make the will of 1930. The district court found to the contrary. The evidence will not be reviewed. Due execution of the will of 1930 was established, and the finding of the district court that the testatrix had capacity to make it will be accepted. In all other respects the judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for Johnson for title to and possession of all the property, real, personal and mixed, of which his wife died seized, on payment by him to the clerk of the district court of the sum of one dollar for Effie St. Denis, of the sum of one dollar for Alice Bobett, and of the sum of one dollar for Ella Brummett. The property which Johnson receives is charged with payment of all lawful debts owed by Maria Johnson at the time of her death. For the purpose of facilitating allowance and payment of debts and the closing of administration of the estate of Maria Johnson, the appointment by the probate court of J. K. Johnson as executor of the last will of Maria Johnson will stand.
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The opinion of the court was delivered by
Marshall, J.;
This action is one to recover damages for failure to deliver corn and wheat shipped by the plaintiff over the defendant’s line of railroad. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
Eight causes of action were set out in the petition. The first alleged shipment of a carload of corn, consisting of 81,600 pounds, from Byran, Neb., to Sherman, Tex., 80,100 pounds of which was delivered; the remainder was not delivered. The other seven counts were based on carload shipments of wheat from Byran, Neb., to Kansas City, Mo., the major portion of each carload of which was delivered, but a part of each carload was not delivered, the shortage on each carload being from 600 pounds to 1,200 pounds. The total amount for which'the plaintiff asked judgment was $132.16.
1. The defendant contends that “the measure of damages for loss in shipment of grain is the market value at the point of destination.” Over objection, the plaintiff was permitted to prove the value of corn at Byran, Neb., which was 60% cents per bushel. The shortage was shown to be 1,500 pounds of corn. Plaintiff claimed judgment on the corn for $14.06, and the jury returned a verdict for that amount. It is contended that the proper measure of damage was the value of the corn at Sherman, Tex., instead of at Byran, Neb. If this were true, the defendant was not hurt by the introduction of the evidence, because the corn probably would have had a greater value per bushel after shipment to Sherman, Tex., than it had at Byran, Neb. The difference would have been so small that it is not worthy of consideration in an appellate court.
2. Another complaint is that “the judgment rendered and entered of record by the trial court in this cause is contrary to the pleadings, evidence and verdict.” The amount claimed in the petition was $132.16. The verdict was for that amount. Judgment was rendered for $140.08 and interest. The difference between the amount claimed and the judgment rendered was $7.92. Interest at six per cent on $132.16 for the year that had lapsed between the shipment of the grain and rendition of the verdict would be $7.92. Evidently, from the record, the court allowed interest on the .amount of the verdict of $132.16. Defendant contends that this was error, that the plaintiff sought to recover unliquidated damages, for which interest is not allowed in this state. We quote from Lower v. Shorthill, 103 Kan. 904, 176 Pac. 647, as follows:
“It is clear that the damages, if any were sustained, arose on a tort, were unliquidated, and were not ascertainable by computation.” (p. 905.)
“Before the rendition of judgment, interest is not recoverable on unliquidated damages which are not ascertainable by computation based on some fixed standard of measurement.” (Syl.)
In Grain Co. v. Railway Co., 96 Kan. 1, 149 Pac. 744, this court said:
“In an action against a carrier for damages on account of the injury to or destruction of property in transit, interest is not recoverable.” (Syl. If 1.)
See, also, A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 177, 42 Pac. 722; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591; Evans v. Moseley, 84 Kan. 322, 323, 114 Pac. 374.
It was error for the court to render judgment for more than the amount of the verdict, even if that increase was for interest on the damage sustained, but the amount of error is readily ascertainable, $7.92, and the judgment can be reduced by that amount.
3. Another matter urged is that “the trial court erred in excluding relevant, competent, and material testimony and documentary evidence offered on behalf of the defendant.” The defendant attempted to prove that the plaintiff had shipped over the defendant’s line of railroad a number of other cars of grain, on nearly all of which he made claims for shortage at about the same ratio as those claimed in the petition in the present action. That evidence was excluded. Even if it had been competent, concerning which there is serious question, it cannot be considered because it was not in any way produced on the hearing of the motion for a new trial. (R. S. 60-3004; State v. Vandruff, 125 Kan. 496, 264 Pac. 1060.)
The judgment is modified by reducing it to $132.16 and interest on that amount from the date the judgment was originally entered. As modified, the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant from the order of the trial court overruling its demurrer to the amended petition of the plaintiff.
The defendant urges two particular reasons why the amended petition is insufficient to state a cause of action against the defendant: First, that appellant is a charitable and benevolent organization and is, therefore, not liable in damages for the negligence of its employee; and second, that the petition as amended fails to allege any actionable negligence against appellant.
The amended petition has attached to it a copy of the charter issued to the defendant under the laws of Kansas. The name of the defendant is “Summunduwot Lodge No. 3, Independent Order of Odd Fellows.” The amended petition alleges that the defendant is a fraternal organization or corporation, and then alleges that it is the owner of a three-story brick building in Kansas City, Kan., the first floor thereof consisting of business or storerooms, the second floor containing office rooms and the third floor lodge rooms, and “that defendant for many years has and does now rent said business rooms, office rooms and lodge halls to various persons and organizations, charging therefor and deriving profit therefrom.” The amended petition further alleges:
“(4) That the organization known as the White Shrine, of which this plaintiff is a member, held its regular meetings in the lodge hall of the defendant on the third floor of said building and paid the defendant rental for the use thereof; that located in said lodge hall is a wooden floor and a certain platform, the floor of said platform being approximately twelve to fourteen inches above the surface of said lodge-hall floor.
“(5) That at all times hereinafter mentioned the defendant has employed one Herman C. Voight, who was the custodian of said building for said defendant, and acting within the scope of his authority. That said Herman Voight was employed to and did the work of waxing and polishing the floors of said lodge hall and platform and on many occasions prior to February 8, 1935, he polished the flooring of said platform with certain wax, which wax was applied to said platform by the said Voight on an average of at least twice each week for several weeks prior to February 8, 1935; that some time prior to February 8, 1935, the exact date being unknown to plaintiff, the said Herman Voight had waxed said platform and polished the same and had left on said platform a large piece of hardened wax approximately one to one and a half or two inches in diameter, and because of said wax being left thereon, the flooring of said platform and said piece of wax referred to became slick, smooth, hardened and slippery, and by reason thereof created a dangerous condition, which condition was known, or by the exercise of reasonable. care by the defendant, its agents, servants and employees, could have been known to said defendant, and have been removed in ample time to have prevented plaintiff slipping thereon as hereinafter alleged.
“(6) Plaintiff further states that on or about February 8, 1935, at about 8:30 p.m. of said date, she was attending a meeting'of the White Shrine Lodge to which she belongs, which meeting was then and there being held in the lodge room on the third floor of the building owned by the defendant, as hereinbefore alleged, and went to the platform in the east end of said lodge hall and hereinbefore referred to, for the purpose of paying her dues to the secretary of the White Shrine Lodge, whose desk was located on said platform. That plaintiff stepped upon said platform, transacted some business with said secretary, and started to walk from said platform, when her right foot came in contact with said piece of hardened wax or other foreign substance, the exact nature or description of which is unknown to plaintiff at this time, and by reason of the presence of said substance and the slippery, smooth, slick and dangerous condition of said foreign substance on said platform floor, plaintiff was caused to and her feet did go out from under her, causing her to be thrown violently from said platform to the floor of said room, and as a result thereof she suffered a fracture of the bones in her right leg approximately one to two inches below the hip joint, and also suffered severe bruises and contusions to her legs and body. That as a result of said injuries plaintiff was rendered sick, sore and lame and was caused to suffer and still continues to suffer and for a long time in the future will suffer severe pain and mental anguish, and all of said injuries are permanent, progressive and lasting, and she has and will continué to lose sleep and received a severe nervous shock.
“(7) Plaintiff further states that prior to the time she received said injuries she was a strong, able-bodied woman, married, able to and performing the duties of a housewife, and as-a result of said injuries she will be permanently crippled and unable to perform the duties of a housewife, to her damage in the sum of $1,000.
“(8) Plaintiff further states that her injuries were caused by and were the direct result of the carelessness and negligence and omissions of the defendant as hereinafter named, in the following particulars, to wit:
“(a) That defendant was careless and negligent in causing or permitting the floor of said platform to be excessively slippery and dangerous to persons walking upon the same, and that several persons whose names are to this plaintiff unknown, had slipped and fallen upon said floor and platform prior to the time plaintiff slipped thereon.
“(b) That defendant was further careless and negligent in causing or permitting the above-described foreign substance or piece of wax to be and remain upon the floor of said platform, and in permitting said foreign substance to stay and remain thereon, and in so polishing the floor of said platform as to cause the same and the piece of foreign substance or wax to become excessively slippery and dangerous, and in failing to remove the slippery and dangerous condition and said foreign substance from the flooring of said platform ;
“(c) The defendant was further guilty of negligence in failing to place warning signs or warn persons lawfully using said platform of its dangerous and slippery condition, all of which defendant knew or by the exercise of ordinary care and caution and due consideration for the safety and protection of its invitees might or could have known of the presence and existence of said dangerous and slippery condition and said foreign substance upon the floor of said platform, and that the same if left upon said platform unguarded, or without any device to warn people visiting said platform or stepping thereon of its presence was a menace and danger to life and limb and likely to cause persons to slip and fall, and that said defendant with the facilities at hand could have removed said foreign substance from said platform and removed the slippery condition thereof and thus have prevented the plaintiff being injured, but all of which defendant failed, refused and neglected to do.”
The defendant subordinate lodge could have existed as a fraternal organization by the authority of the Grand Lodge of the Independent Order of Odd Fellows without obtaining a charter from the state, but it chose to become incorporated under the laws of the state, and R. S. 17-1701 gives it that privilege by listing among others given such privilege a subordinate lodge of the Independent Order of Odd Fellows, and providing that when it is so organized it shall have all the powers and privileges and be subject to all the restrictions in the act contained for the objects named in the charter, and to do and perform all other acts in accordance with the objects of the lodge.
The charter obtained by the defendant, in addition to containing provisions and authority for doing and performing the ordinary lodge duties, contained the following provisions:
“. . . to contract and be contracted with, and to sue and be sued in all the courts of the state of Kansas; to lease, purchase, hold, sell, and convey real estate and personal property, or acquire the same by donation or bequest.”
R. S. 17-1703 provides as follows:
“That any such building or buildings as are provided for herein may be used in part for other purposes.”
R. S. 17-1705 is as follows:
“Such subordinate organizations may contract, sue and be sued through its trustees or managers, in any matter affecting such real estate or buildings: Provided, That no judgment rendered against such organization shall have any force or effect except as against the property owned as provided herein.”
R. S. 17-103 is as follows:
“Private corporations are of three kinds: First, corporations for religion; second, corporations for charity or benevolence, and third, corporations for profit.”
This incorporated subordinate lodge of Odd Fellows must necessarily be one of the three only possible private corporations, for religion, for charity or benevolence, or for profit. We find no difficulty in classing it as a corporation for charity or benevolence. In choosing to avail itself of additional powers and privileges afforded by incorporation it became subject to the restrictions im posed by the same statute which increased the powers by incorporation. These additional privileges and restrictions do not make the lodge a corporation for profit any more than a corporation for religion. Besides it outlined in the charter, which the statute provided a subordinate lodge of Odd Fellows might take out, many things which it might do that could be for no other purpose than for gain or profit. There can be no other purpose in leasing property to others than for the financial return or profit. A corporation'for profit would not become a religious or charitable organization if the statute permitted it and it worked into its business affairs some religious or charitable enterprises. So this defendant lodge is still a, charitable or benevolent organization with statutory and charter powers and privileges of a different kind and also with restrictions that accompany such additional privileges. What else could sections 17-1703 and 17-1705 mean than that the lodge had a dual capacity when it referred to the building being used in part for other purposes and the lodge making contracts and being used in any matter affecting such real estate or buildings and limiting its liability to such real estate or buildings?
Appellee cites cases where mutual-benefit associations were held not to be charitable or benevolent. There is nothing in the petition or charter in this case to class this defendant with such societies.
Appellee also cites the case of Odd Fellows v. Spaeth, 81 Kan. 894, 106 Pac. 1077, which it is urged should be controlling for the reason that the plaintiff therein is the same organization as the defendant in this case, and it was stated in the per curiam opinion in that case that this defendant lodge was not “a benevolent and charitable corporation.” But that was a tax exemption case and the above expression was in connection, with the definition of benevolent and charitable organizations given in the case of Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005, which held:
“The pi'ovision of section 1 of ai'ticle 11 of the constitution of Kansas that ‘all property used exclusively for . . . benevolent and charitable purposes . . . shall be exempt from taxation’ should be strictly construed, as should the similar provision of section 2 of chapter 408 of the Laws of 1907. So constraed, these provisions exempt from taxation only such properly as is used exclusively, directly and immediately in dispensing charity.” (Syl. ¶ 1.)
It is worthy of note that both the constitution (art. 11, § 1) and R. S. 1933 Supp. 79-201 enumerating in detail the specific exemptions allowed from taxation require the use of the property to be exclusively for benevolent or charitable purposes. And such re quirement of exclusive use justified the expression in the above tax case of this defendant lodge that it was not such a benevolent and charitable corporation, because the use of its property was not exclusively for that purpose, as required by both constitution and statute.
The re.ason for devoting so much consideration to the question of the defendant being a charitable or benevolent organization is because of the theory and urgency of the appellant that if it is such, it cannot be held liable for a tort alleged to have been committed by it or one of its agents or employees. Appellant cites four cases in particular, viz.: Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920; Davin v. Benevolent Association, 103 Kan. 48, 172 Pac. 1002; Webb v. Vought, 127 Kan. 799, 275 Pac. 170; and Ratliffe v. Wesley Hospital, 135 Kan. 306, 10 P. 2d 859, to show that in Kansas charitable and benevolent corporations are not liable in tort even for the negligence of their servants. The first case above cited was against a railroad hospital association supported by the monthly contributions of all the railroad employees, brought by an employee for an injury resulting from the negligence of the physicians and attendants. The second case was against a benevolent organization for the breach of a contract made by the physician in charge with the plaintiff for proper care and attention. The third was against the Salvation Army for injuries sustained in a collision with a motor truck driver by an employee of the Salvation Army. The fourth case was against a hospital corporation, organized and maintained for ministering to the indigent sick and wounded, alleging damages on account of the carelessness and negligence of a nurse resulting in the injury of the plaintiff. Nothing is said in any of these cases about ownership or use of property or the work or attention given resulting in any income or profit to the defendants. The textbooks show a wide diversity upon this question of liability of such organizations for torts, holding generally that they are not liable. 11 C. J. 375 states in this connection:
“The exemption of a charitable institution from liability for torts does not extend to torts arising in the course of work not connected with the charity...."
The- citations and quotations heretofore made in this opinion from article 17 of chapter 17 of the Kansas statutes show plainly the dual capacity available to such organizations as the defendant and the restrictions and limited liability that go with such double privileges, which are confirmed by the language of the charter in this case, a portion of which is quoted above. The defendant, although a charitable and benevolent organization, assumed the dual capacity, and with it the limited liability provided and imposed by the statute when it incorporated with the privilege of transacting additional business under such statute.
Appellant contends that the petition fails to allege any actionable negligence, and cites numerous cases from this and other jurisdictions to support that theory. For this very reason more of the petition has been set out in the opinion than usual so that it might be considered in connection with the discussion of defects therein.
Appellant insists that the allegations of the petition refer to something that was not likely to occur and no one is required to so conduct his affairs as to prevent accidents which are not likely to happen; that the result in damages could not have been reasonably foreseen by one of ordinary intelligence and prudence and be the probable result of the initial act. Cases are cited where the alleged cause of the injury was so unforeseen and the result so improbable as to make the defendant an insurer against results similar to accidents. That is not the definition of actionable negligence. The case of Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, cited by appellant, gives a good and practical definition of actionable negligence as follows:
“Negligence, to be actionable, must result in damage to some one, which result, in the absence of wantonness or malus animus, might have been reasonably foreseen by a man of ordinary intelligence and prudence, and be the probable result of the initial act.” ■ (Syl. HI.)
The petition we think contains allegations of facts and circumstances which bi’ing it fully within this definition. Both parties refer to the case of Headington v. Central Building Co., 137 Kan. 350, 20 P. 2d 816, which came here after a demurrer to the plaintiff’s evidence had been sustained and not on a demurrer to the petition, and this court reversed the ruling as to the evidence being insufficient, and held:
“In an action for damages for injuries sustained by plaintiff in falling on the slippery floor of defendant’s office building, the evidence examined, and held sufficient to support her cause of action for damages for its negligent maintenance.” (Syl. H 1.)
The case of Davies v. Shawver, 134 Kan. 772, 8 P. 2d 953, was where the defendant in removing a private gas line from the bank of a highway left a length of it near the fence. It was later covered over with dirt and about two years thereafter in the operation of a road grader the pipe overturned the grader and caused an injury, and it was there held:
“ . . . the length of pipe so left does not in itself appear to constitute a dangerous nuisance nor the leaving of it there actionable negligence.” (Syl. U 1.)
45 C. J. 631 defines actionable negligence as follows:
“To constitute actionable negligence there must be not only a lack of care, but such lack of care must involve a breach of some duty owed to a person who is injured in consequence of such breach. ... In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant. When these elements are 'brought together, they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient. A judicial definition bringing out with admirable conciseness the elements of actionable negligence is as follows: ‘Negligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred.’ ”
The petition, we think, contains all three of these elements as allegations, and the piece of hardened wax or other foreign substance left on the floor, as alleged in the petition, could easily be an unintentional breach of duty or carelessness, the damage resulting from which in such condition and position as alleged was reasonably foreseeable.
Appellant urges that the petition is insufficient because there is no allegation of negligence of the defendant in not exercising reasonable care in the employment of the custodian of its building, citing the case of Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920, which does hold that to be a necessary allegation as to charitable hospitals in not exercising care in the employment of its physicians and attendants. But such a rule would not apply to a custodian of a building where offices and rooms are rented. Many other cases are cited which decide as to the insufficiency of the evidence. Here we are concerned only with the question of the sufficiency of the allegations of the petition upon demurrer thereto, and we conclude that they are sufficient and that the demurrer was properly overruled. ,
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one for damages for personal injuries sustained by plaintiff when his automobile collided with a truck at the intersection of two city streets. The verdict and judgment were for defendant. Plaintiff filed a motion for a new trial, based on the ground of newly discovered evidence. The motion was denied, and plaintiff appeals.
The accident occurred on March 7, 1934. The abstract does not show when the action was commenced. The trial was commenced on November 21, 1934, and the verdict was returned on November 22. The motion for new trial was filed within three days. When the motion was filed plaintiff had no newly discovered evidence.
The motion for new trial was heard and was denied on January 9, 1935. Three affidavits were offered at the hearing, in support of the motion. One was that of a witness discovered subsequent to December 1, 1934, and probably a month subsequent to the trial. Another affidavit was that of a witness who first talked to plaintiff on January 3,1935. There was no showing with respect to when the third witness was discovered, but her affidavit was dated January 5, 1935.
The accident occurred at the intersection of First street and Main street, in the city of Newton. Plaintiff was rendered- unconscious by the collision and was not able to look for witnesses for several weeks. He testified concerning the time he then spent in preparing for trial,
.At the trial, plaintiff produced a witness, Marie Schrimsher, who saw the accident. She lived at 117 North Main street, the sixth building north of the street intersection, and on the west side of the street. At the hearing on the motion for a new trial, plaintiff produced the affidavit of a witness, Helen Kelly, who saw the accident. She lived at 117 North Main street, and was standing on the south porch of the house when the accident occurred. Where Marie Schrimsher was standing or sitting at the time of the accident is not disclosed.
At the hearing on the motion for a new trial plaintiff produced the affidavit of Harold Kelly. He lived at 117 North Main street, and testified he was entering the fire station at 119 North Main street when he heard the crash of the collision.
The third witness who made an affidavit, used at the hearing on the motion for a new trial, gave no account of himself. Where he lived or where he worked, or where he might have been found, was not disclosed. He said he was standing on the sidewalk when the accident occurred. There were sidewalks on both sides of both streets, north and south and eást and west of the intersection. Where he stood and how it happened he was where he was, were not disclosed. For all that his affidavit revealed, he may have been an attendant at the filling station at the northwest corner of the intersection, or may have been an attendant at the filling station at the southeast corner of the intersection. A man at a shoe repair shop at some undisclosed location heard him talking, and told plaintiff about it.
At the hearing on the motion for a new trial, plaintiff did not testify that he made any search for witnesses in the vicinity of the scene of the accident, where witnesses would likely be found, where he did find one witness before the trial, and where two other witnesses certainly might have been found, had diligent inquiry been made.
At the trial plaintiff gave the location of the vehicles before they entered the intersection, the rates of speed at which they were traveling, and their subsequent movements. Marie Schrimsher, as a witness for plaintiff, undertook to cover the same ground, but on cross-examination she wavered, and the net result of her testimony was not unfavorable to defendant. That closed plaintiff’s case, so far as details of the accident were concerned.
The truck driver, who was a witness for defendant, gave the location of the vehicles just before the accident occurred, and their subsequent movements. He said that when he entered the intersection, plaintiff’s automobile was 100 to 150 feet north of the north line of the intersection. Maxine Bourn, a witness for defendant, was on the east side of North Main street, in front of a church at the northeast corner of the intersection. She saw the accident. The truck entered the intersection first, and when about one third of the way across the intersection, plaintiff’s automobile was opposite the first house north of the filling station on the northwest corner of the intersection. She described what had occurred, and her testimony, as abstracted, indicates it would likely be believed. That closed defendant’s testimony, so far as details of the accident were concerned.
The affidavit of Helen Kelly, whose place of observation was at the fifth house, north of the filling station at the northwest corner-of the intersection, corroborated plaintiff’s testimony, and was purely cumulative. The affidavit of the man on the sidewalk corroborated plaintiff’s testimony, and was purely cumulative. His affidavit closed with a statement to which plaintiff successfully objected, when a witness for defendant was examined at the trial with respect to the same subject.
The affidavit of Frank Kelly, who was entering the fire station when the accident occurred, and then went down to the intersection, gave some statements made by the truck driver after the accident. The truck driver said the accident happened so fast he hardly knew how it happened. He was probably driving faster than plaintiff, and it took considerable time to stop a truck, loaded as heavily as his truck was loaded. These statements did not conflict with any testimony of the truck driver appearing in the abstract, and were not of sufficient importance to require the granting of a new trial, even if plaintiff had been diligent in discovering that Kelly knew something about the case.
At the trial plaintiff produced a doctor as a witness. His direct examination is not abstracted, and but one question, propounded to him on redirect examination, and his answer, are abstracted. The question and answer follow:
“Q. Might it be possible for a person who has received a blow on the head to get a concussion of the brain, but immediately after that even to talk to somebody who talks to him, answer questions, for a few minutes? A. I can cite one case that received a blow on the head and came to the office and refused to be put to bed, and died before morning, that had been struck by a baseball at the side of the head.”
The question and answer do not indicate the subject to which they related. Assuming the cross-examination of the doctor, which is abstracted, related to the subject of cerebral function after concussion, the doctor said the result which plaintiff sought to establish did not occur. The testimony is made the basis of an argument that the affidavits relating to details of the accident presented testimony of a different kind from the testimony relating to details of the accident given at the trial. The argument is unsound.
The duty of the court, under the statute and under the decisions of this court, when considering a motion for a new trial on the ground of newly discovered evidence, is well understood, and it is not necessary to print another disquisition on the subject. It is sufficient to say there is no basis for a contention that the district court abused its discretion in denying the motion for a new trial.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding in mandamus prosecuted by the plaintiff, the holder of $5,000 in seven municipal temporary notes issued by the defendant under the last provision of section 24-621 of the Revised Statutes, to compel the defendants to levy a tax to pay the cost and expenses of the incorporation of defendant district and to pay for work done.
The defendants have filed a combined demurrer, motion to quash, and answer, all of which are submitted as a motion to quash the alternative writ, on the ground that it does not state facts sufficient to constitute a cause of action against the defendants. The answer sets out matters that cannot be considered on a motion to quash the writ.
Briefly summarized, the alternative writ alleges the organization of the defendant district, the employment of an engineer to make a survey of the district, his report, the rejection of this report by the defendant board, and the determination of the board not to proceed with the drainage project. It also alleges that for the purpose of securing the money with which to make the survey and do the other necessary preliminary work, the defendants borrowed $5,000 from the plaintiff and issued their notes therefor; that the defendants have abandoned the project; that when the action was begun all the notes except one were due; that none of the notes has been paid, and that no tax has been levied to provide funds with which to pay any of them. The writ asks that a peremptory writ be issued commanding the deféndants to .provide for the drainage and improvement of the district, or if that is not done, to levy a tax on the land and property within the district to raise funds with which to pay the notes.
1. The plaintiff argues that the defendants were authorized to borrow the money and execute the notes, and that necessarily they are under obligation to levy a tax to raise money with which to pay the notes. The defendants argue that the statute, section 24-618 of the Revised Statutes, provides that taxes shall be apportioned to, and levied on each tract of land in said district, in proportion to the benefits assessed and not in excess thereof. No benefits have been assessed. The defendants contend that no benefits have accrued to any of the land or property within the district; and that, therefore, taxes cannot be assessed under the statute.
Section 24-618 of the Revised Statutes, in part, reads:
“As soon as the said board of supervisors have adjudicated, fixed and established the classification and benefits as provided by section 15 of this act, they may at once levy a tax on the lands and other property in said district to which benefits have been assessed, equal in amount to the cost of such drainage works and improvements as estimated by the said engineer and modified and confirmed by said board, plus the actual expenses of organizing said district, the probable working and administrative expenses and damage (as estimated by the said board of supervisors) in the completion of said works and improvements, and the carrying out the objects of said district . . . The said tax shall be apportioned to and levied on each tract of land or property in said district in proportion to the benefits assessed and not in excess thereof.”
Section 24-609 of the Revised Statutes prescribes the manner in which the engineer shall make the assessments on each tract of land and provides that—
“No assessment shall be made of benefits to any lands upon any other principle than that of benefits derived, but all assessments shall be made upon the basis of benefits derived and secured by reason of the construction of said improvements and works affording drainage, for giving an outlet for drainage, protection from overflow, and damage from water.”
The last provision of section 24-621 of the Revised Statutes reads:
“That before funds can be secured by the levy of a tax or the sale of bonds the board of supervisors of such drainage district shall have power to borrow money and pledge the credit of the district for the payment of the same with interest in any sum not to exceed $5,000 to pay the necessary cost and expense of the organization and incorporation of said district, and all other legitimate charges and expenses incurred by the board and its officers and employees in performing the services and duties required of them by this act.”
We have then this situation: A drainage district regularly organized, authorized to contract a debt, that debt contracted, abandonment of the project and no effort to pay the debt.
The first headnote to Loan Association v. Topeka, 87 U. S. 655, reads:
“A statute which authorizes towns to contract debts or other obligations payable in money implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided.”
To the same effect is United States v. New Orleans, 98 U. S. 381, 393, where the court said:
“For the same reason, when authority to borrow money or incur an obligation in order to execute a public work is conferred upon a municipal corporation, the power to levy a tax for its payment or the discharge of the obligation accompanies it; and this, too, without any special mention that such power is granted.”
See, also, Rolls County Court v. United States, 105 U. S. 733; Quincy v. Jackson, 113 U. S. 332.
So far as the record before the court is concerned, the tax should be levied.
2. How shall that tax be levied? The statute does not specifically provide for the situation that is now presented to the court. The statutes provide that taxes shall be levied according to benefits received. No drainage system has been constructed. No benefits have been received from its construction. Whatever benefits have been received by land within the district have been received from the survey and report of the engineer, the rejection of his report and the determination to abandon the project. Those benefits, whatever they were, have been received by all the land within the district, valuable more than land of less value. It follows that in any effort to be obedient to the law, the tax to pay this indebtedness should be a percentage tax levied on all the land in the district according to its value in money.
3. Another matter urged by the defendants is that the plaintiff is a creditor of the defendant and sues as such; that the plaintiff’s claim has not been reduced to judgment; and that the legality of that claim should be determined before mandamus issues.
The defendants admit the organization of the district, the employment of the engineer, his report, the borrowing of the money, the execution of the notes, that they had not been paid, and that no tax has been levied to pay them. That brings this case within the rule declared in Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560, where this court said:
“Where there is a duty to levy and collect a special tax to pay a special class of debts, or the interest thereon — as, for example, county or township refunding bonds — and there is no valid defense alleged, and no question is made as to the genuineness of the bonds or coupons, and they are owned and in the possession of a bona fide purchaser, the court may grant a peremptory writ of mandamus, at the instance of the purchaser, to compel the proper officers to levy and collect such tax prior to judgment at law upon the bonds against the county or township.” (Syl. ff 1.)
In response to the prayer of the plaintiff that the defendants be compelled to complete the drainage project, it may be very appropriately said that the plaintiff has no right to prosecute an action to obtain such a result. It does not appear that the plaintiff is a property owner in the district. The plaintiff is only a creditor. It cannot prosecute such an action. (Bobbett v. State, ex rel. Dresher, 10 Kan. 9; Turner v. Comm’rs of Jefferson County, 10 Kan. 16; Adkins v. Doolen, 23 Kan. 659; Titus v. Sherwood, 81 Kan. 870, 106 Pac. 1070; Gormley v. School Board, 110 Kan. 600, 204 Pac. 741; Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651.) Only the state or some person specially interested in the drainage district can prosecute an action to compel the completion of the project.
The motion to quash is denied.
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the validity of proceedings and a judgment in aid of execution. Plaintiff prevailed and defendants appeal. The facts are substantially these:
During August and September, 1926, the defendant, William Farmer, purchased from plaintiff automobile accessories in the amount of $136.50. At that time Farmer owned real estate of the approximate value of $20,000 with $4,000 encumbrance. He was also operating a dairy business, the stock and equipment being unencumbered. In October, 1926, Farmer executed a deed to his wife, conveying the real property for a consideration of one dollar. In February following he transferred all of his personal property to his wife for a named consideration of one dollar. In September, 1927, plaintiff procured judgment against Farmer, transcript of which was filed with the clerk of the district court, execution issued thereon and returned showing no property found. Proceedings in aid of execution were filed, a referee appointed who took testimony and found that the alleged conveyances by Farmer to his wife were without consideration and made for the purpose of hindering, delaying and defrauding his creditors, and void as to the plaintiff. The district court afterwards set aside recommendation of the referee, heard the evidence and held that the transfer of real estate and personal property by Farmer to his wife served to hinder and delay his creditors and was void as to plaintiff’s claim.
The defendants’ chief contention is that no intent tó hinder and de.lay creditors was shown. The report of the referee upon which the court had its hearing, among other things, set out that William Farmer contracted the indebtedness with the said plaintiff, which was later reduced to judgment during the summer of 1926. That at the time the indebtedness was incurred William Farmer was in the dairy business and kept and owned twenty or more cows and dairy implements used in said business, and owned several- income-producing houses. That he conveyed his cars, dairy herd and dairy implements to his wife at approximately the same date, the defendants refusing, however, to tell the referee the exact date. That Farmer and his wife still have the real estate, although standing of record in the name of Mary Farmer, the wife. That Farmer and his wife are selling about $20 worth of milk a day from said dairy herd. That Mary Farmer, the wife, never inherited any sum of money to exceed $500, and had no money at the time of the conveyance of the real estate and dairy herd and implements. This, in addition to the testimony of the defendants that the real estate was valued at from $20,000 to $22,000, -and that it was transferred to the wife for one dollar and other valuable consideration, “which was a lot of hard work”; that he had been sick with asthma and made the transfer to his wife to avoid the expense of probating his estate in the event of his death, abundantly warranted the court in concluding that the transfers were made for the purpose of avoiding payment of their debts. Moreover, the plaintiff contends that the conveyances by Farmer to his wife were voluntary,’ and that the rale that it is necessary to show intent to defraud before a conveyance will be set aside does not apply to voluntary conveyances. In 27 C. J. 503 it is said:
“Except in the case of voluntary conveyances, where actual fraudulent intent is never necessary to render the conveyance fraudulent as to existing creditors, the general rule is that to render an alienation void as to creditors it must have been made .by the debtor with an intent to defraud, delay or hinder creditors.”
In the same volume at page 550 this language is found—
“The presumption of fraud as against existing creditors raised by a volun tary conveyance by the debtor of his property, becomes conclusive where there is no evidence that he retained sufficient property to satisfy his creditors, and the fact that there was no actual fraudulent intent upon the part of either party to the transfer does not in any way affect the operation of the rule. (Citing decisions.) In order that a voluntary conveyance may be upheld as against existing creditors it is essential that the property retained by his debtor should be clearly and amply sufficient to satisfy all his existing debts.”
In Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732, it was said:
“Some reliance is placed upon the finding of the court that she had no actual intent to hinder, delay or defraud creditors when she accepted the conveyance. She knew her husband had been in several losing ventures and knew that there were unpaid debts. She says that she secured the transfer of the property to her because of the poor financing of her husband; and fearing that all the property would be lost, they together concluded to put it beyond his control. This was the wife’s acknowledged purpose. But, granting that there was no actual intent on her part to defraud his creditors, the placing of it beyond his control by a transfer which was without consideration, when there were creditors, amounted to a fraud in law.” (p. 630.)
See, also, Farlin v. Sook, 30 Kan. 401, 1 Pac. 123; First Nat’l Bank v. Lovett, 123 Kan. 405, 256 Pac. 147; Johnson v. Rutherford, 28 N. D. 87; Bump on Fraudulent Conveyances, 296.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is from a judgment of the district court of Marion county which upheld the validity of a certificate of convenience and necessity issued to the Inland Pipe Line Company by the state corporation commission.
It' appears that in 1933 this domestic corporation was chartered for the purpose of constructing pipe lines for the transportation of natural gas and the usual functions incidental thereto.
Thereafter, on July 14, 1933, this company applied to the state corporation commission for a certificate of convenience and necessity to authorize it to transport natural gas from the gas-producing fields of Reno county to Emporia, and to distribute and supply gas to certain cities and hamlets en route.
The state corporation commission set the date of July 25, 1933, for the hearing of the application. Notice was sent to certain other gas utility corporations which might be concerned as competitors. One of the latter was the American Pipe Line Company which was supplying Emporia with gas drawn from a production area some twenty miles away. For the convenience of counsel for the latter company the hearing set for July 25 was postponed until August 3, and later until August 24, at which time the application was granted. The order of the commission reads:
“It is therefore by the commission considered and certified that public convenience will be promoted by the Inland Pipe Line Company, a corporation, of Emporia, Kan., engaging in the business of transporting natural gas by means of pipe lines to the city of Emporia, Kan., and to other cities and towns in the vicinity of the territory through which said pipe line is operated, and to furnish gas for any and all such towns and cities as may desire, in the state of Kansas, and said corporation be and is hereby permitted to transact the business of a public utility in the state of Kansas as hereinbefore designated.”
The American Pipe Line Company applied for a rehearing on various grounds. This was denied, and this company filed in the district court its application for review as authorized by statute. (R. S. 1933 Supp. 66-118C.)
The district court heard the cause upon the application and a transcript of the record made before the commission, in conformity with R. S. 1933 Supp. 66-118d et seq., and made a finding that the order of the Kansas State Corporation Commission, “from which appeal herein was taken, is lawful and reasonable,” and should be sustained.
Judgment was entered accordingly and the American Pipe Line Company now brings the matter before this court for further review.
Appellant’s first contention is that the order of the commission granting a certificate of convenience and necessity to the Inland Pipe Line Company was unreasonable because the territory it proposed to serve was already adequately served by appellant and other public utility companies already occupying the field. That point, however, is so largely a question of administrative discretion, and so little a judicial question, that a clear case of abuse of discre tion would have to be established before a court would be authorized or justified to interfere. It can hardly be said that such an extreme case is disclosed by the record. The Inland company showed that it did have some hopeful prospects of serving small towns and villages en route between' the Reno county gas fields and Emporia which are not now served by any gas company. Indeed, it had some contracts to that effect, and also tentative contracts conditioned on the obtaining of a certificate of convenience and necessity. Even in Emporia itself, the prospect of patronage was hopeful, being predicated on an assumption (not shown to be unreasonable) that it could deliver gas thereat at a considerable reduction below the rates charged by the appellant or any other utility company serving the city. Appellant has an argumentative point of considerable force— at least when addressed to the corporation commission — that if its rates are too high or its service is inadequate the commission has ample power to lower its rates and to compel it to give efficient and sufficient service. But it cannot be judicially declared that such a course was the exclusive one the commission was bound to pursue. This argument was vigorously urged on this court in Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985, where the legality of a certificate of convenience and necessity was drawn in question by a public utility corporation serving the territory sought to be invaded by the new certificate holder. In that case a certificate of convenience and necessity was issued to a truck line which proposed to operate between Wichita, Winfield and Arkansas City. Such a service was already supplied by other concerns. The new company did propose to operate over a different intermediate route, but the bulk of its prospective business was at the terminals of the route well served by competing utilities. The district court enjoined the commission from issuing the certificate. In its findings of fact was one that there had been no complaint as to the sufficiency of the existing service. We said that finding was not of controlling importance. The trial court found that there was not sufficient showing of the public necessity and convenience to be served by competing truck lines. We said that finding was an unauthorized substitution of the court’s judgment for the judgment of the tribunal authorized to determine the point. The trial court found that another truck line would divide the business, reduce the profit and cripple the service of the older company. This court held that finding was not of controlling importance, that it invaded the field of prophecy — which was outside the scope of judicial review. Continuing, this court said:
“Plaintiff is quite right in stressing the mandate of the statute (R. S. 1931 Supp. 66-199) that 'the commission should give reasonable consideration to the transportation service being furnished by any . . . motor earner and shall give due consideration to . . . the effect which such proposed transportation service may have upon other forms of transportation service which are essential and indispensable to the communities to be affected by such proposed transportation service or likely to be affected thereby. . . .’ Of course the commission should give these matters consideration. A conscientious commission would do so if there was no such mandate in the statute. The granting or withholding of certificates is not a prerogative to be capriciously exercised. (Jackman v. Public Service Commission, supra.) It is to be exercised with sound discretion to promote the public convenience. But it is the sound discretion of the commission, not that of the courts, which is to be exercised in the issuance or refusal of certificates of convenience and necessity.” (p. 665.)
To like effect are our other recent cases: Atchison, T. & S. F. Rly. Co. v. Public Service Comm., 130 Kan. 777, 288 Pac. 755; Union Public Ser. Co. v. Corporation Comm., 140 Kan. 722, 37 P. 2d 1010.
It is next contended that the trial court erred in refusing to remand the case to the corporation commission so that some matters which it is alleged the commission took into consideration in granting the certificate, but which were not included in the record, should be formally introduced and made part of the record. The substance of those matters pertained to an informal inquiry by the commission concerning the Inland Pipe Line Company’s prospects and plans for financing its corporate undertaking — where it expected to get the money, whether by stock subscriptions, bond issues or otherwise. But those matters were not vital to the determination of the question whether public convenience and necessity would be served by the granting or withholding of the certificate applied for. A corporation chartered in this state is not required to have its entire capitalization subscribed and paid up before it can commence business. (R. S. 17-214; 17-226.) Having a nominal capitalization of $25,000 the promoters of this corporation did subscribe for all its stock, 1,000 shares of no par value; and apparently it got together all the money it would ever need unless a certificate of convenience and necessity were issued to it to carry on its proposed corporate undertaking. Competent witnesses testified that it would cost from $600,000 to $800,000 to acquire the right of way and to construct the proposed pipe line from the Reno county gas fields to Emporia. But it would be sheer folly for the parties concerned to attempt to collect that vast sum of money through the sale of bonds or otherwise unless and until the certificate applied for should be granted. And while diligent counsel for appellant has discovered and cited respectable authorities to the effect that a certificate of convenience and necessity should not issue unless the applicant makes a satisfactory showing of its ability to finance its corporate projects, that question is not a justiciable one to be threshed out on issues joined between the applicant and some adversary, like appellant in this particular proceeding, before the commission. Suppose the record had been amplified, as demanded by appellant, to show precisely what tentative arrangements for the sale of a bond issue the applicant has made with some John Doe Bonding Company to raise the requisite funds to build the pipe line, should the appellant also have been permitted to show that that bonding company could not effect a sale of the bonds nor otherwise successfully market them? We think the mere suggestion of this proposition shows that it is untenable. In due time the corporation commission must and doubtless will scrutinize carefully the applicant’s proposed bond issue, as well as its other fiscal arrangements and policies which may affect its rates and services to the public; but that matter does not necessarily enter into the question whether public convenience and necessity will be served by granting the certificate applied for.
Cases cited in appellant’s brief which we have examined are: Re Cort, P. U. R. 1932B, 45; Union Coöp. Telephone Co. v. Public Service Comm., 206 Wis. 160, 239 N. W. 409; Sproul v. Federal Radio Commission, 54 F. 2d 444; Re McCone, P. U. R. 1933C, 85; Re Victor A. Cornelison, P. U. R. 1932A, 103. These cases are sound, instructive and interesting, but in none of them did the granting or refusing of a certificate of convenience and necessity turn on an issue of fact joined between the existing utility and the applicant touching the adequacy of the latter’s plans for financing the services it proposed to establish.
In Southside Transp. Co. v. Com., 157 Va. 699, 161 S. E. 895, and Re Armentrout, P. U. R. 1927 E, 728, both cited by the appellant, the question for decision was which of two applicants should be granted the certificate of convenience and necessity. Quite properly the Virginia supreme court held, as did the Colorado public utilities commission in the Armentrout case, that the applicant with the sounder financial structure and prospects should be granted the certificate. It is difficult to discern any analogy between either of these cases and the one at bar.
Appellant does cite one case, Roy v. Commerce Com., 322 Ill. 452, 152 N. E. 648, which lends some support to appellant’s contention. In that case a railway company desired to change the location of its railway track connecting two different branches of its road, and to that end it created a nominally independent corporation which applied to the Illinois commerce commission for a certificate of convenience and necessity. The commission granted the certificate over the objection of the city of Evanston and various other parties who felt prejudiced by the order. They appealed to the superior court which sustained the order of the commission. They next appealed to the supreme court which reversed the judgment of the lower court and directed that the order of the commerce commission be set aside. In Union Coöp. Telephone Co. v. Public Service Comm., 206 Wis. 160, 239 N. W. 409, the Wisconsin action in the circuit court was to review an order of the public service commission which had refused to grant the appellant a certificate of convenience and necessity. The circuit court entered judgment for appellant. The public service commission appealed. The supreme court reversed the judgment. In the course of its opinion it commented on the Illinois case cited above, saying:
“The supreme court of Illinois set aside a certificate of convenience and necessity issued by the public service commission of that state for the reason that the application was not supported by proof showing that the applicant possessed the financial ability to furnish an adequate service or to otherwise discharge its duties as a public utility in the field which it was authorized to enter. Roy v. Illinois Commerce Comm., 322 Ill. 452, 153 N. E. 648. Such a showing would seem to be' a very reasonable requirement if exacted by the administrative body as a condition precedent to the issuance of the certificate, and all that can be said is that this would seem to furnish an additional reason qualifying the withholding of the certificate by the railroad commission.” (p. 166.)
This court holds that the information which the applicant may have given privately to the corporation commission touching its plans and prospects for financing the pipe line if the certificate should be granted was not of controlling importance in the judicial review of the commission’s order provided by statute.
Touching the appellants’ contention that the granting of the certificate to the Inland Pipe Line Company will operate to confiscate and destroy the value of its property, there are two answers. Neither the commission nor the trial court were bound to believe that such a pessimistic prophecy would inevitably materialize; and if the public convenience and necessity would be served by the granting of a cer tificate to a competitor, the consequence to the existing utility, however inevitable, did not require that the certificate be refused, nor would it demonstrate that the judgment of the trial court was erroneous and prejudicial.-
There is nothing further in the record to justify discussion, and the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
In this case the trustee of a merchant adjudged a bankrupt seeks to set aside a chattel mortgage given by the merchant on his stock of goods to the defendant bank and recover the goods from the bank, or their value, for the benefit of other creditors, because the requirements of the bulk-sales law were not observed, either at the time of the execution of the mortgage or when the goods were delivered thereunder to the bank. The issues were joined and tried to the court upon an agreed statement of facts, and judgment was rendered for the defendant, from which the plaintiff appeals.
In addition to the usual and ordinary provisions contained in a chattel mortgage was the following paragraph:
“The power, right and privilege is given to the parties of the first part to continue said businesses in the two stores respectively mentioned in the usual course of merchandising and to sell from the respective stocks of furniture, household goods, stoves, etc., both new and secondhand, which are covered by this mortgage, and parties of the first part are required hereby from time to time as sales are made from said stocks to replenish the same with other similar articles of merchandise and to maintain such stocks of merchandise in said stores in their present standard of quality and quantity, and the privilege of making sales therefrom shall not be construed in any way to release this mortgage, but the parties of the first part shall strictly account to party of the second part not less frequently than once each week for the sales so made, and shall report at the time of such accounting the manner in which said stock has been replenished to cover said sales, and this chattel mortgage shall be construed to cover all merchandise obtained, purchased or procured by the first parties to replenish said stock and which shall become a part of the merchandise or stock fn either of said stores during the term of this mortgage.”
The mortgage was made to secure a loan made by the bank to the merchant. Seven months after it was made and filed for record the merchant defaulted in his payments and, upon request of the bank, he surrendered and delivered possession of all the fixtures and all the goods then on hand. Five months after such surrender and delivery of the goods to the defendant bank the merchant was adjudged a bankrupt and plaintiff was appointed and qualified as trustee.
The stipulation shows there were a number of creditors of the merchant when the mortgage was executed, that they continued as such, and that they and others were creditors when bankruptcy proceedings were instituted twelve months later. There is nothing in the agreed statement of facts to suggest that the chattel mortgage was a shift or devise to effect a sale in another name, but it must be considered as a bona fide transaction in a businesslike way of actually borrowing money from the bank and giving a chattel mortgage on the stock of merchandise to secure the payment of the same.
The section of the bulk-sales law of this state to which reference is made is as follows:
“The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate list of his creditors and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge of the proposed sale.” (R. S. 58-101.)
It is stipulated that nothing was done or attempted to b.e done in connection with the giving of the chattel mortgage or the delivery and acceptance of the goods thereunder seven months later to comply with the provisions and requirements of the bulk-sales act, it being contended by the bank that the act does not apply either to the giving of such a mortgage or the delivery of the mortgaged goods thereunder. Three Kansas decisions are cited and discussed in this connection as more or less applicable to the question now under consideration. The case of Bank v. Davis, 103 Kan. 672, 175 Pac. 972, was where a bill of sale was given for a stock of merchandise, providing for a return of the excess, if any, above the indebtedness, and was accompanied by an immediate delivery of the goods. As to the immediate delivery the case is quite different from the one at bar, but aside from that feature the court likened the bill of sale with the agreement to return to a chattel mortgage and said in the opinion:
“If, however, the bill of sale is deemed to have been in legal contemplation a chattel mortgage, we still regard it as constituting a ‘sale or disposal’ of the stock within the meaning of the statute. If the owner of a stock of merchandise, while allowed to sell it only upon notice to his creditors, could mortgage it effectively without such notice, the evasion of the statute would be so easy as to deprive it of all practical force. In this state the title to chattels passes by the execution of a mortgage (Gen. Stat. 1915, § 6501), which therefore amounts to a sale, or at least to a disposal. This view finds support in decisions elsewhere. (Baker v. Nipper, 198 S. W. 596 [Tex. Civ. App. 1917]; Semmes v. Stecher Brewing Co., 195 Mo. App. 621.) In some jurisdictions, what might seem to be a contrary conclusion is reached, but this is by reason of local statutes under which the mortgagor of chattels continues to be their owner.” (p. 674.)
Another case on the subject is the case of Jewelry Co. v. Maddock, 115 Kan. 108, 222 Pac. 113, where a jeweler pledged a quantity of diamonds from his stock to one of his creditors and delivered them to him at once, about which litigation followed. The conclusion of the court was expressed in the syllabus as follows:
“A pledge of a part of a stock of merchandise by a merchant to one of his creditors to secure the payment of a debt owed by the merchant to the creditor is a disposal of the goods pledged within the meaning of the bulk-sales law.”
The latest expression is in the case of Faeth Co. v. Bressie, 125 Kan. 425, 264 Pac. 1077, where the court reviews the former decisions on the subject and applies them to the facts in that case, which were different from those in this case and the former cases in that the plaintiff became a creditor after the interest of the mortgagee accrued.
. The case of Oil Co. v. Consolidated Companies, 110 Kan. 245, 203 Pac. 915, gives the court’s attitude toward the bulk-sales statute, describing it as a remedial statute and stating how it should be construed as follows:
“The bulk-sales law is remedial. It is designed to frustrate fraud upon creditors, and for that reason it is to be' liberally construed. It was the duty of the defendants to hold within their control enough of the price to satisfy plaintiff’s claim for payment.” (p. 247.)
In another recent case, where one creditor was seeking to obtain a priority over other creditors by attempting to get judgment in justice court earlier than other creditors and where the bulk-sales law was thought to apply, the court said:
“The purpose of the bulk-sales law was that goods of debtors sold in bulk without compliance with its terms should be treated as a trust fund for the benefit of all creditors and to hold the purchaser who illegally obtained possession thereof as a trustee for such creditors.” (Wholesale Grocery v. Milling Co., 116 Kan. 534, syl. ¶ 2, 227 Pac. 374.)
The learned counsel for the appellee have furnished us with an exhaustive brief on fhis subject covering textbooks, annotations and decisions from many other states, in which our decision in the Davis case, supra, is not followed, and some of them summarize' by saying that Kansas and Texas courts are almost alone in their leaning toward the view that a chattel mortgage and a delivery thereunder may be such a sale or disposal as was intended to be covered by the requirements of the bulk-sales law. A review of these cases reveals in most instances — not all — some differences in the verbiage of the statute on chattel mortgages and bulk sales. We think now, as was said by Justice Mason in the Davis case, supra, that “in some jurisdictions, what might seem to be a contrary conclusion is reached, but this is by reason of local statutes under which the mortgagor of chattels continues to be their owner.” (p. 674.)
In this case we are only concerned as to the ownership or change of ownership at the time the merchandise was surrendered and delivered by the merchant to the bank under the mortgage, seven months after the loan was made and the execution and filing of the mortgage for record. Was that a change of ownership, a sale or disposal as expressed in the act? We think it was. When the goods were surrendered or delivered under the mortgage the situation became the same as in the two cases above cited, where the delivery was an immediate one. Of course, the contract was made seven months earlier but now, by virtue of that contract, there is a disposal of the goods. The mortgagor is no longer the owner of the merchandise. After surrender and delivery thereof he could not maintain replevin or other action to recover the same. He had owned them, and certainly did own them when he executed the mortgage. Now he does not, but the mortgagee now owns them. Whether the transaction can, strictly speaking, be called a sale may be subject to discussion, but certainly this is a disposal. Webster defines disposal as “the transference of anything into new hands; the alienation or parting with . . . property.” There is no •contention that this parting with the merchandise by the mortgagor when he delivered it to the bank was “otherwise than in the ■ordinary course of his trade or business.” We therefore conclude that the surrender and delivery of the stock of merchandise under the mortgage by the mortgagor to the mortgagee was such a sale or disposal of the merchandise as was intended to be covered by the provision and requirements of the bulk-sales law, and where" there was no compliance with such requirements at the time of the execution of the mortgage or the surrender or delivery of the merchandise, the sale or disposal is void as against creditors of the mortgagor.
Much is said in the briefs about the application of the bulk-sales law to the giving of an ordinary chattel mortgage and the rights of the parties thereunder. In the first place the facts in this case do not stop with the act of giving the mortgage, but before this action was commenced and before the plaintiff was appointed to represent the creditors of the mortgagor, the mortgagor had disposed of the merchandise. Whether or not there was a sale or disposal by the act of giving the mortgage becomes immaterial when there was an absolute -disposal by the delivery before the action was commenced. Again, the briefs refer frequently to the giving of an “ordinary mortgage.” A mortgage on a stock of merchandise can hardly be called . an ordinary mortgage under the many decisions in this state with reference to the validity of such mortgages. The ordinary mortgage on a stock of goods, without some special arrangement either in it or in connection with it for the sale of the merchandise in the ordinary course of business, has by our decisions been generally held to be, void as to creditors. The special paragraph above quoted as contained in the mortgage in this case was doubtless inserted to take this mortgage out of the ordinary class. See Leser & Co. v. Glaser, Straus & Co., 32 Kan. 546, 4 Pac. 1026; Implement Co. v. Schultz, 45 Kan. 52, 25 Pac. 625; Gleason v. Wilson, 48 Kan. 500, 29 Pac. 698; Butler v. Case, 53 Kan. 262, 36 Pac. 330; Smith v. Epley, 55 Kan. 71, 39 Pac. 1016; Richardson v. Jones, 56 Kan. 501, 43 Pac. 1127; Humphrey v. Mayfield, 63 Kan. 208, 65 Pac. 234; Brooks v. Bank, 82 Kan. 597, 109 Pac. 409; and Bank v. Hardman, 89 Kan. 212, 131 Pac. 632.
The judgment is reversed and the cause is remanded with instructions to render judgment for the plaintiff in accordance with the views herein expressed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover motor vehicle fuel taxes accruing to the state under the provisions of chapter 274 of the Laws of 1925. Plaintiff prevailed, and the defendants appeal.
The facts are substantially as follows: The defendants, who in 1925 were dealers in motor vehicle fuel at Bird City, refused to pay the two-cent tax on fuel oil, and this action was brought to recover the amount due. Trial to a jury resulted in judgment for plaintiff on some eight causes of action covering that number of months in 1925 for which such tax was due. The defendants contend that the plaintiff has no capacity to maintain the action and that the act (Laws of 1925, ch. 274) is unconstitutional. They also contend that chapter 214 of the Laws of 1925 is unconstitutional. (This chapter was repealed by chapter 255 of the Laws of 1927.) The argument is that as the statutes make special provision for the collection of taxes they are not debts in the ordinary sense of that term (Comm’rs of Stafford Co. v. National Bank, 48 Kan. 561, 30 Pac. 22) and that an action prescribed by the civil code will not lie for their recovery. Also, that section 12 of chapter 274 of the Laws of 1925 provides a complete and adequate remedy in that one failing or refusing to abide by the provisions of such law may be fined and imprisoned. The act in question creates no property tax but is a personal liability upon dealers. The act merely provides “that said tax shall be paid by the dealer to the state oil inspector.” (§ 5.) It does not make the tax a charge upon any specific property, nor does it prescribe any method or remedy for recovery of the tax. The only means of collection of the tax is by enforcement of the personal liability of the dealer handling the fuel. Nor is the prosecution authorized by the act a “full, complete and adequate remedy” for defendants’ failure to pay the tax. The prosecution provided by the act furnishes no means for such collection. Nor is Comm’rs of Stafford Co. v. National Bank, supra, an authority against the position taken by the state in the instant case. It was there said:
“A tax is not a debt in the ordinary acceptation of that term and consequently a civil action will not lie for its recovery except in those cases where the statute expressly confers the right to bring such an action, or where it impliedly confers such a right by omitting all mention of any method for the collection of the tax.” (p. 562.)
In 3 Cooley on Taxation, 4th ed., § 1331; p. 2631, this language is used:
“The question often arises whether the ordinary remedies for the collection of debts can be applied to taxes. In general it will be found that statutes imposing taxes make special provision for their collection, and do not apparently contemplate that any others will be necessary; but these may, nevertheless, fail; and the question then arises whether the tax must fail also, or whether resort may be had by the state to such remedies as would be available to individuals to enforce demands owing to themselves. But instances have occurred of tax laws which provided for laying the tax, but made no provision whatever for collection. In such case it may well be held that the legislature contemplated the enforcement of the tax by the ordinary remedies; and therefore, if the tax was assessed against an individual, that assumpsit or debt would lie for the recovery thereof. In other words, the implication of an intent to give a remedy by suit is so strong as to be conclusive, where the statute provides for a tax, but is silent as to the method of collection.” (See, also, 26 R. C. L. 380, 381; 37 Cyc. 1240, 1241; note in 41 L. R. A., n. s., 730, 734; United States v. Chamberlin, 219 U. S. 250, 31 Sup. Ct. 155; Pioneer Oil & Refining Co. v. State, 273 S. W. 615.)
Under the authorities cited there can be no question but that the state was empowered by implication to collect the tax now under consideration. Other issues were involved in the following California cases, but the right of the state to bring civil action for the recovery of gasoline taxes appears not to have been questioned: People v. Ventura Refining Co., (Cal.) 268 Pac. 347; People v. General Petroleum Corp., (Cal.) 268 Pac. 352; People v. Richfield Oil Co., (Cal.) 268 Pac. 353, 355.
The right of the state to maintain a civil action to recover a gasoline tax was not denied in State, ex rel., v. Panhandle Oil Co., 147 Miss. 663, 112 So. 584, although it was held by the United States supreme court that there was no liability to the state for taxes upon sales to the United States fleet and the United States hospital. (See same case, Panhandle Oil Co. v. Mississippi, ex rel. Knox, 277 U. S. 218, 72 L. Ed. 857; see, also, Price v. United States, 269 U. S. 492, 70 L. Ed. 373; Updike v. United States, 8 F. [2d] 913; United States v. Ayer, 12 F. [2d] 194.)
The chief attack on the constitutionality of the acts is made under section 8 of article 11 of the constitution, which provides that “The state shall never be a party in carrying on any works of internal improvement except to aid in the construction of roads and highways,” and fixing certain percentage, cost, and mileage limits for such aid. It is argued in effect that since the tax is levied under state laws, it is a state tax; that the state must be a party in carrying on the works in which the tax fund is expended and that the state, operating through the counties, might exceed the limits permitted by the constitution, and that therefore the act is unconstitutional. The contention is not sound. It cannot be presumed that the officers, either state or county, will violate the provisions of the constitution or law, and even if they did, their acts could not render the statute unconstitutional. Also, that both chapter 274, enacting the tax and providing a distribution of the fund, and chapter 214, which modifies the provisions for distribution, ignore the provisions of section 8 of article 11, fixing percentage, cost and mileage limits to be observed in state carrying on road work. In answer to this contention it may be noted that chapter 214 is not a part of the tax act. If it is valid it modifies chapter 274, while if it is invalid chapter 274 is not affected. However, the validity of the tax is not dependent upon the validity of chapter 214, nor is that chapter involved in this action.
Section 10 of chapter 274 provides:
“The portion of the revenue arising from the said tax, collected from each county, shall by the state treasurer be returned and paid over to such counties . . . and all sums so paid to such counties shall be placed in the general road fund of said county and expended as provided by law.”
This places upon the county the duty of carrying on the work of road improvement and cannot be said to make the state a party in carrying on the work, in violation of the provisions of said section 8 of article 11 of the constitution.
In State, ex rel., v. Gardner, 122 Kan. 508, 252 Pac. 463, this court construed the distribution provision of said chapter 214 and held that the state aid road fund was to be “expended under the direction of the state highway commission acting in conjunction with boards of county commissioners in the various counties of the state upon the state highway system where appropriate highway improvement projects are being carried on.” (p. 513.) Even if it be said that such use of the funds after distribution among the counties in conjunction with the several boards of county commissioners makes the state a party in carrying on such work, such state participation is permissible within the percentage, cost and mileage limit provisions of the constitution. We find nothing in section 8 of article 11 of the constitution which invalidates the act under discussion.
A contention that the act (ch. 274) is in violation of the provisions of section 16 of article 2 of the constitution, that the subject of the act shall be clearly expressed in its title, cannot be sustained. (Getty v. Holcomb, 79 Kan. 224, 99 Pac. 218; In re Schley, 71 Kan. 266, 80 Pac. 631; State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400; Altitude Oil Co. v. People, 70 Colo. 452, 202 Pac. 180.) Nor does the subject require elucidation.
Other questions presented have been considered, but need not be discussed.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiffs brought this action to set aside an oil royalty deed of conveyance executed by them on the ground it had been wrongfully delivered by an escrow holder, and in the alternative for damages for the value of the conveyance at the time of the wrongful delivery. Among the defenses was that of ratification of the delivery. The original grantees in the conveyance, the escrow holder, and the record owners, through mesne conveyance of the interest conveyed by the oil royalty deed, were made parties defendant. The trial court found the present record owners to be innocent purchasers for value, for which reason the deed could not be set aside; and this ruling is not attacked on this appeal. (But see, on this point, 21 C. J. 885, 886; 10 R. C. L. 636-638.) The court further found generally all controverted issues in favor of the plaintiffs; that the deed had been wrongfully delivered; that it was of the reasonable value of $2,500 at the time it was delivered, and that plaintiffs would be entitled to recover that sum, less $1,000 paid, from the original grantees and the escrow holder were it not for ratification; but further found the wrongful delivery of the deed had been ratified, and based its decision on the opinion of this court in Christy v. Central State Bank, 118 Kan. 213, 234 Pac. 984, and rendered judgment for defendants. Plaintiffs have appealed, and contend, first, the court was not justified in holding they had ratified the wrongful delivery of the deed; and, second, the property cpnveyed by the deed was a part of their homestead; that there was no evidence the wife did anything to ratify the wrongful delivery, hence there was not the joint consent of husband and wife necessary to make a valid delivery or ratification thereof.
A brief statement of the principal facts disclosed by the record is as follows: The plaintiffs, Jonas Nickell and Carrie Nickell, husband and wife, owned a farm of 240 acres in Harvey county, which they occupied as their home. They had executed an oil lease on the property to the Gypsy Oil Company and were anxious to have drilling done thereon. The Gypsy Oil Company had not drilled, but in lieu thereof was paying the rental as the lease provided. In April, 1934, the defendants, E. Reser and N. E. Reser, went to plaintiffs’ home and said they and others, who w^ere not named, had an oil lease on adjoining land, the Smnmerfield place, and planned to drill on it right away. They wanted to buy an oil royalty interest in plaintiffs’ land. As a result of their talk plaintiffs agreed to sell an oil royalty interest in 100 royalty acres of their land for $1,000 if the conveyance for it was so worded that it would not interefere with their getting the rentals from the Gypsy Oil Company, and upon condition that the Resers and their associates within ninety days should begin the drilling of an oil well on the land leased by them adjoining that of plaintiffs and within a standard .offset of 330 feet of the line of plaintiffs’ property, the oil royalty deed to be placed in the Hesston State Bank in escrow, to be delivered only if the well was started, as agreed upon, within ninety days, and upon the payment of $1,000. The reason the plaintiffs wanted the well located at a standard offset from their property line was, if it produced oil the Gypsy Oil Company would have to drill on plaintiffs’ land. The Resers later brought the instruments, presumed to incorporate their agreement, to plaintiffs’ farm. With them was Mr. Ruth, assistant cashier of the Hesston State Bank, to act as notary. The oil royalty deed had been drawn as they had agreed, except plaintiffs contend it contained a clause not read to them or called to their attention, by which the grantees would get a part of the rental paid by the Gypsy Oil Company on the lease. They executed the deed. An escrow agreement had been prepared which contained the provisions the parties had agreed upon, except the one requiring the Resers and their associates to locate the well within 330 feet of plaintiffs’ property line. Plaintiffs called attention to that. The Resers said there would be no trouble about that; Mr. Ruth, of the bank where the instruments would be left in escrow, would be a witness if any question came up, but they had no intention of locating it anywhere else anyway; so that instrument was signed. This was April 27, 1934. Nickell wanted copies of the instruments; Reser promised to furnish copies. The instruments were placed in the Hesston State Bank in escrow. The escrow was handled at the bank by Messner, cashier, and Ruth, assistant cashier. In June, 1934, the Resers and their associates started a well on the property adjoining plaintiffs’ land, but instead of locating it a standard offset, 330 feet, from the line of plaintiffs’ property, they located it about 80 rods away. Within a day or two Jonas Nickell learned of this, went to the Hesston State Bank and talked with Messner, told him the agreement was not being complied with and in what respect, and wanted to take the deed. Messner refused to let him have it; said, “They [the papers] will stay right here in the bank.” A few days later, June 26, 1934, Nickell went to the bank again. Messner, Ruth, both of the Resers, and Frank Hollow, who appeared to be interested with them in some way, were there. Nickell demanded his papers, and told Reser: “You know you promised us a standard offset, and you haven’t done it.” He appealed to Ruth and asked if that wasn’t right. Ruth said: “Yes, they agreed and promised you folks a standard offset, and you also commanded that it should be written down in black and white.” Reser spoke up and said: “Never mind, you will get your offset,” and Hollow said: “Don’t worry, Mr. Nickell, you will get plenty yet. I just wish I had your lease. I would give you $10,000 for your lease.” Of course this was a safe statement to make, since plaintiffs’ land was already leased. Nickell was not satisfied and still demanded the papers. The bank refused to give them to him. Later E. Reser went to plaintiffs’ home Nickell told him he had not come up to his agreement. “You know you promised us a standard offset.” Reser replied: “Well, we really had intended to give you a standard offset at this corner of Summerfield’s, but the Gypsy Oil Company wouldn’t come and help us,” and they found another oil company that would help, “and that is why they put the well over there.”
On June 27, 1934, the Resers paid $1,000 to the escrow holder and the oil royalty deed was given to them. At that time it was reasonably worth $2,500. They recorded it, immediately conveyed to other parties, who filed their deeds on June 27, 1934. It was these last grantees the court found to be innocent purchasers for value. When the $1,000 was paid to the escrow holder, the Hesston State Bank, it opened an account on its books in the name of Jonas Nickell, and deposited this sum to his credit in the account and mailed him a deposit slip therefor. The bank had no authority from Jonas Nickell, or anyone else, to do this; he had not transacted 'his banking business there, and had no account there until the bank officials took it upon themselves to make one for him.
On receiving the certificate of deposit Nickell did not know what to do. He went to his attorney, Mr. Nye, at Newton, and told his story. Naturally Nye outlined an action to set aside the oil royalty deed, and in the alternative for damages. This required a tender of the $1,000 paid by Resers to the escrow holder, then to the credit of Nickell at the Hesston State Bank. Nickell said he “didn’t trust that bank.” In view of what the officers had done he did not know what they would do in the future. Nye advised that he get that credit in his own bank, so when they made the tender, if it were accepted, he would be confident of having the money to pay into court. Nickell went to the bank at Mound Ridge, where he transacted his banking business, and drew a sight draft for $1,000 on the Hesston State Bank. This was handled through ordinary banking methods, which took several days, with the result that the $1,000, which wrongfully had been placed to his credit at the Hesston State Bank, was to his credit in his regular account in the Mound Ridge Bank. His attorney then prepared the necessary papers and filed this action July 9, 1934, asking to set aside this deed, tendering the $1,000 back, and in the alternative for damages.
Turning now to the legal questions argued. The trial court held the drawing of the draft on the escrow bank by Nickell, transferring the funds to his own bank, with full knowledge the conditions of the escrow agreement had not been complied with, and after consultation with his attorney, constituted ratification of the wrongful delivery “under the authority of” the Christy case, supra. Appellants contend the Christy case is not controlling here because of the difference in facts. We agree with this view. The Christy case was applied to a case of principal and agent; here there is a third party, the escrow holder. While the escrow holder has been spoken of as the agent of both parties (Davis v. Clark, 58 Kan. 100, 48 Pac. 563), yet that can be true in a limited sense only, as the decision in that case demonstrates, and is more fully treated in Smith v. Griffith, 105 Kan. 357, 184 Pac. 725, a case more like the one before us than the Christy case. Indeed, it is the general rule the deposit of instruments in escrow cannot be made with one who is the agent of either of the parties to the instrument (21 C. J. 873 et seq.; 10 R. C. L. 629, 632), for if the depositary is the agent of the grantor the instrument is retained by him; if the agent of the grantee, there is a delivery of the instrument. To the extent the term agent is applicable it is a limited agency, with duties and powers limited to the terms of the escrow agreement. He is sometimes spoken of as the trustee of an express trust. (10 R. C. L. 633.) Certainly, to call him the agent of the parties leads to confusion. It is as well to treat him as just what he is, a third party to whom the principal parties to the contract have entrusted certain authority by the escrow agreement. He must look to that for his powers and duties. The escrow agreement may be in writing or in parol, or part of it in writing and part in parol. (10 R. C. L. 624.) It is essential, of course, that he know the terms of the escrow agreement in order to understand his duties. But when he knows those he acts by virtue of- his own powers and authority and not as the agent of anybody. There is no controversy about any of these matters in this case; they are mentioned here to distinguish this case from the Christy case.
Do the facts here justify a holding that plaintiffs' ratified the wrongful delivery of the deed? This is a question of fact. (10 R. C. L. 644.) The court found generally all the facts for plaintiffs and appears to have rested its conclusion on the Christy case, as a matter of law. As we have seen, that result is not justified. Perhaps this is too strict an interpretation of the court’s conclusion. If so, then we should look to the facts to see if they justify a finding of ratification irrespective of the Christy case. Generally speaking, one may ratify, as having been done, what he could have agreed to do in the first instance. Here the oil royalty deed conveyed a part of plaintiffs’ homestead. Nickell could not make that conveyance alone; Mrs. Nickell did nothing which the court found to constitute a ratification of the concededly wrongful delivery of this deed. Appellants contend, since Mr. Nickell alone could not have made this conveyance in the first instance, he alone could not ratify the wrongful delivery. While this point has merit we shall not analyze it carefully nor predicate our decision upon it. ■
Even though the Christy case does not apply here, it is well settled that the grantor of a deed placed in escrow may ratify its wrongful delivery by the escrow holder. (10 R. C. L. 638; 21 C. J. 887.) We shall not attempt to analyze the numerous cases cited in the footnotes, nor those cited in Words and Phrases, under Ratification. Through these runs the rule, rather definitely established, that the grantor of an instrument which he and the grantee have placed in escrow to be delivered only on specified conditions, but which the escrow holder has delivered without all the conditions having been complied with, may ratify such wrongful delivery. Whether he has done so or not depends upon the facts shown by the evidence. The ratification is in a sense the making of a new and different contract than that made at the time the instrument was placed in escrow. Such ratification may be shown by any acts or conduct, from which it necessarily follows that he intended to make such a new contract by letting the instrument stand as though it had been rightly delivered. In determining whether there has been ratification the court will look through the form of what was done to the facts indicating purpose. Here there is no question about the purpose of transferring this sum from one bank to the other. Plaintiff was advised to do so by an experienced attorney; he did not trust the Hesston bank; if he made a tender back of this fund he wanted to have it in a place where he could be sure his tender could be made good. That was his purpose in doing it, and the purpose his attorney had in having him do it. Hence, if we look through the form of what was done to the facts, and their purpose, it is clear he never ratified the wrongful delivery. He did all those things and brought his action promptly, the 12th day after the wrongful delivery. Defendants were not hurt in any way; their position had not been changed to their disadvantage. The only thing done by any of them after June 27, and before this action was filed, was that the bank, which had taken the $1,000 paid to it and sent a credit slip for it, had sent the amount to plaintiff, as it should have done in the first place. Had that been done and this action brought as it was there would not have been even the appearance of ratification.
Appellees make light of Nickell’s testimony that he “didn’t trust” the Hesston bank, but he was justified in entertaining that view in the light of what had taken place.
In this court the findings of the trial court that the oil royalty deed was wrongfully delivered for $1,000, that it was of the value of $2,500, that the money received by the Hesston bank was wrongfully handled by it, as a result of which plaintiffs have been damaged in the sum of $1,500, are unchallenged; there is no cross-appeal. Appellees’ sole contention is that plaintiffs cannot recover because Nickell did not trust the Hesston bank, and on the advice of his attorney preparing to bring this action he transferred the deposit wrongfully made in the Hesston bank to his own bank at Mound Ridge so he could be confident of having the fund available for his tender. This is an equitable action. To approve appellees’ contention would be inequitable under the facts of this case.
The result is, the judgment of the court below must be reversed with directions to enter judgment for plaintiffs for $1,500, with interest since June 27, 1934. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This action was brought to set aside three deeds. Originally two actions were brought, but they were consolidated in the trial court and tried as one action. Judgment was for plaintiff. Defendants appeal.
The facts are simple. H. F. Dierking ran the Peoples State Bank in Alta Vista from 1921 until the bank was closed, March 7, 1932. On January 28,1932, H. F. Dierking owed his son, Arnold, $3,168 for money borrowed. On that date H. F. Dierking and wife conveyed by warranty deed to their son Arnold Dierking 109.95 acres of land. About $1,000 of the money loaned to H. F. Dierking by Arnold Dierking was money that belonged to Arnold’s wife. Arnold conveyed this land to his wife October 17,1932. On September 9, 1933, A. H. Radloff loaned $1,200 to Arnold and his wife and took their note secured by a mortgage on the real estate in question. The sum of money in which H. F. Dierking was indebted to Arnold was a fair and reasonable value for the land conveyed. On January 28, 1932, H. F. Dierking was indebted to his daughter, Bertha,' in the sum of $1,317. On that date he and his wife conveyed by a warranty deed 55 acres of land to Bertha. The indebtedness of H. F. Dierking to his daughter was a fair and reasonable value for the land in question.
On March 5,1932, the bank was found to be in a failing condition and was closed by order of its board of directors. H. F. Dierking owned thirty-eight shares of stock in the bank at the time it closed. He knew of its failing condition for some time prior to January 28, 1932. On October 6, 1933, the receiver for the bank obtained a judgment against H. F. Dierking for $3,800 to pay the double liability. On October 24, 1932, the receiver also recovered a judgment for $2,650 against H. F. Dierking on a promissory note given by Dierking to the bank. All the parties to the deeds that have been mentioned knew about the condition.of the bank at the time the deeds were made.
The receiver was unable to collect the two judgments that have been mentioned. He thereupon brought two actions, one to set aside the deed from H. F. Dierking to Bertha Dierking to the 55-acre tract, and the other to set aside the deed from H. F. Dierking to Arnold Dierking and the deed from Arnold Dierking and Nadine Dierking to Nadine Dierking and the mortgage from Nadine Dierking and Arnold Dierking all conveying the 110-acre tract.
The theory upon which plaintiff sought to set aside these deeds was that the deeds were without consideration and were given for the purpose of placing the real estate of H. F. Dierking beyond the reach of his creditors.
Defendants answered by way of a general denial. The case was tried by the trial court. Findings were made about as the facts have been set out here. In addition, the court made the following finding:
“51. That on the 28th day of January, 1932, the deeds and conveyances in question were entered into by the grantors and grantees therein with the specific intent to prefer the grantees Bertha Dierking and Arnold Dierking, respectively, and with the specific intent of defrauding such subsequent creditors as, in the ordinary course of events, said parties well knew would come into existence upon the closing of said bank.”
The conclusions of law were that all the conveyances should be set aside.' From that judgment this appeal is taken.
The argument of defendants is that aside from the finding quoted above the findings of the trial court compel a judgment for defendants and that the above quoted finding was not supported by any evidence.
Briefly stated, Mr. Dierking owed members of his family money. He saw that his bank was bound to fail and knew this meant his financial ruin. He made the transfers in question here to pay debts which the court found he owed. Plaintiff fails to bring any authorities to our attention holding this cannot be done. The fact the persons to whom the transfers were made were close relatives is a circumstance which might be considered if there had been a question here about the good faith of the transfers or about the adequacy of the consideration, but we do not have any such question before us. The court found that Dierking was actually indebted to the persons to whom he conveyed the land and that the land conveyed was worth about what the indebtedness amounted to. As to the portion of the finding with reference to fraud there is no evidence in the record to support it.
It is well settled that a debtor may prefer a bona fide creditor over another so long as he acts in good faith, and the fact that the creditor he prefers happens to be a close relative is no evidence of bad faith, if the debt is proven to exist and the property conveyed to the creditor bears a reasonable relationship to the debt. (See Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137, and cases cited, also, Robertson v. Andrus, 125 Kan. 730, 266 Pac. 53.)
So far as the findings of fact and the evidence disclose the situation, we have nothing more than a preference of certain creditors on the part of a debtor. We hold that there was no evidence in the record upon which the court could base its findings that the conveyances in question were fraudulent.
The judgment of the trial court is therefore reversed with directions to enter judgment for the defendants.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover an amount of overcharges which defendant is alleged to have exacted from Wilson county for public printing.
In summary the material facts were these:
The defendant, Ben S. Hudson, publishes a newspaper in Fredonia and operates a job-printing establishment in connection therewith. One Austin V. Butcher publishes a newspaper in Altoona and operates a job-printing establishment therewith. A third newspaper establishment, which figures but slightly in this lawsuit, is conducted in Buffalo. All these places are in Wilson county.
On April 8, 1931, the board of county commissioners of Wilson county awarded a contract for the county printing to Hudson, Butcher, and to the unnamed publisher of the Buffalo Blade. By its terms the three newspapers concerned were designated as “official county papers” for a period of two years. Other terms of the contract were as follows:
“That all legal publications, or advertising, commonly known as county printing, shall be published equally in these newspapers throughout the life of this contract.
“That the Altoona Tribune and the Fredonia Daily Herald shall be designated as county printers and shall supply the county named- with all needed printed supplies as it requires ¡or a period oj two years.
“Parties of the second part hereby contract and agree to charge for all legal publications, or advertising, commonly known as county printing, the full legal rate provided by law, divided 45 percent each to the Altoona Tribune and the Fredonia Daily Herald and 10 percent to the Buffalo Blade, that the cost to Wilson county shall not exceed the legal rate provided by law.
“That a just, fair and reasonable rate shall be charged by parties of the second part for supplies and printed supplies.”
Pursuant to this contract defendant published all official county matters required of him, and printed and supplied whatever stationery was requisitioned by the county. For these services and supplies defendant presented monthly itemized bills which were examined and approved by the county attorney and paid by the county board at the monthly meetings. This course of dealing between defendant and the county continued from the date of the execution of the contract, April 8,1931, until December, 1932, or longer. The record warranted an inference that the contract of April, 1931, was virtually a renewal of an earlier contract of the same general character, because some of the alleged overcharges for which the county sought a recovery antedated that contract for three months or more.
On January 9, 1933, the county board instituted an audit of the county printing. This was completed on March 6,1933. It showed a considerable aggregate of overpayments to defendant which became the subject of correspondence between these litigants. An itemized schedule -of plaintiff’s claim together with the correct legal charges and the actual sums paid to defendant therefor was presented to him on March 20, 1933. Whether this itemized schedule was intended to serve the purpose of a demand by the county for repayment of the alleged excess charges is not clear. In plaintiff’s petition, which pleaded the foregoing facts, it was alleged that demand had been made on defendant that such excess payments be refunded. Plaintiff’s action was filed on November 28, 1933.
Defendant filed a demurrer to plaintiff’s amended petition, raising the following legal questions:
“(1) That said amended petition shows on its face that it does not state facts sufficient to constitute a cause of action . . .
“(2) That said petition shows on its face that the plaintiff’s action, as to all of the items alleged in their exhibit B, except the items of November, 1932, and December, 1932, is barred by the statute of limitations of the state of Kansas, the same being the fourth subdivision of section 60-306 R. S. of Kansas for the year 1923.
“(3) That the petition shows on its face that several causes of action are improperly joined.”
This demurrer was overruled and defendant appeals, first directing our attention to the pertinent statute under which the action was brought. It reads:
“All fees, costs or other allowances, or any fees obtained from or allowed against any county, when the same are not authorized by law, and not refunded on demand, may be recovered back in a civil action, in the name of the proper county, in any court of competent jurisdiction; and on the rendering of the judgment in any such case, the justice or the court rendering the same shall add one hundred percent to the same, to go to the county, and also a fee of ten dollars if in a justice’s court and twenty-five dollars if in the district court, to go to the county attorney or other person prosecuting the same.” (R. S. 19-232.)
Another paragraph of statute to which defendant refers is the fourth subdivision of R. S. 60-306, which reads:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
“Fourth. Within one year. An action . . . upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation.”
Upon the text of these quoted provisions of statute, defendant argues that virtually all the items of alleged overpayments were barred when this action was begun. Let us see about this. The contract under which the defendant’s services and charges were performed and paid for was entered into and dated April 8, 1931. Since the county’s case is founded on that contract, it seems rather clear that the items of alleged overcharges for January, February and March, 1931, should be excluded from the amount sued for. They were not exacted under this contract. As to all the other items, it is not shown when the demand was made, but it must have been at no later date than November 28, 1933, when .the action was filed. The last excess items on the schedule were paid in December, 1932, so the action was begun within one year — if the monthly payments to defendant may be properly denominated as items of a running account. In the brief of appellee it is stated that the contract expired on December 31, 1932, which may be correct, but the contract itself recited that it was made on April 8, 1931, and that it was to endure for two years, which would be until April 8, 1933. So if the demand on defendant to refund the alleged excess payments be deemed to have been made on the date the action was begun, it would appear that it was within time, unless the presentation, allowance and payment of each month’s itemized vouchers constituted an independent account stated. If so regarded, all overpayments made more than a year prior to the county’s demand for their refunding by defendant would be barred under the statutory provisions quoted above. „ The “demand” was a condition precedent to the maintenance of the action authorized by R. S. 19-232; it would not accrue until the demand was made and rejected; and the fourth section of the statute of limitations quoted above would govern the time in which it could be begun — one year.
As we view the action, however, it is essentially based on a breach of the contract, the gist of which was that for a space of two years defendant would perform certain services and furnish certain supplies to the county — county printing at forty-five percent of legal rates, and supplies and printed supplies at “a just, fair and reasonable rate.”
The contract was entire; it was only for the convenience of the parties that bills incurred were paid monthly. Those monthly payments were made on contract account and if more than the legal rates under the contract were exacted and paid, the statute (R. S. 19-232) clearly gave the county the right of action it brought against this defendant. We attach no particular significance to the fact that the county attorney scrutinized the monthly bills before they were allowed and paid.
Since the demurrer admitted the truth of all material allegations of plaintiff’s petition, and the petition alleged the contract was to endure for two years (until April 8, 1933) plaintiff’s action begun on November 28, 1933, could not be barred under any construction of the pertinent statutes.
Touching the point of misjoinder urged by appellant, this court holds that the petition stated but one cause of action — based on the contract, its breach, and the statutory remedy.-
In conclusion it will be noted, of course, that the items of alleged overpayments made prior to April 8, 1931, should be excluded from the aggregate amount which the county may eventually recover if it successfully maintains this action, and with that understanding the judgment is affirmed.
Wedell, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover the value of four loads of wheat stolen from plaintiff in Barber county and which he alleged had been purchased from the thief or otherwise received by the defendants in Wichita.
Plaintiff prevailed before the jury and judgment was entered in his behalf.
Defendants appeal, assigning various errors which center around their main contention that the evidence was not sufficient to establish the fact that they had received the stolen grain.
On this point the plaintiff’s evidence favorably considered tended to show that plaintiff was a Barber county farmer who resided near Medicine. Lodge, about 100 miles” west of Wichita. In 1926 he raised several thousand bushels of wheat, which he stored in various bins, one of which was a 1,000-bushel steel bin on the near-by farm of one Wetz. On August 13, 1926, plaintiff discovered that about 250 bushels of wheat had been stolen from that bin. In his efforts to discover what had become of his wheat and who had taken it, plaintiff met one Clyde Pennington who was in the Barber county jail for some offense. It may be inferred — but does not appear .in evidence — that Pennington informed plaintiff that he had stolen the wheat. Later Pennington gave a deposition in plaintiff’s behalf in which he testified:
“My business is common labor, . . . hauling wheat. ... I know George Lukens and where his grain bin is. During the month of August I took four loads of wheat from his bin. I could not give the exact dates, about the 1st, 2d, 3d, 4th and 5th of August, 1926, at about four o’clock in the morning. . . .
“I took it out of the bin and hauled it about one-half mile up the road. ... I delivered the wheat to the fellow that I was working for, he called himself Turner.”
It was also shown in evidence that Pennington shortly prior to the theft of the wheat had purchased a new Ford truck with a grain box which would hold about sixty bushels of wheat. The truck was equipped with a War ford transmission which would enable it to travel on good roads at thirty-five or forty miles an hour. There was testimony that such a truck as Pennington’s had been seen going to and fro in the neighborhood of plaintiff’s wheat bin at unseasonable hours of the first few nights of August, 1926. It was also shown that Pennington owed about $300 on the truck and that his brother also had a truck purchased on time from the same dealer. It was also shown that Pennington had an aunt who had married a railway conductor of the name of L. J. Ernhart. On the same dates on which the four loads of Wheat had been taken from plaintiff’s bin, August 2, 3, 4 and 5, 1926, four loads of wheat were weighed over the scales of the West Side Coal'Yard in Wichita and purchased by defendants and paid for by their checks of the same dates, two of which were payable to “L. Amhart” and two to “L. Arnhart.” The four loads thus purchased aggregated approximately as many bushels as were stolen from plaintiff’s bin ninety-six miles away. The total proceeds of the checks were $326.04. Within a day or two after these checks were issued and cashed by somebody who indorsed them as payee, Pennington made a final payment of $300 on the purchase price of his new truck and paid $100 on the purchase price of his brother’s truck.
The foregoing constitute the principal facts of plaintiff’s case against Kellogg brothers, defendants herein. However, plaintiff also testified that after he discovered the wheat had been taken he and the sheriff sought unsuccessfully to locate the stolen wheat by inquiring at every elevator in the villages and cities of Pixley, Sharon, Hardtner, Gerlane, Lake City, Sawyer, Isabel, Cunningham and Attica. How plaintiff obtained a clue that the wheat might have been taken to Wichita does not appear.
Do the foregoing facts considered in their most persuasive attitude tend to prove that Kellogg Brothers in Wichita were the recipients of plaintiff’s stolen wheat? In a city of the size of Wichita there are many wheat buyers. In the early days of August every buyer receives many loads of wheat. In the business of hauling wheat Ford trucks are as familiar nowadays as farm wagons. It was plaintiff’s theory of this case that Pennington, having a new high-speed truck, had'rushed a load of the stolen wheat to Wichita, ninety-six miles away, in the early morning hours on each of the four successive days indicated by the dates of the checks issued by defendants, and that he had rushed back to Medicine Lodge so as to be seen thereabout every day in the event it should become necessary for him to prove an alibi touching his whereabouts on the days the stolen wheat was delivered in Wichita. It is not quite clear just how plaintiff disposed of or explained away that part of the testimony of his own witness, Pennington, which was that he turned the stolen wheat over to one Earl Turner a half mile up the road from where it was stolen, some ninety-five or ninety-six miles from Wichita. In his brief he argues that it was quite possible for this truck' — ■
“After it was loaded at the Lukens’ bin at two or three o’clock in the morning could travel from the Lukens’ place to Wichita in about three hours and this would put him into Wichita about six or seven o’clock in the morning.”
Plaintiff also ventures the conjecture — ■
“That Clyde Pennington may have had an accomplice who weighed the wheat, delivered it and cashed the check and the fact that Clyde Pennington paid a down payment of $100 on the 6th of August, 1926, on a truck for his brother, Fred, might lead one to believe that his brother was the accomplice.”
It was also the theory of plaintiff, apparently, that Pennington had used the name of his aunt’s husband, L. J. Ernhart, as the nominal vendor of the wheat, as part of his plan to market the wheat and collect the proceeds without having his own name in the transactions, and that the name “Ernhart” naturally suggested itself to him because he was familiar with it through Mr. Ernhart’s marriage to Pennington’s kinswoman.
In addition to their general verdict for plaintiff, the jury answered a special question submitted by the court:
“9. Do you find from the evidence that the truck described as the Clyde Pennington truck was in Wichita on the following dates?
“(a) August 2, 1926? A. No.
“(b) August 3, 1926? A. No.
“(c) August 4, 1926? A. No.
“(d) August 6, 1926? A. No.”
Counsel for appellee argue away this troublesome finding in this fashion:
“There was no direct evidence that the Clyde Pennington truck was in Wichita on these dates and the jury could have only inferred as much from the evidence introduced, but that was not a controlling question. There might have been a number of ways in which the wheat was finally delivered and sold to the Kellogg Brothers. It may have been transferred to the truck of Turner, if there was such a man, or to another truck used by Fred Pennington; and Clyde Pennington may have taken his truck and returned to Medicine Lodge so that he could furnish an alibi in ease he was accused.”
It will thus be seen that plaintiff has relied throughout this case upon theory, surmise and conjecture to piece out the gaps in the evidence requisite to establish his case against defendants. The fact that Kellogg Brothers purchased truck loads of wheat on the dates on which plaintiff’s wheat was stolen proves nothing. A dozen other Wichita grain buyers probably did the same thing every day in the grain-buying season, which was at that time of year. Doubtless a hundred other buyers within one hundred miles of Barber county did the same thing. That Kellogg Brothers’ checks were made payable to and cashed by one “L. Amhart’-' and by “L. Arnhart,” and that Pennington, the wheat thief, had an aunt who had married a railway conductor of the somewhat similar name of “L. J. Ernhart” is too remote and too trivial an incident to fasten civil liability on Kellogg Brothers for receiving the stolen wheat.
In Carruthers v. C., R. I. & P. Rly. Co., 55 Kan. 600, 603, 604, 40 Pac. 915, an Iowa case was cited approvingly which held that a theory cannot be said to be established by circumstantial evidence, even in a civil case, unless the facts relied upon are of such a na ture and are so related to each other that it is the only conclusion that can reasonably be drawn from them, and that it is not sufficient that they be consistent merely with that theory. In Railroad Co. v. Aderhold, 58 Kan. 293, 298, 49 Pac. 83, it was said that liability cannot be fixed on a bare guess, nor can a verdict rest on mere conjecture. In Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, it was held:
“Where there is no substantial evidence, direct or circumstantial, tending to prove a material fact in issue, a finding that it exists cannot be sustained.” (Syl. If 2.) .
In Norman v. Railway Co., 101 Kan. 678, 682, 168 Pac. 830, it was said that probabilities and plausible conjecture are not evidence.
In Ogg v. Ogg, 124 Kan. 443, 446, 260 Pac. 647, it was said: “The record . . . discloses nothing more than surmise. And surmise, conjecture, speculation, plausibility, do not supply the want of proof.”
See, also, Cash v. Oil Refining Co., 103 Kan. 880, 889, 176 Pac. 980; Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741.
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for defendants.
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Per Curiam:
The parties stipulate that, subject to approval of the court, this appeal may be submitted and determined on the abstracts and briefs filed in case No. 28, 431, Roxana Petroleum Corp. v. Jarvis et al., ante, p. 365, 273 Pac. 661. The stipulation is approved and, on the authority of the decision in the case of Roxana Petroleum Corp. v. Jarvis et al., the judgment of the district court is reversed, and the cause is- remanded with direction to enter judgment and otherwise proceed in accordance with the views expressed in the opinion in that case.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages sustained by him in the purchase of an Essex automobile from the defendant Watkins. Judgment was rendered in favor of the defendants on their demurrer to the evidence of the plaintiff, who appeals. There is no issue between the plaintiff and the Hutchinson Motor Company.
Was the evidence of the plaintiff sufficient to compel its submission to the triers of fact? The evidence of the plaintiff established that Ed. M. Watkins was a local representative of the Essex automobile at Sublette; that he sold an automobile of that make to the plaintiff; and that at the time of the sale the latter knew that Watkins was only a dealer in Essex cars and was not the manufacturer thereof.
The plaintiff testified that—
“Watkins approached him [the plaintiff] while he was looking at the car in the show window and asked him if he was interested; and at later times they talked about it until they finally made a trade — at least three days; he was not familiar with the Essex car prior to the time he made the deal; Watkins made representations about the car; that it was an unusually good car and had given exceptionally good service; that lots of them were in use; it would give unusually long mileage and would be economical in doing it.”
The plaintiff further testified that—
“He believed the statement to be true and did not have any other source of knowledge as to the quality of the automobile.”
The plaintiff also testified that he drove the car carefully; that after it had been driven one thousand miles it needed some repairs; that repairs were made; that it would not stay in high gear; that when driving it it would fly out of high gear into neutral; that it would not oil; that the bearings could not be kept tight; and that it would knock and pound so that it could not be driven.
Defendant Watkins argues that there was no implied warranty by him against defects which could not have been discovered by ordinary inspection, and that when he delivered the car he was discharged from liability on account of undiscoverable defects.
The principle contended for by the defendant Watkins was declared by this court in Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179, as follows:
“Where a dealer contracts to deliver to a purchaser at an agreed price a known, described and specified article, manufactured generally for the trade, there is no implied warranty against latent defects of which the dealer has no knowledge.” (Syl. ¶[ 2.)
That principle has often been recognized by this court. (Safe and Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035; Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867; Thresher Co. v. Nelson, 105 Kan. 517, 519, 184 Pac. 982; Kaull v. Blacker, 107 Kan. 578, 582, 193 Pac. 182; Lumber Co. v. Kelly, 117 Kan. 285, 287, 231 Pac. 71.)
The defendant cites three cases from other states where this rule has been followed in the sale of automobiles. (Flaherty v. Motor Carriage Co., 117 Me. 376; Industrial Finance Corp. v. Wheat, 142 Miss. 536; Hoyt v. Hainsworth Motor Co., 112 Wash. 440.)
Did the statements made by Watkins at the time the car was sold to the plaintiff amount to a warranty of the particular car that was sold? The representations “that it was an unusually good car and had given exceptionally good service; that lots of them were in use,” could not have applied to the car that was sold because it had not given any service and had not been in use. The statement that “it would give unusually long mileage and would be economical in doing it,” could have applied to this particular car, but taken in connection with the remainder of the representations that were made must have applied to Essex cars in general. When so applied, the statements cannot be regarded as more than “puffing statements” or “sales talk.” This rule was followed in Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862, where this court said:
“A mere puffing statement by the seller as to the quality of an article sold or exchanged is generally regarded as an expression of opinion, and of itself does not constitute fraud as against the buyer.
“It is a general rule that if an article is sold for any and all purposes for which it is adapted, and not by a manufacturer or producer for a particular purpose, and it is open to inspection by the buyer, the rule of caveat emptor applies.” (Syl. ¶[¶ 3, 4.)
See, also, 26 C. J. 1097 and 12 R. C. L. 379.
Other than as above indicated, there is nothing in the abstracts which tends to show that the representations made by the defendant to the plaintiff at the time the car was sold had any reference to that particular car. It was incumbent on the plaintiff to prove that the representations were made concerning the particular car sold. That he failed to do. Under the rule of law declared in Ehrsam v. Brown, supra, it must be held that the plaintiff failed to establish a cause of action, and for that reason the demurrer to his evidence was properly sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This appeal is from a judgment rendered upon a directed verdict in favor of the plaintiff for the recovery of a real-estate commission. The particular question involved is whether or not the plaintiff, a real-estate agent, had abandoned his attempts to sell the defendant’s farm to the purchaser, and whether the sale consummated later by the owner was the result of a new and independent cause, disconnected with anything the agent had done. The errors alleged are overruling defendant’s demurrer to plaintiff’s evidence, directing a verdict in favor of plaintiff, and overruling the motion for new trial.
There is no conflict in the testimony in any particular except as to one remark of the plaintiff in conversation with the defendant in the presence of a third party, who corroborates the defendant. The defendant says plaintiff said, in answer to his request or suggestion about seeing the prospective purchaser again, “I will not have anything more to do with the old devil any more.” The plaintiff denies this and says he answered by saying he did not think the customer would buy the farm at the price named. The appellant relies upon the answer as stated by him and the third party to constitute an abandonment of efforts to bring about a sale to this customer, which would fully permit the defendant to start new and independent negotiations with him without any liability for cqmmission to the plaintiff. It was not the province of the trial court, nor is it of the reviewing court, to weigh this evidence and determine the conflict; so at this stage of the proceeding we must accept this evidence as the defendant gives it, as it was the duty of the trial court to do when directing a verdict for plaintiff.
There is no question about plaintiff being the one who brought the purchaser and owner together in the first instance. This was in April. The owner’s price was $12,000. The purchaser offered $10,000, and the owner dropped to $10,500, when negotiations temporarily ceased. The next day the purchaser notified the agent he wanted to withdraw his offer of $10,000. The purchaser and agent lived in the same town, and the evidence is that the agent frequently thereafter talked with the purchaser about buying this farm, and continued to do so up to the time the plaintiff left his home for Florida in November. The conversation to which the conflicting testimony relates occurred about the first of October. About the first of December the purchaser' went to see the defendant, who was not at home, and the defendant immediately thereafter got his father, who was a real-estate agent, and went to see the purchaser. They consummated ■ the sale for $9,750, including a trade of $500 of property.
Accepting the testimony offered by the defendant where the conflict exists, for the purpose of showing an abandonment by the agent, we must consider it in connection with two other important features in the case which are not contradicted, viz., that the agent did continue to call on the purchaser after that conversation and try to sell him the farm until he left home in November, and the fact that the purchaser went of his own volition about December 1 to see the defendant about renewing negotiations. The first shows that the agent did not in fact abandon the attempt to sell to this customer, even after saying he would not have anything more to do with him, but kept on trying to sell to him until he left home in November. The second shows the renewed negotiations were not new and independent and disconnected with the efforts of the agent in that the customer, without any suggestion from the defendant or anyone else, went to the defendant’s home for the purpose of trying to buy the farm. These facts confute the theory of abandonment and overturn the statement of the agent which indicated abandonment. It is f&ir to conclude that after saying he would have nothing more to do with the customer the plaintiff changed his mind and continued talking to him and his wife about buying this farm. Under these circumstances there was no abandonment.
“As to what constitutes an abandonment on the part of a broker, it should be observed that the mere fact that some time elapses after the broker has discontinued his efforts to make a. sale, before the sale is made in fact by the owner, is not evidence of itself that there has been a complete abandonment of the negotiations.” (4 R. C.L. 318.)
“After a broker has found a customer and commenced negotiations, neither the principal nor the customer can break them off and defeat the broker’s right to a commission by concluding the transaction without his aid.” (9 C. J. 619.)
Even if there was an abandonment, under these authorities it would not be sufficient to relieve the defendant of the liability for commission unless the renewed negotiations were entirely new and independent and wholly disconnected with the earlier negotiations, which in this case is confronted with the fact that the customer vol untarily renewed the negotiations himself and no one was ever responsible for his being interested in this deal up to that time except the plaintiff.
“Where a prospective purchaser of real estate, who has been solicited to buy it by a broker having a nonexclusive agency for its sale, definitely decides not to do so, the owner is not liable for a commission, although shortly afterward, acting in good faith, he sells it to the same person through independent negotiations set on foot by one who is not a real-estate agent and who neither receives nor asks compensation for his services, having an indirect interest in the sale being effected.” (Corse v. Kelly, 80 Kan. 115, syl., 101 Pac. 1016.)
In the case cited the customer decided not to purchase the farm, but a few days later purchased a stock of hardware, putting up a cash forfeit. Within the time to complete the purchase of the hardware he told the owner of the hardware stock that he was dissatisfied and would let the forfeit go. The owner of the hardware induced the buyer to see the farm owner and endeavor to exchange the hardware stock for the farm. This he did without the help of the agent. This was held to be a new and independent cause. The same principle is declared in the opinion of Soper v. Deal, 103 Kan. 522, 175 Pac. 396, requiring the sale to be “made as the result of a new and independent cause disconnected with anything the plaintiff had done, operating after the efforts of the plaintiff to make a sale had failed and spent their force.” The facts in this case show conclusively that the plaintiff was the primary, procuring and proximate cause of the sale as ultimately consummated by the owner and entitled to the commission.
“Where property is placed in the hands of several brokers for sale, the owner is bound to pay the broker who is the primary, proximate and procuring cause of the sale, although the sale is consummated by another broker on different terms.” (Beougher v. Clark, 81 Kan. 250, syl. ¶ 2, 106 Pac. 39.)
“If a real-estate agent, under a contract with the owner, call the attention of a prospective buyer to the land of such owner, and thereafter, moved by the efforts of such agent, the proposing buyer and the owner consummate the purchase and sale of such real estate, the agent is entitled to his commission, even though the purchaser, at the time the agent' solicited him to buy, was not ready, willing and able to purchase.” (Marlatt v. Elliott, 69 Kan. 477, syl. ¶ 2, 77 Pac. 104. See, also, Plant v. Thompson, 42 Kan. 664, 22 Pac. 726; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135.)
It is further urged by appellant that the agency of the plaintiff was necessarily limited to a reasonable time, and that the period from April to December is an unreasonable time without some re- suits. This depends upon circumstances. What would appear unreasonable at one time might be quite reasonable at other times. The evidence shows the defendant did not consider the agency terminated about October 1 when he talked with the agent; neither did he at that time so inform the agent. We find no error in overruling the demurrer of the defendant to the evidence of the plaintiff, nor in directing a verdict for the plaintiff.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for breach of contract. The defense was that the contract was invalid because its performance required a breach of the penal statute forbidding unnecessary labor on Sunday.
The facts were these: Plaintiff and defendant entered into an oral contract whereby defendant agreed to put on an aerial circus performance at a pleasure resort owned by plaintiff in Mitchell county on Sunday afternoon, June 5, 1927. Under the terms of the contract plaintiff bound himself to advertise the flying circus in the newspapers in Beloit and Lincoln, and to bill the circus in forty-three towns. Plaintiff performed his part of the contract at an expense of $116.90. Defendant’s obligation was to furnish the airplanes and put on the exhibition, for which he was to receive the first $200 of the gate receipts after plaintiff’s expenses were deducted, and the balance of receipts was to be equally divided.
On the day named 2,500 people gathered to witness the exhibition, but defendant failed to appear, to the alleged damage of plaintiff in the sum of $270.95.
The cause was tried before a justice of the peace, and appealed to the district court, where a demurrer to plaintiff’s bill >of particulars was sustained.
Plaintiff assigns error.
The pertinent statute reads:
“Every person who shall either labor himself or compel his apprentice, servant or any other person under his charge or control to labor or perform any work other than the household offices of daily necessity, or other works of necessity or charity, on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding twenty-five dollars.” (G. S. 1868, ch. 31, § 255; R. S. 21-952.)
Plaintiff contends that an aviator who makes his livelihood by giving exhibitions of his art, skill and daring in the operation of a flying machine is not a laborer within the meaning of the statute just quoted. He argues that the unnecessary Sunday labor which the crimes act forbids is the toilsome drudgery of an unskilled workingman; and the industry of plaintiff’s counsel has brought together a respectable line of authorities from other jurisdictions supporting that argument. However, among our own decisions is one which cannot be overlooked or minimized. In Topeka v. Crawford, 78 Kan. 583, 589, 96 Pac. 862, the defendant, who owned a theater and operated it on a certain Sunday, was convicted under a city ordinance which in all essential particulars paraphrased the state law (R. S. 21-952, 21-953). Defendant contended that the evidence did not prove that he himself 'labored on Sunday, nor that he compelled his employees to do so. This court said:
“We must inquire in what sense the word ‘labor’ is used in the ordinance and, incidentally, in the state statute which it follows. . . . The sense in which this word is used in statutes depends upon the legislative intent. . . . The object of this ordinance is ... to secure that opportunity for rest which, from the experience of mankind and the consensus of opinion, is believed to be for the highest good of the individual and the state.” (pp. 587, 588.)
The court quoted from Pennsylvania and Ohio cases which expound the purpose of statutes requiring men to refrain from unnecessary labor at least one day in seven, and the moral and physical advantages supposed to attend the arbitrary imposition of a day of rest at regularly recurring intervals. The court summarized the evidence against Crawford thus:
“The evidence shows that the defendant regularly kept open and managed his theater, gave orders and directions to the employees in and about the stage, and to drivers in his employ who received from and returned to the railroad stations the baggage, scenery and paraphernalia of the traveling troupes, and that he sold the tickets for exhibitions, on Sunday. These manifold duties necessarily required some manual labor, although not of the kind usually classed as toilsome within the meaning of statutes such as these first referred to. . . . If we keep in mind the object of these regulations [statute and ordinance] we will see that the reason of the rule applies quite as forcibly to the theatrical manager as to the merchant, (p. 589.)
“While this case may go further than this court has gone in the application of similar provisions, the language above quoted is quite pertinent to the present case.
“We hold . . . that the defendant, in managing his theater, selling tickets, and performing the work on Sunday charged in the complaint and proved on the trial, violated the ordinance. It is not necessary to inquire whether in employing and directing the work of laborers in and about the theater he ‘compelled’ them to labor within the meaning of the ordinance.” (pp. 590, 591.)
There can be no difference in principle between the labor connected with the conduct of an indoor theater and the outdoor flying circus which was the subject matter of the contract between plaintiff and defendant. (Levering v. Park Commissioners, 134 Md. 48, 4 A. L. R. 374 and note.) And it is elementary law that a contract obligating the parties or either of them to violate a penal statute is unenforceable and void; and the breach of such contract is damnum absque injuria — a matter for which the law provides no redress. (13 C. J. 255; 6 R. C. L. 699; 25 R. C. L. 1435.)
See, also, Jones v. Blacklidge, 9 Kan. 562; McBratney v. Chandler, 22 Kan. 692; Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230; Alexander v. Barker, 64 Kan. 396, 67 Pac. 829; Thacker v. Smith, 103 Kan. 641, and citations, 175 Pac. 893; Shubert Theatrical Co. v Rath, 271 Fed. 827, 20 A. L. R. 846, 855.
The judgment is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Irvin Timley, from his conviction of three counts of rape and four, counts of aggravated criminal sodomy stemming from three separate in cidents involving three victims. Timley was charged in two separate complaints, and the cases were consolidated for trial. The Habitual Criminal Act was imposed, and Timley was sentenced to consecutive sentences of 45 years to life on each count.
Timley raises a number of issues. He alleges error in the instructions, violation of his right to a speedy trial, gender discrimination in striking two males by peremptory challenge, failure to cross-endorse witnesses, timeliness of notice to impose the Habitual Criminal Act, sufficiency of the evidence, and failure to exclude a juror who knew the trial judge.
There was no dispute at trial that sexual contact occurred between Timley and each of the victims. Timley admitted to penetration sufficient to support each of the charges. Timley’s defense was that the alleged victims consented to the sexual activity. Timley contended that each alleged victim approached him and agreed that he would supply her with drugs and she would give him whatever sexual activity he wanted. He admitted to choking each victim and making threats, but he insisted that the choking was intended to be mutually stimulating and was only to enhance the sexual feeling. Each victim, on the other hand, testified that she never consented to sexual activity with Timley, nor did she consent to the choking. L.H. contended that she did not voluntarily get into Timley’s car, but was knocked unconscious and awoke in the back seat of his car to discover that he was engaging in sexual activity with her. D.A. and T.S. each insisted that she accepted a ride from Timley and that rather than taking her where she requested, he began choking her and forced her into the back seat of his car to engage in sexual activity without her consent.
I. INSTRUCTIONS
Timley contends the trial court erred in instructing the jury that it could find him guilty if it found that the sexual act was perpetrated by use of force or fear. He suggests that the instructions given by the trial court were improper because he may have been deprived of a unanimous verdict. He maintains that some members may have found that a victim was overcome by force while other members may have found that that victim was over come by fear and that if this did occur, the jury verdict would not be unanimous. Timley argues:
“The only way to assure jury unanimity in a multiple acts case is to require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that they must all agree that the same underlying criminal act has been proved beyond a reasonable doubt.”
Timley notes that his defense was that the sex was consensual and therefore the manner of perpetration is critical.
Timley cites without discussion or analysis State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988), for the proposition that the jury must agree that the same underlying criminal act has been proved beyond a reasonable doubt. In Kitchen, the appeals of several defendants were consolidated. The defendants had been charged with sex offenses, but the dates of the offenses had not been pinpointed. Rather, each victim had testified that on more than one occasion the defendant had engaged in activity which could support a finding of guilt. The court noted the rule that “[w]hen the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” 110 Wash. 2d at 409.
Timley characterizes his case as a “multiple acts” case. What he ignores is the distinction made by the Kitchen court between alternative means cases and multiple acts cases. That court stated:
“In an alternative means ease, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]” 110 Wash. 2d at 410. (Emphasis in original.)
This court has also recognized and discussed the alternative means rule. The rule is stated in State v. Grissom, 251 Kan. 851, Syl. ¶ 7, 840 P.2d 1142 (1992):
“If an accused is charged in one count of an information with both premeditated murder and felony murder, it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer’s malignant purpose. Furthermore, die State is not required to elect between premeditated and felony murder because K.S.A. 21-3401 established die single offense of murder in the first degree and only provides alternative methods of proving the crime.”
In his appellate brief, Timley s counsel readily points out that there was evidence from which the jury could determine that each sexual act was the result either of force, based on Timley’s choking the victims, or of fear, based on the threats Timley made to the victims. There was sufficient evidence, viewed in the light most favorable to the prosecution, that a rational factfinder could have found Timley guilty beyond a reasonable doubt of the crimes of rape and aggravated criminal sodomy either by the means of force or by the means of fear. There was no error in including both alternative means in one instruction to the juiy.
II. SPEEDY TRIAL
Timley next contends that his statutory right to speedy trial was violated. He maintains that he was incarcerated for 130 days on case No. 91 CR 2101 and for 94 days on case No. 92 CR 17, both of which are in excess of the 90-day limit set forth in K.S.A. 22-3402.
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person 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).”
Timley argues that continuances from February 10, 1992, to March 30, 1992, and from April 6, 1992, to May 11, 1992, were improperly charged to him. He insists that the continuances were not his “fault” but rather were due to his court-appointed counsel withdrawing from representation. Timley also argues that the court erred in refusing to hear evidence on the April 6, 1992, delay, maintaining that had the February 10 delay been properly charged to the State, whether the April 6 delay was charged to the defendant would have been significant. Finally, Timley argues that the trial court erred in accepting the State’s argument that Timley was not being held in jail solely on these two charges and therefore K.S.A. 22-3402 did not even apply. Timley contends that K.S.A. 22-3402 does apply and that because the delay was not his fault, his right to a speedy trial as set forth in this statute was violated. This contention is without merit.
Timley notes the following breakdown of continuances in this case:
“The evidence presented at the hearing on this motion shows the following:
91 CR 2101:
1-2-92 Defendant was arraigned
2-10-92 Computer docket shows trial was continued and the delay
was charged to the defense
3-30-92 State requests continuance
4-6-92 Continuance by defense
5-11-92 Trial
92 CR 27 [sic]:
2-7-92 Defendant arraigned
3-30-92 State continues case
4-6-92 Defense continues case
5-11-92 Trial”
In denying Timley’s motion for dismissal on speedy trial grounds, the court stated:
“Let’s talk about that continuance from the 10th to the — of February to the 30th of March ‘cause that’s when Mr. Greeno got out. Actually, Mr. Greeno got out before that, but I can’t tell. We’re so slipshod in our method of handling replacements that I can’t really tell from court files when Mr. Pullman entered his appearance. I know he was in 92 CR 17 as of the 27th of January, and I suspect probably goes to arraignment — I mean, to first appearance, but let me look and see. No. First appearance on the 3rd of January, public defender was appointed. 13th of January, motion to consolidate was filed by Miss Parker. That went to Mi-, Lewis, who was the public defender assigned to the case. Oh, here we go. January — under form letter dated January 22nd, 1992, Judge Clark advised Mr. Pullman that he’d been appointed in 91 CR 2101, 92 CR 17 and 91 TR 18132 [not a case on appeal]. So sometime after the 22nd of January — well, then, on the 27th of January, the order appointing counsel was filed. Okay. Mr. Martin, I think your client’s on the hook for all those 49 days in 91 CR 2101, and I think he’s on the hook for those days in 92 CR 17. 92 CR 17, that takes care of the statutory problem. How many days did you say it is in the ‘91 case? We got January the 2nd arraignment, so we got 29 days in January, 29 days in February, 31 days in March, 30 days in April, and 8 days in May. If my math is correct, charging 49 days to Mr. Timley puts us within the statutory speedy trial guidelines in 91 CR 2101 as well. I think also, as a matter of law, if Mr. Timley was on a probation or parole that was revoked in the traffic case, Ms. Barnett’s correct, that as a matter of law — that’s a little hypertechnical, I think, certainly is not the spirit of the statute but I’ll find that the 49 days from February 10th to March the 30th are chargeable to Mr. Timley because of some problem with the public — within the Public Defender’s office and those dates are chargeable — those 49 days are chargeable to him.”
The court declined to hear evidence or make a ruling on the April 6 continuance.
Timley’s argument that the trial court erred in accepting the State’s argument that he was not being held solely on diese two cases and therefore K.S.A. 22-3402 did not apply is meritiess. The record does not show that the trial court actually accepted the State’s argument that K.S.A. 22-3402 did not apply.
K.S.A. 22-3402 provides that the 90-day speedy trial deadline applies only if the defendant is being held “solely” due to the pending charges in which he or she claims a violation. Counsel for the State argued:
“But I would first indicate to the court that the defendant had a traffic PV served on him, I believe it was January 9th of 1992, in 91 TR 18132. So first my argument would be he has not been serving time solely by reason of the charges in this consolidated case. So I would argue that the 90 days, first of all, doesn’t apply because he’s being held for another reason.”
Timley accurately points out that there is no evidence in the record as to how much time, if any, he may have been serving on the traffic case.
However, the record does not show that the district court relied on the State’s argument in denying Timley’s motion for discharge. The district court stated, “I think also, as a matter of law, if Mr. Timley was on a probation or parole that was revoked in the traffic case, Ms. Barnett’s correct, that as a matter of law — that’s a little hypertechnical, I think, certainly is not the spirit of the statute . . . .” (Emphasis added.) This statement by the court shows that the district court did not actually find that Timley was incarcerated for a reason other than the instant offenses. The basis for the court’s ruling was its determination that the 49 days from February 10, 1992, to March 30, 1992, were properly chargeable to Timley.
Timley also argues that the district court erred in declining to hear evidence concerning the April 6 delay. Timley notes that the court refused this evidence because it found that the February 10 continuance was charged to the defendant. Had that February 10 delay not been charged to Timley, as he argues it should not have been, then whether the April 6 delay was charged to the defendant or to the State would have been significant to the 90-day calculation. Therefore, Timley argues, the trial court should have accepted evidence on the April 6 delay.
The February 10 to March 30 delay was properly charged to the defendant; therefore, the trial court did not err in refusing to hear evidence on the April 6 delay becáuse even if that delay was charged to the State, there was no violation of the 90-day deadline in either case.
The April 6 delay was caused when Timley’s counsel had to withdraw due to a conflict. At the May 8 hearing on Timley’s motion to discharge, Mr. Martin indicated that in early March, Timley approached the police to offer information about another individual in exchange for a plea agreement on these offenses. The officer indicated that he would speak with the prosecutor, but Timley heard nothing more until April 6, when he was ready for trial. At that time, the State proposed a plea agreement. When defense counsel Terry Pullman discovered that he represented the individual concerning whom Timley had offered to provide information, Mr. Pullman requested to withdraw from the case. It is unclear as to when the police informed the State of Timley’s proposal, and it is also unclear as to whether the State was aware that Mr. Pullman also represented the individual concerning whom Timley proposed to provide information. Timley’s position with regard to the April 6 continuance appears to be that it should be charged to the State because the State failed to notify Mr. Pullman of the conflict he would have. This position, however, ignores that it was Timley himself who approached the police to provide the information and that Timley failed to inform his counsel of his discussion with the police, and thus the delay is his fault.
The February 10 continuance was properly charged to Timley. The trial court found that the February 10 to March 30 delay was caused because of a problem in the public defender’s office. Timley’s counsel has consistently noted that the continuance was granted because of the change in counsel representing Timley. Whether Timley himself wanted this continuance is irrelevant; what matters is that a continuance was sought on Timley’s behalf to permit his new counsel additional time to prepare for trial.
K.S.A. 22-3402 states that a delay shall not count toward the 90-day speedy trial calculation if the delay arises due to the “application or fault” of the defendant. Counsel’s reliance on the dictionary definition of “fault” ignores the language of the statute concerning “application” by the defendant. Regardless of whether it was Timley’s “fault” that his attorney had to withdraw from representation, the continuance was granted at the “application” of the defendant.
Timley’s counsel cites three cases, State v. Ward, 227 Kan. 663, 608 P.2d 1351 (1980); State v. Welch, 212 Kan. 180, 509 P.2d 1125 (1973); State v. Matson, 14 Kan. App. 2d 632, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991), in which continuances were properly charged to the defendants when counsel withdrew from representation. Counsel attempts to distinguish those cases by noting that in those cases counsel withdrew because of a defendant’s fault or lack of cooperation. Appellant’s brief states that in Welch the reason for counsel’s withdrawal was not clear but in Ward and Matson defense counsel withdrew “because of defendant’s interference with the direction of the defense” and “because of breakdown of communication and no attorney fees were paid.”
The distinction counsel makes concerning Welch is inaccurate. The facts there do show the reason counsel withdrew from rep- reservation. There, a continuance was granted on the day of trial, when defense counsel requested leave to withdraw because of a schedule conflict. The trial court permitted the withdrawal and immediately appointed an attorney who was representing the defendant on another case. However, the trial court “continued the case to allow new counsel time to confer with the defendant.” 212 Kan. at 182. This court held that that continuance was properly charged to the defendant. 212 Kan. at 185.
The distinctions counsel makes concerning Ward and Matson are equally unpersuasive. In Ward, two court-appointed attorneys were permitted to withdraw over the defendant’s objection. A third court-appointed attorney sought and was granted several continuances, although the defendant objected to most of those continuances. The defendant argued that because he objected to the withdrawal of counsel and to the continuances, those delays should not be charged to him. This court rejected that argument in part, as counsel states here, because counsel withdrew due to the defendant’s lack of cooperation. This court noted that by electing to exercise the right to appointed counsel, the defendant could not also assert pro se representation. 227 Kan. at 666. This court stated, “All of the delays except one are the result of the application of the defendant through his attorney or the fault of the defendant himself.” 227 Kan. at 667. By so stating, this court distinguished the two bases for charging a continuance to the defendant, holding that a continuance is properly charged to the defendant if it is either the result of the application of the defendant or if it is the result of the fault of the defendant.
In Matson the delay does appear to have been in part because of counsel withdrawing due to a breakdown in communication, as counsel notes here. 14 Kan. App. 2d at 636. However, once new counsel was appointed, another continuance was granted when the court noted that the defendant had failed to keep in communication with his attorney. The Matson court stated:
“Although defendant’s counsel objected to the continuance, it is obvious that it would have been error for the court to insist upon proceeding with the trial of defendant ... as scheduled, when defendant’s counsel had not yet been able to consult with his client. The trial, in addition to being continued to allow defense counsel to file motions, was clearly continued for defendant’s benefit to allow him to meet with his counsel and prepare for trial.” 14 Kan. App. 2d at 637.
Here, the February 10 continuance was due to new counsel having been appointed for Timley after his former counsel was permitted to withdraw due to a conflict. The ethical rule prohibiting an attorney from representing a client when there is a conflict of interest is for the benefit of the client. A continuance to allow newly appointed counsel adequate time to prepare for trial is also for the benefit of the defendant. As the court stated in Matson, it would have been improper had the trial court required Timley to proceed with trial on February 10, 1992, when his recently appointed counsel had not had adequate time to prepare. Therefore, this continuance was properly charged to Timley.
There was no violation of the statutory speedy trial right.
III. GENDER BIAS
Timley contends that the State should not have been permitted to use two of its peremptory challenges to exclude males from the jury. He argues that the rule set forth in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), prohibiting the discriminatory exclusion of jurors on the basis of race, should be extended to prohibit the exclusion of jurors on the basis of gender.
After the jury was selected but before it was sworn, Timley’s counsel stated, “There’s a motion we’d like to make at the appropriate time out of the hearing of the jury.” After the jury was sworn but before trial began, Timley’s trial counsel argued that the State exercised its peremptory challenges to exclude two of the three men that were seated on the jury panel, resulting in only one male sitting on the final jury panel. Counsel argued:
“I do believe and Mr. Timley believes that this is an issue which is going to have some predisposition by sex and, that is, I think women are gonna be more offended or more abhorred by this particular crime, that men are the ones that are gonna be wrongfully accused if ever in the past, and I believe it works to Mr. Timley’s detriment to have the panel as it’s made up, and we object to the panel for those reasons.”
The trial court found that “the makeup of the panel is not the product of anything the State has done. That it’s just happenstance.” The court then denied Timley’s motion, stating, “I’ll deny the motion, and I am treating it as a Batson motion based upon the sexual makeup of the jury.”
In his motion to arrest judgment, Timley further argued this issue, contending that the State “used its preemptory [sic] challenges in an impermisible [sic], unconstitutional and discriminatory manner to excuse both males, one of whom was the only black person in the pannel [sic], from the twelve prospective jurors originally seated for voir dire.” The motion further argued that the juiy pool array summoned was not representative of the community.
At the June 2, 1992, hearing on this motion, counsel argued:
“[T]he composition of the juiy was not a representative cross-section of the community nor a fair jury of Mr. Timley’s peers. There were only three males that were ever called on the panel. Two of them were excused by the State. We think that’s also a Batson type challenge, to eliminate at least enough males from the jury that they could have any kind of significant influence. That it’s particularly harmful in a case of this nature to have an overrepresentation of females on the jury.”
The hearing continued:
“[MR. MARTIN (Timley’s trial counsel)]: The other thing I failed to mention is that, in attacking the array of the jury panel, there was only one black person that was in the — ever called to die panel and I don’t know if the court makes notes or not. I don’t — I’m not positive. I don’t think there were any other black prospective members.
“THE COURT: There was one that we would not have reached her.
“MR. MARTIN: Okay. And the one black person was also struck by the State.
“THE COURT: Well, that’s not true. You misspoke yourself. The one black person was struck by you. That was the gentieman in seat number 12 ... .
“MR. MARTIN: I’m not sure. That’s my recollection. If I’m wrong, I’m sure the record will correct me.
“THE COURT: The record will reflect that one of us is wrong and the record will reflect which one it is.
“MR. MARTIN: He was in the right rear comer. I think we agree where he sat.”
The court then denied Timley’s motion to arrest judgment.
The transcript of voir dire shows that two men were in the original pool of 12 prospective jurors seated: juror number 5, Mr. K.A.; and juror number 12, Mr. T.A.S. Mr. K.A. and a female juror were excused when the parties exercised their first peremptory challenge. Mr. K.A., on voir dire, stated he had been wrongly convicted of assault in city court and had to appeal before the case was dismissed. He said he had to spend all his savings and that the experience had left him bitter. He also had to attend an out-of-state meeting the following week which would cause him problems if the trial went into the following week (which was a possibility). The trial judge did not dismiss the juror for cause. Mr. T.A.S. and a female juror (whom both parties had attempted to remove for cause) were excused when the parties exercised their second peremptory challenge. Mr. T.A.S. is black. The appellant makes no claim based on race, which is consistent with the appellant rather than the State having struck Mr. T.A.S. Mr. T.A.S.’s voir dire testimony was such that the appellant would have been motivated to strike him from the panel (however, so would the State). Clearly as to Mr. T.A.S., racial- and gender-neutral reasons existed for either party to strike him.
The record does not reflect which party excused which juror at the time the parties exercised their peremptory challenges. The exchange between Timley s counsel and the district court, quoted above, indicates that there is some dispute about which party excused which juror. The record does not clarify this dispute, despite the fact that both defense counsel and the court were certain the record would clarify it.
In its brief, the State does not suggest that it did not exclude both male jurors as the defendant contends. Further, when defense counsel objected to the jury panel immediately prior to trial for the reason that the State excused the only two men initially seated on the jury, the trial court did not suggest that defense counsel himself had in fact excused one of the male jurors.
Argument by the parties in the appellate briefs focuses on whether the United States Supreme Court holding in Batson v. Kentucky, 476 U.S. 79, prohibiting the discriminatory exclusion of jurors on the basis of race, should be extended to prohibit the exclusion of jurors on the basis of gender. We conclude that for purposes of appeal of this issue, the State struck both Mr. K.A. and Mr. T.A.S.
In Batson, a jury consisting of only white people was seated after the prosecutor used peremptory challenges to strike the four black people on the venire. The defendant moved to discharge the jury before it was sworn. The Supreme Court stated:
“[A] defendant has no right to a ‘petit jury composed in whole or in part of persons of his own race.’ [Citation omitted.] . . . But the defendant does have die right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. [Citations omitted.] The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, [citation omitted], or on the false assumption that members of his race as a group are not qualified to serve as jurors [citations omitted].
“Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure. . . .
“Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to tiy. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial. [Citation omitted.] A person’s race simply ‘is unrelated to his fitness as a juror.’ [Citation omitted.] . . .
• “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. [Citations omitted.] Discrimination within the judicial system is most pernicious because it is ‘a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.’ [Citation omitted.]” 476 U.S. at 85-88.
The Court further stated:
“[T]he Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds, and has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors. While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, [citation omitted], the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at ‘other stages in the selection process’ [citations omitted].
“. . . [Thus, although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that reason is related to his view concerning the outcome’ of the case to be tried, [citation omitted], the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on die assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” 476 U.S. at 88-89.
The Batson Court placed the burden on the defendant to prove the existence of purposeful discrimination in the selection of jurors. The defendant must make a prima facie showing that establishes an inference of discriminatory motive. The Court set forth a three-part test by which the defendant may make the prima facie showing of discriminatory purpose: First, the defendant must establish that he or she is a member of a cognizable racial group and that members of that group have been excluded by the State; second, the defendant may rely on the fact that the use of peremptory challenges permits “those to discriminate who are of a mind to discriminate”; and third, the defendant must show that the totality of these and other facts and circumstances raise an inference that jurors were excluded because of their race. 476 U.S. at 96. The Court expressed:
“In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” 476 U.S. at 96-97.
Upon the requisite prima facie showing, the burden then shifts to the State to present a neutral explanation for using peremptory challenges to exclude black jurors. The trial court then determines if the defendant has established purposeful discrimination in the jury selection process. 476 U.S. at 97-98.
This court applied Batson in State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987). In State v. Sledd, 250 Kan. 15, 20, 825 P.2d 114, cert. denied - U.S. _, 121 L. Ed. 2d 98 (1992), this court expanded on the Batson analysis and noted language in Justice White’s concurrence: “The Court emphasizes that using peremptory challenges to strike blacks does not end the inquiry; it is not unconstitutional, without more, to strike one or more blacks from the jury. The judge may not require die prosecutor to respond at all.” 476 U.S. at 101. This court went on to note that “appellate review of a trial court’s determination whether or not a prima facie showing has been made is plenary as it involves a question of legal sufficiency.” Sledd, 250 Kan. at 21. However, this standard of appellate review of “a trial court’s finding that the State has expressed racially neutral reasons is that of abuse of discretion.” 250 Kan. at 21.
The holding in Batson has been extended to permit a white defendant to challenge a prosecutor’s peremptory challenges based on racial grounds, Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991); to civil cases, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed 2d 660, 111 S. Ct. 2077 (1991); and to a criminal defendant’s use of peremptory challenges, Georgia v. McCollum, 505 U.S. 42, 120 L. Ed 2d 33, 112 S. Ct. 2348 (1992). The United States Supreme Court has now addressed whether Batson should be extended to include discrimination based on gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. _, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994). We gave the parties to this appeal an opportunity to respond to J.E.B., and they have done so.
J.E.B. extends Batson to gender discrimination (both men and women) and holds that a litigant may not strike potential jurors solely on the basis of gender. In J.E.B., as in this case, the complained-of conduct was in striking male members of the panel. J.E.B. applies to this case, and as J.E.B. adopts Batsons reasoning and requirements we will cite to Batson.
The trial court did treat this as a Batson motion based upon the sexual makeup of the jury and denied Timley’s motion to discharge the jury. This indicates that the trial court found that Timley had failed to make a prima facie showing of gender discrimination. Of course, “appellate review of a trial court’s deter- initiation whether or not a prima facie showing has been made is plenary as it involves a question of legal sufficiency.” Sledd, 250 Kan. at 21.
Timley contends that he did make such a showing when he objected to the removal of two males from the jury. However, more than a mere objection is required. Batson requires the court to look at the relevant facts and circumstances of the case in determining whether a prima facie showing has been made. Batson, 476 U.S. at 96-98. In making his motion, Timley’s counsel merely stated that the gender makeup of the jury worked to Timley’s detriment. While the gender makeup of a jury may play some role in sexual assault cases, that possibility does not in and of itself mandate a finding that where significantly more jurors are of one gender than another, gender discrimination must have been employed.
Rather, Batson clearly refers to a trial judge’s experience in supervising voir dire and to the trial judge’s position to observe “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges.” 476 U.S. at 97. A review of the transcript of voir dire indicates that Timley failed to make a prima facie showing of gender discrimination because the circumstances do not raise an inference that the State’s exercise of its peremptory challenges were gender motivated.
The transcript shows that questioning of Mr. K.A. was comparable by both parties. Mr. K.A. admitted upon questioning by the State that he had been previously charged with assault and that after he was sentenced he appealed and the charges were finally dismissed. He noted that he was bitter about the situation. He also had an availability problem due to the anticipated length of the trial.
Mr. T.A.S. was questioned extensively by both parties. He gave equivocal answers as to whether he would follow the instructions given by the court if he disagreed with any of them and as to whether he would hold the State to a burden of proof higher than beyond a reasonable doubt. He also interrupted defense counsel from time to time to give his view on what questions meant and how they should be asked.
The exchanges between counsel for the State and Mr. K.A. and Mr. T.A.S. do not show a gender-motivated reason for exercising peremptory challenges to excuse these jurors. The transcript of voir dire suggests valid reasons, other than gender, to justify either party excusing both Mr. K.A. and Mr. T.A.S. Timley failed to make a prima facie showing of gender discrimination, and the trial court did not err in so holding.
The contention that the jury pool called did not constitute a representative cross-section of the community must also fail. This court has previously upheld Sedgwick County’s method of selecting jury panels by using voter registration lists. State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992). Timley has brought forth no new argument on this issue. Further, K.S.A. 22-3407 requires that any objection to the manner of selecting a jury panel must be made by a written motion to discharge the panel at least five days prior to the trial date if the names and addresses of the panel members are known, or prior to the time the jury is sworn if the names and addresses are not known; the court may entertain the motion any time thereafter for good cause shown. Timley’s counsel made no such motion.
IV. CROSS-ENDORSEMENT
Timley next complains that witnesses were permitted to testify in both cases, although they were only endorsed as to one case, and that each victim was permitted to testify as to the other victims’ cases absent a K.S.A. 60-455 determination. The State does not respond to these arguments.
K.S.A. 22-3203 provides that two or more separate cases may be consolidated for trial if the crimes could have been properly joined in the same complaint or information. One basis for joining crimes in the same complaint or information is that the crimes are of the same or similar character. K.S.A. 22-3202(1). “Within established guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse in the exercise of that power of discretion.” State v. Bagby, 231 Kan. 176, Syl. ¶ 3, 642 P.2d 993 (1982). Timley does not specifically chai lenge the propriety of consolidating these offenses for trial, and consolidation was proper under K.S.A. 22-3202 and K.S.A. 22-3203.
K.S.A. 1993 Supp. 22-3201 states:
“(g) The prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. The prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.”
Timley argues that some witnesses were endorsed in only one of the two cases consolidated for trial and that permitting the testimony to be considered by the jurors as to both cases was error.
Timley contends that K.S.A. 60-455 precludes a witness endorsed to testify in one proceeding of a hearing from testifying in another proceeding unless endorsed by the court to testify in all proceedings, even if the cases are alike in nature. In fact, K.S.A. 60-455 has nothing to do with the endorsement of witnesses but, rather, concerns the admissibility of evidence of prior crimes or wrongs.
In addressing the late endorsement of witnesses, this court has repeatedly refused to overturn the decision of the trial court unless the rights of the defendant were prejudiced. See, e.g., State v. Green, 252 Kan. 548, 553-54, 847 P.2d 1208 (1993); State v. Hartfield, 245 Kan. 431, 440, 781 P.2d 1050 (1989). “The purpose of the endorsement requirement is to prevent surprise to the defendant and to give the defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial.” Green, 252 Kan. at 553.
Timley’s trial counsel was aware well before trial that the cases were consolidated for trial and what witnesses might be called by the prosecution to testify at the consolidated trial. Timley’s counsel had an opportunity to interview and examine the witnesses in advance of trial. Timley has failed to establish that his rights were prejudiced by permitting the witnesses to testify even though they were not cross-endorsed. There was no error here in permitting the witnesses which were endorsed in one case to testify in the other case, despite the fact they were not endorsed as witnesses in the other case.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The trial judge denied defense counsel’s request for a limiting instruction concerning the testimony of L.H. based on K.S.A. 60-455.
As stated above, these offenses were properly consolidated for trial. The testimony by one victim was clearly admissible for proving the offenses against that victim. At the conference on jury instructions, Timley’s counsel did not renew his request for a limiting instruction concerning L.H.’s testimony.
It is well established that in determining the admissibility of prior crimes under K.S.A. 60-455, the trial court must determine that the evidence is relevant to prove a disputed material fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident and must weigh the probative value of the evidence against its potential to prejudice the juiy. See State v. Mason, 250 Kan. 393, 404, 827 P.2d 748 (1992); State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
Evidence of each crime was relevant to prove multiple disputed material facts. Each of the offenses charged was committed in an identical manner, with Timley driving late at night, offering a ride to a woman who was walking alone, and engaging in sexual activity with and choking and threatening the woman. Although the identity of the defendant was ultimately not an issue based on Timley’s own testimony, at the time each victim testified it was unknown whether Timley would testify, so identity was a contested issue at the time each victim testified. There was no error in admitting evidence of the crimes charged against Timley with respect to each victim at the consolidated trial.
V. HABITUAL CRIMINAL ACT
In his pro se supplemental brief, Timley also contends that he was not given prior notice of the State’s intent to invoke the Habitual Criminal Act. He argues that he must be given prior notice and a hearing held before the Habitual Criminal Act can be invoked. Timley equates his situation with the requirement that the State give notice of its intent to seek the “hard 40” sentence without parole, citing State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), and with the situation where a person charged as a recidivist is entitled to be informed by either indictment or information that he is being charged as such, citing 39 Am. Jur. 2d, Indictment and Information. Timley makes no argument that the evidence was insufficient to support imposition of the Habitual Criminal Act.
The State filed a motion to impose the Habitual Criminal Act in both cases on April 13, 1992, alleging that Timley had been previously convicted of robbery in Wyandotte County and of aggravated robbery in two cases in Sedgwick County. The motion certified that a copy was hand-delivered to Timley on April 6, 1992.
At the June 2, 1992, hearing on the motion to invoke the Habitual Criminal Act, Timley’s trial counsel informed the court that “Mr. Timley advises me he’s never been served that motion. I don’t know what the requirements are but it was in the court file at a time prior to my entering the case. Mr. Timley advises me he’s never been served.” However, Sedgwick County Assistant District Attorney Kim Parker testified that she personally served Timley with a copy of the motion on April 6, 1992, while she was sitting across the table from Timley and his then-counsel Terry Pullman in the library. This testimony was not contradicted.
Timley’s reliance on Deavers suggests that he may be arguing that the notice should have been given to him at the time of his arraignment. Timley’s reliance on Deavers is misplaced. That case was decided solely on the language of K.S.A. 1991 Supp. 21-4624, which mandates that when the State intends to seek the “hard 40” sentence for first-degree murder, it must give notice to the defendant at the time of arraignment. The statute provides that the consequence of noncompliance with the notice provision is that the “hard 40” sentence cannot be imposed. K.S.A. 1993 Supp. 21-4504 has no requirement comparable to 21-4624 mandating that the State give notice at the time of arraignment of its intent to invoice the Habitual Criminal Act.
“The state is not required to give an accused notice of its intention to invoke the habitual criminal act prior to trial or prior to submission of a case to a jury. Reasonable notice is all that is required.” State v. Powell, 220 Kan. 168, Syl. ¶ 9, 551 P.2d 902 (1976). See State v. Myers, 215 Kan. 600, 605, 527 P.2d 1053 (1974); Wasson v. State, 210 Kan. 205, Syl. ¶ 1, 499 P.2d 1128 (1972). “The purpose of requiring such notice is to afford the defendant time to prepare his defense and show cause why the act should not be invoked [citation omitted].” Myers, 215 Kan. at 605. See Powell, 220 Kan. at 176; Wasson, 210 Kan. at 206-07.
Timley was given a copy of the State’s motion to impose the Habitual Criminal Act on April 6, 1992, more than a month before trial and nearly two months before the hearing on the motion and Timley’s sentencing. Notice at such time was reasonable, and the State was not required to give such notice any earlier.
VI. SUFFICIENCY OF EVIDENCE
Timley also argues pro se that the evidence was insufficient to support his convictions. He asserts that the prosecutor withheld evidence and that because the jury was biased, prejudiced, all white, and mostly female it could not help but convict him. The appellate defender did not address this issue in its supplemental brief, and the State does not respond to this issue in its brief.
There is nothing in the record to show that the prosecutor withheld evidence.
This court has addressed insufficient evidence claims on numerous occasions.
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to die prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992).
See State v. Getz, 250 Kan. 560, 830 P.2d 5 (1992).
Each victim testified that she did not consent to the sexual activity and that Timley choked and threatened her. This testimony did conflict with Timley’s testimony that the sexual activity was consensual. “It is the jury’s function, and not an appellate court’s, to weigh the evidence and pass upon the credibility of witnesses.” State v. Holley, 238 Kan. 501, 511, 712 P.2d 1214 (1986). There was sufficient evidence here from which a rational factfinder could have found Timley guilty of all charges beyond a reasonable doubt.
VII. JUDGE ACQUAINTED WITH JUROR
For his final issue, Timley contends that the trial judge noted the judge’s personal relationship with a juror and that this juror should not have been permitted to remain on the jury.
During voir dire, the following exchange occurred:
“THE COURT: Okay. Thank you. Next prospective juror is Ms. Susan Green. Ms. Green is an accountant. And I’m sorry, Susan, I’ve forgotten who you’re employed by.
“MS. GREEN: CCP, Computax.
“THE COURT: Thank you. And we’ve known one another, let’s say, a couple of years. You’re a friend of my wife’s.
“MS. GREEN: Right.
“THE COURT: And is there anything about that that would keep you from serving on this jury as a fair and impartial juror?
“MS. GREEN: No.
“THE COURT: You would not hold that against the State and you would not hold that against Mr. Timley?
“MS. GREEN: No.”
Neither the State nor Timley’s trial counsel further questioned this juror concerning her acquaintance with the trial judge.
The record does not show that this issue was presented to the trial court. “The defendant cannot raise points on appeal which were not presented to the trial court.” Holley, 238 Kan at 508.
Even if Timley had raised this issue below, it has no merit. This juror affirmatively stated that her personal acquaintance with the trial judge would not affect her ability to be fair and impartial. Had the defendant objected, there would have been no error in not excluding her from the jury.
Affirmed.
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The opinion of the court was delivered by
Sarposd, J.:
A question has been raised upon the argument as to the form of proceeding by which this case should have been brought to this court. The point is of but little general or practical iraportance, and hence it will be necessary for us to do but little more than to express an opinion as to the course which the plaintiff in error by his counsel has seen fit to pursue in the particular referred to. ¥e think that the course pursued is the proper one. The order complained ot was made with reference to a subject matter entirely disconnected from the merits of the prosecution against the defendant below upon a criminal charge, and in what ■may properly be called a “ special proceeding,”, as that term is used in the General Statutes; § 543, p. 736. Such proceeding had for its object the forfeiture of money deposited in lieu of bail, and its disposition according to law; and the order made, (a forfeiture having been previously obtained,) determined the latter of these questions, so far as the court below was concerned. It certainly was an order affecting a substantial right, and being made in a special proceeding as we have seen, was a “ final order” within the meaning of the code, and reviewable on error to this court.
II. But it is claimed that under the circumstances of this case, no proper or lawful forfeiture of the money deposited by the defendant below in lieu of bail,'was, or could be had; and the basis of the obiection is; that the recognizance which was taken by the clerk was of no effect as being unauthorized by law. That the recognizance was void, has been determined by this court in a case brought here by this same plaintiff in error: Morrow vs. The State, 5 Kas., 563. But the fact that the said recognizance is void does not necessarily defeat the validity of the forfeiture as claimed, and we think that a fair and liberal construction of the statute will show that such is the case. Section 135, ch. 82, Gen. St. 1868, requires the court to order the amount in which persons charged by indictment or information are to be held to bail; and subsequent sections treat of the giving of bail, the requisites of recognizances, how executed, what shall be done with them, the qualifications of sureties, etc. It is then provided in § 145, that “ the defendant may, in the place of giving bail, (by entering into a recognizance with sureties to appear, as before provided,) deposit with the clerk of the court to which he is held to answer the sum, of money mentioned in the order, (§ 135,) and upon delivering to the sheriff the certificate of deposit, he must be discharged from custody.” Now, a fair construction of this section would seem to indicate, that upon the deposit of money in lieu of bail, and the delivery of the certificate thereof to the sheriff, there was nothing more to be done by, or required of, the defendant; and there is certainly nothing in this section, or in previous provisions, which gives any intimation that when he deposits money in lieu of bail he is also required to enter into and execute a “ recognizance.” The money deposited by him is the pledge for his appearance, when his presence may be lawfully required; and the certificate of deposit delivered to the sheriff) shows, or should show, the circumstances or conditions under which such deposit is made; and to require anything further, it seems to us, would be useless, as well as outside of the law. It may be urged that § 152 recognizes the view that in every case a recognizance is required to be executed. It may be true that it does, by implication, and standing by itself; but when construed with the other sections referred to as bearing upon the subject of bail and recognizances, we have no difficulty in so construing it as to give reasonable effect to every part of it, and yet, so as not to defeat the views above expressed. ¥e are therefore of the opinion that in a case where money is deposited in the place of bail, there is nothing in the statute requiring that a recognizance “in form” shall also be executed as is done in other eases.
IN. It is further claimed upon the argument, that there has been no order declaring the money forfeited, by reason of the non-appearance of the plain- . . it t . tint m error to answer the charge pending against him. This may he true, as a matter of form; but we think that the record shows that the court below acted in the premises substantially as the law directs. At the time when the plaintiff in error was to appear, he was solemnly called, hut came not, as he was bound to do if he would save his money from forfeiture. This appears of record; and thus is met the requirement of the statute that the court must direct the fact of the defendant’s neglect to appear to be entered upon the minutes. And this having been done, the forfeiture of the money deposited in place of hail followed, under the law, as a matter of course; (§ 152;) and it was not error in such case for the court to direct the forfeited money to be turned over to the county treasurer.
The order of the district court must he sustained.
All the Justices concurring.
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The opinion of the court was delivered by
Holmes, C.J.:
Lee Dillard, Sheila Dillard, and Lee Dillard as next friend of Joshua, Justin, Leah, William Jereme, and Brittani Dillard, minor children, (the Dillards) appeal from the district court’s order dismissing their petition for failure to state a claim upon which relief can be granted. The Kansas Court of Appeals, in 18 Kan. App. 2d 899, 861 P.2d 1372 (1993), affirmed the district court. This court granted the Dillards’ petition for review. We now affirm the district court and the Court of Appeals.
The facts and procedure in the trial court were set forth by the Court of Appeals as follows:
“On October 12,1990, the Most Reverend Ignatius J. Strecker, Roman Catholic Archbishop, the Catholic Archdiocese of Kansas City, Kansas, (Archbishop) contracted with A.L. Huber and Sons, Inc., (Huber) for Huber to act as a general contractor for the construction of a church and school in Leawood, Kansas. Huber subcontracted a portion of its work for the construction project to P & S Masonry, Inc. The subcontract provided that P & S Masonry would perform brick and block masonry work on the construction project as required by the specifications in the project.
“Lee Dillard was employed by independent contractor P & S Masonry. On March 20, 1991, a masonry wall collapsed during construction at the project, crushing Dillard beneath it. As a result of the accident, Lee Dillard suffered serious and permanent injuries. Lee Dillard was covered by workers compensation.
“At the time the accident occurred, the City of Leawood’s Uniform Building Code (UBC) was in effect. Relevant to the instant case, UBC § 306(a) requires an owner to employ a special inspector to examine masonry walls under construction. On November 14,1990, deputy building official Kenneth E. Anderson informed the architects hired by the Archbishop, Father Thomas Tank, and Randy Huber that special inspections were required to be done on the project. It was not until March 28, 1991, that the required inspections were performed.
“The Dillards filed their petition, alleging that the Archbishop had breached his duty to Lee Dillard by failing to provide the required inspection and that Lee Dillard’s injuries resulted from the Archbishop’s breach of his duty. The Archbishop filed a motión to dismiss for failure to state a claim for negligence because he did not owe a duty to Lee Dillard as an employee of an independent contractor. The court granted the Archbishop’s motion, finding that the Dillards failed to state a claim for negligence because the Archbishop did not owe a duty to an employee of an independent contractor. Consequently, the court dismissed the Dillards’ petition with prejudice.
“Also, the court granted the Dillards’ motion for leave to amend their petition. The Dillards filed an amended petition, alleging the vicarious liability of the Archbishop. The parties stipulated that the Archbishop’s motion to dismiss the Dillards’ original petition would also apply to the Dillards’ amended petition. The court found the amended petition also failed to state a claim upon which relief could be granted and dismissed the amended petition with prejudice.” 18 Kan. App. 2d at 900-01.
The record discloses that P & S Masonry and/or Huber were negligent in fading to follow the contract specifications in constructing the wall. The alleged negligent construction of the wall was apparently done by Lee Dillard’s employer P & S Masonry. The Dillards assert that if the independent inspections required by the UBC had been timely done, the negligent construction could have been avoided or at least corrected without injury to Lee Dillard.
In the original petition filed in the district court, the Dillards relied solely upon an alleged breach of duty by the Archbishop based upon a failure to comply with certain provisions of the 1985 Uniform Building Code (UBC) adopted by the City of Leawood. The theory relied upon by the Dillards was that the Archbishop owed a direct duty to Lee Dillard based upon Section 306 of the Leawood UBC, which reads in pertinent part:
“(a) General. In addition to the inspections required by Section 305, the owner shall employ a special inspector during construction on the following types of work:
“6. Structural Masonry: During preparation of masonry wall prisms, sampling and placing of all masonry units, placement of reinforcement, inspection of grout space, immediately prior to closing of cleanouts, and during all grouting operations.”
Section 305(a) provides in part:
“All construction or work for which a permit is required shall be subject to inspection by the building official, and certain types of construction shall have continuous inspection by special inspectors as specified in Section 306.”
The amendment to the petition filed by the Dillards was based upon a theory of vicarious liability and, after incorporating the original petition by reference, reads in its entirety:
“14. Defendant, the Archdiocese, breached its duly to Mr. Dillard by fading to provide the required continuous inspection. Additionally Defendant, The Archdiocese is vicariously hable for the acts and omissions of its agents, servants, employees and professional and business contractors and subcontractors acting for and on Defendant’s behalf during the course of an inherently dangerous or special risk activity.”
The trial court, in ruling upon the defendant’s motion to dismiss, treated it as a motion for summary judgment in accordance with K.S.A. 1993 Supp. 60-212(b), which provides in pertinent part:
“If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256 and amendments thereto.”
The Court of Appeals, in commenting upon the procedure, stated:
“The distinction between adjudicating a motion to dismiss and a motion for summary judgment is that, in the former, a trial court is limited to a review of the pleadings. When determining a motion for summary judgment, the trial court takes into consideration all of the facts disclosed during the discovery process. Beck v. Kansas Adult Authority, 241 Kan. 13, 26, 735 P.2d 222 (1987). In the instant case, both parties filed briefs on the motion to dismiss which contained relevant case law, contracts, correspondence, building code sections, and inspection reports. Consequently, it appears matters outside the pleadings were not excluded by the court. Therefore, it was proper for the court to treat the motion to dismiss as a motion for summary judgment.
“On appellate review, the standard of review for the grant of a summary judgment is well settled:
‘Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.’ Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).” 18 Kan. App. 2d at 901-02.
Under our standard of review we must assume as true (1) the Archbishop had a nondelegable duty under the provisions of the Leawood UBC to provide an independent inspector for the masonry work, and (2) the masonry work being conducted at the time of Lee Dillard’s injury was an inherently dangerous activity.
The specific issue before us is whether a landowner is liable for the negligence of an independent contractor which results in a work-related injury to an employee of the independent contractor when the employee is covered by workers compensation. Here, the Dillards present two theories in which they allege the Archbishop (landowner) is liable for the injuries sustained by Lee Dillard. The first theory contends the Archbishop was directly liable for injuries sustained due to the Archbishop’s failure to comply with a city building code. Next, the Dillards contend the Archbishop is vicariously hable under the inherently dangerous activity doctrine and maintain that the construction of masonry walls comes within the scope of the doctrine. Although this court has never addressed the specific questions from the standpoint of the effect of workers compensation coverage, the Dillards argue that this court’s holding in Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983), provides support for the vicarious liability theory asserted here. Finally, the Dillards note that while the Workers Compensation Act provides an “exclusive remedy” against an employer, the act does not bar recovery against negligent third parties.
The Archbishop’s principal argument is that a landowner owes no duty to an employee of an independent contractor performing work for the landowner. Instead, the Archbishop maintains that the Dillards’ recovery should be limited to workers compensation benefits provided by the injured employee’s direct employer. The Archbishop argues that the Dillards are attempting to make “an end-run around the workers compensation law,” which would result in a form of double recovery for the injured employee. In support of this argument, the Archbishop relies upon several cases from other jurisdictions which set forth various legal and policy arguments buttressing the rule of law upon which he relies.
It has long been the law of Kansas that an employer’s liability for injury to an employee is limited exclusively to recovery under the Workers Compensation Act. As such, where the injury and the employer-employee relationship fall within the scope of the Act, the exclusive remedy provision of K.S.A. 44-501(b) precludes an employee from maintaining a civil action against the employer. Tomlinson v. Owens-Corning Fiberglas Corp., 244 Kan. 506, Syl. ¶ 3, 770 P.2d 833 (1989). In Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 401, 729 P.2d 1214 (1986), this court discussed the relevant statutory provision, stating:
“This statute is commonly referred to as the exclusive remedy provision of the Workmen’s Compensation Act, K.S.A. 44-501 et seq. If a worker can recover benefits for an injury from an employer under the provisions of the Workmen’s Compensation Act, its remedy is exclusive, precluding a common-law negligence action for damages against the employer. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 3, 658 P.2d 1004 (1983); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 314, 564 P.2d 521 (1977). This furthers the policy and purpose of the Workmen’s Compensation Act, which is to provide an established source of benefits to the employee for injuries arising out of and in the course of his employment, and to shift from the employee to the industry certain burdens incidental to modem industrial operations. Duncan v. Perry Packing Co., 162 Kan. 79, 84, 174 P.2d 78 (1946). Further, the provisions of the Act are to be liberally construed to bring workers under the Act whether or not it is desirable for the specific individual’s circumstance. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 5.”
However, while the liability of the employer is limited, the employee can still bring an action against and recover damages from a negligent third party. K.S.A. 44-504(a) provides:
“When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.”
The bulk of the cases in which recovery against a third party has been allowed involve factual situations where the alleged negligence of a third party was not directly related to the work being performed by the injured employee, such as automobile accidents, medical malpractice, product liability, and similar actions. While the issues now before us have been considered in numerous jurisdictions, the liability of a landowner under facts similar to those in this case has not been previously determined by the Kansas appellate courts.
In the instant case, Lee Dillard was covered by workers compensation. The Dillards are now seeking additional recovery, pursuant to K.S.A. 44-504(a), in a third-party civil action against the landowner. The dispositive issue before us is whether a landowner who engages an independent contractor, who is covered by workers compensation, may be liable for work-related injuries to employees of the independent contractor under two exceptions to the common-law rule that one who engages an independent contractor is not liable for the negligence of the contractor or the employees. As pointed out earlier, the two exceptions asserted here are direct liability of the landowner for violation of a nondelegable duty imposed by a city ordinance and vicarious liability when the work being performed by the independent contractor is of an inherently dangerous nature. While the two theories are distinct, the policy provisions and rationale underlying the cases relied upon by the trial court and the Court of Appeals are applicable to both theories, and both theories are commingled in the authorities cited. Likewise, we will not attempt to isolate authorities applicable to only one theoiy or the other but will consider the authorities and both theories simultaneously.
The trial court and the Court of Appeals, in reaching their decisions, adopted and relied upon the policy arguments set forth in Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384 (Mo. 1991); Parker v. Neighborhood Theatres, 76 Md. App. 590, 547 A.2d. 1080 (1988); and Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461 (1988).
In Zueck, 809 S.W.2d 384, an independent contractor’s employee brought suit against four landowners for injuries sustained while performing an alleged inherently dangerous activity. The employee, who worked as a journeyman painter, was injured after he slipped from a platform and fell over 20 feet to the floor. The employee argued that his injury resulted from the inherently dangerous nature of his work and not his employer’s negligence. In his suit, the employee maintained that the landowners were vicariously liable for his injuries under, the inherently dangerous activity doctrine and that the doctrine extended to employees of independent contractors.
The court noted the common-law rule that landowners are not liable for the torts of an independent contractor and also recognized the inherently dangerous activity doctrine. The court stated:
“The general rule under the common law is that a landowner has no vicarious liability for the torts of an independent contractor. This general rule recognizes that the landowner has no right of control over the manner in which the work is to be done, and for that reason the work ‘is to be regarded as the [independent] contractor’s own enterprise, and he, rather than the [landowner], is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.’ W. Prosser & W. Keaton, The Law of Torts, 509 (5th ed. 1984). Bower v. Peate, 1 Q.B.D. 321 (1876), announced an exception to this general rule, holding that a landowner is liable for the negligence of his independent contractor if the landowner ‘directs an act to be done from which injurious consequences will result unless means are taken to prevent them.’ Id. at 326.
“Restatement (Second) of Torts, sections 416 and 427 extend liability to landowners who contract for work involving ‘special danger’ or ‘peculiar risk’ of which the landowner knows or should know. The landowner is subject to liability ‘to others’ for physical harm caused to them for the failure of an independent contractor to take special or reasonable precautions against such risks or dangers. The inherently dangerous exception at issue in this case is based upon negligence, usually by the independent contractor. The obvious purpose of the exception is to prevent the landowner, for whose benefit the work is being done, from avoiding liability and defeating the recovery of an injured, innocent third party, by hiring a contractor who is not fiscally responsible to do the dangerous work.” 809 S.W.2d at 386.
In refusing to hold the landowners hable for the injuries sustained by the independent contractor s employee, the court overturned a 1928 decision, Mallory v. Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (Mo. 1928), which extended the inherently dangerous activity exception to an employee of an independent contractor. The court stated that the Mallory decision involved an employee’s injury which occurred prior to the effective date of the state’s first workers compensation law, and with the advent of such laws, “most states have restricted the application of the inherently dangerous doctrine to its original concept — protection of innocent third parties not involved in the activity.” Zueck, 809 S.W.2d at 387.
In its discussion of Mallory and in its determination that the inherently dangerous activity doctrine does not apply to the employee of an independent contractor covered by workers compensation, the court stated:
“Independent contractors are frequently, if not usually, hired because the landowner is aware of his own lack of expertise and seeks to have the work performed as safely and efficiently as possible by hiring those possessing the expertise he lacks.
"If the landowner chooses to avoid the additional liability imposed by the inherently dangerous exception, he may choose to direct his own employees to do the work despite his and their lack of expertise. That simple choice limits the landowner’s exposure to that provided under worker’s compensation. But that choice also increases the risk of injury to the employees and to innocent third parties.
“The anomaly is apparent now. By permitting employees of independent contractors to invoke the inherently dangerous doctrine, the law takes the distorted position of (1) rewarding landowners who, despite their own lack of expertise, choose to perform work negligently resulting in injury to workers, (2) increasing risks to innocent third parties and (3) punishing landowners who seek expert assistance in an effort to avoid liability for injury!” 809 S.W.2d at 387-88.
In a footnote, the court opined:
“This inequity in expertise and awareness of dangers is never greater than where liability for an injured worker falls on a residential landowner. It is not reasonable that a homeowner should face potential financial ruin when he hires an independent contractor to do tuckpointing, . . . digging around foundations, ... or replacement of electrical lines.” 809 S.W.2d at 388 n. 1.
In concluding that the inherently dangerous activity doctrine does not provide a means of recoveiy to an employee of an independent contractor covered by workers compensation, the court stated:
“Workers’ compensation laws have not been barriers to suits by injured employees against negligent third parties. This reflects a policy in the law ‘to place the loss upon the ultimate wrongdoer.’ Henderson, 48 Fordham L. Rev. at 1186. Where workers’ compensation laws provide for liability of negligent third parties, as Missouri’s does, there exists no valid reason to hold landowners vicariously hable to employees of independent contractors engaged in inherently dangerous activities.
“The application of the inherently dangerous exception also distorts workers’ compensation laws. The exception, if extended to employees of an independent contractor, permits a limited class of injured workers — those who can convince a judge that their work for an independent contractor was inherently dangerous — to avoid the limitations of workers’ compensation. This is contrary to the fact that the economic system permits workers who presume to undertake dangerous work to bargain for an enhanced reward for assuming the danger and despite the intended exclusivity of workers’ compensation as an injured worker’s remedy.” 809 S.W.2d at 390.
As additional reasons for its holding, the court recognized that the cost of workers compensation is a cost of doing business that an independent contractor passes on to the landowner as a part of the contract price and that landowners should not be penalized for engaging independent contractors to perform work which requires skills which may be beyond the landowner’s capability.
In the recent case of Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128 (Mo. 1993), the Missouri Supreme Court held that the rule adopted in Zueck extended not only to claims of vicarious liability based upon the inherently dangerous activity doctrine but also to claims of direct liability based upon the negligent acts of the landowner. In Matteuzzi, the employee was performing renovation work and was injured when a brick wall collapsed, causing him to fall 23 feet from the roof of a rowhouse to the ground. In his petition, the employee made clear that his cause of action was not like that in Zueck for vicarious liability but, instead, asserted that the landowner was hable under Restatement (Second) of Torts § 413 (1964). Section 413 imposes upon the landowner a nondelegable duty to take special precautions against known dangers associated with the work entrusted to an independent contractor. In denying the employee’s claim, the court adopted the reasoning it set forth in Zueck, stating that it was “equally persuasive” under the facts of Matteuzzi. In relevant part, the court explained:
"A landowner who engages the services of an independent contractor pays directly or indirectly ‘for the compensation coverage when he contracts with the independent contractor.’ Zueck, 809 S.W.2d at 389. It is unfair, therefore, to subject a landowner to what is, in effect, double liability — workers’ compensation coverage and liability under the inherently dangerous activity doctrine. Id. at 388. Furthermore, the doctrine encourages landowners to limit their liability by using their own nonexpert employees to perform inherently dangerous work rather than hire independent contractors with expertise in the field. Thus, the doctrine counterproductively increases the risk of injury to others. Id. Consistent with Zueck, we hold that Matteuzzi, as the employee of the landowner’s independent contractor, has no cause of action under either variation of the inherently dangerous activity doctrine.” 866 S.W.2d at 131-32.
The same result was reached in another recent Missouri Supreme Court case. Owens v. Shop 'N Save Warehouse Foods, 866 S.W.2d 132 (Mo. 1993).
The second case relied upon by the trial court and the Court of Appeals was Parker v. Neighborhood Theatres, 76 Md. App. 590, 547 A.2d 1080 (1988). In Parker, an employee of an independent contractor sued both the landowner and a subcontractor for injuries sustained in a construction accident. The employee received workers compensation benefits and filed this action against the respective parties. In his petition, the employee alleged that the landowner was vicariously liable under Restatement (Second) of Torts § 424 (1964). Section 424, entitled “Precautions Required by Statute or Regulation”, provides an exception to the general rule that a landowner is not liable for the negligence of the independent contractor or his employees. Here, the employee alleged that the landowner was hable for violating a county building code which required the landowner to “keep the premises in a safe and reasonable condition during construction and to provide all safeguards imposed” by the county building code. 76 Md. App. at 594.
While the court conceded that the relevant building code imposed a nondelegable duty upon the landowner as asserted by the employee, the court concluded that the duty did not extend to the employees of the independent contractor. In relevant part, the court reasoned:
“The appellant was protected by Worker’s Compensation through his employer, Keller Brothers. The premiums paid for the accidental injury coverage were a consideration in the contract price between Keller Brothers and NTI.
“. . . [W]e see no valid reason why the appellant herein should be placed in a better position than if he were employed by NTI, in which case he would be limited to compensation benefits only. Conversely, NTI should not be subjected to greater liability because it engaged a qualified independent contractor to build the additions to its theaters.
‘We hold, therefore, that vicarious liability of the owner may not be predicated upon a statutory non-delegable duty where the injuries to an employee of a contractor arise solely from the negligence of the contractor in failing to maintain a reasonably safe work place.” 76 Md. App. at 597.
In reaching its decision, the court stated:
“The nature and extent of a tort duty recognized by law depends in part on the status of the party upon whom it is sought to be imposed and upon his relationship to the party claiming the benefit of it. . . .
“The general rule is that the employer of an independent contractor is not liable for the negligence of the contractor or his employees. Restatement (Sec ond) of Torts, section 409 [1964], Exceptions to the rule, as noted in Comment b of Section 409, fall into three broad categories:
1. Negligence of the employer in selecting, instructing or supervising the contractor.
2. Non-delegable duties of the employer arising out of some relation toward the public or the particular plaintiff.
3. Work which is specially, peculiarly, or inherently dangerous.
For the purposes of this discussion, appellant is relying on the second category of exceptions to the general rule and alleges vicarious liability from a duty that is not delegable.
“The imposition of vicarious liability by the creation of the exceptions to the general rule is primarily a policy decision, the purpose being the protection of the public generally. While some jurisdictions hold that the contractor’s employees are within the class to whom the owner owes a duty, the majority of jurisdictions hold that an owner’s vicarious liability does not extend to employees of independent contractors.
“We hold, therefore, that vicarious liability of the owner may not be predicated upon a statutory non-delegable duty where the injuries to an employee of a contractor arise solely from the negligence of the contractor in failing to maintain a reasonably safe work place. We concede that the Prince George’s County Code is applicable to an owner and that the duties imposed thereunder may not be delegated to a contractor. As to the public generally, the duty remains but it does not extend to employees of the contractor who already have a remedy paid for by the owner.” 76 Md. App. at 595-98.
After discussion of various arguments propounded by the plaintiffs, the court concluded:
“Additionally, appellant has not provided the Court with any authority that an employee of an independent contractor injured by the negligence of his own master is a person intended to be included among the class of persons to whom the owner owes a non-delegable duty of reasonable care. ... No matter how appellant phrases it, what he is unsuccessfully attempting is an end run on the Worker’s Compensation Law.” 76 Md. App. at 601-02.
We pause here to note, as did the Court of Appeals, that throughout the various decisions some confusion exists in referring to the alleged liability of the landowner as “direct” or “vicarious.” The terms obviously overlap in some cases and appear to be used interchangeably in others, but the policy provisions underlying the decisions are applied uniformly to both.
In the third case relied upon by the courts below, Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461 (1988), the question again involved whether a landowner could be liable to an injured employee of an independent contractor for that contractor’s negligence. As in the case at bar, the injured employee in Ray brought suit against the landowners under both a vicarious and direct liability theory. Under the vicarious liability theory, the employee argued alternative claims, maintaining that the landowners failed to take appropriate safety precautions required because (1) the work was inherently dangerous, and (2) a nondelegable duty was owed to the employees to ensure a safe work place. Under the direct liability theory, the employee alleged that the landowners were negligent in failing to exercise reasonable care in their selection of the independent contractor.
In discussing the issues, the court recognized the general rule that a landowner is not liable for the negligent acts of an independent contractor. However, the court also noted that various exceptions to the general rule exist, including instances when the work being performed by the contractor is inherently dangerous and when the landowner has a nondelegable duty to take certain safety precautions to provide for a safe work place. While the court stated that these exceptions allow innocent third persons, unassociated with the work, to maintain a negligence action against the landowner, the court reviewed the question of “whether an employee of an independent contractor has a status significantly distinguishable from a member of the general public with respect to the employer’s [landowner’s] duty to compensate for injury caused by the negligence of the independent contractor.” 16 Conn. App. at 666-67. In answering the question in the affirmative, the court concluded:
“Employees of an independent contractor stand on a different footing with respect to such injury than does the general public. An employee of an independent contractor who performs inherently dangerous work has specifically contracted to perform such work knowing the risks involved and receives generally higher compensation because of such risks. Poirier v. Plymouth, 374 Mass. 206, 227, 372 N.E.2d 212 (1978). Furthermore, employees injured on the job, in contrast to passersby or other members of the general public who ‘are relegated to the hazards of litigation’; Vertentes v. Badetta Co., [392 Mass. at 171] (Abrams, J., concurring); receive recovery as a matter of due course under a statutory/administrative scheme. Hence, the concern underlying the vicarious liability doctrine, namely, that an individual who is injured by the negligence of an independent contractor performing inherently dangerous work might not receive just compensation for his injury, is not applicable when the injured person is the employee of the independent contractor. These differences support the distinction made by the courts between members of the general public and employees of the independent contractor in the context of vicarious liability of the contractor’s employer.” 16 Conn. App. at 667-68.
In concluding that an employee of an independent contractor covered by workers compensation could not recover from the landowner for either breach of a nondelegable duty or inherently dangerous activity the court stated:
“Aside from this distinction [as set out above], there are other compelling reasons for our decision to deny liability. With relatively few exceptions, an employee’s recovery for work-related injuries is governed by our comprehensive statutory workers’ compensation scheme. The insurance from which compensation for an injury is to be paid is carried by the contractor. It is to be expected that the cost of workers’ compensation insurance will be included by the contractor in his contract price for undertaking to perform the inherently dangerous work and, therefore, will ultimately be financed by the employer who hires the independent contractor. King v. Shelby Rural Electric Co-Op Corporation, [502 S.W.2d] at 662. The employer [landowner] thus already furnishes funds, at least in part, to pay the insurance premiums of the independent contractor for workers’ compensation. To hold the employer of the contractor liable vicariously to the employee of the contractor would effectively make the employer [landowner] pay twice for a contractor’s employee’s work-related injury.
“Finally, and most importantly, the imposition of liability would subject the employer of an independent contractor to greater liability than he would have had if he had used his own employees on the job. Vagle v. Pickands Mather & Co., [611 F.2d] at 1219; King v. Shelby Rural Electric Co-Op Corporation, [502 S.W.2d] at 662-63. As a general rule, an employee’s recovery is limited to workers’ compensation. In this case, for example, if the plaintiff had been an employee of Schneider and Welsh, doing exactly the same work, he would have been prevented by our workers’ compensation law from suing them in tort. Employees of an employer should not be limited to workers’ compensation benefits while permitting employees of an independent contractor to recover not only workers’ compensation benefits, but also to recover damages in tort from an employer of an independent contractor. If such were the case, there would be an indefensible status distinction between employees of an independent contractor and employees working directly for the owner of the premises, the real estate developers, the lessees of the premises or the general contractor. ‘To the extent that work[er]’s compensation is the preferred remedy for occupational injuries, it does appear anomalous and fortuitous to allow an employee to recover in tort from a third party owner when the accident arises out of and in the course of employment. In other words, a third party owner should not be exposed to greater liability by employing an independent contractor.’ Peone v. Regulus Stud Mills, Inc., [113 Idaho at] 378.
“There are other reasons to support our conclusion denying liability. First, a fundamental principle of our tort law is that ordinarily an individual should be held liable for compensating harm only when he has caused that harm through his own fault. The principle of liability for individualized fault is the norm, whereas vicarious liability ‘is regarded as an exceptional solution.’ Nowak v. Nowak, 175 Conn. 112, 126, 394 A.2d 716 (1978).
“Second, recovery in tort on a suit based on vicarious liability for injuries for which an employee has already been compensated pursuant to his workers’ compensation benefits usually would contravene the legislative scheme of the Workers’ Compensation Act.
“Third, the employee of the contractor ‘has greater knowledge of and control over the dangers to which he is exposed’ than does the employer of the contractor. Ackerman v. Gulf Oil Corporation, [555 F. Supp.] at 96. ‘Generally, the employee works with those dangers daily, and from such experience usually has a clearer idea of the dangers to which he is exposed and how he might alleviate such dangers.’ Id.
“Fourth, public policy encourages real estate developers and other employers to hire independent contractors where work is inherently dangerous because of their expertise, skill and ability to understand the dangers and to best take safety precautions against them. Imposition of vicarious liability upon the employer [landowner], which would expose him to more liability than if he undertook the work himself, can only discourage an employer [landowner] from seeking qualified contractors to perform dangerous work.
‘We conclude that an employer of an independent contractor may not be vicariously hable to the contractor’s employees for an injury caused in the performance of inherently dangerous work on account of the contractor’s failure to take the necessary safety precautions, or because the employer had a nondelegable duty to provide a safe work place.” 16 Conn. App. at 668-70.
Two additional cases relied upon by the Archbishop are Tauscher v. Puget Sound Power & Light Co., 96 Wash. 2d 274, 635 P.2d 426 (1981), and Stockwell v. Parker Drilling Co., Inc., 733 P.2d 1029 (Wyo. 1987). In Tauscher, the plaintiff, decedent’s mother, brought a wrongful death action against Puget Sound Power alleging that it violated both statutory and common-law duties it owed to the decedent, an employee of an independent contractor hired by the utility. Specifically, the plaintiff argued that the utility owed the decedent a nondelegable duty to ensure compliance with safety requirements based on statutes and the inherently dangerous nature of decedent’s work. Tauscher, 96 Wash. 2d at 276. After reviewing the case law of various states, the Supreme Court of Washington announced its rationale for limiting the property owner’s liability to third persons other than the independent contractor’s employees. In pertinent part, the court stated:
“There are strong policy considerations behind limiting an owner’s liability to those third parties other than employees of independent contractors. First, the rationale underlying the exception to the rule for nonliability, which is that we did not want an owner shifting his or her liability by hiring an independent contractor to perform a task, is not relevant in the case of an employee of an independent contractor. An owner who employs an independent contractor is already liable to all third persons, including employees of the independent contractor, for his or her own negligence, for negligence in the hiring of the independent contractor and for injuries resulting from any latent defects on the land. See Welker v. Kennecott Copper Co., 1 Ariz. App. 395, 403 P.2d 330 (1965); Restatement (Second) of Torts $ 343 [1964], Thus, the law already imposes upon the employer a duty of due care. The employer’s liability for damage resulting from the negligence of the independent contractor is limited to third parties largely because the employer has in a sense already assumed financial responsibility for the injuries to the employees in that the contract,he or she pays to the independent contractor necessarily includes the costs of the insurance premiums that the independent contractor must pay for workers’ compensation coverage. King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 (Ky. App. 1973); Vagle v. Pickands Mather & Co., 611 F.2d 1212, 1218 (8th Cir. 1979). The employee already has a remedy; one which the owner has paid for.
“Secondly, under our workers’ compensation statutory scheme, the employer is released from financial responsibility for on-the-job injuries to his or her employees. To hold an employer liable for injuries to employees of the independent contractor would subject the employer to a greater liability than if the employer had utilized his or her own employees. King, at 663; Vagle, at 1218; Cochran v. International Harvester Co., 408 F. Supp. 598, 602-603 (W.D. Ky. 1975).
“Finally, to hold otherwise would serve to encourage owners to use their own employees (who may be inexperienced) and thereby escape liability for any negligent acts and conversely, discourage owners from hiring experienced independent contractors, who specialize in hazardous work.” Tauscher, 96 Wash. 2d at 281-82.
Lastly, in Stockwell, 733 P.2d 1029, the Supreme Court of Wyoming reviewed the question of whether § 413 of Restatement (Second) of Torts (1964), entitled “Dufy to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor,” applied to employees of an independent contractor. The employee was injured when a roof panel he was trimming buckled and threw him to the ground. In ruling that the employee of an independent contractor was not the “other” to whom the employer of the independent contractor owed a duty of care under the language of § 413, the court reiterated its holding in Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo. 1986), where the court had previously addressed the question as it pertained to § 416 ('“Work Dangerous in Absence of Special Precautions”) of the Restatement (Second) of Torts (1964). The court held that the same logic and reasoning which applied to § 416 applied alike to § 413.
In quoting from Jones, 718 P.2d at 899, the Stockwell court stated in relevant part:
“ ‘[M]ost jurisdictions that have decided the issue have refused to apply the exception when an employee of the contractor is the injured party. Tauscher v. Puget Sound Power & Light Company, [Wash.,] 635 P.2d 426, 429 and n. 2 [1981]. There are several good reasons for-this view. First, if a bystander is injured by the negligence of a financially irresponsible contractor, the owner may be the bystander’s only source of recompense. The bystander is a totally innocent third party having no involvement in the work; and, if it is inherently dangerous and likely to cause harm, the owner undertaking the work should be responsible for the harm. The employee, on the other hand, is covered by worker’s compensation even if the contractor is insolvent. The owner should not have to pay for injuries caused by the contractor when the worker’s compensation system already covers those injuries. Sloan v. Atlantic Richfield Company, Alaska, 552 P.2d 157, 160-161 (1976). The owner “has in a sense already assumed financial responsibility for the injuries” because the independent contractor passes along his worker’s compensation costs to the owner. Tauscher v. Puget Sound Power & Light Company, supra, at 430; Eutsler v. United States, 376 F.2d 634, 636 (10th Cir. 1967).
“ ‘Second, under worker’s compensation, an employer is released from tort liability for his employee’s job-related injuries. If we held an owner vicariously liable for injuries to the contractor’s employees, then the owner would be subject to greater liability than if he employed his own workers to do the job. Owners might be encouraged to use their own inexperienced employees instead of experienced independent contractors who specialize in hazardous work. Tauscher v. Puget Sound Power & Light Company, supra, at 430-431.
“ ‘Finally, if the owner maintains control over the work and exercises that control negligently, he can be directly liable to the employee for his own negligence. Rather than imposing vicarious liability in these cases, it is better to hold the contractor and the owner directly responsible for their own fault. The contractor will pay via worker’s compensation and the owner through the tort system. Conover v. Northern States Power Company, [Minn.,] 313 N.W.2d [397] at 405 [1981].’ ” 733 P.2d at 1031-32.
While the Dillards provide some case law in support of their claims, most courts which have examined this issue have adopted the rule recognized in our Court of Appeals’ opinion. See Scofi v. McKeon Const. Co., 666 F.2d 170 (5th Cir. 1982); Evans v. Transportacion Maritime Mexicana, 639 F.2d 848 (2d Cir. 1981); Nelson v. United States, 639 F.2d 469 (9th Cir. 1980); Chavis v. Finnlines Ltd., OY, 576 F.2d 1072 (4th Cir. 1978); Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030 (5th Cir. 1977), cert. denied 435 U.S. 924 (1978); Craig v. Olin Mathieson Chemical Corporation, 427 F.2d 962 (7th Cir.), cert. denied 400 U.S. 964 (1970); Parsons v. Amerada Hess Corporation, 422 F.2d 610 (10th Cir. 1970); Lipka v. United States, 369 F.2d 288 (2d Cir. 1966), cert. denied 387 U.S. 935 (1967); Galbraith v. United States, 296 F.2d 631 (2d Cir. 1961); Wallach v. United States, 291 F.2d 69 (2d Cir.), cert. denied 368 U.S. 935 (1961); Corban v. Skelly Oil Company, 256 F.2d 775 (5th Cir. 1958); Hurst v. Gulf Oil Corporation, 251 F.2d 836 (5th Cir. 1958); Ackerman v. Gulf Oil Corp., 555 F. Supp. 93 (D.N.D. 1982); Olson v. Kilstofte and Vosejpka, Inc., 327 F. Supp. 583 (D. Minn. 1971); Morris v. City of Soldotna, 553 P.2d 474 (Alaska 1976); Sloan v. Atlantic Richfield Company, 552 P.2d 157 (Alaska 1976); Matanuska Electric Association, Inc. v. Johnson, 386 P.2d 698 (Alaska 1963); Mason v. Arizona Public Serv. Co., 127 Ariz. 546, 622 P.2d 493 (Ct. App. 1980); Welker v. Kennecott Copper Company, 1 Ariz. App. 395, 403 P.2d 330 (1965); Jackson v. Petit Jean Electric Co-op, 270 Ark. 506, 606 S.W.2d 66 (1980); Florida Power and Light Co. v. Price, 170 So. 2d 293 (Fla. 1964); Pearson v. Harris, 449 So. 2d 339 (Fla. Dist. App. 1984); Peone v. Regulus Stud Mills, Inc., 113 Idaho 374, 744 P.2d 102 (1987); Johns v. New York Blower Co., 442 N.E.2d 382 (Ind. App. 1982); King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 (Ky. 1973), cert. denied 417 U.S. 932 (1974); Vertentes v. Barletta Co., 392 Mass. 165, 466 N.E.2d 500 (1984); Conover v. Northern States Power Co., 313 N.W.2d 397 (Minn. 1981); Sierra Pac. Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 (1983); Donch v. Delta Inspection Services, Inc., 165 N.J. Super. 567, 398 A.2d 925 (1979); Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963); Cooper v. Metropolitan Government, Etc., 628 S.W.2d 30 (Tenn. App. 1981); Humphreys v. Texas Power & Light Company, 427 S.W. 2d 324 (Tex. Civ. App. 1968); Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970 (Tex. Civ. App. 1943); Epperly v. Seattle, 65 Wash. 2d 777, 399 P.2d 591 (1965); Potter v. Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955).
Although the cases cited by the Dillards represent the minority view, those opinions, along with most of the case law we have located which supports the Dillards’ theories, are simply inapposite to the specific issue under discussion. See Lindler v. District of Columbia, 502 F.2d 495 (D.C. Cir. 1974); Van Arsdale v. Hollinger, 68 Cal. 2d 245, 66 Cal. Rptr. 20, 437 P.2d 508 (1968); Makaneole v. Gampon, 70 Hawaii 501, 777 P.2d 1183 (1989); Giarratano v. The Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 (1967); Perry v. McLouth Steel Corp., 154 Mich. App. 284, 397 N.W.2d 284 (1986); Vannoy v. City of Warren, 15 Mich. App. 158, 166 N.W.2d 486 (1968); Elliott v. Public Serv. Co. of N.H., 128 N.H. 676, 517 A.2d 1185 (1986). These opinions, while providing support for the Dillards’ proposed rule of law, fail to address the various policy considerations recognized by the vast majority of jurisdictions and set forth herein.
The Dillards, however, rely primarily on our opinion in Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983). In Balagna, the widow and children of Dennis Balagna brought an action to recover for the wrongful death of Dennis, who was killed when a trench caved in on him during a construction project. Dennis was an employee of the generad contractor for the construction of a sewage disposal facility. The defendants were Shawnee County and Sewer District No. 33 as landowners, the architect-engineers hired by the landowners, and the general contractor. It was alleged that the trench in which Dennis was working at the time of his death was not properly shored and protected from collapse.
In Balagna, the main issue was whether Shawnee County, as landowner, was liable for the negligence of the independent contractor which resulted in the wrongful death of one of its employees. The decedent’s widow maintained that the landowner was liable under the inherently dangerous activity exception (Restatement [Second] of Torts \ 427 [1964]). However, while the court noted that the state recognized both the general principal of nonliability stated in Restatement (Second) of Torts § 409 (1964) and the inherently dangerous activity exception, the court found no liability on the part of the landowner because the activity engaged in by the employee was not inherently dangerous.
In discussing the liability of a landowner, the court stated the general rule and the inherently dangerous activity doctrine as follows:
“The well-established general rule in this state is that when a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the contractor. Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498 (1910); Reilly v. Highman, 185 Kan. 537, 345 P.2d 652 (1959); Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 487, 389 P.2d 766 (1964). The Kansas cases recognize that there are many exceptions and limitations to the foregoing rule, one of which is that an owner or contractee is responsible for injuries to a third party caused by work done by an independent contractor, where the contract directly requires the performance of work intrinsically dangerous, however skillfully done.
“The plaintiffs rely primarily on this exception which is known as the ‘inherently dangerous activity’ doctrine. The doctrine is set forth in the Restatement (Second) of Torts § 427 [1964], in the following language:
Ҥ 427. Negligence as to Danger Inherent in the Work
‘One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.’ ” 233 Kan. at 1079-80.
In affirming summary judgment granted in favor of the landowners, this court found that the work involved was not inherently dangerous and that the exception did not apply to the facts of the case. The Court of Appeals found that Balagna did not apply to the present case and disposed of it in cursory fashion, stating:
“The Dillards argue that Lee Dillard was performing an inherently dangerous activity when he was injured and that the Archbishop is liable for the independent contractor’s negligence. We disagree.
“In Balagna, the court found that the trenching work performed by this plaintiff was not inherently dangerous. Thus, the court did not determine whether a landowner is vicariously liable to an employee of an independent contractor as opposed to the public in general. The issue in this case was neither raised nor addressed by the Balagna court.” 18 Kan. App. 2d at 906.
While we agree with the Court of Appeals’ decision affirming the trial court, we believe its analysis of Balagna might be misleading. As pointed out in Balagna, numerous Kansas cases have recognized the inherently dangerous activity exception to the general rule of nonliability.
In the recent case of Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991), the plaintiff Falls was severely injured when a brush hog mowing machine being operated on an adjacent property threw a piece of wire that struck him in the face and eyes. Falls sued the landowner and the mowing machine operator. Falls contended that if the mowing machine operator was an independent contractor, the landowner was still liable on the theory that operation of the brush hog constituted an inherently dangerous activity. The trial court granted summary judgment to the landowner on the theory that the mowing activity was not inherently dangerous. We reversed the trial court’s summary judgment and remanded the case for trial. In doing so, this court stated:
“As a general rule, when a person (a contractee) lets out work to another and reserves no control over the work or workmen, the relation of contractee and independent contractor exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor. Balagna v. Shawnee County, 233 Kan. 1068, Syl. ¶ 3, 668 P.2d 157 (1983). An exception to the general rule is the inherently dangerous activity doctrine, which provides that one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such dangers. Balagna, 233 Kan. 1068, Syl. ¶ 4.
“Restatement (Second) of Torts § 427 defines the ‘inherently dangerous activity’ doctrine in the following language:
‘One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.’ ” 249 Kan. at 59.
The court went on to state:
“As to the question of what type of work is or is not considered to be inherently or intrinsically dangerous, courts have found no rule of universal application by which they may abstractly draw a line of classification in every case. Generally speaking, the proper test to determine if an activity is inherently dangerous is whether danger inheres in the performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injuiy. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. Reilly v. Highman, 185 Kan. 537, 541, 345 P.2d 652 (1959); 41 Am. Jur. 2d, Independent Contractors § 41, p. 807; 57 C.J.S., Master and Servant § 590, b.(1); Annot., 23 A.L.R. 1084, 1095. The same test is recognized in Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 488, 389 P.2d 766 (1964).” 249 Kan. at 61.
Kansas has clearly recognized the inherently dangerous activity doctrine. However, the fact that the doctrine has been recognized and applied in Kansas is not determinative of the case now before us. None of the Kansas cases we have found addressed the issue of the effect of workers compensation on the applicability of the inherently dangerous activity doctrine under facts similar to the present case. The various policy reasons precluding liability of a landowner for injuries suffered by an employee of an independent contractor covered by workers compensation were not raised or considered in our earlier cases. We find the various policy provisions discussed in the various cases cited herein not only persuasive but also determinative of this case. The policy reasons include:
(1) The landowner should not have greater liability to an employee of an independent contractor than the liability of the contractor to that employee.
(2) The landowner should not have greater liability to the employees of an independent contractor than the landowner has to the landowner’s own employees.
(3) Liability on the part of the landowner would encourage the landowner to use the landowner’s less experienced employees rather than an experienced contractor.
(4) Employees of an independent contractor, and their dependents, are protected under the provisions of the workers compensation statutes.
(5) Workers in inherently dangerous jobs are fully aware of the dangers involved and receive compensation accordingly.
(6) Landowners may not have expert knowledge of inherently dangerous work, the risks involved, and methods of avoiding such risks that an independent contractor engaged in such activity possesses.
(7) Liability on the part of the landowner would create a class of employees, those of an independent contractor, with greater rights than the employees of the landowner for doing the same work.
(8) To allow an employee of an independent contractor covered by workers compensation to invoke the inherently dangerous activity doctrine would (a) reward landowners who, despite their own lack of expertise, choose to perform work negligently resulting in injury to workers, (b) increase the risks to innocent third parties, and (c) punish landowners who seek expert assistance in an effort to avoid liability for injury.
(9) A landowner who engages the services of an independent contractor pays directly or indirectly for the compensation coverage when the landowner contracts with the independent contractor.
We therefore hold:
(1) A landowner is not liable to an employee of an independent contractor covered by workers compensation for injury sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance.
(2) The inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation.
(3) Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner liable under the theories discussed in the opinion.
We conclude that summary judgment was proper and the Archbishop has (1) no direct liability to the Dillards for the alleged violation of a nondelegable duty to provide an independent inspection under the Leawood UBC and (2) no indirect or vicarious liability to the Dillards under the inherently dangerous activity doctrine. Any other result would violate the public policy inherent in our workers compensation laws.
The judgments of the district court and of the Court of Appeals are affirmed.
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The opinion of the court was delivered by
Sarrord, J.:
Upon the trial of this case in the court below, the plaintiff, now defendant in error, having been sworn as a witness in his own hehalf, was asked among others, the following question: “What damage have you sustained in consequence of the loss of your right arm and shoulder ?” The answer of the witness was in the words as follows: ' “ My answer is, the amount claimed in my petition, fully ten thousand dollars.” Both the question and the answer were objected to by the counsel for the defendant; but the objections were overruled, and the testimony was allowed to go to the jury, and exceptions to the ruling of the court were taken.
I. It is contended for the defendant in error that in order to make the exceptions available, the party excepting ought to have gone further than he did, and moved the court to rule out the objectionable testimony. We do not think so. The objections to the question propounded, and to the answer of the witness, were taken in the usual way, and upon such objections being overruled the exceptions to such rulings were also entered according to the usual practice in such cases, and were no doubt sufficient to entitle the party in whose behalf they were so made to any right which he might have by reason of the premises. If therefore under the ruling of the court in allowing the question referred to, to be asked and answered as stated, improper and illegal testimony was put before the jury, the course of the objecting party was such as to save the point as a basis for error to this court. Sections 300, 301, 302, Code of 1868.
II. Then, as to the question asked. It was in no view of the case a proper one. It was calculated to elicit no facts which would assist the jury in deter min-o j ing for themselves as to the question of damages, but left the whole matter to the mere opinion of the witness. It was a question resting upon and including a large number of facts, as is evident from the multifarious proof which was submitted, and the number of witnesses who were called and testified at the trial; and it was such facts themselves that the defendant was entitled to have the jury pass upon, and that too uninfluenced by any opinion of any witness testifying in the relation in which this witness appeared. But such right was taken away by the authority of the court in permitting the course of inquiry which was pursued in this instance, and it seems clear that such a ruling ought not to be sustained. But this matter is placed beyond a doubt, when the answer of the witness comes to be considered in the light of the authorities. “ Another general rule, which pervades all our law is, that the witness is to testify only to facts. He is to speak as to the facts, which he has heard, or seen. His opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict and decides the case.” And again : “ The general rule which requires a witness to speak to facts within his knowledge is applied to the subject of compensation; the damage must be proved like any other fact in the cause, and no testimony amounting to a mere opinion is competent.” Sedgwick on Dam., 699, 700; 29 Barb. 422; 17 "Wend., 137. There are exceptions to the rule, as thus expressed, having reference to questions of science, trade, and to those of a similar nature. But the question and answer, and the matter to which the inquiry was directed in this instance, do not come within any of such exceptions; and hence the general rule must be held to govern.
But it is claimed that the evidence complained of, even if it should be held to have been improperly admitted, could not have operated to the detriment of x ^ plaintiff in error, for the reason that “ it could not have influenced the jury, because there was no other evidence in a lump, and the jury found only $2900-as the damage.” We do not see how the conclusion of counsel results from or follows the premises stated. The jury must have given some consideration to all of the testimony which was offered, and more especially to such portions of it as had a direct bearing upon the question of damages; and it is but reasonable to believe that all of such last mentioned evidence must have had more or less influence upon their minds in the making up of their verdict. Just how much, or how strong was such influence, as connected with or resulting from any particular portion, it is impossible to know. But is it not just as impossible for us to say, with any show of reason, that the proof of the ease of the plaintiff below, did not, as to the question of damages rest to a very great extent upon this identical statement of the witness ? The jury must not only have considered all of the testimony offered upon the point in question, but they were convinced by it — as witness their verdict — that the plaintiff below ought to recover; and is there any way by which we may decide as to what particular portion of such evidence so operated upon the minds of the jury as to produce such result? If there is, we are not aware of it. Our conclusions then, as to the evidence in question, are, that it was clearly incompetent, and therefore inadmissible; that it might have influenced the jury to render a verdict for a larger amount against the defendant below, than they would have rendered had legal and proper testimony only been given. Here, therefore, is good ground for error. 9 Conn. 129; 29 Barbour, 422.
NI. It is not proposed to refer in detail to the farther evidence on the question of damages in this record, or to the questions raised in respect thereof upon the argument, with the purpose of giving the opinion of the court as to whether they are or are not well taken. But in view of the fact that further proceedings may he had herein, it may be important to call attention to the rule as to the measure of damages which has obtained in, and has been followed by many highly respectable courts in the trials of actions of a similar nature, and hence may be considered as settled. It is to the effect, that, notwithstanding the absence of any malice or fraud on the part of an attending physician and surgeon, yet, if injury result to his patient by reason of a want of ordinary skill or ordinary care and attention in the treatment of such patient, the injured party may recover damages for the injury, and such as- are compensatory in their nature. These are held to include pecuniary loss, both direct and indirect, if referable to and resulting from the course of treatment complained of. Suffering also, which is produced in consequence 'of the acts in question, may be a subject of compensation. So also the loss of time and actual expenses incurred in consequence of the fault, want of skill, or negligence of the physician. Regard is also to be had in such case to the character of the resulting injury, as to whether it be temporary or permanent in its consequences. So also, the situation and condition of the injured party may be considered. All of these items may be taken into the account by the jury in the making up of their estimate of damages in a proper case; and as a matter of course, it follows, that evidence properly referable thereto, and tending to establish such damages as resulting under each particular head or description would be competent, though such evidence must be free from objection in other respects. This doctrine is supported upon the general principle that when an injury has been sustained, and the law gives a remedy, that remedy shall be commensurate to the injury sustained. See also as to the points named, Sedgwick on the Measure of Damages, 32; 10 Barbour 621; 1 Kernan, 416; 22 Mo., 344; 15 N. Y., 415; 1 Duer, 233.
IV. It appears from the record, that during the progress of the trial, several physicians and surgeons were examined on behalf of the plaintiff x who gave testimony as experts, and without knowing the particulars of the case from personal observation. Without specifying particular instances, of which there are several, the court permitted such experts to give their opinions as to matters of fact concerning, and assumed to exist in and constituting this particular case. This is not allowable, as we understand the-rule applicable to such examinations, when the facts are disputed, as was the case here. “ In such a case the expert cannot give an opinion on the case under trial; but counsel must put to him an hypothetical or supposed state of facts, and' ask the opinion of the witness upon these facts.” (Elwell on Malpractice, 277, and the cases there cited.) This rule ought to have been followed in this case; and the court failing to enforce it, and the defendant having properly saved his objections in respect thereof, he is in a condition to take advantage of the error whenever it occurred. And that such error is substantial, and calculated to prejudice the rights of the party to be affected thereby, is not doubted; it cannot therefore be disregarded.
V. It is claimed that in the examination of witnesses in this case, questions were propounded which were of and concerning matters involving points of law only.' It hardly need be said that this course of inquiry was improper, if it occurred as stated. This does not, however, appear to be the case in regard to the portions of the testimony to which our attention is directed under this point, and which had reference to what would be the duty of an attending physician and surgeon under like circumstances as were supposed to exist in this case.
VI. As to what constitutes' ordinary skill, and ordinary care and diligence on the part of a physician and surgeon — it is a question of law, in this view at least, that it is to be stated by the court as defined by the books. It will be seen however, at a glance, that in order to enable a jury to apply the rule so stated, to particular circumstances, something further is necessary to be done. Such jury must be informed as to the facts or criterion upon and by which the standard of ordinary skill and ordinary care aud diligence rests, and is regulated in these professions. And to supply such need, evidence may properly be introduced, as showing such facts. This evidence must, from the very nature of the case, come from experts, as other 'witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculiar to the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations. Such explanations therefore become necessary. In this view, the whole question under consideration seems to be one of mixed law and . fact, and is so to be regarded. The questions to which reference is made, so far as they are directed to the end suggested, were proper.
VII. The testimony in this case was very voluminous, and numerous objections were interposed to the introduction of specified portions of it, (other than those to which we called attention,) on the ground of incompetency, irrelevancy and immateriality. We have very carefully considered each of the points made, and have reached the conclusion that some of them are well taken, and should be sustained. It does not seem essential, however, to take up and examine and pass upon the questions thereby presented, and for several reasons: 1st. In view of the conclusion reached in regard to the point already considered in this opinion, the case must go back for a new trial. 2d. Upon such new trial we cannot believe that those errors which we think were committed on the former trial, and to which reference is not made, will be at all likely again to occur; and 3d: In such last view of the matter, no practical good would result from our investigation, which would be commensurate with the task of going over the entire ground suggested upon the face of the record. And besides this, such investigation would for the most part be an examination into and an assertion of well-established and declared principles of law respecting the examination of witnesses and the introduction of testimony. It is also to be remarked in this connection, that while some of the questions which were objected to by counsel were no doubt improper, they were of such a character as to result in no particular injury to any one, and the mere fact of their being allowed would not therefore be a sufficient ground for a reversal.
VIII. But objections are also urged to the instructions which were given to the jury. We do not propose to discuss these instructions at length, or even to notice all of them; but shall content ourselves with calling attention to some which are especially objected to, and as to these with a single exception, more by way of general remark than by direct or particular examination. It is claimed that the fifth instruction which was asked and given in behalf of the plaintiff below, does not give the correct rule by which to determine the responsibility of the defendant in this case, and for the reason that standard of legal obligation imposed thereby would require of him extraordinary care and skill, an extraordinary amount of learning in his profession, and an extraordinary judgment. The objection is to a certain extent sustainable. The instruction was liable to be made the means of conveying to the minds of the jury an idea of the undertaking on the part of the surgeon, when he assumes the charge of a case, which the law does not justify. It was therefore calculated to injure the defendant, as requiring too much at his hands. As we understand the current of the decision, as to the undertaking and responsibility of a practicing physician and surgeon, it is to the effect, substantially, and may be stated as follows: He is never considered as warranting a cure, unless under a special contract for that purpose; but his contract, as implied in law, is, that he possesses that reasonable degree of learning, skill and experience, which is ordinarily possessed by others of his profession ; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not résponsible in damages for want of success, unless it is shown to result from a want of ordinary skill and learn ing, and such, as is ordinarily possessed by others of his profession; or, from want of ordinary care and attention. He is not presumed to engage for extraordinary skill, or for extraordinary diligence and care; nor can he be made responsible in damages for errors in judgment, or mere mistakes in matters of reasonable doubt or uncertainty. See 7 Foster, 460; 28 Maine, 97; 39 Maine, 155.
A careful consideration of the foregoing observations will show that the degree of learning and skill which the physician and surgeon holds himself out to possess, is that degree which is -ordinarily possessed by the profession, as it exists at the time, or cotemporaneous with himself, and not as it may have existed at some time in the past. It follows then, that the standard of such ordinary skill may now be in the advance of what it has been in the past, and according to the general and material progress made in the sciences of medicine and surgery. “ The standard of ordinary skill which is required of any physician and surgeon, it will be borne in mind, is that degree and amount of knowledge and science which the leading authorities have pronounced as the result of their researches and experience up to the time, or within a reasonable time before the issue or question to be determined is made. — (Elwell on Malpractice, 53.) And such physician and surgeon must in general be held to apply in his practice, what is thus settled in his profession. — (Id., 31.) There is nothing unreasonable in such requirement; audit is no more than that which is expected of the other professions. That which is pronounced as settled in any profession by the leading and standard authorities therein, is within the reach of any practitioner; and his being such practitioner, in general, presupposes the fact, and is guaranty on his part, that he is in possession of a knowledge of it as so settled. The ideas here advanced are not to be extended so as to embrace wbat may be known only to and practiced by the highest talent, but should be confined to that which is within the reach of, and may and should be attained by, the more common and ordinary class of practitioners. Regard also is to be had to the circumstances by which the different portions of any one profession may be surrounded, as affecting the question of their proficiency in, and knowledge of advances which may be made in their particular line, and the obligation to be up to such advance. The opportunities by reason of locality, or other circumstance, of one, portion, may be many times more favorable than ■ those of another; and the responsibilities resting upon them would be correspondingly greater.. This idea is illustrated by Elwell in his work on Malpractice, pp. 22, 23, where he makes the following observation : “ There are many neighborhoods, in the west especially, where medical aid is of difficult attainment. Yet cases of disease and surgery are constantly occurring, and they must of necessity fall into the hands of .those who have given to the subject but little if any thought. Thus, the inexperienced and the unlearned attend to the surgery in their way, or it is not attended to at all. * * * In such cases no more can be expected of the operator than the exercise of his best skill and judgment. In large towns and cities, are always found surgeons and physicians of the greatest degree of skill and knowledge. They are to be held to a corresponding high degree of responsibility. * * * In the smaller towns and country, those who practice medicine and surgery, though often possessing a thorough theoretical knowledge of the highest elements of the pro fession do not enjoy so great opportunities of daily observation and practical operations, where the elementary studies are brought into every day use, as those have who reside in the metropolitan towns, and though just as well informed in the elements and literature of their profession, they should not be expected to exercise that high degree of skill and practical knowledge possessed by those having greater facilities for performing and witnessing operations, and who are, or maybe constantly observing the various accidents and forms of disease. It will not therefore, as a general thing, require so high a degree of knowledge to bring this class of physicians up to the rule of ordinary knowledge and skill as in places where greater facilities are afforded by which higher professional knowledge is attainable.”
"We have remarked above as to the obligation of the physician and surgeon to apply correctly in his practice what is settled in his profession. But it is to be remembered that such application is not alone adequate to the management of the different cases, and the phases thereof which the practitioner may be called upon to meet. PTis best judgment is constantly appealed to, and upon such judgment he must rely. It is plain to the most casual observer that there is great room for difference of opinion in the exercise of the arts of surgery and medicine; and as a result, there are usually more ways than one of accomplishing the same thing, and each having its advocates as being equally efficient or even better than any other. “ Good judgments may differ;” and such being the case, as just remarked, the practitioner must use his judgment, and follow its dictates in all cases of doubt, or where they may be a foundation for such difference of opinion, and if he thus exercises such judgment in an enlightened and reasonable manner, he will not be responsible for errors. Elwell on Malpractice, 29.
But it is unnecessary to prolong this opinion by further discussion of the points suggested by the record, or by the argument of counsel. The case must be remanded for a new trial upon the grounds first adverted to herein ; and enough has been said as to the law governing cases of this sort, to indicate the opinion of this court upon the more important questions which are raised upon the instructions, and which may be presented on a re-examination of the case.
The judgment is reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Allegrucci, J.:
Kevin LaBona appealed from the denial of his K.S.A. 60-1507 motion. He sought to set aside his convictions on two counts of indecent liberties with a child pursuant to State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992). The Court of Appeals reversed pursuant to Carmichael v. State, 18 Kan. App. 2d 435, 856 P.2d 934 (1993), which held that Williams states a jurisdictional rule that may be asserted at any time. We granted the State's petition for review.
On April 3, 1986, Kevin LaBona pled guilty to two counts of indecent liberties with a child in violation of K.S.A. 21-3503. The victim was his daughter.
LaBona filed a K.S.A. 60-1507 motion, seeking to set aside his convictions pursuant to Williams. The district court denied the motion on the ground that Williams “does not state a retroactive application and is therefore not applicable.” -
The Court of Appeals reversed pursuant to Carmichael and stated: “The district court lacked jurisdiction to convict LaBona of indecent liberties. The convictions on two counts of indecent liberties are reversed, and this case is remanded with directions to vacate the sentence for these convictions.”
The sole issue raised is whether the district court erred in denying LaBona’s K.S.A. 60-1507 motion seeking to set aside his convictions of indecent liberties with a child pursuant to State v. Williams. The same issue is raised in Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994). In Carmichael, we rejected the Court of Appeals’ determination that Williams stated a jurisdictional rule. In so doing, we said:
“Since the court’s granting of the petition for review in tins case, we have decided State v. Sims, 254 Kan. 1, 862 P.2d 359 (1993). There, this court expressly rejected the idea that Williams announced a jurisdictional rule. Here, as in Williams, the petitioner is charged under the general statute rather than the controlling specific statute. The information/complaint is the jurisdictional instrument upon which a defendant stands trial, and it must allege the essential elements of the offense charged. State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). Since the complaint does allege each essential element of the crime charged, the district court had jurisdiction. . . .
"In the present case, we are not dealing with ‘trial errors affecting constitutional rights’ but, rather, with the failure of the State to charge the petitioner with aggravated incest (the specific offense) rather than rape (the general offense). The rule that where one statute is more specific than another, and therefore controlling, is used to determine the intent of the legislature where two statutes are in conflict. By determining which statute is more specific, the court can determine which statute the legislature intended to apply. In Williams, we held that aggravated incest is the specific crime ....
“. . . Although the conduct prohibited in aggravated incest and rape can be identical, i.e., sexual intercourse, the offenses are not. Aggravated incest requires the additional elements of a victim under 18 years of age, kinship, and that the offender be aware of the kinship. Rape requires force; aggravated incest does not. For that reason, we have held that aggravated incest is not included in nor merges with the offense of rape. Nor have we found the two offenses to be multiplicitous. Rather, ,we concluded that since aggravated incest is the specific offense and rape the gériéral offense, the defendant should be charged only with aggravated incest. Here'; based on our holdings in Williams arid Sims, the district court did not lose jurisdiction, and where, as here, the petitioner is charged and convicted of rape of his daughter rather than aggravated incest, the proper remedy is to vacate the sentence imposed for rape and resentence die petitioner for aggravated incest.” 255 Kan. at 12-19.
LaBona pled guilty to indecent liberties with his daughter, and a jury convicted Carmichael of the rape of his daughter. This difference distinguishes the present case from Carmichael. Our decision in Carmichael is not determinative of this appeal.
Since granting this petition for review, this court also decided State v. Reed, 254 Kan. 52, 865 P.2d 191 (1993). Reed failed to report when she became ineligible and continued to receive assistance from the ADC and Food Stamp programs. She was charged with theft by deception and making a false writing, pled guilty to felony theft, and was granted probation. Ten months later her probation was revoked. Reed appealed to the Court of Appeals. There she argued for the first time that her conviction should be vacated because the district court lacked jurisdiction to accept her plea because she had been erroneously charged with theft by deception instead of welfare fraud. She relied on State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), and Williams.
The Court of Appeals concluded that Reed was improperly charged with theft by deception and that the district court therefore had no jurisdiction to accept Reed’s guilty plea. The Court of Appeals vacated her conviction. The State’s petition for review was granted.
This court reversed the judgment of the Court of Appeals and affirmed the judgment of the district court. The court stated:
“Reed, as did the defendant in Sims, confuses a challenge to the sufficiency of tile complaint with a claim that the court did not have jurisdiction to sentence her because she had improperly pled guilty to theft, a general crime which she had not committed, rather than to welfare fraud, the crime she actually committed.” 254 Kan. at 57.
Then, “[b]ecause Wilcox, Williams, and Sims dealt with sufficiency of the evidence for the crime charged and not with ' whether the district court had jurisdiction to accept Reed’s plea to theft by deception,” 254 Kan. at 59, the: court shifted its attention to State v. Gibbens, 253 Kan. 384, 855 P.2d 937 (1993).
Gibbens pled nolo contendere to two counts'of rape. On appeal he argued, based on Williams, that the district court lacked ju risdiction to accept his plea because the victims were his stepdaughters. The court stated:
“We express no opinion on this issue as we conclude the issue is not properly before us for the following reasons:
“1. The notice of appeal filed herein specifies that appeal is taken only from the sentences imposed.
“2. The aggravated incest argument was never raised before the trial court; no motion to withdraw the pleas or arrest judgment was made; and no appeal was taken from any matter relating to the convictions themselves.
“3. No authority is cited for the proposition that the aggravated incest-rape argument is a jurisdictional matter. The information on its face contains all allegations necessary for the conviction of the defendant on both counts of rape.” 253 Kan. at 387-88.
Hence, Gibbens did not decide Reed’s question.
This court concluded that the Court of Appeals erred in vacating Reed’s plea to theft by deception. We stated:
“Reed was represented by counsel. She understood the nature of the charges, the effect of the guilty plea, and the sentence that could be imposed. The fact that the evidence does not support the charge to which the defendant pled guilty does not require that the plea be later vacated.” 254 Kan. at 59.
The judgment of the Court of Appeals was reversed, and the judgment of the district court was affirmed.
Gibbens was a direct appeal challenging the sentence as being excessive. The issue of the court’s jurisdiction to accept Gibbens’ plea was raised for the first time on appeal and not considered. Reed also was a direct appeal in which defendant challenged the court’s lack of jurisdiction for the first time on appeal. Here, as in Carmichael, the petitioner is challenging the State’s failure to charge him with the specific offense which he claims ultimately resulted in the imposition of an illegal sentence. Pursuant to 60-1507 and K.S.A. 22-3504, the court has jurisdiction to correct an illegal sentence at any time.
However, as in Reed, the petitioner was represented by counsel. He understood the-nature of the charges, the effect of his guilty pleas, and the possible sentence. By entering a plea of guilty, he waived the right to challenge the failure of the State to charge the specific offense of aggravated incest and acquiesced in the convictions for indecent liberties with a child. Thus, the district court was not required to vacate his pleas of guilty, and the sentence imposed was not erroneous. The petitioner cannot now complain that the sentence must be vacated.
The judgment of the Court of Appeals reversing the convictions on the two counts of indecent liberties with a child is reversed. The district court’s order denying the petitioner’s 60-1507 motion is affirmed.
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The opinion of the court delivered by
Sanford, J.:
This was a motion to set aside a sale of real estate and an order of confirmation thereof, on the ground that there had been no advertisement of the property sold, such as is required by law. It is shown that the party in whose interest the sale had been made, and the purchaser at the same, were before the court, and that they waived all objections to the form of the proceedings, and consented that the questions raised should be heard upon the said motion. The record also shows that the allegations of the motion as to want of proper advertisement were true as a matter of fact. The court refused the motion, though upon what ground, it does not appear, nor do we see any good ground for such refusal. Under the circumstances we are of the opinion that the motion should have been granted.
It is unnecessary 'to decide whether or not this proceeding should have been by petition, and no opinion is expressed upon that point..
The order of the district court overruling the motion to set aside the sale and the order of confirmation, is reversed..
All the Justices concurring.
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The opinion of the court was delivered by
Lockett, J.:
Defendant-appellant Kansas Department of Social and Rehabilitation Services (SRS) appeals die denial of its motions to dismiss and for summary judgment on the negligence claim asserted by plaintiffs P.W. and R.W. for themselves and on behalf of their children, A.W. and R.W. Defendant-appellant Kansas Department of Health and Environment (KDHE) appeals the denial of its motion for summary judgment in the same matter. The district court made the findings required by K.S.A. 60-2102(b) for an interlocutory appeal to the Court of Appeals, and we subsequently transferred the case to our docket under the authority granted by K.S.A. 20-3018(c).
We note that SRS is appealing from both the denial of its motion to dismiss and its motion for summary judgment while KDHE only challenges the denial of its motion for summary judgment. Although the district court and the parties have raised several issues, we find the issue of the existence of a duty dispositive of all issues.
Scope of Review
The scope of review on a motion for summary judgment includes any “pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits.” Hollenbeck v. Household Bank, 250 Kan. 747, 750, 829 P.2d 903 (1992). The important distinction between the handling of a motion to dismiss on the one hand and a motion for summary judgment on the other is that in the former the trial court is limited to a review of the pleadings, while in the latter, the trial court takes into consideration all of the facts disclosed during the discovery process — affidavits, depositions, admissions, and answers to interrogatories. Beck v. Kansas Adult Authority, 241 Kan. 13, 26, 735 P.2d 222 (1987). Under the circumstances, we are only required to address the propriety of the district court’s decision on the agencies’ motions for summary judgment.
Standard of Review
This court, as does the trial court, must resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the party opposing the summary judgment motion, and if reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988). Summary judgment is only appropriate if the record conclusively shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.J.W. v. State, 253 Kan. 1, 16, 853 P.2d 4 (1993).
Uncontroverted or Admitted Facts
A.W. and R.W. were children enrolled at the Munchkin Care Center, a day care center located in Topeka. The plaintiffs alleged a number of violations and abuses by the owner-operators of the day care center and alleged that KDHE and SRS were negligent in failing to revoke or suspend the license of the day care providers or take other corrective actions. KDHE is the state agency statutorily vested with the power to license and regulate day care centers in this state. SRS is the state agency that, in conjunction with law enforcement officers, has the duty to receive and investigate reports of child abuse for the purpose of determining whether a report is valid and whether state action is required to protect a child from further abuse. SRS at no time had legal or physical custody of A.W. and R.W. SRS did investigate and determine the reports of abuse filed by the plaintiffs. SRS had no contractual or business relationship with the day care center or the centers employees.
SRS, by statute, is required to investigate any report of child abuse. From December 1986 to March 1988, SRS investigated four claims of child abuse at the day care center. The claims all involved the same adult. In June 1987, SRS investigated but could not confirm a report that this adult may have “fondled” a child at the day care center. SRS did recommend that the adult “modify his behavior.” Two other incidents of inappropriate touching by the adult were made in 1987 by two different parents, but those parents subsequently refused to cooperate with SRS’s investigation of the reports. In 1988, SRS received a report that a child at the day care center had possible bruising around his anus, but a physician determined that no abuse was involved. Plaintiffs’ expert witness agreed the SRS investigations were properly conducted.
KDHE, by statute, is responsible for the licensing and inspection of day care centers. It has the authority to suspend or revoke a day care center’s license. KDHE investigated 30 complaints it received about the day care center during the years from 1985 to 1989. The problems reported included repeated instances of overenrollment, inadequate supervision of the children, and inappropriate disciplinary methods. Plaintiffs’ expert opined that KDHE acted unreasonably in failing to correct the problems or to close down the day care center operation. Plaintiffs argued, however, that although their expert witness agreed the four unconfirmed reports of abuse were not sufficient to require corrective action or a license revocation by KDHE, the number and frequency of problems involving overenrollment and improper disciplinary methods, when coupled with the unconfirmed reports of abuse, should have resulted in suspension or revocation of the day care center’s license.
Other facts were asserted by SRS and controverted by the plaintiffs, but the plaintiffs failed to cite to the record to support their disagreement with the facts stated. It is incumbent on a party opposing a motion for summary judgment to counter alleged uncontroverted facts with something of evidentiaiy value. Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 (1990). Courts have discretion to treat a fact as uncontroverted when the party controverting the alleged uncontroverted fact fails to cite any factual authority for support. Danes v. St. David’s Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988). Under the circumstances, the additional uncontroverted facts are: (1) SRS had no “knowledge, contact or relationship” with the plaintiffs at the time of the alleged abuse “other than as members of the public at large”; (2) KDHE, when exercising its discretion, determined it did not have any sufficient reason under K.S.A. 65-516 and K.S.A. 65- 521 to revoke the day care center’s license; and (3) SRS had no ongoing regulatory responsibility for the day care center employees at the time the plaintiffs were customers of the center.
The District Court’s Decision
The district court ruled SRS and KDHE had a duty to warn or protect the plaintiffs under Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), which involved § 324A of the Restatement (Second) of Torts (1964), and Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), which involved §§ 315 and 324A of the Restatement (Second) of Torts. The court also found K.S.A. 38-1524 imposed a statutory duty on SRS to protect the plaintiffs. The court dren found KDHE and SRS had a duty to protect the welfare of children under the doctrine of parens patriae. The district court also ruled KDHE had a duty because it had a special relationship with the plaintiffs through its statutory duty to regulate day care centers, i.e., to license, receive and investigate complaints, supervise, and monitor day care centers. The district court found there were genuine issues of material fact and the agencies were not entitled to judgment as a matter of law.
The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that, unless a statutory exception applies, a “governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where tire governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 75-6103(a). Negligence consists of the following elements: a duty owed to the plaintiff, breach of that duty, that the breach of duty was the proximate cause of the plaintiff’s injury, and that the plaintiff suffered damages. Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992). The existence of a duty is a question of law. Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993). Our review of questions of law is unlimited. Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 693, 867 P.2d 1057 (1994). For either SRS or KDHE to be liable, there must have been a duty owed to the plaintiffs.
Restatement (Second) of Torts § 315
The existence of the duty under § 315 of the Restatement (Second) of Torts was recently analyzed in Nero. Nero, a student at Kansas State University, was sexually assaulted by another KSU student, Davenport. During the spring semester, after Davenport had been accused of raping another student, he was assigned to an all-male dormitory. During the spring intersession, only one dormitory, a co-ed dorm, was available to students. Nero and Davenport both were enrolled in the intersession and both were placed in the co-ed dorm.
In Nero, we noted that an actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless a special relationship exists between the actor and the third party or the actor and the injured party. 253 Kan. at 571 (citing § 315).
Comment c to § 315 explains:
“ ‘The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.”
The special relationships set out in §§ 314A, 316-319, and 320 are those of common carriers and their passengers, innkeepers and their guests, parents and children, masters and servants, the possessors of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991) (citing Restatement (Second) of Torts §§ 316-320).
We had previously discussed the concept of special relationship in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). In Robertson, the plaintiff called Topeka police to remove Leroy Danner from a house Robertson owned. Robertson informed the police Danner had no right to be on the property and that if he was not removed he would probably bum the house down. The police refused to remove Danner and ordered Robertson to leave the premises. Within 15 minutes the house began to bum. We stated in Syl ¶ 2:
“In tort law, it is generally held that the duty of a law enforcement officer to preserve the peace is a duty owed to the public at large, not to a particular individual. Absent some special relationship with or specific duty owed an individual, liability will not lie for damages.”
This court found no special relationship existed between Robertson and the police. 231 Kan. at 364.
In this case, KDHE and SRS, the plaintiffs, and the third party (the abuser) do not fit into the special relationships set out in the Restatement (Second) of Torts §§ 314A, 316-319, and 320. We have noted a special relationship may also exist when one creates a foreseeable peril, not readily discoverable, and fails to warn. Robertson, 231 Kan. at 364. SRS or KDHE, however, did not create the peril, which was the chance of abuse at the hands of the husband of the day care provider. A.W. and R.W. were also never in the legal or physical custody or care of SRS or KDHE. SRS and KDHE had no more contact with the plaintiffs than with any other member of the public at large. There was no special relationship between SRS or KDHE and the plaintiffs. Without a special relationship, there is no duty owed under § 315.
Restatement (Second) of Torts § 324A
Restatement (Second) of Torts § 324A provides that one who undertakes to render services either gratuitously or for consideration to another which should be recognized as necessary for the protection of a third person has a duty to act reasonably. See Honeycutt, 251 Kan. at 464. In that case, Honeycutt, a kindergartner, was walking home from school alone when he was struck and seriously injured by a train on railroad tracks that were between his school and his home. We noted that a school district is under no duly to supervise or provide for the protection of its pupils who are off of the school grounds and on their way home from school unless it has undertaken to provide transportation for them. 251 Kan. 451, Syl. ¶ 11. We rejected Honeycutt’s claim that the school district acted affirmatively or entered into an agreement to protect him while he was en route between his home and his school. 251 Kan. at 468.
The threshold requirement for the application of § 324A is a showing that KDHE or SRS undertook, gratuitously or for con sideration, to render services to the plaintiffs. See 251 Kan. at 464. To deny summary judgment on this ground, there must be at least a genuine issue of fact as to whether KDHE or SRS, through affirmative acts, assumed an obligation or intended to render services for the benefit of the plaintiffs. In Honeycutt, 251 Kan. at 465, we quoted from Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 668, 792 P.2d 993 (1990):
“ ‘In each of the Kansas cases imposing liability under § 324A, it was clear that [the threshold] requirement was met. In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), KCPL agreed to and was hired to render traffic engineering services to the City. In Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983), the Kansas Turnpike Authority hired Howard-Needles as its consulting engineers to make safety inspections of the turnpike and thus render services to the KTA. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), there was evidence the county agreed with Kansas State Penitentiary officials and other law enforcement agencies to notify these agencies of escapes from the penitentiary. In Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), the police were obligated by a general police department order to take certain incapacitated persons into custody. Further, in the cases not finding a duty, it was clear there was no undertaking. In Hanna v. Heur, Johns, Neel, Rivers & Webb, 233 Kan. 206, [662 P.2d 243 (1983),] the court found the defendant architects did not agree to be responsible for safety practices on the jobsite and took no actions indicating they assumed any such responsibility. In Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988), the State simply allowed the intoxicated employee to leave work. Thus, in all cases where it was found that the parties undertook to render services to another, they agreed to or were obligated to perform services for another that were accepted and thus the initial requirement of § 324A was met; and, in all cases where liability was not imposed, the defendants had no agreement and took no affirmative action that could be construed as an intentional undertaking to render services to another.’ ”
The plaintiffs have not come forward with any evidence to indicate KDHE and SRS have performed any affirmative acts towards these plaintiffs, nor have the plaintiffs demonstrated a question of fact exists as to whether KDHE or SRS entered into any agreement with these plaintiffs. Without an affirmative act or an agreement, there is no duty owed under § 324A.
Doctrine of Parens Patriae
The State has an interest in protecting the welfare of infants within its borders, and the State, as parens patriae, has the duty to see that every child within its borders receives proper care and treatment. The power of the State to control the activities and conduct of children reaches beyond the scope of its authority over adults.
The power of the state, as parens patriae, is not an unlimited and arbitrary one, and is exercised only in cases where the child is destitute of that parental care and protection to which he is entitled. To effect such power the legislature may and should make reasonable regulations tending toward the protection and welfare of the child, and so important is this governmental function that the limitations of the constitution are to be so construed, if possible, as not to interfere with its legitimate exercise. Such legislation is beneficial and remedial, not criminal in its nature, and entitled to favorable and liberal construction. State ex rel. O’Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 253, 607 P.2d 1102 (1980).
The doctrine of parens patriae empowers, but does not impose a duty on, the State to act on behalf of the welfare of those unable to care for themselves. Neither KDHE or SRS owed a duty to the plaintiffs under the doctrine of parens patriae.
Statutory Duty
K.S.A. 38-1524, in part, provides that upon a report of abuse, SRS “shall make a prefiminary inquiry to determine whether the interests of the child require fiirther action be taken. ... If reasonable grounds to believe abuse or neglect exist, immediate steps shall be taken to protect the health and welfare of the abused or neglected child as well as that of any other child under the same care who may be harmed by abuse or neglect.” (Emphasis added.)
This is a duty towards the public at large. Under the public duty doctrine, “a governmental entity is not liable for torts committed against a person in absence of a special duty owed to the injured party.” Fudge, 239 Kan. at 372. A duty owed to the public may be narrowed into a special duty owed to an individual where the governmental entity has performed some affirmative act that causes injury or where it had made a specific promise or representation that under the circumstances creates a justifiable reliance on the part of the person injured. SRS neither acted af firmatively, caused the injury, or made any specific promise or representation to the plaintiffs which created any justifiable reliance. Under these circumstances, SRS’s statutory duty was owed to the public at large and not specifically to the plaintiffs. See Jamierson v. Dale, 670 S.W.2d 195, 196 (Mo. App. 1984) (duty under day care licensing statutes and regulations is to public at large).
K.S.A. 65-521 gives KDHE the discretion to “deny, revoke or refuse to renew a certificate of registration upon a determination by the secretary that the registrant falsified information on the application or willfully and substantially has violated K.S.A. 65-516 to 65-522, inclusive, and amendments thereto.” K.S.A. 65-523 allows KDHE to suspend any license, certificate of registration, or temporary permit issued under the provisions of K.S.A 65-501 to 65-522, inclusive, on grounds delineated in K.S.A. 65-523. K.S.A. 65-524 authorizes KDHE to suspend any license, certificate of registration, or temporary permit issued under the provisions of K.S.A. 65-501 to 65-522, inclusive, and amendments thereto, prior to any hearing when, in the opinion of the Secretary, the action is necessary to protect any child in the day care center from physical or mental abuse, abandonment, or any other substantial threat to health or safety. All of these statutes use discretionary language.
In Fudge, we found there was a special relationship in that case because the police department had adopted mandatory procedures to take intoxicated persons into custody who are likely to do physical injury to themselves or others if allowed to remain at liberty. We stated: “The police officers should have realized that taking [the bar patron] into protective custody was necessary for the protection of third persons. Their failure to do so significantly increased the risk that [the bar patron] would cause physical harm to others.” 239 Kan. at 373. The crucial difference between guidelines that create a special duty and those that do not is that the former use mandatory language, i.e., shall, must, or will, rather than discretionary words such as may, should, or can. See Mills v. City of Overland Park, 251 Kan. 434, 446-47, 837 P.2d 370 (1992). The statutes concerning KDHE, unlike the pol icy and procedures adopted in Fudge, use discretionary language. KDHE had no special relationship with the plaintiffs that would create a special duty.
Neither SRS nor KDHE owed any statutory duty to the plaintiffs.
The district court’s denials of the motions for summary judgment are reversed. This matter is remanded to the district court with instructions to grant the agencies’ motions for summary judgment.
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The opinion of the court was delivered by
Kinsman, C. J.:
The plaintiff in error, who was plaintiff below, obtained a judgment against the defendants in error for $458.53. • Plaintiff claimed in the petition divers' sums, in nine different causes of action, amounting in the' aggregate to $8,707.69, and interest thereon. Defendants for answer made a general denial, and for a second defense pleaded payment on the several causes of action embraced in causes four, five, six, seven, eight and nine, of the petition, to the amount of $1081.87, and admitted a balance due and unpaid on those counts in the petition of $449.19; and for a third defense, to the first, second and third causes of action, claimed that the articles therein alleged to have been sold to defendants, amounting in the aggregate to $7,176.63 were purchased under a speciaL agreement to the effect that the defendants were to ship the goods, mainly powder, to Montana Territory, and whenever said defendants should dispose of said goods and they should realize the money arising from the proceeds of such sale, the said sum was to become due and payable, meantime to bear interest after six months; averring that the goods could not be sold for money, and that defendants had sold them for a voucher in amount $16,791, of which fact they notified the plaintiff, and had delivered the voucher to the plaintiff to collect- or dispose of, and when the proceeds were realized to pay for the goods and hold the remainder subject to the order of the defendants, and the plaintiff still holds the voucher.
The plaintiff- replied by a general traverse, and in a second, third, and fourth reply set up substantially that defendants had had the benefit of the payments set up in their answer in another action, and that plaintiff had by mistake once given certain credits on certain of the causes of action set up in the petition. These issues were tried, and a general verdict rendered for the plaintiff’, as above stated. At the request of the plaintiff the jury also returned answers to certain questions submitted to them.
The testimony is all in the case, and is very voluminous, and is made somewhat complicated from the fact that the plaintiff in a previous action, had sued on a Parf °* his account, and V íergutz, the defendant in that action, had proved payments to the plaintiff to an amount larger than the claim of the plaintiff in that action. The judgment in that ease was for. the defendant for costs, but not for the overplus of the payments beyond the plaintiff’s demand. In the present action it became necessary to introduce evidence of all the payments made; and the difficulty arose out of the fact, that what had been claimed by the defendants in the former action could not be distinguished from those made in this. The court below very properly admitted it all, for it would have been a gross wrong to have permitted the plaintiff, by making two actions on one account, to have so complicated the testimony as to have precluded the defendants from obtaining the benefit of all the payments they had really made. The court let in all this testimony, as well as the judgment and proceedings in the former case; but as the testimony in the former case was not preserved, it was impossible to distinguish with precision what had been testified to in that case, or for what reason some of the testimony had been admitted. It was all admitted; and for this reason we cannot say that the receipts of payments made on the 26th March, and the 17th- April, 1866, were improper testimony. The first of these payments was made before any of the claims sued on in this action arose, and the second was made for fuse purchased before the account sued on was made, if we are to determine that fact from the date of the account, or the testimony; but it is impossible for us, as it was for the court below, to determine what had been in evidence on the former trial.
The defendants’ theory, on this part of the defense, seems to have been to admit the justice of the plaintiff’s claim in the former suit, and claim as a credit in this one all they could prove, and then deduct the plaintiff’s demand in the former action from that, and for the remainder they would be entitled to a credit in this action. And this was the only course left for the court to pursue; and in this view we cannot say that the two receipts for $64.49 and $91 were improperly submitted to the jury. They were in evidence in the first suit, (see the testimony of Yiergutz;) and the court was to presume were properly in that suit; and the condition of the case requiring that all the credits to which defendants were entitled in both suits should go in evidence, these papers were properly in. It will be conceded that it is an awkward and unartistic method of trying a ease; but this condition of things was brought about by the plaintiff splitting up his account so as to make two causes of action. If defendants had made more payments than the amount of the claim in the first action, they were entitled to have them go on the claim set up in the last. These remarks will also apply to the other testimony admitted over plaintiff’s objections.
II. The next point that is made Í3 in the court’s refusal to give a-certain .instruction to the. effect “that if the. action of the plaintiff against Otto H. Yiergutz alone, in this court, of which evidence is before you, was upon an indebtedness of the firm of O. H. Yiergutz & Co., the defendants in this case, and the defendant in- that case gave in evidence payments or other credits'to defeat the claim of the plaintiff in that case, the same payments or- credits cannot again be used to defeat the .claim of the plaintiff in this case.” This instruction was asked after the court had charged the jury, and was refused — and properly, for although it was the law of the case, it had already been fully given, as is sufficiently evident from the following extract from the charge of the court: “ The defendants cannot be twice “ allowed the benefit of the same payments or credits. <£ * * * The defendants in this, action are not entitled “ to the benefit of any payments or credits, which they “ received the benefit of. in the former action, or which “ Mr. Yiergutz the defendant in that action received the “ benefit of. They cannot be twice allowed for the same “payment or credit. The defendants should receive the “benefit of all payments or credits which the testimony “ shows have been made upon .the claims sued upon in “ this action unless it shows that the defendant received “ the benefit of the payments thus shown or part of them “ in the other action to which I have alluded.” Having thus explicitly given the law, the court was not called upon to repeat it.
III. A motion for a new trial was made and overruled; and on that motion, various questions-were argued, which will be now considered so far as they are deemed important in this decision. It has already been stated that the jury found a general verdict ■for plaintiff which/is as follows: . “ We- the'jury find for the plaintiff, and'assess his damages at '$458.53.”
The jury also found certain spécial facts responsive, to “ interrogatories ” submitted to them by the court a.t the instance of the plaintiff, as..follows
Interrogatory First: What amount, if ány, is due from the defendants to the plaintiff oh the claims sued upon in this ease, exclusive of payments and all" other credit's ?' [Answer — $458A3.] 1
Second: What amount of the payments and credits ■given in evidence by the defendants;-"was gNen - in" evidence and allowed to.the., defendants in .the .cage-of-the Hazard Powder Company against, Otto H.. Viergutz, heretofore tried in this court? [Áhswer — $3,475.52.]
Third; What was the amount of the excess, if any, of :the payments'and credits claimed and given in-,, evidence in that case, over and above the amount of the plaintiff ;’s claim in that case ? [Answer — $1,225.85.]
Fourth: What payments have.the.defendants made, on the claims of the plaintiff, sued upon'in this case?; Answer’ — $1,225.85.] ' ’ •" ‘
' Fifth:-What was the aixiodht of the'plaintiff’s’'hlaim in the case of. the Hazard Powder' Company against Viergutz, heretofore tried in this court ? . [Answer — - §3,475.52.] ' '
Sixth: Was the plaintiff’s claim in that case on an account of demand for goods sold and delivered by the plaintiff to O. H. Viergutz, David vPrager and Julius Haug, partners, as “ O.H. Viergutz & Co.,” the defendants in this.action? [Ahgwer — Yes.] . / ,'
Seventh: Was the Montana voucher delivered fo the plaintiff as a paymentj" of as security only ? ' [Answer— ■As security;] ' • ’ '■■ " ' • ••'■■•■'
'■■ Fighth- Was the transaction-'’between* the pláintiff-'and - defendants- in relation to the Montana powder a sale .or .not? [Answer — It was ,a .sale,] .. ... . ...
■’Ninth: If it was a sale, what were the terms of the sale, and when was the amount thereof due ? [Answer— The amount is due when money is realized for goods sold.]
Tenth: If it was not a sale, what were the terms of the transaction ? [Answer — It was a sale.]-
Eleventh: Is the credit of October 31, 1867,'of $700 on the account, sued on in the case of the Hazard' Powder Company against "Viergutz, the same credit of that amount claimed in this case ? [Answer — Yes.]
.- It is. claimed by the plaintiff in. error that the special findings of fact are not only inconsistent with the general verdict, but are inconsistent with each other. It will be observed that the special findings are not, strictly speaking, a special verdict, though in -many respects they may be assimilated to a special verdict; but they differ in this — that they do not purport to be all the points which the jury agreed upon, or found necessary to consider,, in deciding the questions submitted to them. They are .answers responsive to certain questions. Any fact necessary to be decided by them in reaching a verdict, and not within the scope of these inquiries, would not appear in the answers; so that we have not to determine whether taken as a whole they are sufficient to uphold the judgment ; but if any of them are inconsistent with the general verdict, to that extent it ought to take the place of the general verdict; and of course the general verdict ought not to stand, if the inconsistency is of such a character that it is apparent that both cannot be. correct, and probably subjecrt.to the further consideration of whether it-may be seen from the record that substantial injustice may have resulted from the conflict. It is not every error that vitiates a verdict. They are to be favorably construed; and if sufficiently certain upon matters of sub stance, though informal- the court will mould them into form. (18 Wis., 420; 10 Mass., 71.)-
There -can he no question hut that the verdict must dispose of all the-issues; if it does that'with sufficient certainty to be understood with reference to the proceedings, that is all that should be- required. Now in the pleadings in this -case, while there is ' a general denial, there is enough to -show that defendants admitted that the claims in causes of action numbered 4th,- 5th, 6th, 7th, 8th and '9th, amounting to $1,531.06; were valid claims, and that paymefits thereon had been made to the amount of $1,081.87. This would leave due on those claims. $449.19; The other part of the plaintiff’s- claim it was urged, was not yet due -by the terms of the purchase; so that there were in fact two main questions — one, as to the payments made on one part of'the claim, andthe other, as to whether that portion of the claim was due. The court instructed the jury that they must find for the plaintiff on the pleadings at least $449.19; and under proper -instructions, left the other questions to them. The jury actually found a sum a little larger than was required by the pleadings, probably as interest from the time the action- was brought, or for some other cause. It is apparent from this verdict that they found the issue on causes of action numbered 1st,'2d, and-3d, for the defendant; and thus by the general verdict; under proper instructions, they passed upon all the -issues submitted to them, and found for the plaintiff as stated; and this is all that- is essential in' a verdict. It is erroneous'to'infer from such a verdict on such pleadings'that they found all the issues'for the plaintiff; "Neither reason nor-the authorities sustain any such doctrine. Nor do we find on careful scrutiny any conflict with this general verdict in the special findings. They are in harmony with it, ■and with each other. The apparent conflict between, the first and fourth answers vanishes, when we look at the issues and the evidence. The jury had, under the direction of. the court, already found under the pleadings the sum mentioned in the answer to. the first question, while the evidence would fairly enough justify the jury in saying that the payments were larger than the verdict would indicate.- The verdict was necessary on the pleadings. The answer was predicated on the testimony. . ■
The ninth finding of fact is only by itself.responsive to a portion of the question. It does not state what were terms of the sale, and. this was embraced in the question submitted. To this objection two answers may be given; first, the questions were submitted at the request. of the plaintiff. If they were not full and sufficient answers, he should have asked that the jury b,e directed to make more perfect answers, and the defect would have been cured without the cost of another trial. Blachley v. Sheldon, 7 Johns., 32. Second, there is no difficulty in understanding the jury’s answer when the pleadings and the instructions of the^court are examined in connection with the .verdict and the other special findings. Nor can we say against the verdict of th.e jury that the $700 mentioned in answer eleven has .been twice allowed as a credit to the defendants. This .matter was fairly submitted to the jury; and whatever uncertainty we might feel on this question, as well as on the more important one- as to when the Montana powder claim is payable, still they were fairly submitted to the jury on evidence tending to sustain the verdict, .and.it is ,not the province of a reviewing court to disturb such a ■verdict because the evidence is conflicting,
Having found no error in the record it becomes unnecessary to consider the motion for a venire faeias de novo. We may state however, that it seems a stranger-to'our code, and is not likely to meet with much favor from the profession.
The judgment must he affirmed.
All the Justices, concurring.
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The opinion of the court was delivered by
Lockett, J.:
The co-administrators of three Wood Haven Schools, Inc., (Wood Haven) day care centers filed an action against the Kansas Department of Health and Environment (KDHE), its secretary, the Kansas City, Kansas — Wyandotte County Department of Health (KC-WCDH), its director and one of its employees, the City of Kansas City, Kansas, (City) and Wyandotte County (County) for violation of their civil rights, malicious prosecution, and abuse of process. The defendants filed motions to dismiss and for summary judgment. The district court denied some of the motions but either dismissed or granted summary judgment to all of the defendants. Plaintiffs and defendants raised 17 issues and numerous subissues on appeal and cross-appeal. This court, on its own motion, transferred the case to its docket from the Court of Appeals.
Floyd E. and Elaine Lindenman are co-administrators of the day care centers operated by Wood Haven and licensed by KDHE and its secretary, Stanley C. Grant. KC-WCDH was a joint board of health for Wyandotte County and Kansas City, Kansas, of which Darrell D. Newkirk was the director and Sam Umscheid was an employee. The City and the County had statutory responsibility over KC-WCDH. The Lindenmans alleged that KC-WCDH and Umscheid were acting as individuals-and on behalf of KDHE.
The Lindenmans and Wood Haven filed their original petition on March 11, 1991, and an amended petition on July 11, 1991. The amended petition alleged that on November 14, 1988, KDHE, without prior notice or hearing, issued an ex parte order suspending the license for one of the three day care centers based on an inspection by Umscheid on November 3, 1988. The order suspending the license was served on November 16, 1988, and resulted in the immediate closing of that day care center. The Lindenmans alleged Umscheid, for the past three years, had been “biased, prejudiced and vindictive” against Floyd Lindenman and also that Umscheid5s report of his November 3, 1988, inspection consisted of many misrepresentations and gross exaggerations of fact.
Umscheid and another employee of KC-WCDH re-inspected the day care center on November 17, 1988. The center passed the re-inspection. The Lindenmans alleged that despite the results of the re-inspection, KDHE refused to lift the suspension unless the Lindenmans would: stipulate that the violations found in the first inspection existed, waive the right to appeal the final order, agree to another re-inspection, and concur that if any deficiencies reappeared KDHE would take action to oppose renewal of the license at the time of renewal. The Lindenmans stated that they refused to stipulate that the original inspection was accurate or to waive their right to appeal. They alleged that at all times, KCWCDH knew of and ratified the acts of Umscheid and KDHE.
The Lindenmans' original petition alleged two counts of tortious conduct and one civil rights violation. Count I, the abuse of process charge, alleged the defendants misused the emergency proceedings provision (K.S.A. 77-536) of the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., and that the refusal to lift the suspension was a misuse of statutory procedures. Count II, the malicious prosecution charge, alleged that after KDHE learned the Lindenmans had refused to stipulate to the accuracy of the first inspection or waive the right to appeal, it began proceedings to revoke the day care center's license, that this action was malicious and lacking in probable cause, and that subsequent administrative proceedings resulted in a voluntary dis missal by KDHE in favor of the Lindenmans. Count III, the civil rights claim, alleged that both the abuse of process and the malicious prosecution acts of the defendants violated 42 U.S.C. § 1983 (1988) by denying the Lindenmans protection of their Fourteenth Amendment rights to due process.
Prior to trial, the district court granted relief to all of the defendants on either their motions to dismiss or for summary judgment. The district court first determined that the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., was the exclusive remedy for the Lindenmans. It found that all of the Lindenmans’ claims against the defendants were barred because they had failed to file their petition within 30 days after the final agency action. The district court then ruled that if the KJRA was not the exclusive remedy for the Linden-mans, all claims against the various defendants were dismissed because (1) KC-WCDH lacked capacity to be sued; (2) Newkirk and his successor in office had not been served; (3) K.S.A. 1993 Supp. 60-513, the applicable statute of limitations, barred the claims against all defendants for abuse of process (Count I) and the civil rights claim (Count III); and (4) KDHE was not liable under Count III because it was not a person within the context of 42 U.S.C. § 1983.
The Lindenmans appealed. Defendants City, KDHE, and Grant cross-appealed the failure of the court to grant their motion for summary judgment on other grounds, arguing that the uncontroverted facts did not support claims of either abuse of process or malicious prosecution and that they were immune from liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The appellee County adopted by reference the statement of facts, the arguments, and the authorities cited in the other appellees’ briefs. No further reference will be made to argument made on behalf of the County, and any references in this opinion to an argument by any appellee should be read to include the County. To simplify the analysis, many of the issues are combined.
We begin by noting that when a trial court has granted a motion to dismiss, our scope of review is as follows:
“ “When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff’s petition. The motion in such case may be treated as the modem equivalent of a demurrer.’ Syl. ¶ 1.
‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’ Syl. ¶ 2.
‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ Syl. ¶ 3.” Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986) (quoting Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 620 P.2d 837 [1980]).
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. If factual issues do exist, they must be material to the case to preclude summary judgment. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” K.S.A. 1993 Supp. 60-256(c). To defeat a properly supported motion for summary judgment, the nonmovant must come forward with “specific facts showing that there is a genuine issue for trial.” Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 863 P.2d 355 (1992).
IS THE KJRA THE EXCLUSIVE REMEDY?
The district court’s ruling that the KJRA provided the exclusive remedy for plaintiffs’ action was based on Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment, 16 Kan. App. 2d 1, 818 P.2d 797 (1991), and the district court’s reading of the KJRA. In Kansas Sunset, KDHE had issued a permit for wastewater disposal to Sunset, the operator of a mobile home park. Later, KDHE informed Sunset its permit was being revoked and that Sunset was required to connect to a sewer system. Sunset filed suit for declaratory relief in the district court. KDHE moved to dismiss, arguing that the KAPA was the exclusive means of judicial review of its action and that Sunset should have sought relief in accordance with the KJRA. The district court dismissed Sunset’s action. Sunset appealed. The Court of Appeals noted Sunset was seeking to define the scope of authority of KDHE. It held that the KJRA is the exclusive means of judicial review of actions of KDHE. It found that the plaintiff had failed to file a petition for review within 30 days of the agency action as required by the KJRA and affirmed die district court’s dismissal of the injunction.
The Lindenmans contend that Kansas Sunset is not applicable to this action because they had prevailed in the administrative proceedings and had no right to appeal to the district court under the KJRA. They also assert that a practical problem occurs if the KJRA is the exclusive remedy for a tort action in this type of case because their malicious prosecution claim requires termination of the prosecution, by the agency, in their favor. Their cause of action for malicious prosecution could not arise until time for the agency’s appeal under the KJRA had expired. They also assert that if the KJRA is the exclusive remedy for torts committed by the administrative agency, serious difficulties regarding their right to a juiy trial arise.
KDHE responds that this court need not address whether the KJRA is the exclusive remedy for all torts alleged to be committed by an administrative agency, but need decide only whether the KJRA is the exclusive remedy for resolving claims of abuse of process and malicious prosecution. KDHE first asserts that tort claims arising out of agency actions could be determined by the district court under K.S.A. 77-617(a), which allows a district court to address issues for which the administrative agency did not have jurisdiction to grant an adequate remedy. KDHE then argues the KJRA does not specifically preclude a jury trial.
We note the KJRA allows the district court to award damages to the extent expressly authorized by law (K.S.A. 77-622[a]) as well as any other appropriate relief, whether mandatory, injunctive, or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may also order agency action as required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate. K.S.A. 77-622(b). The court may also grant necessary ancillary relief to redress the effects of official action wrongfully taken or withheld, but the court may award attorney fees or witness fees only to the extent expressly authorized by other law. K.S.A. 77-622(c).
The Lindenmans argue that tort actions against the agency cannot be addressed under the KJRA. For support they cite Slifer v. Public Employee Relations Bd., 737 F. Supp. 1149 (D. Kan. 1990). In Slifer,the Kansas Association of Public Employees (KAPE) sought a declaratory judgment in federal court as to the constitutionality of the Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq. The Public Employee Relations Board (PERB) argued KAPE’s only avenue of redress was to seek review in state court under the KJRA. The federal judge disagreed and found that KAPE was not seeking review of an agency action but instead was seeking declaratory and injunctive relief, of which the federal district court had subject matter jurisdiction. PERB’s motion to dismiss was denied. 737 F. Supp. at 1150. We find Slifer is not applicable because KAPE filed a declaratory judgment action to determine the constitutionality of a state statute allowing the agency to act and was not challenging the agency’s action.
The Lindenmans also assert that Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 778 P.2d 390, rev. denied 245 Kan. 785 (1989), supports their claim that the district court has jurisdiction of the action. In Parker, plaintiff filed concurrent Civil Service Board (Board) and Kansas Commission on Civil Rights (KCCR) agency actions for review of her termination from employment with Kansas Neurological Institute (KNI). The Board denied her claim. She petitioned for judicial review of the Board’s action, and lost on appeal. She also lost the KCCR action and did not appeal that decision. Parker subsequently filed a civil action in the district court seeking actual and punitive damages for the alleged discriminatory discharge. The district court granted summary judgment to KNI. Parker appealed to the Court of Appeals, which noted that the trial court had applied res judicata, or claim preclusion, and that res judicata foreclosed the litigation of matters that could have or should have been advanced in an earlier action, citing In re Estate of Reed, 236 Kan. 514, 516, 693 P.2d 1156 (1985). The Court of Appeals observed that res judicata precludes a second administrative proceeding when the first administrative proceeding provides the procedural protections similar to a court proceeding when an agency is acting in a judicial capacity.
The Court of Appeals determined Parker had a right to litigate a claimed discriminatory discharge after her administrative remedies have been exhausted, citing Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 658-59, 722 P.2d 569 (1986). The Court of Appeals reversed the district court, asserting that until such time as the legislature specifically states that an administrative action is the exclusive remedy for a discrimination claim, a negative finding by the Board or a finding of no probable cause by the KCCR does not preclude a subsequent action in the district court for discriminatory discharge. 13 Kan. App. 2d at 690.
The KJRA is modeled after Article 5 of the 1981 version of the Model State Administrative Procedure Act. Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 54 (1985). The legislature, however, did not adopt the Model Act. The section of the Model Act that corresponds to K.S.A. 77-606 is § 5-101, which states: “This Act establishes the exclusive means of judicial review of agency action.” Section 5-101 continues with the following language not found in 77-606: “(1) The provisions of this Act for judicial review do not apply to litigation in which the sole issue is a claim for money damages or compensation and the agency whose action is at issue does not have statutory authority to determine the claim.” 15 U.L.A. 110 (1990). If that language had been included in the KJRA, it is clear the KJRA would not have been the exclusive remedy in this matter.
The KJRA applies to “all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.” K.S.A. 77-603(a). Agencies are defined as those that are “a state agency.” K.S.A. 77-602(a). In accordance with K.S.A. 77-603, the KJRA establishes the exclusive means of judicial review of agency action. K.S.A. 77-606. Agency action is defined as “(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” K.S.A. 77-602(b). The wrongful acts alleged by the plaintiffs are not licensing and inspection duties of KDHE, they are claims for damages for wrongful acts committed by the agency. Judicial review is not defined in the KJRA. Black’s Law Dictionary 849 (6th ed. 1990) defines judicial review as the “[p]ower of courts to review decisions of another department or level of government” and as a “[f]orm of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both.”
We conclude that the KJRA applies to all proceedings for judicial review of agency proceedings and civil enforcement of agency actions. Here, the Lindenmans are not seeking a review by the courts of KDHE’s findings of fact, conclusions of law, or decision. They filed a combined tort and civil rights claim against KDHE and other defendants. When K.S.A. 77-603 and the definition of judicial review are considered, it is clear that the district court erred in finding the KJRA was the exclusive remedy for the Lindenmans’ tort claim against the agency. Because the KJRA does not apply to civil tort actions against an administrative agency, the grounds for dismissal and summary judgment stated by the district court must now be reviewed.
ARE PLAINTIFFS’ CLAIMS TIME BARRED?
In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted the action to a successful conclusion. Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 698, 829 P.2d 578 (1992).
The Lindenmans’ original petition was filed on March 11, 1991. To resolve the statute of limitations issue, we must determine (1) the applicable statute of limitations for each claim, (2) when the time to maintain each action accrued, and (3) whether the period of limitations was tolled at any time. The procedural timelines for the abuse of process and the malicious prosecution claims are set out and discussed separately.
Abuse of Process
K.S.A. 1993 Supp. 60-513(a)(4) sets a two-year statute of limitations for an action for injury not arising under contract or not otherwise provided for. This would apply to an abuse of process claim. The underlying theory of the plaintiffs’ abuse of process claim is KDHE’s use of the emergency suspension procedure to suspend the license. A state agency may use emergency proceedings in a situation involving an immediate danger to the public health, safety, or welfare and requiring immediate state action. K.S.A. 77-536(a)(l). It may take only such action necessary to prevent the immediate danger or to remedy the situation. K.S.A. 77-536(b). After issuing an order, the state agency shall proceed as quickly as feasible to complete any proceeding required if the matter did not justify the use of emergency proceeding. K.S.A. 77-536(e).
The events that gave rise to the abuse of process claim are:
November 3, 1988 Inspection
November 16, 1988 KDHE serves ex parte emergency suspension of license order — day care center closed
November 17, 1988 Re-inspection notes deficiencies corrected; however, KDHE refuses to lift suspension unless conditions agreed to
November 30, 1988 Petition for review of ex parte order filed
December 8, 1988 Petition seeking injunctive relief filed
December 20, 1988 District court issues injunction against KDHE preventing enforcement of ex parte emergency order suspending license (KDHE subsequently appealed the order granting the injunction to the Court of Appeals)
Novémber 7, 1989 KDHE voluntarily dismisses appeal just prior to oral argument
There are two essential elements for the tort of abuse of process: the existence of an ulterior motive and an improper act in the regular prosecution of a proceeding. Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444 (1950). The statute of limitations began to run at the time both elements had occurred, at which time the Lindenmans would have been able to successfully prosecute the action. The Lindenmans’ petition states Umscheid “had it in for them,” i.e., the ulterior motive. The improper act is the alleged misrepresentations of fact in Umscheid’s report which led to the emergency suspension of the license.
Umscheid, KC-WCDH, and Newkirk argue the time to file the action commenced when the Lindenmans knew they had been damaged by the alleged wrongful conduct, which occurred December 20, 1988, the date that the district court enjoined KDHE from enforcing its order. The defendants point out that the plaintiffs’ petition was filed in March 1991 and therefore the action was filed beyond the two-year limitation. The Lindenmans argue that the two-year statute of limitations to file the abuse of process claim was tolled while the defendants’ appeal of the injunction against enforcement of the emergency order was pending in the Court of Appeals. We disagree that the statute of limitations was tolled on the Lindenmans’ claims against Umscheid, KC-WCDH, or Newkirk. Those claims are based on Umscheid’s act of in spection that occurred on November 3, 1988, and were not connected to KDHE’s appeal of the order granting the injunction.
The Lindenmans assert that the limitation for filing the action shall be measured from the time KDHE’s appeal was dismissed on November 7, 1989. If that date is correct, the petition filed in March 1991 would be timely. For support the Lindenmans cite Pizel v. Zuspann, 247 Kan. 54, 74, 795 P.2d 42 (1990), in which this court found that the time to file an action is tolled where a person is prevented from exercising his or her legal rights pending resolution of other legal proceedings.
Pizel involved a negligence claim of legal malpractice. Zuspann, an attorney, set up a trust for Charles Pizel. Subsequent representation was undertaken by Whalen, a law partner of Zuspann’s. The trial court granted Zuspann’s motion for summary judgment for Pizel’s heirs’ failure to state a claim because Whalen had replaced Zuspann as counsel. Plaintiffs, who had partially prevailed, appealed. Whalen cross-appealed, renewing his claim that the statute of limitations barred the Pizels’ cause of action against him. The Pizel court noted the negligence of Zuspann occurred on May 23, 1962, when the trust, will, and deed that he had prepared were signed. Whalen’s negligence occurred on June 10, 1975, when the first amendment to the trust and the second deed were signed, or on January 11, 1979, when the codicil was signed. None of these events, however, triggered the running of the statute of limitations because substantial injury had not occurred and, therefore, no cause of action arose. Similarly, a cause of action did not arise with Charles’ death on April 24, 1979, because, at that time, appellants had not suffered any injury. The Pizel court held that the term “substantial injury” in what is nów K.S.A. 1993 Supp. 60-513(b) means that the injured party must have sufficient ascertainable injury to justify an action for recovery of damages and, therefore, the occurrence of the negligence was not the appropriate time for accrual of the cause of action, citing Roe v. Diefendorf, 236 Kan. 218, 222, 689 P.2d 855 (1984).
The Pizel court continued:
“Under the damage theory, no injury occurred until the trust was declared invalid by the trial court on February 13, 1981. See [Price, Administrator v. Holmes, 198 Kan. 100, 107, 422 P.2d 976 (1967)]. It was at that point in time that appellants suffered substantial injury. Absent tolling of the statute of limitations, the cause of action filed June 24,1984, was not filed in a timely manner. However, as the trial court correctly held, based upon the rationale of Price, the statute of limitations was tolled until this court denied the petition for review on June 28, 1982. The plaintiffs were effectively precluded from bringing this action against Zuspann and Whalen until a final determination was made on the appeal. Until that final determination was made, the plaintiffs could have filed, but not prosecuted, the action to a successful conclusion. In the event the Court of Appeals or this court would have reversed the trial court, the plaintiffs would have had no cause of action against Zuspann or Whalen.” 247 Kan. at 77.
The Lindenmans argue that if KDHE had prevailed on its appeal of the injunction, they could not have successfully prosecuted the action for abuse of process. The Lindenmans point out that until the appeal was dismissed, KDHE had the opportunity for the Court of Appeals to reverse the district court. A reversal of the district court’s injunction would have precluded their abuse of process claim. The Lindenmans state that under these circumstances, like the plaintiffs in Pizel, the time to file their action was tolled until the appellate process concluded. They contend that the appellate process concluded when KDHE dismissed its appeal.
KDHE counters that any resolution of the appeal of the injunction would not have affected the merits of the abuse of process claim. KDHE contends that unlike the cause of action in Pizel involving a legal malpractice claim dependent on the outcome of the appeal construing the trust intent, the Lindenmans were not prevented from pursuing their abuse of process claim while the appeal of the injunction was pending. KDHE asserts the time was not tolled and the abuse of process claim is barred by the statute of limitations.
We disagree. Until the appeal of the district court’s injunction was determined in favor of the Lindenmans, the statute of limitations was tolled. The Lindenmans were precluded from bringing the action against the defendant until a final determination was made. Until that final determination was made, the plaintiffs could have filed but could not have prosecuted their claim for abuse of process to a successful conclusion. We find that the cause of action for abuse of process was tolled until KDHE dismissed its appeal on November 7, 1989. The petition was filed March 11, 1991, within the two year limitation of K.S.A. 1993 Supp. 60-513(a)(4).
The Malicious Prosecution Claim
The elements required to establish a malicious prosecution claim set forth in Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980), are: (1) that defendant initiated, continued, or procured the proceeding of which complaint is made; (2) that defendant in doing so acted without probable cause; (3) that defendant must have acted with malice; (4) that the proceedings terminated in favor of plaintiff; and (5) that plaintiff sustained damages. See Thompson v. General Finance Co., Inc., 205 Kan. 76, 91, 468 P.2d 269 (1970).
Probable cause for instituting a proceeding exists when there is reasonable grounds for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person in the belief that the party committed the act of which he or she is complaining. Nelson, 227 Kan. at 277.
The action giving rise to the malicious prosecution claim was KDHE’s attempt to revoke the day care center’s license after the Lindenmans refused to stipulate.
December 5, 1988 KDHE files notice it intends to seek revocation of the license
June 14, 1989 Hearing officer issues order revoking license (the Lindenmans subsequently requested review of the hearing officer’s findings by the Secretary of KDHE)
March 14, 1990 Secretary dismisses action to revoke license
Although the Lindenmans raise this issue, the record does not show the lower court relied on the statute of limitations in granting summary judgment on this count. The Lindenmans recognize this malicious prosecution claim is covered by a one year statute of limitations. K.S.A. 1993 Supp. 60-514(b). They also acknowledge that the action cannot be brought until the underlying action is concluded and the time for appeal of the underlying suit has passed. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, Syl. ¶ 2, 701 P.2d 977, rev. denied 238 Kan. 877 (1985). See Nelson v. Miller, 233 Kan. 122, 125, 660 P.2d 1361 (1983).
Umscheid, KC-WCDH, and Newkirk contend that the underlying action terminated on November 7, 1989, when the appeal of the injunction was dismissed. They assert that under the one-year statute of limitations, time to file the appeal ran in November of 1990. We agree. The action to revoke the license was a decision of KDHE taken subsequent to any act of the other defendants. Any claim against these defendants as to the malicious prosecution claim arose out of their acts that caused the issuance of the emergency order by KDHE and KDHE's ensuing appeal of the injunction against enforcing its emergency order.
KDHE concedes the statute of limitations does not bar this claim as it relates to the proceedings to revoke the license that ended on March 14, 1990. We agree. The proceeding to revoke the license ended on March 14, 1990, when KDHE dismissed its actioii to revoke the license. When the March 14, 1990, date is used, thé petition was filed within one year of that date.
Civil Rights Claim
When Congress created the cause of action codified in 42 U.S.C. § 1983 (1988), it did not provide á statute of limitations. Miller v. City of Overland Park, 231 Kan. 557, 559, 646 P.2d 1114 (1982). The applicable statute of limitations is found in the state law cause of action that most closely compares to the facts supporting the civil rights claim. 231 Kan. at 560-63.
As to Umscheid, the City, and the County, the district court ruled that any civil rights violation was connected to the last act of Umscheid as agent for the principals (the City and the County), which the judge found was in November 1988. The judge concluded that when the longest statute of limitations, the two years for the abuse of process cause of action, is applied, the petition was filed too late. The Lindenmans’ one paragraph of argument states that because the civil rights claim is based on both the abuse of process and the malicious prosecution claims, the two-year stat ute of limitations applies. The malicious prosecution claim, however, was not decided in the district court on the statute of limitations grounds.
Before we address the statute of limitations issue, another ground for dismissing the civil rights claim must be addressed. There is currently a split of authority on whether a § 1983 claim may be based on malicious prosecution. See, e.g., Albright v. Oliver, 975 F.2d 343 (7th Cir. 1992), aff’d 510 U.S __, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994); and Elbrader v. Blevins, 757 F. Supp. 1174, 1178 (D. Kan. 1991). Umscheid, KC-WCDH, and Newkirk contend that the facts alleged for the abuse of process or malicious prosecution claims do not create a basis for a § 1983 action. We note that Lindley v. Amoco Production Co., 639 F.2d 671, 673 (10th Cir. 1981), implies that under certain facts, an abuse of process claim could support a § 1983 action.
The facts in Albright involved a series of acts by a police officer that led to an arrest and subsequent release on bond of Albright; the charges were eventually dismissed for failure to state an offense under the law. After the court found that Albright’s state tort claim based on false arrest was barred by the statute of limitations, he sought redress for the alleged malicious prosecution by filing a civil rights action. Judge Richard Posner found no § 1983 claim existed because Albright had failed to show there was either a deprivation of property or a curtailment of liberty that rose to the level of a due process violation. 975 F.2d at 346-47. Judge Posner noted and characterized the split of opinion on whether malicious prosecution supported a § 1983 claim as “embarrassing.” 975 F.2d at 345.
The United States Supreme Court granted certiorari in Al-bright. A plurality opinion affirmed the Seventh Circuit Court of Appeals on grounds other than those relied on by the circuit court. Albright v. Oliver, 510 U.S. _, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994). Chief Justice Rehnquist, joined by Justices O’Connor, Scalia, and Ginsburg, held that Albright’s claim should have been raised under the Fourth Amendment and that “it is evident that substantive due process may not furnish the constitutional peg on which to hang such a ‘tort.’ ” 127 L. Ed. 2d at 122 n. 4.
Justice Kennedy, joined by Justice Thomas, concurred in affirming the Court of Appeals but based his reasoning on the conclusion the Due Process Clause of the United States Constitution does not include a standard to judge the initiation of a criminal prosecution and that because there was an adequate state remedy — the tort of malicious prosecution — Albright’s § 1983 claim was barred under the doctrine of Parratt v. Taylor, 451 U.S. 527, 535-44, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Justice Kennedy opined that, in the absence of a state remedy, there would arguably be a § 1983 claim for malicious prosecution as a violation of due process. 127 L. Ed. 2d 130-31. Justice Souter concurred separately and contended there may be “exceptional cases where some quantum of harm occurs” in facts equating to a malicious prosecution that would support a § 1983 claim for a violation of a substantive due process rights, but that those facts were not present in Albright’s case. 127 L. Ed. 2d at 135. Justice Stevens, joined by Justice Blackmun, dissented, and disagreed that Al-bright’s claim should have been asserted under the Fourth Amendment, finding that a due process claim based on malicious prosecution could support a § 1983 claim. 127 L. Ed. 2d at 142.
Albright, a plurality decision involving six separately filed opinions, none of which follow the rationale given by the Seventh Circuit, does not sufficiently resolve the “embarrassing” split of authority on the question of whether facts amounting to malicious prosecution can support a § 1983 claim for a violation of due process. Even if it did, Albright is distinguishable on the facts. Albright pled his case solely on substantive due process grounds under the Fourteenth Amendment. The Lindenmans asserted violations of both the First and Fourteenth Amendments. In addition, although not specified, the particular claims made under the § 1983 count could be read to include rights protected by constitutional provisions other than the Fourteenth Amendment.
We agree, however, with Justice Kennedy that Parratt v. Taylor, 451 U.S. 527, disposes of this issue. In that case the United States Supreme Court held that the Fourteenth Amendment protects only against' deprivations without due process of law but does not protect against all deprivations of life, liberty, or property by the State. Where states provide an adequate remedy, that remedy itself constitutes the due process required by the Fourteenth Amendment. 451 U.S. at 544. See Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 270, 737 P.2d 6 (1987).
We followed Parratt in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985), but distinguished it in Allison. Alvarado involved a false arrest by an off-duty police officer who suspected Alvarado of shoplifting. The Alvarado court recognized that where a deprivation of life, liberty, or property is “caused by a random and unauthorized state act for which prior process is impracticable or impossible,” a post-deprivation remedy is the avenue for redress and a § 1983 claim does not lie. 238 Kan. at 53-54. Allison, on the other hand, involved an unconstitutional taking of property by a special assessment to pay for wastewater treatment facilities in Johnson County. There, rather than by some random and unauthorized act, the deprivation occurred under an established state procedure that did not contain proper procedural predeprivation due process safeguards.
The Lindenmans’ pleadings allege the deprivation arose out of acts by a state actor based on prejudice, bias, and vindictiveness, which can only be characterized as random and unauthorized acts which no prior safeguards could practically or possibly completely prevent. The Lindenmans were afforded an adequate state remedy under the common-law tort claim of malicious prosecution and cannot now seek relief under § 1983. Although the abuse of process basis for the § 1983 claim is not barred by the statute of limitations, Parratt precludes a § 1983 claim based on abuse of process for the same reasons given for the malicious prosecution claim.
Did KC-WCDH Have the Capacity to be Sued?
The district court dismissed KC-WCDH because the agency did not have the capacity to sue or be sued. Subordinate government agencies, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). The statutory authority need not be express, but can be implied. See Board of Library Directors v. City of Ft. Scott, 134 Kan. 586, 588, 7 P.2d 533 (1932). For example, the statutorily conferred power of a subordinate government agency to own and control property would have no meaning if the agency could not “vindicate” its rights in the property by suing in a court of law. 134 Kan. at 588. The Lindenmans note drat if an agency has capacity to sue, it has the capacity to be sued, and vice versa. See Breweries Co. v. Kansas City, 96 Kan. 731, 733, 153 Pac. 523 (1915).
The Lindenmans contend that another Kansas City, Kansas agency, the Board of Public Utilities (BPU), has been found to have the capacity to sue and be sued. See Seely v. Board of Public Utilities, 143 Kan. 965, 57 P.2d 471 (1936); Board of Public Utilities v. City of Kansas City, 227 Kan. 194, 605 P.2d 151 (1980). In the latter case, the BPU sought a declaratory judgment that it was authorized by statute to determine and prescribe the manner in which new construction and revenue bonds were issued and sold. The BPU argued it was a completely autonomous agency, while the City contended the BPU’s authority was limited to the day-to-day operations of the water and electrical systems of the city. This court observed the statutory authority given the BPU fell short of the powers granted to independent legal entities such as a port authority. 227 Kan. at 197. In particular, port authorities are granted express capacity to sue or be sued. K.S.A. 12-3402(a). We noted that the BPU is not given express statutory capacity to sue or be sued. Although that case did not directly address the capacity of the BPU to sue or be sued, it implies the power exists for the BPU to do so.
The Lindenmans also cite Att’y Gen. Op. No. 84-3 for the proposition that because the joint board of health has exclusive control over the expenditure of its monies, it has property, and a concomitant capacity to sue to vindicate its rights in that property, if necessary. KC-WCDH points out that Attorney General opinions are advisory in nature, and while persuasive, are not binding on courts. The support is further eroded by the opinion itself. The Attorney General notes that exclusive control by the joint board of its funds can be abrogated by agreement of the governing entities.
Umscheid, KC-WCDH, and Newkirk argue the BPU cases are distinguishable because the BPU by nature is proprietary, re quiring property ownership and control, while the joint board of health has no proprietary function. They also note the KCWCDH joint board was dissolved effective January 1, 1992, and that the county commissioners now act as the iocal board of health. The City also claims that because the joint board was dissolved, the City has no liability. We agree with KC-WCDH’s contention that despite the fact an agency has exclusive control of its funds, when that exclusive control may be removed by its governing entities one cannot always conclude that the agency has sufficient interest in property to require the capability to vindicate its rights in that property.
The Lindenmans also argue that when the KTCA is considered, that act’s language indicates that a joint board of health has the capacity to be sued. The Lindenmans admit this argument was rejected in Hopkins but contend that because a city-county agency is involved, a different result may be obtained. We disagree with the Lindenmans’ analysis of the KTCA. The KTCA states that “each governmental entity shall be liable for damages,” or in other words, has the capacity to be sued, for negligent or wrongful acts of its employees. K.S.A. 75-6103(a). The KTCA defines a governmental entity as a state or municipality. K.S.A. 1993 Supp. 75-6102(c). Municipality is defined as a county or city and “any agency, authority, institution or other instrumentality thereof.” K.S.A. .1993 Supp. 75-6102(b).
KC-WCDH’s statutory authority is found at K.S.A. 65-205 et seq. and does not include express authority to sue or be sued. The KTCA definition of governmental entity and municipality, although it includes county and city agencies, does not show legislative intent to imbue all local government agencies with the capacity to sue or be sued. A more reasonable conclusion is that the KTCA does not confer upon an agency the capacity to sue or be sued. The district court did not err in ruling KC-WCDH lacked the capacity to sue or be sued.
The Lindenmans next note that K.S.A. 65-205 confers power on cities and counties with a population over 300,000 to create joint boards of health which have the powers possessed by any local board of health. They point out that K.S.A. 65-201 states the county commissioners shall act as the county board of health for their counties, in the absence of any joint board of health. The Lindenmans conclude that because county commissioners act as the local boards of health, and as counties may be sued, K.S.A. 65-205 confers the power to sue or be sued on joint boards of health.
The fact that county commissioners can be sued and can act as local boards of health does not mean that by conferring joint boards with the power of local boards, the legislature intended joint boards to have the capacity to sue or be sued. The county commissioners’ capacity to sue or be sued lies in their capacity as a governing body, not because they also act as the local boards of health. KC-WCHD had no statutory power to sue or be sued.
Failure to Serve
An action is commenced at the time of the filing of a petition with the clerk of the court, if service of process is obtained within 90 days after the petition is filed. K.S.A. 1993 Supp. 60-203(a)(l). The filing of an entry of appearance has the same effect as service. K.S.A. 1993 Supp. 60-203(c). The district court dismissed New-kirk, the director of KC-WCDH when the action was filed, from the suit. Neither the nunc pro tunc order or the memorandum decision state the reason for dismissing Newkirk as a party. New-kirk’s motion to dismiss alleged that he had not been served within the 90 days following the filing of the petition. In his answer Newkirk pled lack of personal jurisdiction as an affirmative defense. Before the journal entry was filed, plaintiffs obtained personal service on Newkirk and moved the district court to reconsider its dismissal. The district court refused to reconsider.
Now, on appeal, the Lindenmans contend Newkirk’s motion for leave to answer constituted a general appearance equivalent to service of process, and because the journal entry dismissing the action against Newkirk had not been filed, it was not yet effective, and before the journal entxy was filed and became effective, they obtained personal service on Newkirk. They argue the lack of service only affects the computation of the statute of limitations under 60-203. That statute provides a civil action is commenced when the petition is filed, and it sets the time period to obtain service. If the service is not obtained within the time required, the action commences when service is made. The Lindenmans recognize, however, that the motion for extension of time to answer does not waive the defense of lack of personal jurisdiction. See Haley v. Hershberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971).
In Haley, several actions were filed against Hershberger. In each action the plaintiffs requested that the sheriff personally serve the defendant. Service of process was made on the defendant’s secretary. The return stated that the defendant had been personally served with process. Discovery proceedings were promptly instituted. The defendant filed an answer in each case. Among the defenses alleged by the defendant in the answer were the lack of personal jurisdiction and insufficiency of both process and service. After the time limitation had run, the defendant filed a motion to dismiss because of insufficiency of service. The district court granted the motion and dismissed the petitions. All plaintiffs obtained personal service on the defendant by alias summons. The defendant filed a motion to dismiss the actions because the statute of limitations had run. The district court dismissed the actions as time barred. The plaintiffs appealed.
The Haley court noted that K.S.A. 60-304(a) (Corrick) provided service could be obtained by delivering a copy of the summons and the petitions to the defendant personally or by leaving copies at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy to an agent authorized by appointment or law to receive service. The court concluded that leaving a copy of the petition and summons with the defendant’s secretary was not substantial compliance to obtain personal service. The court held jurisdiction over 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. The Haley court found the district court was correct in determining the statute of limitations had run against the claims of the plaintiffs before jurisdiction was obtained by personal service. 207 Kan. at 463-66. See Bray v. Bayles, 228 Kan. 481, 618 P.2d 807 (1980).
Newkirk was not served. The district court lacked personal jurisdiction. The district court did not err in dismissing him as a party. Because the service on Newkirk was improper, his successor in office could not be served or substituted for Newkirk as a party defendant. See K.S.A. 1993 Supp. 60-304(a).
Sufficiency of the Petition and Summary Judgment
The district court concluded Umscheid’s liability depended on his ratifying the acts of the principal, KDHE. The judge noted that the Lindenmans had not cited any authority that an agent who ratifies the acts of the agent’s principal is liable for the principal’s tortious act. The district judge dismissed Umscheid as a party. The Lindenmans contend that under the standard of review for motions to dismiss, their petition states a theory supporting the claims against Umscheid and it was error for the judge to dismiss Umscheid as a party. We need not discuss this issue because we have previously determined that the statute of limitations precludes any claim against Umscheid for abuse of process.
Count II, the malicious prosecution count, is not barred by the statute of limitations. The district court found there was no evidence in the record that Umscheid had any connection with the action by KDHE to revoke the license, the basis for the malicious prosecution claim. The Lindenmans argue that Umscheid is hable because he “initiated” the malicious prosecution by the original act of the inspection; that is, without the inspection, there would never have been any action to revoke the license. The district court found that the action to revoke the license was “initiated” by KDHE, not Umscheid.
The Lindenmans quote the Restatement (Second) of Torts § 680 (1976) for the proposition that one is hable for malicious prosecution if he or she takes an “active part” in the initiation of the prosecution. The act of filing an inspection report, even if false, goes to an abuse of process claim but cannot be considered an “active part” of the subsequent prosecution by KDHE to revoke the license. The Lindenmans’ citation undermines their argument and supports the trial court’s determination. The trial court did not err in granting summary judgment to Umscheid on the malicious prosecution claim for this reason.
The Civil Rights Claim
The trial court found KDHE could not be sued on the civil rights claim because it was not a person within the meaning of that term used in 42 U.S.C. § 1983 (1988). That federal statute states:
“Every person who, under color of [state law], subjects, or causes to be subjected, any citizen of the United States or other person within die jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to any party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)
The Lindenmans argue that (1) the Eleventh Amendment is a jurisdictional bar to suing states in federal courts and (2) states are persons under 42 U.S.C. § 1983, The former statement is essentially correct but immaterial; the latter statement is incorrect.
The Lindenmans acknowledge that in Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), the United States Supreme Court held that states are not subject to monetary liability under § 1983 because Congress did not intend the term person to apply to states when it promulgated the statute. 491 U.S. at 64. In Will, the United States Supreme Court stated:
“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in Quern [v. Jordan, 440 U.S. 332 (1979)]. Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which were precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983.” 491 U.S. at 66.
See Sharp v. State, 245 Kan. 749, 751, 783 P.2d 343 (1989), cert. denied 498 U.S. 822 (1990).
Under the facts of this case, where monetary relief is sought, a state and its agencies are not persons within the context of 42 U.S.C. § 1983.
Does the Petition State a Claim?
KDHE also argues there are three reasons why the amended petition failed to state a claim. It first claims that the record fails to show an improper act or ulterior motive, the required elements of the tort of abuse of process. KDHE next asserts when the Lindenmans admitted to 19 of the 42 reported violations in the initial inspection, there was no probable cause to believe that it had abused the process. It concludes because it acted without malice to revoke the license, the KAPA mandates that an action be filed whenever an emergency order is issued. The Lindenmans respond that there are material questions of fact as to whether malicious prosecution occurred. The Lindenmans point out that an action to revoke a license is not mandated. They point out KDHE had the power to reissue a license for the day care center at any time, but refused to reissue the license. KDHE also contends that the final substantive element of the tort of malicious prosecution, termination of the proceedings in favor of the plaintiff, is missing. It asserts that the decision by the Secretary of KDHE to voluntarily dismiss the action to revoke the license was not a termination in favor of the Lindenmans. As previously determined, this claim is without merit.
The amended petition, when read in the light most favorable to the Lindenmans, states a claim for which relief could be granted. Because the trial court did not rule on the other grounds raised by KDHE, this court cannot determine those issues.
Are the Plaintiffs’ Claims Barred by the Kansas Tort Claims Act?
KDHE argues alternative grounds for affirming the trial court can be found in the KTCA. It argues it has immunity under three exceptions contained in K.S.A. 1993 Supp. 75-6104 of the KTCA:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(c) enforcement or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution;
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved; [and]
“(k) the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or regulation or contains a hazard to public health or safety.”
KDHE argues that the underlying actions are the inspection made by Umscheid and the ensuing enforcement of the licensing regulations and that both of these actions are discretionary in nature.
The Lindenmans note that the KTCA makes liability the rule and immunity the exception. C.J.W. v. State, 253 Kan. 1, 13, 853 P.2d 4 (1993). K.S.A. 75-6103(a), subject to the limitations of the act, states that “each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment where the governmental entity, if a private person, would be liable under the laws of this state.”
KDHE argues it has immunity under the enforcement or failure to enforce a law exception because this court has extended the ambit of this provision to licensing actions, citing Collins v. Heavener Properties, Inc., 245 Kan. 623, 783 P.2d 883 (1989). The Lindenmans point out that this exception does not apply where there is “ ‘tortious conduct outside the scope of the [law being enforced], which would be negligence at common law.’ ” 245 Kan. at 632 (quoting Barker v. Williams, 244 Kan 318, 321, 767 P.2d 1284 [1989]). The Lindenmans claim that whether tortious conduct outside of the law being enforced occurred is a question of fact. Lantz v. City of Lawrence, 232 Kan. 492, 657 P.2d 539 (1983). In Lantz, the city, under the alleged scope of its weed abatement ordinances, entered onto Lantz’s property and cut down 63 trees. The record lacked any indication of the size, age, or location of the trees, or the extent and nature of the dam ages caused. The factual question of whether the city’s actions were within the purview of the weed abatement ordinance precluded summary judgment. 232 Kan. at 497.
The Lindenmans contend the alleged misrepresentations and exaggerations in the inspection report place the conduct outside the scope of the law being enforced and that KDHE’s subsequent attempt to coerce the Lindenmans into stipulations and waivers is also outside the scope of the relevant laws and regulations. They argue that governmental entities have no discretion to violate a legal duty. For support they cite Dougan v. Rossville Drainage Dist., 243 Kan. 315, 757 P.2d 272 (1988).
In Dougan,plaintiffs brought an action to recover from the drainage district damages to cropland and loss of crops caused by flooding. Plaintiffs claimed that the flooding was the result of acts of defendant in constructing dikes and embankments and the widening of a drainage ditch which caused a diversion of natural waters. The defendant filed a motion to dismiss the petition on the basis that the Rossville Drainage District was immune from liability under the KTCA for any damages caused by the flooding of the Dougan property. The district court denied the motion but found that the issue of immunity was controlling and certified the question for an interlocutory appeal. The sole issue presented on the appeal was whether the discretionary function exception under K.S.A. 75-6104(d) (Ensley 1981) provided immunity to the drainage district for damages caused by the flooding of the plaintiffs’ property. The Dougan court noted that it was clear that defendant Rossville Drainage District, if a private person, would have been liable under the law of Kansas for damages caused by flooding of land of a lower riparian landowner. This was also the holding in Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, Syl. ¶¶ 1, 2, and 3, 575 P.2d 1316, rev. denied 225 Kan. 843 (1978). This court noted that Kansas had adopted the rule of law that an upper proprietor of land may not gather and divert surface water from its natural course of flowage and thereby exceed the carrying capacity of the natural watercourse in which the surface water is deposited if that action causes damages of a serious and significant nature to a lower landowner. 243 Kan. at 319. The Dougan court observed that the discretionary function exception under 75-6104(d) of the KTCAis not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. It concluded that a governmental agency does not have a discretionary right to violate a legal duty and avoid liability. 243 Kan. 315, Syl. ¶ 3.
We agree that a governmental agency does not have a discretionary right to violate a legal duty and avoid liability. There is also a sufficient question of fact as to whether the conduct of KDHE was outside the scope of enforcement of the laws to preclude summary judgment.
KDHE next argues that the inspection of a facility for violations of regulations requires discretionary judgment calls by the inspector. The discretionary function exception applies when no mandatory duty or guidelines exist. C.J.W., 253 Kan. at 14. The Lindenmans argue that the government does not have the discretion to maliciously prosecute someone.
KDHE cites Siple v. City of Topeka, 235 Kan. 167, 679 P.2d 190 (1984), to support its argument. The Siples’ vehicle, parked in front of their home, was damaged during a storm when a limb from a tree fell on the car. Prior to the storm, after reports of other limbs falling from the tree were received, a city employee visually inspected the tree but nothing was done. An expert witness testified at trial that a visual inspection was insufficient under the circumstances. This court stated:
“Inspection laws are regulations designed to safeguard the public against fraud, injury and to promote the public health, safety and welfare. They provide for the examination or inspection of property by an authorized public official. The public official is to examine and determine whether the standards prescribed by the regulations are complied with.”
“Such inspections are required by the State or a municipal corporation to determine whether property complies with or violates any law or regulation of the governmental entity or if the property constitutes a hazard to public health or safety. When an employee of the governmental entity is conducting an inspection within the scope of his or her employment, neither the governmental entity nor the employee is liable for the employee's failure to make an inspection or for making of an inadequate or negligent inspection.” 235 Kan. at 170-72.
The Lindenmans are not complaining that the governmental entity or its employee failed to make an inspection or made an inadequate or negligent inspection. They are claiming that the inspection was done in a manner that violated a legal duty. The government has no power or grant of immunity under the KTCA to maliciously prosecute a citizen of the state.
The judgments of the district court regarding all defendants except KDHE are affirmed. The judgment in favor of KDHE on the civil rights violation claim is also affirmed. The granting of summaiy judgment in favor of KDHE on the abuse of process and malicious prosecution claims are reversed.
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The opinion of the court was delivered by
Sarrord, J.:
This was a petition in error, brought in the district court to reverse the judgment of a justice of the peace. Connected with such petition in x x error, or rather in the same petition there was an attempt to unite and prosecute a separate and distinct original cause of action. This in our opinion is not allowable. The remedy by petition in error— all of the advantages of which were adopted and secured by the party bringing it in this case, is one thing; while that in the nature of an equitable proceeding to obtain relief, on the grounds insisted on below, is quite another. As a consequence of their essential differences, the joining of the two in the same petition would be likely to result in confusion, such as would in many cases be calculated to retard, if not to defeat the ends of justice. Vexed and difficult questions as to practice, or otherwise, would arise, all of which might be avoided by a different mode of procedure.
II. We are of the opinion that none of the questions which are argued by counsel for the plaintiff in error are properly before us for our decision, excepting such as arise upon that part of the case below which referred to the alleged error of the justice in taking jurisdiction of, and trying the cause, as it is shown he did. The defendant was a municipal corporation,existing under and being governed by the provisions of the statute relating to cities of the second class; Ch. 19, Gen. Stat., 1868. The record shows that no service of summons was made or attempted to be made upon the city in the said suit, but that instead thereof the mayor, in his official capacity/voluntarily entered an appearance in that behalf, intending thereby to obviate the necessity of any other or further service. Was such action on the part of the mayor authorized by law, and sufficient to bind the city ? We think that the answer to this inquiry must be in the affirmative. “ Actions before justices of the peace are commenced by summons, or by appearance and agreement of the parties, without summons.” “A summons against a corporation may be served upon the president, mayor,” etc. Gen. St, 1868, ch. 81, §§ 9, 18. See also, § 7, ch. 19, same statutes, the provisions of which should be construed in connection with those of said § 13, and so that there may be no conflict between them. Now, whether summons is served upon the mayor of a city, and such city is thereby duly brought into court as authorized by the sections last above quoted, or whether such mayor in his official capacity goes into court and makes an appearance for the city, as it would seem might be done under said section nine, and thereby binds the city, the result is, and cannot be otherwise than practically the same. The city is in court, either by and through the service of process made upon, or by the official, voluntary act of the same officer, according as the one course or the other be followed. What difference or disadvantage then can result to the city from the employment of the one way, or the other, of getting her into court ? The notice to the city is certainly no more effective by the service of summons, regularly issued, than it is if such summons be waived and an appearance be entered by the officer upon whom such service would otherwise be made; nor would the court be better advised as to the fact of notice having been given in the former case, than he would be in the latter. But it is contended, that if it be held that the mayor could enter an appearance for the city without any summons having been served, it follows that the same power in case of bis absence rests with the president of the council, and so down to any person in charge of the office where the business of the city may be transacted, provided all of the officers previously mentioned in said section thirteen, as those upon whom service to bind the city can be made, should prove to be absent, and not to be found. Such a position may be correct to a certain extent; but it. cannot be maintained under either of. the sections referred to as to the person in charge of the office, etc. The effect of the language used is not that in case of the absence of every other officer mentioned, the service may be made upon the person in charge, etc., but in such case it is merely provided that a copy of the summons shall be left with him; and for what purpose, if not, as one would naturally infer, that such copy should, or might be delivered to some of the officers of the city upon whom service could be made ? This act of leaving a copy of the summons with the person in charge, etc., is-nothing more than a technical .service upon the officer (as such, and as representing the city for the purpose of service,) at whose place of business it is left: and it seems idle to say, that because of the single fact that such copy may be so left, it would for that reason follow that the person in charge, etc., would be empowered to do-and perform the same acts in the premises as might be done by the mayor or such other officer as it is specifically provided may be served with summons, so as to bind the city.
But it is further contended, that the provision of said section nine of said chapter 81, which authorizes the commencement of suits by appearance and the agreement of the parties, and without summons, is limited in its action to those parties to actions who are able to' and do actually appear in their own proper persons, and in their own behalf, and does not extend the right'to parties who must of necessity appear by a representative. We do not see the wisdom, or practical utility of such a narrow construction; nor do we think that a more liberal one would be productive of mischief. The connection in which the word “parties”-is used, in said section, does not necessarily require that it shall be confined to, and mean only tbe parties to tbe action in tbe sense of plaintiffs and defendants, but on tbe other band, seems to admit of tbe more enlarged construction that it may be held to include those who are, or may be parties to the summons as well, or upon whom such summons may be served. To this view there seems to be no sound objection. Said section nine was no doubt enacted with a view of providing a way by which parties might save tbe costs of summons, service thereof, etc. For this reason tbe right thereby conferred is of considerable value to litigants; and no good reason is suggested why a municipal corporation should be deprived of its benefits.
The judgment of the district court is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Lockett, J.:
Faye Johnson-Howell appeals her convictions of one count of first-degree murder, K.S.A. 1989 Supp. 21-3401, and one count of conspiracy to commit murder, K.S.A. 1989 Supp. 21-3401 and K.S.A. 21-3302. Defendant claims (1) she was denied her state and federal constitutional rights to confront a nontestifying codefendant; (2) illegal wiretap information was admitted; (3) she was denied the right to present evidence; and (4) she did not receive a fair trial because of cumulative errors.
Johnson-Howell was charged with (1) aiding and abetting and (2) conspiring with Lajuan Clemons to commit first-degree murder of Charles Howell, her estranged husband. See State v. Clemons, 251 Kan. 473, 836 P.2d 1147 (1992), where Lajuan Clemons’ conviction of the first-degree murder of Howell was affirmed.
Johnson-Howell and Howell had separated. While separated, Johnson-Howell had plotted over the telephone with others to kill Howell; Howell had recorded the telephone conversations. When he informed the police of the plot, things “cooled down.” The couple’s divorce action was to be heard the day Howell was murdered. Howell was shot twice in the head in Olathe on February 8, 1990. An autopsy on Howell revealed that he had suffered two shotgun wounds. One wound was caused by a shotgun slug and the second by pellets from a shotgun blast.
At Johnson-Howell’s trial, Bobbi Bolton, Howell’s girlfriend, with whom he had been living, testified that she heard the gunshots, went outside, and found Howell’s body. She called 911 and told the dispatcher that Howell had been shot. Bolton also told the dispatcher that she had observed a light blue four-door small to mid-size car, possibly a rental car, with red license plates, located on the street behind her house in an area which was under development. At trial Bolton identified a picture of a System One rental car as the car she saw the day of the homicide. On cross-examination, she admitted she had previously told the police that she thought the blue car was a Chevy Nova.
During the murder investigation, two System One employees informed investigating officers that Johnson-Howell had rented a blue Dodge Spirit automobile. Johnson-Howell, accompanied by Clemons, had picked up the car on February 7, 1990, and they had returned the car about “11:30 in the afternoon.” The “System One” bumper sticker had been removed. It was not unusual for cars to be returned with the bumper stickers removed. The police obtained a search warrant and seized the car at noon the same day. A search of the car led to the discovery of a set of keys in the car and a fingerprint on the trunk. The car had mud on the drivers floorboard area. It was later determined the keys belonged to Clemons, and it was his fingerprint on the trunk of the rental car. The tires on the rental car matched tire tracks found where Bolton saw the rental car parked. A police officer who had responded to Bolton’s 911 call testified that as he approached the area, he observed a car leaving the area that was similar to a car which had been rented by the defendant.
Julius Olubo, an employee at Johnson-Howell’s insurance agency, testified that on the day of the homicide Clemons showed up at the insurance agency at about 8:45 a.m. Olubo testified Clemons was driving a car similar to the rental car identified by other witnesses.
Detectives from Olathe interviewed Clemons at his apartment on February 9, 1990, at approximately 12:30 a.m. At the time Clemons was being interviewed, there were numerous other possible suspects in the homicide, and 11 detectives working throughout the metropolitan area were following leads. Initially, Clemons identified himself as Nelson Brown and advised the detectives that he knew Lajuan Clemons but had not seen him for at least one day. Eventually, he admitted he was Lajuan Clemons. Clemons told the officers that he and Johnson-Howell were lovers. On February 11, 1990, police executed a search warrant at Clemons’ residence and recovered two shotgun shells similar to the shells used to kill Howell. The search of Clemons’ bedroom also yielded an answering machine stolen from Bolton’s apartment in June 1989. On February 15, 1990, Clemons was arrested and charged with murder.
An expert in military equipment who had been Clemons’ superior in the military testified that footprints found leading to and away from the homicide scene were made by a particular kind of boot Clemons could have purchased while in the Army reserves. When Clemons’ apartment was searched, a variety of military clothing was found, but no boots.
A police officer interviewed Max Howell, the young son of Howell and Johnson-Howell, several days after the homicide. The day of the homicide Max, who was living with his mother, called his father at home at about 7:00 a.m. The police believed that the son had been used to determine if his father was home and not at work. Bolton testified that she heard Howell answer the phone and say, “ If you thought I was at work, why did you call?’ ” Howell worked the 6:00 a.m. to 2:30 p.m. shift at his job. Howell told Bolton the call was from Max. Bolton testified Max had never called at that time in the year she had been living with Howell. Max testified his mother knew he was calling his father but she did not tell him to do so.
In a May 1989 phone conversation recorded by Howell, Johnson-Howell told Frank Parker, a friend and former employee of hers, that she wanted Howell dead. She told Parker she was plotting with a former lover, Henry Arbrought, to kill Howell. Johnson-Howell asked Parker to give Arbrought some money for the murder. Johnson-Howell later told Parker that Arbrought would not commit the murder. She stated that she would have Clemons do it instead. Neither Johnson-Howell nor Parker knew the conversation was being taped by Howell. The State introduced, over the defense’s objection, the taped telephone conversation. Parker testified that prior to the telephone conversation, Howell had physically assaulted Johnson-Howell in front of Parker and the Howells’ son at Johnson-Howell’s office.
During the trial, the following occurred outside the presence of the jury: Clemons was to be a witness for the State. Clemons’ attorney told the court that Clemons was aware he had previously waived his Fifth Amendment privilege by testifying at his trial and understood he [Clemons] would be held in contempt of court if he refused to answer any questions. When Clemons refused to answer any questions, the judge found Clemons in contempt.
In order to obtain admission of Clemons’ prior statement to investigating officers, the State requested that the judge find Cle mons to be an unavailable witness. The defense objected, claiming it would not be able to confront and cross-examine Clemons regarding his statements to the officer. To provide the defendant his right to confront Clemons, the judge decided to have Clemons sworn in front of the jury, allow the State to examine him, and then, if Clemons answered the State’s questions, let the defense cross-examine. The judge withdrew his finding that Clemons was in contempt.
Clemons took the stand and was sworn. In front of the jury, Clemons refused to answer the prosecutor’s questions. The State requested that Clemons be declared a hostile witness so it could ask leading questions. The defense’s objection was overruled. The State proceeded to ask leading questions. Clemons refused to answer the questions. After the State had completed asking Clemons a series of leading questions about his prior statements to the officers, which Clemons refused to answer, the judge informed the defense it could cross-examine Clemons within the scope of the questions asked by the prosecutor. The defense pointed out that because Clemons had not answered a question, there was no scope of direct examination to stay within and did not cross-examine the witness. The jury was excused, and the judge then found Clemons to be in contempt.
Over the defense’s hearsay objection, the State was able to introduce the statements made by Clemons to the police the day after the homicide as an exception to the rule against admission of hearsay. Detective Halloran testified that when he talked to Clemons the day after the homicide, Clemons stated he knew Howell had been murdered. Clemons also admitted he and the defendant drove a rental car to Howell’s residence the night before the homicide and then “went to the street behind the residence and counted over the number of houses that Charles Howell’s residence was.”
A Kansas City, Missouri, police officer testified that about a month before the homicide he stopped Clemons, who was driving a rental car which had been rented by Johnson-Howell, and found two loaded handguns in the vehicle. A forensic serology specialist testified that an examination of Clemons’ army jacket did not re veal any bloodstains. The State asked whether, hypothetically, bloodstains would be present if the jacket was worn by the shooter. The defense objected that the question was speculative, but the court overruled the objection. The expert said there were so many variables involved, he could not answer the question.
Johnson-Howell testified she rented a car because her car was being repaired. She stated she had no involvement in Howell’s killing. She related all of her activities on the morning of the homicide, including a stop at a beauty salon where she had her hair done. On cross-examination she testified she did not believe Clemons killed Howell. Johnson-Howell admitted that she had written a letter to Oprah Winfrey after her indictment and either threatened to kill Howell or to have him killed. The defense attempted to introduce a subsequent letter written to Winfrey by Johnson-Howell in which she detailed Howell’s involvement in drug trafficking. The State objected to its introduction. The judge found that the second letter was self-serving and that without further foundation it was not admissible. The defense did not provide additional foundation.
Johnson-Howell’s hair stylist testified that Johnson-Howell came to the salon at about 8:15 or 8:30 a.m. the day of the homicide. Johnson-Howell had testified that she normally had her hair done on Fridays but she set up this appointment because of the divorce hearing set for later that day. On cross-examination the State inquired if the stylist knew whether the purpose of the appointment was to establish an alibi for the defendant. The defense objection to the question as speculative was sustained.
Johnson-Howell was convicted of first-degree murder, under the aiding and abetting theory, a class A felony, K.S.A. 1989 Supp. 21-3401; and conspiracy to commit first-degree murder, a class C felony, K.S.A. 1989 Supp. 21-3401 and K.S.A. 21-3302. She was given consecutive sentences of life on the murder charge and 4-15 years on the conspiracy charge.
Admissibility under Hearsay Exceptions
Johnson-Howell argues the introduction of Clemons’ statements at trial denied her the constitutional right to confront the witness against her. In addition, she argues the statements were not admissible under any of the statutory exceptions to the prohibition against the admission of hearsay, K.S.A. 1989 Supp. 60-460 (now 1993 Supp.).
Because the State sought to introduce the statements of the unavailable witness at trial, it had the burden to provide the foundation for the admission of those hearsay statements into evidence. To obtain admission of the hearsay statements, the State had to demonstrate that the witness was unavailable, and then the court must have found that the statements bore sufficient indicia of reliability or showed particularized guarantees of trustworthiness.
In State v. Myers, 229 Kan. 168, 172, 625 P.2d 1111 (1981), we noted that a footnote in Ohio v. Roberts, 448 U.S. 56, 65 n.7, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), stated a demonstration of unavailability is not always required. That footnote stems from a concurring opinion to the plurality opinion in Dutton v. Evans, 400 U.S. 74, 95-96, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970), where Justice Harlan opined, “A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant.” We point out that our case does not involve issues of inconvenience or limited utility to defendant’s defense by requiring production of the codefendant as a witness.
Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible, subject to enumerated exceptions. The State argues the statements were admissible as a previous statement of a person present, K.S.A. 1993 Supp. 60-460(a); as a contemporaneous statement by an unavailable witness, K.S.A. 1993 Supp. 60-460(d)(3); a vicarious admission, K.S.A. 1993 Supp. 60-460(i); and a declaration against interest, K.S.A. 1993 Supp. 60-460(j). A review of the exceptions to K.S.A. 1993 Supp. 60-460 claimed by the State to be relevant reveals that none apply here.
K.S.A. 1993 Supp. 60-460(a) provides:
"Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.”
This exception does not apply because Clemons refused to testify; therefore, he was not available for cross-examination.
K.S.A. 1993 Supp. 60-460(d) provides:
“Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
Under the hearsay rule, a witness is unavailable if the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, (2) disqualified from testifying to the matter, (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts. K.S.A. 60-459(g).
A witness is not unavailable (1) if the judge finds that his or her exemption, disqualification, inability, or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party; or (2) if unavailability is claimed because the witness is absent beyond the jurisdiction of the court to compel appearance by its process, and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship and that the probable importance of the testimony is such as to justify the expense of taking such deposition. K.S.A. 60-459(g).
Clemons was not an unavailable witness as defined by K.S.A. 60-459(g). Cf. State v. Mack, 255 Kan. 21, 33, 871 P.2d 1265 (1994) (witness living in Germany; beyond jurisdiction of court to compel attendance); State v. Green, 254 Kan. 669, 680, 867 P.2d 366 (1994) (witness had Fifth Amendment privilege to refuse to testify; exercise of privilege made witness unavailable); State v. Vaughn, 254 Kan. 191, 201, 865 P.2d 207 (1993) (failure of good faith efforts to locate witness before trial, other examples discussed). K.S.A. 1993 Supp. 60-460(d)(3) does not apply because Clemons was not unavailable as defined by K.S.A. 60-459(g).
K.S.A. 1993 Supp. 60-460(i) provides:
“Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if ... (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination . . . .”
The exception contained in 60-460(i)(2) is not applicable because the statements by Clemons to the officers were made after the crime had been completed. See Myers, 229 Kan. at 173.
K.S.A. 1993 Supp. 60-460(j) provides:
“Declarations against interest. Subject to the limitations of [60-460] (f), a statement which the judge finds was at the time of the assertion so far contraiy to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.”
The declarations against interest exception of 60-460(j) also does not apply because the statements did not, by themselves, subject Clemons to criminal liability. Cf. State v. Jones, 246 Kan. 214, 219, 787 P.2d 726 (1990) (statements made by unavailable codefendant that he and two others, rather than the defendant, were involved in shooting were admissible as declarations against interest). Although the statements made by Clemons were circumstantial evidence that supported an inference that he knew Howell had been killed and was at the crime scene prior to the murder, they are not sufficient to subject him to criminal punishment.
Incriminating Statements By A Nontestifying Codefendant
Johnson-Howell challenges the admission of statements of her codefendant that incriminated her, through the testimony of an investigating officer. Johnson-Howell argues that the unorthodox methodology of the court in allowing the investigating officer to recite the previous statements of a codefendant, a State’s witness who refused to answer questions in the presence of the jury, denied her the right to confront the declarant.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against the accused. In Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965), the Supreme Court held that this is a fundamental right and is made obligatory on the states by the Fourteenth Amendment. See State v. Willis, 254 Kan. 119, 123, 865 P.2d 1198 (1993). This constitutional provision, however, does not preclude the admission of all hearsay evidence. See Ohio v. Roberts, 448 U.S. at 63. Ordinarily, admissibility of evidence, including hearsay, is within the discretion of the trial judge. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993). That discretion is not unbounded. It should be noted that the hearsay rule and the Confrontation Clause “generally” serve the same interests, but sometimes do diverge. Ohio v. Roberts, 448 U.S. at 66; Dutton v. Evans, 400 U.S. at 81-82. The Confrontation Clause places “limitations on the admissibility of hearsay evidence in criminal cases which are not applicable in civil cases.” State v. Myers, 229 Kan. at 172. The courts should attempt to “harmonize the goal of the [Confrontation] Clause — placing limits on the kind of evidence that may be received against a defendant — with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.” Bourjaily v. United States, 483 U.S. 171, 182, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
When the Confrontation Clause becomes an issue as to the unavailability of a witness, whether the witness is unavailable is a question of law. See Jennings v. Maynard, 946 F.2d 1502, 1504 (10th Cir. 1991) (“We review an issue of unavailability under the Confrontation Clause de novo.”). Under the Confrontation Clause, the inquiry is whether the State has made a good faith effort to obtain the presence of the witness at the trial. Ohio v. Roberts, 448 U.S. at 74. The defendant claims that the production of the witness by the State was not made in good faith because the State knew that the witness would refuse to testify.
To support its claim that it made a good faith effort to produce the witness and, therefore, the codefendant’s statements to the officer were admissible, the State points to State v. Mitchell, 3 Kan. App. 2d 635, 599 P.2d 1025 (1979). In Mitchell, the Court of Appeals stated that when the trial judge has reasonable cause to believe a witness will refuse to testify, it is better practice to conduct a hearing outside the presence of the jury to ensure that the defendant’s right to a fair trial is not inadvertently violated; but when the witness has no legal right to refuse to testify, it is not reversible error per se for the court to refuse to conduct such a hearing. 3 Kan. App. 2d at 640.
A somewhat similar situation occurred in Jennings v. Maynard, 946 F.2d 1502. In Jennings, a witness refused to testify in an Oklahoma state court proceeding. The witness claimed that he and his family had been threatened with harm if he testified. The 10th Circuit Court of Appeals found a refusal to testify because of threats was a “well-established ground” for finding a witness unavailable under both Oklahoma and federal rules of evidence. 946 F.2d at 1505.
Witnesses have a state and federal constitutional right against compelled self-incrimination. Except as otherwise provided by statute, every person is qualified to be a witness. No person has a privilege to refuse to be a witness or to refuse to disclose any matter, and no person has a privilege that another shall not be a witness or shall not disclose any matter. K.S.A. 60-407 (a), (b), (d), and (e). Subject to K.S.A. 60-423 and K.S.A. 60-437, every natural person has a privilege, which he or she may claim, to refuse to disclose in an action or to a public official of this state or the United States or any other state or any governmental agency or division thereof any matter that will incriminate such person. K.S.A. 60-425. A matter will incriminate a person if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for, a reasonable inference of such a violation of the laws of this state as to subject the person to liability to punishment therefor, unless he or she has become for any reason permanently immune from punishment for such violation. K.S.A. 60-424. Except as otherwise provided by the Kansas Constitution, the federal Constitution, and our state statutes, every person is qualified to be a witness.
A person who would otherwise have a privilege to refuse to disclose a matter has no such privilege as to that matter if the judge finds that such person, without coercion, or without any trickeiy, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter. K.S.A. 60-437(b). If a privilege is exercised not to testify or to prevent another from testifying, either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege. K.S.A. 60-439.
A witness’ refusal to testify in a criminal trial is not a recognized ground for unavailability of the witness in this state. See State v. Lomax & Williams, 227 Kan. 651, 660, 608 P.2d. 959 (1980). In Lomax a witness, Mary Ellen Bagby, had identified the three males at a codefendant’s preliminary examination as the individuals who had committed the robbeiy. When called to testify at the defendants’ trial, the witness stated that she would not testify because she could not remember what had occurred during the robbeiy. Bagby was declared a hostile witness, and the prosecutor questioned Bagby about her prior testimony at a codefendant’s preliminary examination by reading the question and the answer which Bagby gave at that hearing. Bagby’s responses were that she could not remember or recall either the question or her an swer. When defense counsel cross-examined the witness, she again stated that she did not remember anything.
The Lomax court reviewed federal cases which held that where a prosecution witness refuses to take an oath or refuses to give testimony of any sort or responds with answers such as “I don’t recall” or “I don’t know,” the prior hearsay statements are not admissible under the constitutional confrontation rule. It then noted that in United States v. Fiore, 443 F.2d 112 (2d Cir. 1971), the court held that prior grand jury testimony of a witness who refused to testify at a subsequent trial was not admissible. Pointing out that the witness was not subject to cross-examination by the defendant because of his refusal to testify, the Fiore court stated that the admission of his grand jury testimony violated not only the hearsay rule but also the confrontation rule of the Sixth Amendment.
In Fiore, the witness had been placed on the stand by the prosecutor and, when asked if he had previously testified before the grand jury, answered, “I don’t remember.” There followed a protracted examination in which the prosecutor read portions of the grand jury testimony framed by the questions, ‘Were you asked the following questions and did you give the following answers?” The witness invariably gave such answers as, “I might have,” or “I don’t know whether I did or not.” 443 F.2d at 114. This line of questioning was held to be reversible error on the basis that the witness was not available for cross-examination as required by defendant’s constitutional right of confrontation.
The Lomax court noted that in United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977), the court reversed a conviction for marijuana possession, holding that the grand jury testimony of a coconspirator who refused to testify at the trial was not admissible hearsay. The witness had already been convicted, was granted immunity, and was ultimately found in contempt when he refused to testify. The case was reversed on the basis that the witness was unavailable as a witness under Fed. R. Evid. 804(a). The Gonzales court did not consider it necessary to consider the defendant’s argument that the introduction of such evidence violated his right to confront witnesses. 559 F.2d at 1274.
In Gonzalez, reference is made to United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied 431 U.S. 914 (1977), where the federal district court had held admissible the grand juiy testimony of a witness who refused to testify because of threats directed against him by the defendant Carlson. On appeal, the Carlson court held that the defendant had waived his right of confrontation since the witness’ refusal to testify was procured by the accused. 547 F.2d at 1358. The Gonzalez court refused to apply the exception stated in Carlson because there were no threats of harm directly attributed to defendant Gonzalez. 559 F.2d at 1274. It is important to note that in Lomax there was no finding by the trial court that the refusal of Mary Ellen Bagby to testify was the result of threats made to her by the defendants. 227 Kan. at 660-61.
The Lomax court applied the basic principles previously discussed and concluded drat Mary Ellen Bagby was not available for cross-examination by the defendants Lomax and Williams during their trial or the preliminary hearing of Cashley Woods. Under these circumstances, Lomax and Williams were not afforded the right of cross-examination. The Lomax court noted that Mary Ellen Bagby was obviously a recalcitrant witness from the beginning of the defendants’ trial. It observed that she testified at Woods’ preliminary examination only after being threatened with punishment for contempt. When called as a witness at the trial of Lomax and Williams, she again refused to testify, stating that she could not recall what happened. Although she failed to testify as hoped for by die State, her testimony was not affirmative, contradictory, or adverse to the parly calling her, as required by State v. Potts, 205 Kan. 47, 52, 468 P.2d 78 (1970). She simply refused to testify, claiming that she could not remember. The Lomax court interpreted the evidentiaiy record as establishing a clear case where a witness simply refused to testify at the trial by claiming that she could not remember what happened. It found that this is not a case where a witness, acting in good faith, was unable to testify as to the subject matter of her prior statement because, through no fault of her own, she had lost her memory as to the events. It determined that the prior testimony of Mary Ellen Bagby was not admissible although she was present at the hearing, because she was not available for cross-examination. The court found that the admission of Bagby s testimony violated the defendants5 right to confrontation as provided for in the United States and Kansas Constitutions. The case was reversed. 227 Kan. at 661-62.
In State v. Myers, 229 Kan. 168, 173-75, 625 P.2d 1111 (1981), an analogous situation occurred during Joe Myers5 trial for murder. Shortly after the murder, Lorin Axvig informed his wife that he and Myers had lolled someone. Warrants were issued for the arrest of Myers and Axvig for murder. Prior to Myers5 trial, Axvig was killed in Texas. In Myers5 trial, the State attempted to introduce Axvig5s statement to his wife. For authority to admit the statement, on appeal the State directed our attention to 60-460(d)(3), which provides an exception to the hearsay rule where a declarant is unavailable as a witness and the statement offered is one narrating, describing, or explaining an event which the judge finds was made by the declarant when the matter had been recently perceived by the declarant and while his or her recollection was clear, and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort. The State also argued that the oral statements of Lorin Axvig were admissible under the hearsay exception contained in 60-460(j) as a declaration against penal interest.
The Myers court concluded that if the State was correct in its position, then the specific statutory limitations on the admissibility of confessions (60-460[f]) and incriminating statements of coparticipants (60-460[ij) would, in effect, be totally nullified. It did not believe that it was the intent of the legislature to permit hearsay confessions and extrajudicial statements of coparticipants in crime to be admitted against the accused in a criminal case without satisfying the requirements set forth in those subsections of 60-460. Sections 60-460(f) and 60-460(i) controlled where the issue before the court at a criminal trial is the admissibility of the confession or hearsay statement of a coparticipant. The Myers court determined that must be the law in light of the purpose of the Confrontation Clauses of the Sixth Amendment and Section 10 of the Kansas Constitution Bill of Rights. In reaching that conclusion, it'considered the fact that in Kansas out-of-court hearsay statements of coparticipants in crime have traditionally been considered as unreliable and untrustworthy. In fact, the testimony of an accomplice against an accused is considered so unreliable as to require a precautionary instruction where there is a lack of evidence which corroborates the testimony of the accomplice. 229 Kan. at 174-75. See State v. Moody, 223 Kan. 699, 576 P.2d 637, cert. denied 439 U.S. 894 (1978).
Applying the Kansas statutes to the facts of this case, Clemons was not an unavailable witness. The conviction and sentencing of Clemons, and the resolution of his direct appeal, removed all protection of the Fifth Amendment for any incriminating testimony Clemons might provide at Johnson-HowelTs trial. See State v. Anderson, 240 Kan. 695, 700, 732 P.2d 732 (1987). Unlike the witness in Jennings, Clemons’ reason for refusing to testify was not fear of retaliation by the defendant. Under the circumstances, Clemons possessed no privilege to refuse to testify when called as a witness. He was a witness who chose not to testify, even after being ordered to by the trial judge and threatened with being found in contempt. Cf. State v. Bird, 238 Kan. 160, 174, 708 P.2d 946 (1985) (witness who exercised her Fifth Amendment privilege against self-incrimination was unavailable for purposes of confrontation). The trial court did not have discretion to require Clemons to take the stand before the juiy and to order him to answer the questions posed by the State.
Clemons was not subject to cross-examination by the defendant because of his refusal to testify. The admission of Clemons’ statements not only violated the hearsay rule, their admission violated the accused’s state and federal constitutional right of confrontation.
Harmless Error
The State argues the admission of the codefendant’s statements into evidence was an error of constitutional magnitude; however, under the facts, its admission was harmless and does not require that the defendant’s conviction be reversed. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990). To make this determination, we must review the statements and the other evidence of the defendant’s guilt. Johnson-Howell points out that when determining if the admission of the statements was harmless error, we must consider the fact that the jury requested, and received, a readback of Clemons’ testimony.
First, we note that Clemons’ statements regarding the rental car were corroborated by other witnesses called by both parties and by the testimony of Johnson-Howell. There is no prejudice resulting from admitting Clemons’ statements as to the rental car.
That leaves the sole statement that Clemons knew Howell had been murdered. This single statement did not inculpate either Johnson-Howell or Clemons. In light of the length of the trial and the other evidence adduced, that statement cannot be viewed as having any effect on the outcome of the trial.
Johnson-Howell’s final claim on this issue is that even though the court sustained the defense’s objection when the State sought to have the detective testify that Clemons said he would do anything for the defendant, the State introduced the relationship into evidence through inference when the prosecutor asked Clemons if he had told the detective he would do anything for the defendant. Clemons did not answer the question.
We disagree with the defendant’s assertion. During the trial, to show the relationship between the defendant and Clemons, the State introduced evidence that prior to Howell’s death Clemons and the defendant had traveled together to Dallas, New Orleans, and Las Vegas. A photograph showing the defendant in a negligee was recovered from the search of Clemons’ bedroom. In addition, there was evidence that the defendant and Clemons were in contact after the murder. The State introduced evidence that while Clemons was in the Johnson County jail, approximately 1,747 collect phone calls were placed to Johnson-Howell’s resi dence and place of business from phones set aside for use by prisoners. Several witnesses testified about the relationship between Clemons and the defendant during the trial.
In State v. Lomax & Williams, 227 Kan. 651, the improperly admitted hearsay statement identified the defendant as one of the three individuals who had committed the robbery. In State v. Myers, 229 Kan. 168, during Myers’ trial the hearsay statement admitted indicated that Myers had participated in the killing of the victim. Here Clemons’ hearsay statements did not directly connect the defendant with the killing of her estranged husband, and the same information was introduced through the testimony of other witnesses. Even though the admission of Clemons’ statements violated the defendant’s constitutional right to confront the witnesses against her, under the circumstances, the introduction of the statements were harmless error and did not deprive the defendant of a fair trial.
Violation of the Federal Wiretap Statutes
The defendant filed a motion to suppress introduction of the tape-recorded conversation between herself and Frank Parker. Johnson-Howell asserted that the admission into evidence of the tape-recorded conversation violated the federal wiretap statutes, which prohibit the use in any trial of communications intercepted in violation of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1988) (Title III). The State argued that to have a violation of the federal wiretap statutes the interception must be willful.
The trial judge denied Johnson-Howell’s motion to suppress the taped phone conversation recorded by Howell before his death. The trial judge found that at the time of the recording, Howell and Johnson-Howell shared a residence and both had joint control of the facilities in the residence where the recording was made. The judge noted that there were two phone lines and Howell was a subscriber on both lines. The judge found that in March 1989 Howell installed a voice-activated answering machine on a basement telephone line extension because he felt he was not receiving his telephone messages. In May 1989, Howell checked his messages and discovered a recording of a conversation between Johnson-Howell and her secretary, Frank Parker. Johnson-Howell does not challenge these findings. Findings of fact by the trial judge which are not appealed are final and conclusive. Sullivan, Bodney & Hammond, P.C. v. Bodney, 16 Kan. App. 2d 208, 209, 820 P.2d 1248 (1991).
18 U.S.C. § 2515 (1988), prohibits, inter alia, the use of evidence in state court criminal proceedings if the evidence was obtained through unauthorized interception of an oral communication in violation of Title III. The unauthorized interception must be intentional. 18 U.S.C. § 2511(1)(a) (1988); see United States v. Ross, 713 F.2d 389, 391 (8th Cir. 1983). The party claiming a violation of Title III has the burden to show such violation. See, e.g., United States v. Ross, 713 F.2d at 391. Interception is defined as “the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic . . . device.” 18 U.S.C. § 2510(4) (1988). An electronic device includes “any device or apparatus which can be used to intercept a[n] . . . oral . . . communication.” 18 U.S.C. § 2510(5). An extension phone is not a device under the statute. 18 U.S.C. § 25l0(4)(a); Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir.), cert. denied 419 U.S. 897 (1974).
In United States v. Harpel, 493 F.2d 346 (10th Cir. 1974), and United States v. Cheely, 814 F. Supp. 1430 (D. Alaska 1992), two federal courts have found recordings are not necessarily covered under Title III where the recording device merely records a conversation that has already been intercepted. The Cheely court opined that recording a phone conversation would be a violation only “if the conversation could not have been heard by the human ear listening to the same telephone.” 814 F.Supp. at 1441. If Howell had listened in on the basement telephone extension, he would have heard the same conversation recorded by the answering machine.
In Harpel, the 10th Circuit Court of Appeals stated that a recording device placed next to, or connected with, a telephone receiver cannot itself be the “acquiring” mechanism. It is the receiver which serves this function — the recorder is a mere accessory designed to preserve the contents of the communication. 493 F.2d at 350.
Although Howell was not staying at the house at the time he installed the answering machine and when the tape was made, he retained joint control with Johnson-Howell over the premises. The trial court found Howell’s purpose in installing the answering machine was to ensure he would receive his phone messages, not to record his wife’s conversations with third parties. The defendant has failed to meet her burden of showing that her estranged husband had intentionally sought to intercept her oral communication. Under these circumstances no violation of federal law occurred, and the tape was admissible into evidence.
Denial of the Right to Present A Defense
Johnson-Howell asserts the refusal to permit her testimony regarding her interview with the police and the refusal to admit a letter denied her the right to have a meaningful opportunity to present a complete defense. The State argues the standard of review on admissibility or exclusion of evidence is whether the excluded evidence is relevant and material and whether the trial court abused its discretion in refusing to admit the evidence.
The defendant claims that the trial judge abused his discretion by failing to allow her to present evidence relevant to her defense and that the denial of her right to present this evidence diminished her constitutional right to present a defense.
The defendant’s right to present a defense is subject to the rules of evidence and the case law. State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). The standard of review for a claim of improper exclusion of relevant evidence is whether the trial court abused its discretion in excluding the testimony. State v. Walker, 252 Kan. 117, 133, 843 P.2d 203 (1992).
After Johnson-Howell testified, the State questioned her on matters omitted from her interview with police the day after the homicide, as well as on the fact that she terminated the interview on her attorney’s advice. On redirect, she testified she was “a bit hysterical and somewhat withdrawn, and I don’t know” at the time of the interview because her husband had been murdered the day before. She also stated the officers told her that her life had been threatened by Howell’s friends and “perhaps Sam or Gilbert Dowdy,” alleged to be “Kansas City drug kingpins.” The State objected, arguing that this line of questioning violated a pretrial motion in limine. The defense responded that the State had opened up the subject by bringing out “one detail or two details” regarding her interview with the police and leaving out information that would show that Johnson-Howell “was an emotional wreck” when the interview was terminated. The defense claims that the excluded evidence was relevant to defendant’s state of mind and composure during the interview with the police and would have explained her omission of certain information during the interview.
We have reviewed the record and determined that the judge did not prevent Johnson-Howell from pursuing this line of questioning. The judge stated:
“I’ll certainly allow you to allow her to explain if she felt she was upset at the time the interview took place, . . . but any innuendo that — trying to bring in somebody else committed the crime, there’s no foundation for that at this time.”
The defense then chose not to follow this line of questioning by laying a foundation but instead directed its attention to a letter defendant wrote to Oprah Winfrey and then to the tape recording of Johnson-Howell’s conversation with Parker. Under the facts, the evidence was not excluded by the judge; the judge required the defendant to lay the foundation for the admission of the evidence. To require a defendant to lay a foundation for the admission of evidence is not an abuse of discretion.
The State introduced a letter Johnson-Howell wrote to Oprah Winfrey. The defense attempted to introduce a second letter written by Johnson-Howell to Winfrey. The State objected to the admission of the second letter, claiming that it was written with the intent to attack the victim’s character, was self-serving, and lacked relevance. The judge sustained the objection, finding the letter was self-serving. The judge noted he would admit the letter if a proper foundation was laid.
Johnson-Howell argues that the State’s objection to the admission of the letter because it was self-serving was not a proper objection in that most evidence adduced by a party is self-serving or prejudicial to the other party. On appeal, the State concedes there is no rule in Kansas prohibiting the introduction of self- serving evidence and, instead, argues that the judge’s ruling should be affirmed because the letter was hearsay.
In Schmeck v. City of Shawnee, 232 Kan. 11, 34, 651 P.2d 585 (1982), it was noted that there is no rule of evidence per se to exclude a letter as a self-serving statement. The court recognized that a self-serving statement may be excluded as hearsay. Defendant’s letter, though hearsay, would have been admissible under 60-460(a) as a previous statement of a person present and available for cross-examination.
A review of the record shows that the court initally prohibited Johnson-Howell from attempting to introduce the letter but required that a proper foundation be laid before the evidence would be submitted for the jury to consider. Johnson-Howell could have attempted to lay a foundation for admission of the second letter but did not.
The Effect of Cumulative Errors
Johnson-Howell contends that in addition to the errors she previously raised in the appeal, there were numerous other prejudicial instances that cumulatively denied her the right to a fair trial. Johnson-Howell asserts “the State repeatedly stepped over the line of fairness.” The specific instances she cites are:
1) the calling of Clemons’ parole officer to testify regarding his • lack of employment, and, in doing so, repeatedly stressing that the witness was a parole officer even though the court instructed the State to limit its questioning to Clemons’ employment and not his probationary status (over a string of 17 questions, the State prefaced 4 with a reference to the witness’ capacity as a Missouri State Parole Officer);
2) the introduction of evidence that Clemons had previously been arrested for carrying a concealed weapon, a handgun, and the introduction of a handgun that Johnson-Howell owned (the relevance of Johnson-Howell’s possession of a handgun is questionable; however, Clemons’ arrest occurred while he was driving a car rented by Johnson-Howell, which makes the circumstances sufficiently similar to the crime charged to establish relevance);
3) following up an expert’s testimony that Clemons’ jacket had no blood on it with a hypothetical question that shooting someone would not necessarily result in blood being deposited on the shooter’s clothing (the expert’s answer was that there would be too many variables involved to be able to answer the question);
4) asking Johnson-Howell whether she was familiar with Henry Arbrought’s convictions, even though no evidence of the same was introduced;
5) improper argumentative examination of Johnson-Howell’s hairdresser on whether the motive behind a hair appointment was to establish an alibi for the defendant (this objection was sustained); and
6) prosecutorial misconduct in closing argument by the State’s heavy focus on Clemons’ background and reference to matters not in evidence (this objection also was sustained); the prosecutor’s reference to what the “big, bad defense” had to prove; and, finally, repeated references to Clemons’ refusal to testify.
Johnson-Howell argues this case is based on circumstantial evidence and the evidence is “hardly overwhelming.” The State contends that although the evidence was circumstantial, the evidence of guilt was overwhelming. This court has recognized that in some cases circumstantial evidence can provide overwhelming evidence of guilt. See State v. Henderson, 226 Kan. 726, 736, 603 P.2d 613 (1979) (under harmless error analysis, “the totally circumstantial evidence presented against the accused ... of guilt was not overwhelming, to say the least” [emphasis added]); State v. Coe, 223 Kan. 153, 164, 574 P.2d 929 (1977) (“in view of the overwhelming circumstantial evidence disclosed in the record, the limitation placed on [the witness’] testimony concerning his use of marijuana the night of the alleged confession was harmless error”); State v. Harding, 208 Kan. 882, 884, 494 P.2d 1122 (1972) (noting the “trial court found the defendant guilty as charged and referred to the circumstantial evidence against the defendant as overwhelming”).
The evidence, in a nutshell, was that Johnson-Howell had two motives for wanting Howell killed: revenge for his physical beating of her and financial gain from death benefits, insurance, and marital assets that would not then be subject to division in the divorce action. She had an emotional and physical relationship with the individual who murdered her estranged husband. The car Clemons was driving the morning of the homicide was seen in the vicinity of the homicide. Johnson-Howell and Clemons drove out to Howell’s neighborhood the night before the homicide. Defendant was in a position to know that Howell was home that morning. A search of Clemons’ apartment turned up shotgun ammunition similar to the type used to kill Howell. Boot tracks of the type of boot that Clemons could have owned while in the military were found leading to and away from where Howell’s body was found. Although testimony indicated Clemons possessed a shotgun and could have possessed the type óf boots involved, a search of the apartment turned up shotgun shells and a variety of other military clothing and equipment, but no sign , of the two real incriminating pieces of evidence — the boots or the shotgun.
The cumulative effect rule is that trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Taylor v. State, 251 Kan. 272, 284, 834 P.2d 1325 (1992). The admission of Clemons’ statements and the reference in closing argument by the State to the “big, bad defense” were trial errors. However, the cumulative effect rule does not .apply where the evidence is overwhelming against the defendant. State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).
A defendant in a criminal case is entitled to a fair trial, not a perfect one. State v. Chandler, 252 Kan. 797, Syl. ¶ 3, 850 P.2d 803 (1993). In light of the trial record as a whole, the errors, when viewed together, do not show Johnson-Howell was substantially prejudiced or denied her right to. a .fair trial. We can declare beyond a reasonable doubt that the trial errors had little, if any, likelihood of changing the results of the trial.
Affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This -case has been ably argued by counsel on both sides. Probably no point has been overlooked, but every point which skill, ingenuity, perseverance and industry could discover has been hunted up and presented to us for our consideration.
I. We have already decided, in the case of Paine v. Spratley, 5 Kas., 525, that the sheriff’s deed under which defendaut Cockrill claims, was valid, and sufficient to pass title. In that case, and with respect to the same judgment, writs of execution, and sheriff’s’deed under and by virtue of which the plaintiff herein claims title to the lot in controversy, this court held, that where proceedings had been had in any case before a court of general jurisdiction, and on the face of such proceedings it appears that jurisdiction had been acquired of the subject-matter, and of the person, the decision and judgment of such court, notwithstanding errors may have intervened, cannot be collaterally attacked or examined, on account of such errors, in another court, or in another proceeding; but such decision and judgment must bo regarded as binding until reversed. "We still adhere to that opinion.
II. The only question for us now to determine is, whether the tax deed under which the plaintiffs in error claim title is valid or not. ' The court below refused to receive the tax deed in evidence. Said tax deed was executed by the county clerk of Leavenworth county to John G-eo. Brown for the taxes of 1862; it is dated June 21st, 1865; was duly witnessed and acknowledged; it was recorded in the office of register of deeds June 24th, 1865; and it is regular in form in every respect, except that there are three slight discrepancies between its language and that of the statute. By reason of these slight discrepancies in form, the plaintiff below claims that the tax deed is void upon its face. We think not. The statute nowhere requires that the tax deed shall be in the exact language of the statute. All that is required is, that it shall be in substantial conformity to the form given in the statute; (§ 10, Comp. Laws, 1862, p. 878;) and the statute further provides that “ no mere irregularities of any kind shall -'invalidate the title conveyed by the tax deed; ” (§ 10, p. 879.) It will probably seldom be found that the tax •deed ought to be in the exact language of the statute. In fact it would seem ridiculous to use the exact words •of the statute, in the third place where this deed differs from the statute, instead of using words which so much better express the meaning of the statute, as this deed does. A tax deed in the exact language of the ■statute would undoubtedly be good; but one in ’ a better form, where the change is only slight, and the words mean the same thing, is equally good. Decisions from other States where the legislature have required that tax deeds shall be in the exact form prescribed by "the statute, can have no application in this State where ■no such requirement is made.
As to the second supposed irregularity in said tax deed, this court is oi; the opinion that said blank was not filled up with the proper amount, but that it should have been tilled up with a much larger amount, an amount equal to and including all the taxes, costs and interest due on said lot at the time said deed was made, and paid by the holder or holders of the tax-sale certificate upon which said tax deed was made. But still we think it is immaterial whether that blank was filled with the right amount ■or with a less amount, as a less amount can do no one any possible injury, unless it is the grantee of the tax •deed himself. It can certainly do no injury to the original owner of the lot. ¥e think the tax deed is valid upon its face.
III. As a second objection to the introduction of said tax deed in evidence, it is claimed by the plaintiff below that the defendant should have first shown by evidence aliunde that everything; prior to the J O Jr assessment of the lot was properly done; or in other words, ho claims that the tax deed itself is not prima fade evidence of the regularity of the proceedings prior to the assessment of the property.
This is certainly not the true construction of our statutes, nor the construction that has heretofore been adopted. All our statutes upon the subject from February 12th, 1858, down to the present time have provided substantially that the tax deed “ shall bo prima fade evidence of the regularity of ail the proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed.” The tax deed under the statute is prima fade evidence that the property was regularly assessed, and that it was assessed by the assessor ; and if it was regularly assessed by the assessor all the prerequisites must of necessity have been complied with. Where then is there any room for irregularities ? Delaplaine v. Cook, 7 Wis., 53, 54; Allen v. Armstrong, 16 Iowa, 508; Sprague v. Pitt, McCahon, 212.) If it could be shown, as the plaintiff below claims it might, that the assessor did not receive from the county clerk before he made the assessment, the assessment roll of the preceding year, nor the list of taxable land, these mere irregularities could not invalidate the assessment, nor the taxes, nor the deeds founded upon such taxes.
As a third objection to the introduction of said tax deed in evidence, the plaintiff below claims that the said tax deed was not prima facie evidence of any-Jr J J thing prior to its own execution, because he claims that the laws under which the deed was executed have been repealed without any saving clause, and because none of the subsequent laws making tax deeds prima facie evidence of all proceedings antecedent to the .execution of such deeds have any •retrospective operation. We think the plaintiff is mistaken .as .to there being no saving clause in the act repealing the laws that were in force at the time the .tax deed was executed.
The lot in dispute was assessed, taxed .and .sold for taxes, and the deed was executed and recorded under the provisions of Chapters 197 and 198, Compiled Laws, (said laws being modified in some respects by the laws of 1863 and 1864.) On the 20th of March, 1866, these laws were repealed and a new law was enacted in their place for the assessment and collection of taxes, (chapter 118, laws of 1866.) Section 113 of this new act, contains a saving clause which reads as follows: “All proceedings, titles, etc., not completed at the time of the taking effect of this act, shall be carried to final determination and ex'eeution according to. the laws in force under which they originated.” The case of Gordon v. The State, ex rel., 4 Has., 489, referred to by the plaintiff below, has no application in this case. The word “ proceedings ” in the statute referred to in that case, (Comp. Laws, 838,) may mean judicial proceedings; but the word “ proceedings ” in said saving clause undoubtedly means tax proceedings, the same as it does in that clause of section 10 of chapter 198, (Comp. Laws, 878) which reads .as follows: “Such deed duly witnessed and acknowledged shall be prima fade evidence of the regularity of such proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deed.”
The act of 1866, besides using the word “ proceed* ings,” also uses the words “ titles, etc,” in said saving clause, which, clearly shows that it was intended to include everything in said saving clause which had any connection with taxes or tax titles. And further ; as the act of 1866 which repeals the former tax laws contains precisely the same provisions with respect to the tax deed being prima facie evidence as the repealed laws did, it seems clear beyond all doubt that the legislature intended that all tax deeds, whether made prior or subsequent to thp year 1866, should be prima facie evidence of title. They meant, in substance, that the new provision, which was precisely the same as the old, should simply be a continuation of the old law.
On the 15th of March, 1868, the tax law of 1866 was in turn repealed, and a new tax law enacted, which is still in force. The new law contains a saving clause which reads as follows : “ All matters relative to the sale and conveyance of lands for taxes .under any prior statutes shall be fully completed according to the laws under which they originated, the same as if such laws remained in force; ” (§ 143 ch. 107, G-en. Statutes, p. 1063.) This saving clause is plain enough, we think, without any comment upon it. The effect of these two saving clauses in the laws of 1866 and 1868, is, as we think, to keep and continue in force all the laws of 1860 and 1862, so far as they relate to the completing and perfecting of tax titles. In the case of Sprague v. Pitt and Burr, (McCahon, 212,) Justice Miller, of the Supreme Court of the United States had precisely the same question before him. The tax deed in that case was in due form, executed by the county clerk of Johnson county, Kansas, to A. E. Abbott, and made and recorded on the 15th of September, 1863. On the 22d of May, 1865, Abbott conveyed the land mentioned in this deed to the defendant Pitt. At the May Term of the United States Circuit Court for Kansas, 1868, Justice Miller held that said tax deed was prima fade evidence of title to said land.
The counsel for defendants below claims that the law under which the tax deed was executed is the law which determines its. effect; that if it was prima fade evidence under the law when it was executed, it will continue to be prima fade evidence notwithstanding any subsequent repeal of the law. In effect he claims that the holder of the tax deed has a vested right in the effect that shall be given to his tax deed, which cannot be disturbed by any subsequent legislation. Upon this question we shall express no opinion. After the statute of limitations has fully run in favor of a tax deed the question is then presented in a new and different light. The tax deed has then become conclusive evidence of many things of which before it was only prima fade evidence. It may well be doubted whether the legislature could then by any subsequent legislation so change the effect of such a deed that it would not be evidence of anything, or that it would be only prima facie evidence of what before it was conclusive evidence : (13 Wis., 347: 17 Wis., 556, 568 ; 21 Wis., 350; 23 Wis., 367, 371; 19 Johns., 83.) But upon this question we shall express no opinion, as we do not think it is necessary to decide the question in this case.
It will be seen from what we have already said that it is the opinion of the court that said tax deed is of itself and alone prima fade evidence of everything necessary to its own validity, and is prima fade evidence of title in the grantee mentioned in the tax deed; and therefore that the court b.elow erred in refusing to permit the said tax deed to be read in evidence.
The other evidence fully showed that the defendants below held under the original grantee mentioned in the tax deed; and hence it is not claimed that the tax. deed was excluded for want of such evidence.
IY. The plaintiff below, however, claims that the other evidence in the case shows that the said tax deed is void, and therefore that the ei’ror of the court in excluding the tax deed did not affect the substantial rights of the defendants. If said tax deed is void (it being prima fade valid,) it devolves upon the plaintiff below to show that it is void.' He may use the evidence of the defendants as well as his own, however, to do so, and if all the evidence in the case taken together shows that the tax deed is void, the defendants of course are not injured, and have no right to expect that the judgment of the court below will bo reversed for such error.
There are many irregularities that will render a tax deed void before'the statute of limitations has run in its favor which will not render it void afterwards; or rather, there are many irregularities which may be shown in evidence that will invalidate the tax deed before the statute has run, which cannot be shown after-wards for that purpose. Whether there were any irregularities which would invalidate this tax deed before the statute had run, may be questioned ; but without deciding this question we will pass to the next and see whether the statute has run. For if the statute has run there has been nothing shown in this case, as we think, which will invalidate this tax deed.
The.plaintiff does not claim that his lot was not subject'to taxation; nor that there was any want of author ity on the part of the taxing officers; nor that he had paid the taxes; nor that he had redeemed the lot from the taxes; nor that he had any right to redeem the same from the taxes for a longer period than two years by rea.son of himself or Clark (whose interest he claims by virtue of his sheriff’s deed,) being under some legal disability, (§ 51, Comp. Laws, 869; § 80, Laws of 1866, p-279; § 101, Gen. Stat. 1051;) nor that there was any fraud on the part of any one connected with the tax title that would vitiate the deed; nor is there any question raised in this case but that the plaintiff’s cause of action, if he ever had any, (that is, if the tax deed was either void or voidable,) accrued as soon as the tax deed was recorded, the holders of the tax deed being in actual possession of the property at that time, and continuing in actual and exclusive possession ever since. Whether any one or all of the irregularities or defects just mentioned would invalidate the tax deed, we do not now decide; but we do think that no other irregularity or defect could invalidate a tax deed, good upon its face, after the statute of limitations had run in its favor.
V. But there is a question- raised by the plaintiff below concernig the possession of the property by the holders of the tax deed which we will consider before proceeding further.
John Geo. Brown, to whom the tax deed was made, was in actual possession of the lot in dispute, at the time and before it was assessed or taxed or sold for taxes, and at the same time and before the tax deed was made. The plaintiffs therefore claim that Brown could not take or hold a good tax title to said lot. But there is nO evidence that tends to show that Brown was under any obligation, legal or moral, to pay the taxes on said lot, or that he committed any fraud in taking the tax title to himself. The lot was not assessed nor taxed to him, nor in his name; and if it had been, if no fraud is charged, it would pobably make but little difference in this State,' where taxes on land are ’not so much debts against the individual to whom they are assessed, as they are debts •against and liens on the land itself. We know of no good reason why Brown should not have been able to receive and hold as good a tax title as could be received and held by any other person. The Supreme Court of California says: “ If the defendant was under no legal or moral obligation to pay the taxes, there is no principle of law or equity which precludes him from purchasing at the sale, although in possession at the time the assessment was made or when the land was sold.” (Moss v. Shear, 25 Cal., 38, 45, et seq.
“ One in possession of a tract of land at the date of the assessment may purchase at the sale, unless it appears that he was bound to pay the taxes, in which event he can acquire no title by his purchase.” (Blackwell on Tax Titles, 2d ed. 400, et seq.)
VI. We shall now return to the question of the statute of limitatiops. That there was such a statute in force at the time this tax deed was made and recorded, which would have barred the plaintiff’s action for rocovery 0f said lot in two years after said deed was recorded, if said statute had not been repealed, will not and cannot bo denied : (sec. 11, Comp. Laws, 879;) and that so soon as and at the same time that any one such statute has been repealed, another of the same kind has been re-enacted is equally true; (§ 90, laws of 1866, p. 284; sub-div. 3, §16, Gen. Stat., 633; §116, Gen. Stat., 1057.)
But the plaintiff claims that none of these statutes have barred his action for the following reasons: First, Such statutes are unconstitutional, being in contravention of article 2, section 16 of the constitution, and particularly so when it is attempted to give them a retrospective operation. Second, Neither of said statutes was in force for a length of time equal to two years after said deed was recorded and before this action was brought, and therefore neither of them could alone bar the plaintiff’s action. Third, It was not intended by the legislature that the statutes of 1866 and 1868 should have a retrospective operation. Fourth, It is not within the power of the legislature to give said statutes a retrospective operation, even if such was their intention.
There is another objection urged against the act of 1868; but as we think those acts are not applicable to this case, (for reasons we shall hereafter give,) we will not consider that objection. As to the objections above mentioned, we think the plaintiff is incorrect. The statutes referred to are not unconstitutional. Section 16,- of article 2 of the constitution reads as follows: “No bill shall contain more than one subject, which shall be clearly expressed in its title; and no law shall be revived or amended, unless the new act contains the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.” The title of our tax law is as follows: “An act to provide for the assessment and collection of taxes.” It is claimed that this title is not broad enough to include a statute of limitations.- We think,' however, that that depends upon the nature, the object, and the office of the statute of limitations, and what functions it is designed to perform. If it is a statute to aid in the collection of taxes — to enforce their prompt payment, it may undoubtedly be included in such a title; and that such is the design and object of all our statutes of limitations for tax deeds, no one will controvert.
If, however, we attempt to give such statutes a retrospective operation, so as to include tax deeds executed before the passage of the statute, as well as afterwards, more difficulty occurs. But when we are made to understand that the taxes are' not finally and absolutely collected, until the tax deed becomes absolute and final, the difficulty is removed. The person who buys land at tax sales pays the taxes on such lands, only conditionally. If the sale is invalid, the money that he has paid is still in law and equity his, and the county commissioners are bound to refund it to him with interest and costs, and this they are required to do as wrnll after the tax deed is executed as before; § 60, Comp. Laws, 871; § 85, Laws of 1866, p. 280; § 121, General Stat. 1058.) The statute of limitations by its operation therefore, converts what was a conditional payment of the taxes into an absolute payment of the same. Hence we see that these statutes, while acting retrospectively, are made to assist in the collection of taxes, and may therefore bo-properly placed in the tax laws. Section 16, article 2 of the constitution should be liberally construed, otherwise the legislature would be confined within such narrow rules that they would be greatly embarrassed in the proper and legitimate exercise of their legislative functions. “No bill shall contain-more than one subject, which shall be clearly expressed in its title;” but this subject may be broad and comprehensive, or it maybe narrow and limited. It may embrace the entire common law of England, with all the English statutes of a general nature down to the fourth year of the reign of James the First, (Comp. Laws, 678,) or it may embrace only the change of the name of some private and obscure individual.
Suppose the legislature should pass an act entitled, “An act to establish a code of laws;” would not the subject expressed in such a title be comprehensive enough to include every general law found within our statute books? And can there be any doubt that the legislature would have power to do just such a thing? Probably no sane person will contend that ,the subject must be the narrowest possible subject that can be conceived; that it must be so narrow and limited that it cannot possibly be again divided or .subdivided into narrower and smaller subjects. If such is the meaning of the constitution, almost every act that the legislature has over passed has been in contravention of the constitution. While it is admitted that there must be but one subject in the title of a bill, and that that subject must be clearly expressed, yet we think it mast always be left entirely within the discretion of the legislature to say how comprehensive and general, or how narrow and limited that subject shall bo. This we think is the true construction of the constitution: 4 Cal., 388; 10 Cal., 315; 6 O. St., 176, 180; 26 Iowa, 345; 19 N. Y., 115; 16 Mich., 277; 4 Ala., 98 et seq.; 2 Metc., (Ky.) 169, 221; 2 Iowa, 282, et seq.; 9 Iowa, 107; 3 O. St., 484; 15 id., 604; 11 Iowa, 282; 8 N. Y., 241, 252; 31 Barb., 572; 15 Tex., 311.
The next objection to these statutes is that they were not in force a sufficient length of time to bar the plainitiff’s action. The statute under which this deed was made and recorded was in force only about nine months after said deed was recorded, when it was repealed. The next statute (that of 1866) was in force not quite two- years, lacking five days, when it was repealed; and the next statute (that of 1868) was in force only about fifteen months when this action was commenced. Under each of these statutes — two years must have elapsed, says the plaintiff below, before this action could be barred. The first statute, however, the one under which the deed was made and recorded was continued in force as to all matters not fully completed, by virtue of a saving clause in the repealing. act, (section 113, Laws of 1866.) Said first statute was not absolutely repealed, as plaintiff claims, but it was kept alive by said saving clause, and his action was barred by the same. "We would hero refer to what we have already said concerning said section 113, and its continuing in force the statutes which made the tax deeds prima fade evidence of title.
The next statute, chronologically considered, (that of 1866,) is retrospective in its operations, and applies as well to tax deeds recorded before its passage as to those recorded afterwards, provided of course that the statute a reasonable time to run, after its passage and before the action was barred.. Said act.read as follows: “Any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within two years from the time of recording the tax deed of sale, and not thereafter; ” (§ 90, Laws of 1866, 284.)
The counsel for the plaintiff below are mistaken when they suppose “that the legislature did not intend any of the provisions in the tax law of 1866 should have application to anything done under, the tax law of 1860 ; ’’for in said section 90 there is a provision “ that before any suit or proceeding shall be commenced for the recovery of any land heretofore sold or hereafter to be sold for taxes,” etc., showing clearly by unmistakable language that the legis-lature intended that this latter provision should apply to-all tax sales, whether made under the laws of 1866 or' 1860, or under any other laws.
But the plaintiff below claims that it is not within the power of the legislature to pass a statute of limitations applicable to tax deeds already made and recorded, even if such should be their intention. We have already considered the question of the power of the legislature to insert a statute of limitations within the tax law. We shall now consider the power of the legislature to pass such a statute without regard to where they may put it, which shall act retrospectively on tax deeds already made and recorded.
It is admitted that’is not within the power of the legislature to give one person a cause of action against another, either retrospectively or prospectively, when such first-named person has not been injured and when he is in the full possession and enjoyment of all his rights. It is admitted that it is not in the power of the legislature to create a cause of action out of an existing or a previous transaction, for which there was at the time of its occurrence no legal liability, except perhaps in certain eases, when the legislature can create a cause of action‘to enforce an already existing moral obligation. (For a correct understanding of" what we mean by tbia last proposition, see Weister v. Hade, 52 Penn., 479, 480, 481, and cases there cited.) It is admitted that it is not within the power of the legislature to compel the party in whose favor a cause of action is thus. created or attempted to be created, to sue the other party within a specified time, or to be divested of property which he owned before the act of the legislature was passed, or t>e divested of any right or property that he did not obtain by virtue of said act. It is admitted that statutes of limitations can never operate except to bar actions ; and can never operate to disturb vested rights. They can never operate where no cause of action exists; and can never operate except when rights have already been disturbed. The effect of the operation of the statute of limitations is not to create a cause of action; its effect is to take away a cause of action already created by acts of one or both of the parties. The effect is not to disturb rights, nor to transfer property; but to leave' rights and property just where the parties themselves have voluntarily chosen to leave them during the running of the statute. The statutes of limitations simply say this to the party injured: “You have voluntarily allowed your property (real or personal as the case may be,) or the money you claim as compensation for some injury done to you, (on either contract or tort,) to remain in the possession of your adversary during a certain period without any effort to recover it, and now we will allow it to remain in the same place and in the same condition forever.”
When the legislature enacted the tax laws of 1866, they did not create nor attempt to create a cause of action against or in favor of any one. If the tax deed in question at that time was absolutely good, it remained good; and the original owner of the land never had any cause of action against the holder of the tax deed, and the latter had no need of any statute of limitations. If the tax deed was absolutely void, (so void that it could convey no title, nor affect any rights,) it remained absolutely void; and in such case if the holder of the tax deed never took possession of the property, no cause of action ever existed in favor of the original owner of the land for the recovery of the same, for none of his rights had ever been disturbed. In the latter case, as in the former, where the tax deed was absolutely good, the statute of limitations could not apply. It is only when a tax deed is good prima facie, and when on account of some irregularity in the tax proceedings the deed is void, or more properly speaking is voidable if attacked, that the statute of limitations can apply. In such a case the original owner of the land has been injured by the holder of a tax deed setting up a prima- facie title to his land under a deed that is defective and voidable, and his cause of action accrues at least as soon as the tax deed is recorded. In the case at bar the plaintiff’s cause of action (if he ever had any,) existed about nine months before the statute of 1866 was passed. At the time said tax law was passed, the holders of the tax deed wore in actual possession of said lot, claiming title thereto under said tax deed, which was then prima facie evidence of title, and which, if not impeached, would, in time, become conclusive and absolute evidence of title. If there was anything wrong in this tax title, whereby the plaintiff below was injured, the injury was sustained long before this act of the legislature was passed, and the said tax deed was liable to be adjudged void. There was at the time that act was passed, if ever, a present and existing cause of action in favor of the plaintiff' below, and against the holders of the tax title, which the legislature has an undoubted right to bar by a statute of limitations, provided they gave the plaintiff a reasonable time in which to commence his action.
This tax deed was recorded Juno 24th, 1865; said statute took effect March 20, 1866. The statute therefore had about fifteen months to run after this act took effect and before the plaintiff’s action was barred, which was a reasonable time. Under this statute, as well as under the prior statute, the plaintiff’s action was barred ” June 24th, 1867, which was before the laws of 1868 were passed, and for this reason we think that the laws of 1868 upon this point can have no application in this case. After a cause of action’ is once barred by a statute of limitations it is not in the power of the legisture to revive it by subsequent legislation; 6 Wis., 527; 11 Wis., 371, 432, 442; 13 Wis., 245 ; 8 Blackford, 506; 2 Ind., 647; 3 Littell, 137; 1 English, 495, 496; 5 Metc. (Mass.) 400, 411; 3 N. H., 473; Angell on Limitations, 19, note, and cases there cited. (But see the case of Swickard v. Bailey, 3 Kas., 507, 513, and the distinction there made between limitations and prescriptions.) But even if the legislature of 1868 had any control over this matter, if they could repeal the former laws so as to revive the plaintiff’s cause of action, still they did not do it, but they continued the former laws in force by a saving clause, (§§ 143, 144, General Stat, 1063,) and re-enacted the limitation laws substantially the same as the former limitation laws; (Gen. Stat., subdiv. 3, § 16, p. 633; § 116, p. 1057, also §§ 7 and 8, p. 1128.)
In the case of Sprague v. Pitt, already referred to — a case almost exactly parallel with the one at bar — Justice Miller decided that when two years have elapsed after the recording of the tax deed and before the action is brought, the action under the laws of Kansas is barred; ' (McCahon, 212.)
In our opinion the legislature have clearly shown that they intended that no tax deed that has ever been executed in this State, which is not clearly good against all attacks without a statute of limitations, and which is not so absolutely void that a statute of limitations could not cure its defects, should be left unprotected by a statute of limitations. It has been found necessary in this State for the legislature to pass stringent laws for the collection of taxes. Every person is morally bound to pay his taxes ; he cannot in equity and good conscience ■shift the burden of supporting the government entirely upon the shoulders of others. If he fails and refuses to pay his taxes, it is but just that he should forfeit the property upon which such taxes are imposed. The legislature have passed stringent laws to compel the owner of property to pay his taxes, and at the same time they have, as a wise and prudent measure, offered great inducements to others to pay them, provided he fails to ■do so. Among these inducements, is the statute of limitations, protecting the title of a purchaser at a tax sale, after two years from the recording of his tax deed. It would not now be very creditable to the State nor to the ■courts, to refuse to carry out and enforce these laws which offer these inducements. Every one ought to know whether his land is taxable or not, and every one is presumed to know the law.
These statutes are not ambiguous or equivocal on this question. The only hope of those who refuse and fail to pay their taxes is, that the courts through sympathy with those who are about to lose their property for a ■small sum will refuse to execute the will of the legislature ; that the legislature through inadvertence has made' some slip, or left open some loop-hole, or have not expressed themselves in language as clear as the noonday sun, whereby the court will find some plausible pretext for refusing to. execute the law. While it is generally true that the person who fails to pay his taxes deserves but little if any sympathy, yet it is not always so; and it often happens that the holder of a tax title who desires to take the property of another for a very small amount, deserves almost anything except sympathy. Yery hard cases are sometimes presented to the courts, and in such cases courts will sometimes exercise all their ingenuity to ifind some plausible ground for deciding against the tax title. This is human, and in one sense excusable; but the legal duty of courts is only to expound the law, and they are not responsible for its consequences.
There can be no doubt of the power of the legislature to pass just such laws as we have been discussing. The highest tribunal of this nation has sustained laws almost identical with ours; Leffingwell v. Warren, 2 Black, 599; Pillow v. Roberts, 13 Howard, 472; Witherspoon v. Luncan, 4 Wallace, 210, 217. “ Statutes of limitations are now regarded favorably in all courts of justice. They are considered as statutes of repose; usually they ai’e founded in a wise and salutary policy, and promote the ends of justice; 2 Black, 606; 13 Howard, 477; Tolson v. Kage, 3 Brod. & Bing., 217; Lewis v. Marshall, 5 Peters, 470.) When the legislature so wills it, owners of land must pay their taxes or forfeit their lands to others who will pay them. Our decision in this case is, that the tax deed offered in evidence was good upon its face; that it was prima fade evidence of title; and that the statute of limitations had run in its favor when this suit was commenced, and therefore that the court below erred in refusing to permit said tax deed to be read in evidence, especially the second time it was offered, and that said error was a substantial one, for which the judgment of the court below must be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Davis, J.:
The defendant, Robert D. Johnson, appeals from his sentence of 15 years to life imposed following his Alford plea to aggravated criminal sodomy in violation of K.S.A. 21-3506(b). A plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct 160 (1970), is a plea of guilty to the charge without admitting to the commission of the offense. He contends that he was provided no opportunity by the court to speak before sentence was imposed; that he requested but was sentenced without the benefit of a mental health evaluation; and that the court failed to consider his individual characteristics, circumstances, and needs in sentencing him to a maximum sentence of 15 years to life. Finding no reversible error, we affirm.
The defendant initially was charged with two counts of aggravated criminal sodomy, two counts of attempted aggravated criminal sodomy, one count of indecent liberties with a child, and one count of aggravated indecent solicitation of a child. These charges arose out of events that occurred from July 1, 1991, through March 1, 1992, between the defendant and a nine-year-old boy. The defendant waived preliminaiy examination, was bound over for trial, and entered an Alford plea of guilty to Count 1, aggravated criminal sodomy. This was accomplished through plea negotiations and, pursuant to the plea agreement, the State dismissed all other counts and recommended a sentence of 12 years to life. The court imposed the maximum sentence of 15 years to life.
The defendant contends that the court failed to properly provide his right of allocution pursuant to K.S.A. 22-3422 and K.S.A. 1993 Supp. 22-3424(4). Each statute cited by the defendant addresses a separate concern and must be dealt with separately.
K.S.A. 22-3422 provides:
“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.”
The defendant contends that the record of sentencing in the instant case indicates that no such inquiry was made by the trial court. The record does establish that at the plea hearing the court personally addressed the defendant and asked, “Do you know of any reason why I should not accept your plea, sir?” The defendant replied, “No, sir.” With this record, the provisions of K.S.A. 22-4322 have been satisfied. This procedure need not be repeated at the time of sentencing. The sentencing proceedings are controlled by K.S.A. 1993 Supp. 22-3424(4).
K..S.A. 1993 Supp. 22-3424(4) provides:
“Before imposing sentence the court shall: . . .(b) afford counsel an opportunity to speak on behalf of the defendant . . . and (d) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.”
In the sentencing hearing in this case, the court heard arguments of counsel, considered each of the K.S.A. 1993 Supp. 21-4606 factors and, without personally addressing the defendant, concluded: “[T]he Court imposes the sentence of not less than fifteen years nor more than life and that is the only sentence which this Court determines is appropriate under the circumstances.” The State’s counsel said later in the hearing:
“I don’t know if it’s my part to bring this up, upon the issue of allocution; I understand the defendant chose not to speak to court services, during the interview. I understand, also, today he’s choosing not to speak to the Court. I want the record- — ”
The court replied: “I did forget to address him. I’m sorry. Does he have anything which he would want to — to say?” The defendant thereafter made a statement, essentially denying that the acts giving rise to the charges ever occurred. The court then told the defendant:
“[W]hat you have just stated does not mitigate the circumstances or the findings which I made earlier.
“I wish that I had asked you prior to my making the findings, so that you would understand that everything that you have told me does not go to mitigation, because you .cannot now tell me that it did not happen and expect this Court to turn you loose or place you on probation or say that it didn’t happen, when you have appeared in front of me and entered a plea of guilty.
“. . . I will maintain the previous findings which I made ....”■
The trial court did not comply with the provisions of K.S.A. 1993 Supp. 22-3424(4) because before imposing sentence the court did not personally address the defendant and ask him if he wished to make a statement on his own behalf and present any evidence in mitigation of punishment. The question is not whether the court complied with 22-3424(4) but the effect of the court’s noncompliance under the facts of this case.
The law in this area is settled by the following three cases: State v. Webb, 242 Kan. 519, 748 P. 2d 875 (1988); State v. Heide, 249 Kan. 723, 822 P. 2d 59 (1991); and State v. Spencer, 252 Kan. 186, 843 P.2d 236 (1992). These cases together provide a clear statement of Kansas law on the subject of allocution. Of particular interest is Webb, which traces the history from early English common law to our present time of a defendant’s right to address the court before acceptance of the verdict and before sentence.
In Webb,we held that 22-3424(4) establishes in the defendant a right to allocution. This right is not waived by the defendant’s silence or by argument of counsel. A defendant waives the right to allocution, however, when he or she moves to modify the sentence and fails to raise the issue of denial of allocution. Webb, 242 Kan. 519, Syl. ¶ 1. In the case now before us, the defendant moved to modify his sentence, but did not raise the issue of denial of allocution.
We recently had an opportunity to address this issue again in State v. Spencer, where Spencer contended that application of Webb was unfair when there was no actual hearing on the motion to modify:
“Spencer reasons that the unfairness of the waiver rule is exposed by the factual differences between Webb and the case at bar. Unlike Webb, Spencer received no hearing on the motion to modify. See Webb, 242 Kan. at 521-22. Spencer’s modification request was dealt with by a routine motion and order. Spencer argues that Webb should be limited to its facts, i.e., situations where there is an actual hearing on the motion to modify. We agree.” 252 Kan. at 189.
Under the current state of Kansas law, applying both Webb and Spencer, we hold that Johnson waived his rights under 22- 3424(4). The defendant moved to modify his sentence, and the court held a hearing on the defendant’s motion to modify. Both the State’s counsel and the defendant’s counsel appeared and addressed the court. Defense counsel did not raise in the written motion or oral argument to the court the denial of the defendant’s rights under 22-3424(4).
The defendant next claims that the trial court erred by not ordering a mental health evaluation as part of the presentence investigation (PSI) as requested by defense counsel.
After the court pronounced judgment, the State’s counsel requested a PSI, stating that he did not know if the court needed a psychological evaluation because a competency evaluation had been done. Defense counsel requested a mental health evaluation. The court replied: “Well, Counsel, I’d like to have that, but I’m not sure it’s available to me at this time. I will check with court services and see if that is available, but I will definitely ask for a court services report. If possible I will amend that to allow for your request, but at the moment I don’t feel that I can do so.” The defendant now argues on appeal that the trial court’s failure to order a mental health evaluation requires that this court vacate the sentence and remand for resentencing.
The State contends that the court did not definitively deny the defendant’s request and that the defendant ought to be barred from complaining now because he did not pursue the matter with the trial court. Defense counsel clearly requested the evaluation on the record. Our understanding of the court’s response is that the court denied the defendant’s request. The court certainly effectively denied the request because it did not order the requested evaluation.
The State also contends that the court ultimately received the SRDC report, which included a psychological evaluation. That report, however, is dated January 5, 1993, well after the November 19, 1992, sentencing hearing. Although the SRDC report was available to the court at the hearing on the motion to modify, it was not available to the court at the sentencing hearing. Thus, the court had only a PSI report at the time of sentencing; it did not have a complete psychological evaluation.
We find no statute or case law that requires a trial court to order a mental health evaluation before sentencing. K.S.A. 1993 Supp. 21-4603 permits a court to order a complete psychological evaluation but does not require a court to do so. Accordingly, whether to order a mental health evaluation is a matter left to the trial court’s discretion, and we will not find reversible error unless the trial court abused that discretion. “When determining whether a trial court abused its discretion, the test on appeal is whether no reasonable person would agree with the trial court. If any reasonable person would take the view adopted by the trial court, the decision must be upheld.” State v. Moon, 15 Kan. App. 2d 4, 10-11, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991).
The defendant presents no facts that would support the conclusion that no reasonable person would agree with the trial court’s decision to deny his request for a mental health evaluation. The court ordered a competency evaluation before trial, and the defendant was found competent to stand trial. Although a competency evaluation is not the equivalent of a complete mental health examination, the court had some indication of the defendant’s mental health. The defendant made no contention during the preliminary examination or plea hearing that he was suffering from any mental illness; rather the defendant represented to the court that he read and understood the plea agreement and waiver of rights and entered into the agreement because it was beneficial to him. The trial court did not abuse its discretion in denying the defendant’s request for a mental health evaluation.
Even if the trial court had erred in denying the defendant’s request for a psychological evaluation, the error would be harmless on the facts of this case. The court had available the SRDC report at the hearing on the motion to modify. See State v. Tillman, 18 Kan. App. 2d 556, 858 P.2d 1219 (1993). That report included a psychological evaluation. Accordingly, the court had an opportunity to modify the defendant’s sentence if the psychological evaluation provided any reason for modification. Moreover, the defendant did not rely on any aspect of the psychological evaluation to support his request for modification of sentence.
The defendant’s last claim of error is that the trial court abused its discretion in sentencing him because the court failed to consider K.S.A. 21-4601. K.S.A. 21-4601 provides:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated i custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
Although a court need not expressly consider the 21-4601 objectives on the record,
“[w]here it is shown the district court failed completely to follow the policy set forth in K.S.A. 21-4601 in sentencing a defendant, the court has abused its discretion and the sentence imposed must be set aside and the case remanded for the purpose of resentencing in accordance with the proper statutory procedure.” State v. Fisher, 249 Kan. 649, Syl. ¶ 2, 822 P.2d 602 (1991).
The trial court here did not fail to follow the policies of K.S.A. 21-4601 in sentencing the defendant. The defendant was in his late thirties at the time of the offense. He pled guilty to aggravated criminal sodomy of a nine-year-old boy. According to the PSI report, the defendant previously had been convicted of raping a 10-year-old girl. The PSI report and the defendant’s comments at the sentencing hearing indicated that he had no remorse for his conduct and, indeed, accepted no responsibility for it. At the sentencing hearing, the court found that the defendant had not learned from his prior mistakes because he repeated those mistakes. The court found that the defendant was a danger to others and that “children nine and ten years old should be protected from such activities and be protected from such crimes.” Imposing the maximum sentence after making these findings is consistent with the directives of 21-4601.
If a sentence is within statutory limits, it will not be disturbed on appeal absent abuse of discretion or a showing that the sentence was the result of partiality, prejudice, or corrupt motive. Fisher, 249 Kan. at 651. When a reviewing court determines that no reasonable person would agree with the trial court’s decision, then an abuse of discretion will be found. State v. Griffin, 246 Kan. 320, 787 P.2d 701 (1990). The record does not support the claimed abuse of discretion in sentencing.
Affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
This is a proceeding in error to reverse a judgment of the Leavenworth District Court, by which Keller recovered against the county the balance due on a warrant given him by the county in January, 1868, for certain services theretofore rendered by him..
The action was on the warrant; and such an action may be maintained. The warrant drawn on the treasurer íb prima fade evidence of the indebtedness of the county. It is predicated upon an allowance made by the authorized agents of the county. It passes by delivery. If on presentment to the treasurer it is not paid, it bears interest; at least it did when this warrant was issued. County warrants are a subject of trade, and their value is quoted in market reports ; and by statute certain officers are prohibited from trafficking in them. This point been frequently decided : see Lyell v. Lapeer Co., 6 McLean, 446; Campbell v. Polk Co., 3 Iowa, 470; Clarke v. City of Des Moines, 19 Iowa 199 ; Savage v. Crawford Co., 10 Wis. 49; Bull v. Sims, 23 N. Y., 570; Floyd Co. vs. Day, 19 Ind., 450; Parsons v. Town of Goshen, 11 Pick., 396; — and contra, 50 Penn. St., 351.
A warrant is not like a bond of a county, issued only as an evidence of debt, and having a negotiable character ; and an action on it is liable to be defeated by showing that the tribunal which issued it had ° n0 authority to make the allowance on which the warrant issued : People v. supervisors of Eldorado County, 11 Cal., 170; Stetson v. Hampton, et al., 13 Mass., 271; Parsons v. Town of Goshen, supra. Or, because there was no consideration, and the wai’rant was issued by mistake: Campbell v. Polk Co., supra. Or, because of the want of some prerequisite step, enjoined by law: Clarke v. City of Des Moines, 19 Iowa, 199, and Clarke v. Polk County, same, 248.
In this case, it is claimed that the warrant itself was invalid. It may well be cloubted whether the issues were so framed that this question can properly be made; but without stopping to examine this point, we will settle the main question. The testimony shows the order for the allowance was made by the County Board, and on the same day the warrant was written out, and signed by Mr. Dunlap, chairman of the board, and a few days later was signed, and the county seal attached by Mr. Deifendorf, who, after the allowance of the claim, had succeeded to the office of county clerk. The court instructed the jury on this point, that if the warrant was so signed and attested with the county seal, and at the times of the respective signing, Mr. Dunlap was chairman of the board, and Mr. Deifendorf was clerk, that the plaintiff had made out a prima facie case. This was correct. There is nothing in the testimony to show that there was any irregularity in the issue of the warrant, or that raises a suspicion' that everything in relation thereto was not done in good faith.
Again: It is claimed for the county that the county board had no authority to make any order in the premises, The work done was the copying of the indices of deeds for the county from January 1st, 1860, to December 31st 1866, a period of seven years, and to some extent correcting them, and making out an index to the Tax Deeds for the same time. The law provided that the counties shall have power “ to make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its óorporative or administrative powers.” Comp. Laws, Ch., 52, § 1; (Gen. Stat., Ch., 25, § 1;) and the board represents the county, and has care of the county property, and the management of the business and concerns of the county in all cases where no other provision is made by law, (id., §15;) ánd to make such orders concerning the property belonging to the county as they may deem expedient, (§ 15, clause 1.) The power thus conferred is very broad; still it has its limitations, not necessary now to be noticed. If a case can be reasonably supposed in which it would be necessary for the interests of the county to have the indices of the records of the county copied and corrected, then the power to do- so exists in such a case. And we can readily imagine causes that would make such a case necessary. As, if they were so near worn out as to threaten speedy destruction; .or that the ink was fading; so that they were becoming illegible, and many other causes. As the record is silent as to the causes that in the opinion of the county board made the work necessary in this case, we are bound to infer that the necessity existed.
The indexing of the tax deeds may stand upon a different footing. It seems that for the seven years this had been neglected. This neglect of the register would render the records almost useless for the purpose of examination. Public convenience and public interest required that the work should be done. As those registers of deeds who had neglected the duty had gone out of office, there was ■no way to enforce the. duty, and no way of remedying •the evil, but by having an index made out.
Having the power to take the action they did, it remains to be seen whether the county board exceeded the limits of their authority in the compensation ** x they agreed to pay. When the necessity of the work had been determined upon, the board called Keller before them, and asked him what he would do it for. He replied, for ten cents for each index. The board made the order to have the work done. Keller, who was register of deeds, copied the old index, with some corrections, and made out an index for the tax deeds; when the work was completed, Keller brought in his account for the ■ work done, properly verified, and at the price he had stated. The board examined the work, allowed the account, and ordered the warrant now in suit. The.plaintiff in error claims that he was entitled to only ten cents per folio for copying and correcting the indices, or less than one-fourth the amount really charged and allowed, for this part of the work. We do not think the law fixing the fee for copying at ten cents per folio was intended to cover such a case as this. In its terms it does not. The language is, “ For copying of any deed or other paper, when required by any person, or by law, ten cents per folio.” The copying done in this case was neither “ a deed or other paper;” nor is it of the character of either of those classes. It was in testimony, that the labor of such copying was largely more than the same amount of ordinary copying. The correcting errors also formed part of the work, as appears from the testimony. As the law fixed no compensation for this class of work, it was competent for the commissioners and Keller to agree on a price, or for the commissioners to allow a reasonable compensation, after the work was done. Having made such a contract, and the work having been done in accordance with the contract, Keller was entitled to his pay therefor.
It is claimed, that as to the indexing the tax deeds he charged, and had allowed, $1,171.20, while he was entitled only to $1,044, having charged for more work than he actually did. This was a proper question for the county board to examine. The account was itemized and verified, as required by law. The board examined the work, and made the allowance. The testimony leaves it uncertain whether Keller charged too much or not. A matter so easily susceptible of being ascertained with certainty, is left in doubt, as there were some deeds that the witness had not counted; and the jury might well have found under the testimony that the number of indices charged by Keller had been made. The settlement with the board was prima fade evidence of the correctness of his account. Still, under the pleadings, this was a fit and proper matter to go to the jury. The settlement of an account by a county board, is not more sacred than a settlement by individuals. They act as agents of the county; as such they made th'e contract with Keller, and as such, audited the account when the work was done. Had an individual stood in the place of the county, and made a settlement, and given his note, there can be no doubt that he could have corrected a mistake in the settlement, by appropriate judicial proceedings; and there is no reason for the application of a different rule to settlements made by a county board. Any other doctrine would invite to fraud, and lead to disaster. The court withdrew this question from the jury, saying that, “ the allowance of the claim was an “ adjudication of the matter, and was as binding upon “ both the plaintiff" and the county of Leavenworth, as “ much so as the judgment of this court in the matter.” This, after careful examination, we are constrained to say is erroneous. It is true, that the allowance was so far judicial, that an appeal could be taken from the decision, if adverse to the claimant; but not in the sense which is usually given to the word judicial. The appeal is given that the case may be heard judicially, and the method of getting the case into court is by appeal. If the decision of the county board was final, in as broad a sense as is given to it in the instruction, then a party who had once had a claim rejected for any cause could not again present it for allowance, because it would be res adjudícala. Yet this is a thing that is constantly done, and the practice is unquestioned. For this error the case must be reversed. Exceptions were taken to the charge of the court on other points, but we are unable to perceive any error therein.
During the trial Keller was a witness, and while being cross-examined by the county attorney, was asked this question: “You knew at the time you, presented this bill, what the legal fees were for copying ?” This the court refused to permit to be answered, and rightly, for two reasons : The work was not copying merely; and the fees therefor were not regulated by law. Second, if the fees were fixed by law, the witness was presumed to know that fact, and there was no need of proving it.
The judgment of the district court is reversed, and cause remanded for further procceedings.
Valentine, J., concurring.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Aaron Kerns, a six-year-old child, fell into a closed swimming pool at Green Acres Mobile Home Park (the park) and nearly drowned, sustaining serious injuries. Through his father, he sued, alleging negligence by the operators of the park, the corporation that owned the park, and the fabricator and installer of the fence that surrounded the pool. The operators and the fence company were granted summary judgment prior to trial. The jury found the corporate defendant 2% negligent, the father 68% negligent, and the child 30% negligent. Plaintiff appeals, claiming that the trial court erred in (1) granting summary judgment for the operators of the park and the fence company, (2) admitting evidence of collateral source benefits into evidence, and (3) not granting a new trial based on the jury’s award of only $100 for noneconomic damages. The corporation cross-appeals the trial court’s failure to grant its motions for summary judgment and directed verdict. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Aaron, who was in first grade, lived with his father, Samuel Kerns, at the park for several years prior to the incident. G.A.C., Inc., is the corporation that owns and operates the park. Harold and Ena Orindgreff are two of the three shareholders for G.A.C. and officers of the corporation; they supervised the management of the park on a daily basis. The only other corporate shareholder is the Orindgreffs’ son. Irene Michaelis was the on-site manager for the park. A resident of the park, Alva Oiler, was hired by G.A.C. to maintain the pool.
The offices of G.A.C. were at the entrance of the park and provided a clear view of the swimming pool. The pool had a five-foot tall chain link fence with mesh measuring between two and three inches wide that had been installed by American Fence Company (American). The safety equipment for the pool was stored in a locked shed. The pool was open only during the summer months. The pool was closed at the time of the incident and had been pumped dry at the close of the previous season. When water from precipitation accumulated in the pool in the off season, one of the Orindgreffs would instruct Oiler to pump it out. On the day of the incident there was an accumulation of three to four feet of murky water, algae, and leaves in the pool that made the bottom and sides of the pool slippery.
On April 22, 1990, Aaron and a friend, Chris Dreher, were playing in an open grassy area next to the pool. Aaron threw his baseball cap into the air, and it went over the fence and landed in the pool. Aaron climbed the fence and entered the pool to retrieve his cap. Chris, who had also climbed the fence, saw Aaron go under the water. Chris went for help and eventually two adults, Jim Kennedy and Chris’ mother, Ruth Dreher, entered the pool area to rescue Aaron. They were initially unable to find Aaron beneath the dark, murky water.
A shepherd’s crook was obtained from the storage shed and used to locate Aaron. Kennedy retrieved Aaron from the pool. Kennedy and Samuel Kerns attempted to resuscitate Aaron. Emergency medical service personnel transported Aaron to the hospital. Aaron suffered injuries which resulted in his being severely disabled. Aaron will never be able to walk, talk, or function independently.
Prior to trial, the district judge granted American’s' and the Orindgreffs’ motion for summary judgment. The jury subsequently found (1) G.A.C.’s maintenance of the pool was not wanton or reckless, (2) G.A.C.’s maintenance did violate a city ordinance and that violation contributed to Aaron’s injuries, and (3) Aaron was not entitled to recover under an attractive nuisance theory. The jury awarded Aaron past and future medical expenses totalling $870,243, $670,609 in loss of future income, and $100 for noneconomic damages. The jury determined Aaron could be expected to receive $528,732 in net collateral source benefits from an insurance policy.
Additional facts will be discussed in the analysis of the issues.
STANDARD OF REVIEW
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Hurlbut v. Conoco, Inc., 253 Kan. 515, 519-20, 856 P.2d 1313 (1993).
DID K.S.A. 1993 SUPP. 60-513(b) BAR THE ACTION?
A statute of repose limits the time during which a cause of action can arise and usually runs from an act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time, even though the cause of action may not have yet accrued. By contrast, a statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. K.S.A. 1993 Supp. 60-513 contains both a statute of limitations, subsection (a), and a statute of repose, subsection (b). Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 669, 831 P.2d 958 (1992).
Prior to trial, American moved for summary judgment, claiming (1) the city ordinance was not violated, (2) if it was violated it only applied to the owner or operator of a pool and not to American, (3) the pool was not an attractive nuisance, (4) Aaron was a trespasser at the time of the accident, and (5) since more than 10 years had passed since it had installed the fence, plaintiff’s action was barred by the statute of repose, K.S.A. 1993 Supp. 60-513(b). The district court ruled K.S.A. 1993 Supp. 60-513(b) barred plaintiff’s’ claim against American because the suit was filed more than 10 years after the last wrongful act, i.e., the installation of the fence by American. The court also determined that American, which had fabricated and installed the fence in 1968 or 1969, had no continuing duty to warn of a defect in the fence based on information published in 1987. The district court then stated the duty to warn the plaintiff was not retroactive, but if new information came to light, there would be a duty to warn new and future customers. The court also ruled the city ordinances applied to the owner, G.A.C., but not to the installer of the fence, American. The trial court did not rule on American’s other claims for summary judgment.
Under the standard for reviewing the grant of summary judgment, we must resolve all facts and inferences in favor of the plaintiff and therefore assume that (1) American manufactured and installed the fence more than 10 years prior to the accident and (2) the useful safe life of the fence had not expired. American notes that K.S.A. 1993 Supp. 60-513(a) sets a two-year limitation for actions for (1) trespass upon real property, (2) taking, detaining, or injuring personal property, (3) fraud, (4) injuries to the right of another, not arising on contract, (5) wrongful death, (6) recovery for an ionizing radiation injury, and (7) the rendering or failure to render professional services by a health care provider, not arising under a contract. K.S.A. 1993 Supp. 60-513(b) states the causes of action listed shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. American argues more than 10 years have passed since the fence was manufactured and installed; therefore, plaintiff’s action was time barred.
Plaintiff argues that the district judge erroneously applied 60-513, a general statute of limitations and repose, rather than K.S.A. 1993 Supp. 60-3303, the specific statute of limitations and repose.
K.S.A. 1993 Supp. 60-3303(a)(l) states a product seller shall not be subject to liability in a product liability claim if the product seller proves by a preponderance of the evidence that the harm was caused after the product’s useful safe life had expired. “Useful safe life” begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform or be stored in a safe manner. The “time of delivery” is when a product is delivered to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold. Examples of evidence that is especially probative in determining whether a product’s useful safe life had expired include the effect of deterioration from natural causes or from climate and other conditions under which the product was used or stored.
The trial court granted summary judgment on July 21, 1992. A case which resolves the issue of which statute of repose applies was filed subsequent to the trial court’s grant of summary judgment. On January 13, 1993, the Kansas Court of Appeals filed its opinion in Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 845 P.2d 65 (1993), rev. denied 252 Kan. 1091 (1993). In Baumann, the plaintiff purchased a used lawnmower in 1980 that had been manufactured by Excel in 1966 and was last under the control of the manufacturer no later than 1978. Bauman was injured on July 31, 1988, while attempting to prime the engine while the lawnmower was running. He filed suit against Excel in July 1990. The Court of Appeals considered the threshold question to be whether the general statute of repose, 60-513(b), or the specific statute of repose, 60-3303(b), controlled the resolution of Baumann’s case. 17 Kan. App. 2d at 809. It noted that both statutes are true statutes of repose, which bar a cause of action after a set period of time even if it has not yet accrued, rather than statutes of limitations, which bar an action within a set period of time after the action accrues. 17 Kan. App. 2d at 809-10 (citing Harding, 250 Kan. at 668).
The Court of Appeals reviewed our decision in Harding and noted that this court had held that the categories of claims cov-. ered by 60-3303(b)(2)(D) were exempt from the 10-year statute of repose, 60-513(b). The Court of Appeals considered this court’s analysis in Harding instructive.
In Harding, 250 Kan. 655, plaintiff had contracted malignant pleural mesothelioma in 1988 after prolonged exposure to asbestos-containing products at his workplace. His last exposure to products manufactured by the defendant was prior to January 1, 1977. He died on October 26, 1988, and his wife filed the action on September 5, 1990. The defendant moved for summary judgment under the 10-year statute of repose in 60-513(b). The district court found that by passage of 60-3303(e), the legislature provided a revival statute designed to allow claims such as Harding’s to escape the effect of the 10-year statute of repose. On appeal, the defendant challenged the constitutionality of the revival statute.
The Harding court stated that the statute of limitations in effect at the time an action is filed applies. The Harding court then traced the evolution, through case law and legislative enactments, of the tort statute of limitations and statutes of repose. It found no reason to invalidate 60-3303(e) as unconstitutional. In particular, the court stated the provision of 60-3303(c), which provides that nothing contained in 60-3303(a) and (b) shall modify 60-513, did not nullify the exceptions in 60-3303(b)(2)(D). Those exceptions include situations where the harm is caused by prolonged exposure to a defective product and where the injury-causing aspect of the product was not discoverable by a reasonably prudent person within 10 years of the time of delivery of the product. The court in Harding reiterated the general rule of statutory construction that “ ‘statutes complete in themselves, relating to a specific thing, take precedence over general statutes.’ ” 250 Kan. at 661 (quoting Szoboszlay v. Glessner, 233 Kan. 475, 479, 664 P.2d 1327 [1983]).
After reviewing Harding, the Court of Appeals in Bauman then observed that 60-513(b) bars actions commenced more than 10 years after the time of the act giving rise to the cause of action. It noted that 60-3303(b), part of the Kansas Products Liability Act, provides that when a defective product causes an injury more than 10 years after delivery, a rebuttable presumption arises that the harm occurred after the useful safe life of the product expired but that the presumption may be rebutted by clear and convincing evidence. K.S.A. 1993 Supp. 60-3303(c) states “nothing contained in subsections (a) and (b) above shall modify the application of K.S.A. 60-513, and amendments thereto.” The Court of Appeals, applying Harding, found that because the legislature had not indicated otherwise, 60-3303(b), a specific statute of repose, controls over K.S.A. 60-513(b), a general statute of repose. 17 Kan. App. 2d at 814.
Plaintiff argues that Harding and Baumann require reversal of the district court's grant of summary judgment to American and that the cause should be remanded for a new trial to allow a jury to determine whether the useful safe life of the fence had expired. American responds that Baumann was wrongly decided. It contends there is no conflict between the two statutes of repose and either statute can be applied to product liability actions, depending on the facts of the specific case. American argues that the Court of Appeals erred by failing to notice that the two statutes run the 10 years from a different event: K.S.A. 1993 Supp. 60-5l3(b) from the act giving rise to the cause of the action and K.S.A. 1993 Supp. 60-3303(b) from the time of delivery to the first purchaser or lessee.
We disagree with American's contention that the Baumann court incorrectly applied Harding. K.S.A. 1993 Supp. 60-3303(b) allows a plaintiff to bring an action more than 10 years after deliveiy of the product if the plaintiff can establish by clear and convincing evidence that the useful safe life of the product has not expired. The trial court erred in granting summary judgment based on 60-513(b). Although the district court applied die wrong statute, it reached the right result.
The hazard plaintiff complains of is that the large size of the mesh used in the fence to keep children out of the pool actually assisted the child to climb over the fence. If the manufacturer had warned G.A.C. that a smaller mesh was needed to protect children from the hazards of an unattended pool, G.A.C. could have installed a fence that would have prevented the accident. Plaintiff proffers he will offer evidence “that in the late 1980s, numerous reports were issued about the dangers of this type of fencing when used around pools and that American Fence itself helped draft an ordinance for Phoenix, Arizona, requiring the use of a small-mesh fence around swimming pools.” Plaintiff admits that the use of the large size mesh was a defect that existed at the time the fence was installed.
K.S.A. 1993 Supp. 60-3303(b)(l) includes a 10-year statute of repose. The 10-year period of repose applies if the injury-causing aspect of the product that existed at the time of delivery was discoverable by a reasonably prudent person. K.S.A. 1993 Supp. 60-3303(b)(2)(D). If the use of the large size mesh to enclose a swimming pool was the defect, that defect existed and was discoverable by a reasonably prudent person at the time the fence was installed. The district judge correctly determined that a 10-year statute of repose barred Kerns’ claim against American and that American had no duty to warn because the danger or hazard alleged was open or obvious which should have been realized by a reasonable user of the product. K.S.A. 60-3305.
SUMMARY JUDGMENT AS TO INDIVIDUAL LIABILITY
Plaintiff sued the Orindgreffs as individuals and G.A.C. as the owner/operator of the park. The Orindgreffs moved for summary judgment, alleging that because G.A.C., a corporation, owned the park, the Orindgreffs, agents of the corporation, had no personal liability. The Orindgreffs had conveyed the property to the corporation, G.A.C., in 1977 but had failed to record the assignment. The trial court noted attractive nuisance claims go against the owner of the property. Because plaintiff’s claim was made against the Orindgreffs as individuals and not in their capacity as officers of the corporation, the district court found no legal basis for plaintiff’s claim against the Orindgreffs. The trial court ruled that the fact that the ownership of the park was conveyed controlled, despite the conveyance not being recorded, and granted the motion for summary judgment. Plaintiff argues the Orindgreffs were liable, not because of their status as officers or agents of a corporation, but because “they personally committed the wrongdoing.”
A director or officer of a corporation is not liable for torts committed by the corporation unless the officer or director commits or participates in the tort. McFeeters v. Renollet, 210 Kan. 158, 161, 500 P.2d 47 (1972). In McFeeters, defendant Renollet was president of a corporation engaged in building houses, and the McFeeters bought a home negligently constructed by the corporation. The plaintiffs’ petition alleged Renollet had personally supervised the construction and failed to perform a duty he owed to the house buyers. The McFeeters court noted that a corporation is liable not only for its own torts but also for the torts of it agents when committed within the scope of the agents’ authority and course of employment. It further stated that officers, agents, and employees of a corporation who violate a duty owed to third persons are liable to such persons for their torts.
In Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P.2d 847 (1957), defendant Tobin supervised and directed the quarrying operations of the defendant corporation. The plaintiff sued Tobin in his capacity as owner and manager. The trial court denied Tobin’s demurrer. The Russell court noted the general rule that an agent of a corporation who violates a duty owed to a third person, while acting as an agent, is individually liable, unless the act is one of nonfeasance. 181 Kan. at 895 (citing Duensing v. Leaman, 152 Kan. 42, 44, 102 P.2d 992 [1940]). The Russell court noted that Duensing indicated the exception for acts of nonfeasance had not yet been necessarily recognized in Kansas in negligence actions against corporations and their agents. “ ‘There are exceptions to the rule where the act is one of nonfeasance, but that exception, even if recognized in Kansas, would not avail here, for the act complained of is one of misfeasance.’ ” (Emphasis added.) 181 Kan. 895 (quoting Duensing, 152 Kan. at 44).
The Orindgreffs respond that McFeeters and Russell are distinguishable because they involve acts of misfeasance instead of acts of nonfeasance. They argue the act of failing to drain the pool is nonfeasance, not misfeasance. See Maddock v. Riggs, 106 Kan. 808, 812-13, 190 Pac. 12 (1920) (gratuitous bailment case which noted the difference between acts of nonfeasance and misfeasance). Misfeasance does not include acts of omission or the complete failure to do some act. If, however, the person begins to act, and then fails to do something which he should have done, misfeasance has occurred.
An extended discussion of the meaning of misfeasance can be found in Wells v. Hansen, 97 Kan. 305, 309-10, 154 Pac. 1033 (1916). The Wells court went on to quote from cases from other states that do not recognize the distinction in this context, e.g. Lough v. John Davis & Co., 30 Wash. 204, 70 Pac. 491 (1902): “ ‘An agent is liable to third persons when he is negligent in the performance of his duties, whether such act is termed misfeasance or nonfeasance/ ” 97 Kan. at 309. (Emphasis added.) In Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136 (1910), aff’d 229 U.S. 102, 57 L. Ed. 1090, 33 S. Ct. 684 (1913), this court addressed an appellate contention that an agent could not be liable to a third person for acts of nonfeasance, and noted this claim “overlook[ed] the theory that a servant owes duties to third persons as well as to [the] master.” 83 Kan. at 565-66.
Misfeasance is the improper doing of an act. It is the failure to do something with the degree of care and skill reasonably demanded. Nonfeasance is the total omission of any act. Misfeasance can, however, include to some extent not doing something, i.e., not exercising the required degree of care. Sufficient participation in a tortious act can exist when there is an act or omission by the officer or agent of a corporation which logically leads to the inference that the officer or agent had a share in the wrongful acts of the corporation which constitute the offense.
Applying the standard of review for summary judgment, we note that the operators had either assumed the duty or assigned their duty to Oiler,'an agent of the corporation, to pump the accumulated water from the pool. They had a responsibility to act and they failed to act. There was sufficient evidence that the Orindgreffs owed a duty to Aaron. The district court erred in granting the Orindgreffs’ motion for summary judgment.
EVIDENCE OF COLLATERAL SOURCE BENEFITS
Plaintiff challenged the constitutionality of K.S.A. 1993 Supp. 60-3801 et seq., the Collateral Source Benefits Act, prior to trial. Plaintiff noted in his trial brief that a similar challenge to the Act had been made in Thompson v. KFB Ins. Co., a case then pending in the Kansas Supreme Court. The district judge found the Act to be constitutional and allowed evidence of collateral source benefits to be adduced at trial. The jury found Aaron had received $528,732 in collateral source benefits from an insurance policy.
The parties recognize that the subsequent decision in Thompson, 252 Kan. 1010, 850 P.2d 773 (1993), that K.S.A. 1993 Supp. 60-3801 et seq. was unconstitutional, resolves that issue in this case. G.A.C. states that if its cross-appeal is denied, the action should be remanded to the district court with instructions to recalculate the damage award by adding the collateral source benefits previously removed. G.A.C. asserts there is no need for a retrial on either damages or liability if the only error is on this ground. Plaintiff argues the erroneous admission of evidence of the collateral source benefits requires a new trial as to damages and liability. Plaintiff argues the only relevant Kansas case, Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988), can be distinguished on the facts.
The Wisher court recognized that a prior legislative attempt to allow collateral source benefits into evidence had been invalidated after the trial but during the pendency of the Wisher appeal. The Wisher court concluded the jury was instructed that damages were to be determined only if decedent was less than 50 percent at fault. In Wisher, we had absolutely no basis from which to conclude the jurors disregarded their oaths or the instructions given. The erroneous admission of the collateral source benefits evidence could have reduced the damages had the jury reached the point of determining damages. The jury had not reached that point, and hence, the admissibility of collateral source benefits evidence on damages was immaterial. 244 Kan. at 46-47. Here, the jury had concluded that Aaron was less than 50% negligent. It reached the point where the erroneous admission of the collateral source benefits evidence could have affected the award of damages. The error of admitting the collateral source benefits evidence became material. The district court erred in admitting the collateral source benefits evidence.
NONECONOMIC DAMAGES
The calculation of damages to restore a person to his or her prior position is divided into economic and noneconomic damages. Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, Syl. ¶ 6, 789 P.2d 541 (1990).
The jury awarded $100 for disabilities and disfigurement, accompanying mental anguish, and conscious pain and suffering incurred by Aaron Kems to date and in the future. The district court denied the plaintiffs motion for new trial, finding that under the facts the jury’s award of $100 for noneconomic damages was not manifestly unjust. The district court concluded that the jury could have reasonably determined under the facts, “in an unprejudiced, unimpassioned way that the conscious awareness of pain, suffering, [and] disfigurement is either not there or minimally [there].”
Plaintiff contends the trial court disregarded uncontroverted evidence that Aaron had a conscious awareness of his disability or disfigurement. Plaintiff points out that it was uncontroverted that Aaron is consciously aware of his surroundings and can feel pain and suffering. - Plaintiff concludes that the jury’s award indicated it acted under passion and prejudice and that the verdict was so erroneous that a new trial is required on all issues, not just on the issue of noneconomic damages.
The standard of evaluation by which an award for pain and suffering is measured is such amount as reasonable persons estimate to be fair compensation when that amount appears to be in harmony with the evidence and arrived at without passion or prejudice. Fudge v. City of Kansas City, 239 Kan. 369, Syl. ¶ 6, 720 P.2d 1093 (1986). In reviewing an award for pain and suffering, a noneconomic element of damages, this court must review the record to determine if there is evidence to support the jury’s determination of damages. This court’s standard of review of a juiy’s award of noneconomic damages is well established. Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason, the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of the jurors, who may be expected to act reasonably, intelligently, and in harmony with the evidence. Such awards are overturned only if the collective conscience of the appellate court is shocked. Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 342, 827 P.2d 1 (1992). Although questions relating to inadequate verdicts have on several occasions been presented to and ruled on by this court, we are aware of no case from this jurisdiction which solves the problem of determining whether a verdict is adequate or inadequate.
The district judge, in an attempt to determine the jury’s reason for awarding $100 for the disabilities and disfigurement suffered by Aaron, concluded that evidence of conscious awareness of pain, suffering, and disfigurement supported the jury’s conclusion there was only minimal suffering. The principal contention advanced by plaintiff is that the verdict was so grossly inadequate as to require a new trial.
K.S.A. 60-259 provides a new trial may be granted on all or a part of the issues when one of the statutory grounds for a new trial exists which affects the substantial rights of a party. A new trial may be limited to the issue of damages in those instances where the issue is separable and when the interest of justice will be served thereby. See Schmidt v. Cooper, 194 Kan. 403, 406, 399 P.2d 888 (1965). Inherent in general recognition of the power to limit a new trial to the single issue of damages when the verdict award is inadequate is the requirement that the issue of damages be separable from the issue of liability. Because of the numerous issues of liability that must be determined on retrial, the question of the adequacy of the verdict for pain, suffering, and disfigurement cannot be answered. As to the remaining parties we must grant a new trial on all issues.
CROSS-APPEAL
Plaintiff’s petition alleged G.A.C. failed to provide a shepherd’s crook, ring buoy, or first aid kit (Wichita City Code §§ 5.79.090 and 5.79.100), failed to maintain the water in an acceptable condition (§ 5.79.130), allowed water to accumulate (§ 7.40.040), and failed to prohibit access to the pool by a method that provides reasonable control (§ 5.79.110).
In its motion for summary judgment, G.A.C. claimed that the city ordinances did not apply to a closed pool, that any violation of the ordinances was not negligence per se, and that there was no proximate cause linking a violation of the ordinances and Aaron’s injury. The trial court denied the motion for summary judgment. It stated, “[T]he Court finds that the violation of the municipal ordinances aimed by their terms at requiring safety equipment and pool and water clarity conditions are acts of negligence, as with violating any other codified law.”
When the plaintiff rested its case, G.A.C. moved for a directed verdict, claiming that as a matter of law the swimming pool was not an attractive nuisance, the ordinances did not apply during the off-season, any ordinance violations were not the proximate cause of Aaron’s injuries, and because Aaron was a trespasser the evidence did not show G.A.C. had breached its duty to refrain from willful, wanton,, or reckless conduct. The court denied the motion for directed verdict, finding the issue of whether the pool was an attractive nuisance was a factual question for the jury; that the city ordinances did continue to apply during the off-season; and that although Aaron was a trespasser, the attractive nuisance theory, if accepted by the jury, excused the trespass and, if not, then there was sufficient evidence for the jury to resolve the issue of willful or wanton conduct.
The jury was instructed it could find negligence per se if it found G.A.C. violated either Wichita City Code §§ 5.79.130, 5.79.110, 7.40.040, or 5.79.090 and that violation caused or contributed to Aaron’s injuries. The jury found G.A.C. had violated § 5.79.130', the clarity of water ordinance, and that this had caused or contributed to Aaron’s injuries.
The ordinances given to the jury state:
“5.79.090 Lifesaving equipment. One unit of lifesaving equipment shall consist of the following: A ring buoy . . . ; [a] life pole or shepherd’s crook type of pole . . . .”
“5.79.100 First aid. Every Type A swimming pool shall be equipped -with a first aid kit which shall be kept filled and ready for use.”
“5.79.130 Cleaning. The swimming pool water shall have sufficient clarity at all times so that a black disk, six inches in diameter, is readily visible when placed on a white field at the deepest point of the swimming pool when observed from the side of the pool at a point adjacent thereto. Visible dirt on the bottom of the swimming pool shall be removed every twenty-four hours or more frequently as required. Visible scum or floating matter on the swimming pool surface shall be removed every twenty-four hours by flushing or other effective means.”
“7.40.040 Nuisances. It is unlawful for any person to maintain or to permit to exist any nuisance as herein described. The following conditions or materials are declared to be injurious to the health and well being of citizens of the city of Wichita and are declared to be nuisances together with those conditions not herein enumerated but coming under the definition of nuisance as described in Section 7.40.010:
“(4) Open . . . swimming pools . . . that create hazards to any persons, [or] collect water . . . except those . . . maintained with adequate . . . fencing consisting of material recognized for the purpose and having openings not larger than two inches in the least dimension.”
“5.79.110 Control of access to closed pool. When any Type A swimming pool is not open for use, access to the pool shall be prohibited by a method that provides reasonable control."
The standard of review for summary judgment has been previously stated. The standard of review for ruling on motions for directed verdicts is that this court must “resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could” differ on the conclusions to be drawn from the evidence adduced, the motions should be denied. Kuhl, 250 Kan. at 342. Although the two motions are different, the resolution of each issue hinges on the same questions of law.
“Negligence per se usually consists of violation of a specific requirement of law or ordinance. The distinction between ‘negligence’ and ‘negligence per se’ is the means and method of ascertainment, in that the former must be found by a factfinder from the evidence, while the latter results from violation of the specific requirement of law or ordinance; and the only fact for the determination of the factfinder is the commission or omission of the specific act inhibited or required.” Watkins v. Hartsock, 245 Kan. 756, 761, 783 P.2d 1293 (1989).
G.A.C.’s first contention is that the ordinances do not apply to pools that are closed during the off-season because the pool was not an artificial body of water for swimming. G.A.C. notes the ordinance that the jury did find it violated, the water clarity ordinance, requires the pool owner to maintain a certain level of clarity “at all times.” They argue that under the ordinances, when the pool is closed and drained, the water clarity ordinance does not apply. We agree with G.A.C.’s claim that § 5.79.090 (lifesaving equipment), § 5.79.100 (first aid equipment), and § 5.79.130 (water clarity) do not apply when the pool is closed. Under the facts, however, there is a question of whether the fence was adequate and whether the accumulation of murky water contributed to the injury because rescuers were unable to see Aaron, who was underneath the water. City Code § 7.40.044 (nuisances) and § 5.79.110 (control of access to a closed pool) do apply.
G.A.C.’s next assertion is that the city ordinances which apply do not provide a private cause of action. It contends the ordinances are designed to protect the public at large, not individuals. Violation of an ordinance, by itself, does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislative body that passed the ordinance. Ordinances enacted to protect the public, therefore, do not create a duty to individuals injured as a result of a violation of the ordinances. In Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 371-72, 819 P.2d 587 (1991), this court determined that a statute requiring reporting of suspected child abuse incidents did not support a negligence per se claim by a child who was abused.
In Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 127, 804 P.2d 978 (1991), a city building code which set the maximum elevation differential between the landing and the top of the threshold in a building entrance was determined to have been enacted to protect a special class of individuals, i.e., those individuals entering and leaving the building. Under the facts of this case, the swimming pool ordinances were enacted to protect a special class of persons — those who gain access to a closed pool and require rescuing, a class which included Aaron. Violation of the ordinances by G.A.C. could support a claim of negligence per se. Two of the ordinances here, § 7.040.044 and § 5.79.110, are analogous to those in Schlobohm, and the rationale of Schlobohm is sufficient to affirm the trial court on this issue.
G.A.C., however, contends that because Aaron was a trespasser, and not an invitee as in Schlobohm, this removed him from the class meant to be protected by the ordinance and there could be no finding of negligence per se. G.A.C. notes no reported Kansas case has involved a negligence per se claim by a trespasser but offers a Maryland case, Osterman v. Peters, 260 Md. 313, 272 A.2d 21 (1971), for support. In Osterman, a four-year-old boy attempted to retrieve a ball from a neighbors swimming pool, fell in, and drowned. The city code required a particular type of gate latch which was not installed on the gate to the neighbor s pool. The Maryland Supreme Court refused to allow a trespasser, even one of tender years, to recover because the only right a trespasser has is to be free from any willful injury by the landowner.
G.A.C. contends that rule should be applied in this case. If applied, Aaron had no right to be in the pool area and cannot allege negligence per se. We note that the Osterman court observed, however, that Maryland is one of only seven states that completely reject the doctrine of attractive nuisance. 260 Md. at 315. Kansas has not rejected this doctrine. See Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978), overruled on other grounds Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986); see also Honeycutt v. City of Wichita, 247 Kan. 250, 262, 796 P.2d 549 (1990) (jury’s determination of the comparative negligence of a minor in context of attractive nuisance).
The doctrine of attractive nuisance subjects a possessor of land to liability for bodily harm to children intruding thereon caused by some condition that the possessor maintains on the premises if:
“ ‘(1) the possessor knows, or in the exercise of ordinary cafe should know, that young children are likely to trespass upon the premises, and
‘(2) the possessor knows, or in the exercise of ordinary care should know, that the condition exists and that it involves an unreasonable risk of bodily harm to young children, and
‘(3) the children because of their youth either do not discover the condition or understand the danger involved in coming into the dangerous area, and
‘(4) one using ordinary care would not have maintained the condition when taking into consideration the usefulness of the condition and whether or not the expense or inconvenience to the defendant in remedying the condition would be slight in comparison to the risk of harm to children.’ ”
Talley v. J & L Oil Co., 224 Kan. 214, 215-16, 579 P.2d 706 (1978) (quoting Gerchberg, 223 Kan. at 447-48).
Although we have refused to categorically exclude swimming pools from application of the attractive nuisance doctrine, we have recognized that in many cases swimming pools are not, as a matter of law, attractive nuisances. Factors that can be considered include whether the landowner knew children frequent the area where the pool is located and whether the condition of the pool is so unusual that the interest of the child is enticed. McCormick v. Williams, 194 Kan. 81, 82-84, 397 P.2d 392 (1964). The McCormick court specifically stated it was not sufficient that the minor was attracted to the nuisance after an act of trespass occurred; the minor must have been enticed onto the premises by the attraction of the nuisance. 194 Kan. at 84. In that case, the pool was enclosed by a fence and could not be seen until after the act of trespass.
In this case, the pool was visible, although there was a dispute whether people outside the fence could tell if water was in the pool. Aaron did not climb the fence because he was attracted to the pool. He climbed the fence to retrieve his cap. The attractive nuisance doctrine is not applicable to the facts of this case as developed at trial. City Code § 5.79.110, which requires a reasonable method of control of access to a closed pool, presupposes that one who enters includes a trespasser. Under these facts, Aaron’s status as a trespasser does not preclude submission to the jury of the negligence per se claim based on the two ordinances. The trial court’s denial of G.A.C.’s summary judgment and directed verdict motions is affirmed.
Affirmed in part, reversed in part, and remanded for a new trial.
Abbott, J., not participating.
Prager, C.J. Retired, assigned.
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Per Curiam.-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Gary W. Long, II, of Kansas City, Kansas, an attorney admitted and licensed to practice law in the State of Kansas. The facts are not disputed, and the case was handled by stipulation.
There are three complaints: B5482, B5512, and B5520. All of the cases arose out of respondent’s representation of clients in the federal courts. Highly summarized, respondent’s present infractions are as follows.
B5482
This complaint arises out of a pro se action filed in 1988 in the United States District Court for the District of Kansas alleging that the complainant had been discriminated against due to her age and handicap. Respondent was appointed to represent complainant. Two months after he was appointed, respondent received a motion and order to show cause why the summons and complaint had not been served on the defendant within 120 days of the filing of the complaint. Respondent requested additional time to serve the summons and complaint and was granted 120 days from October 6, 1988, to serve the defendant.
On April 11, 1989, the defendant in the discrimination suit filed an answer using as a defense the fact that as of that date the defendant still had not been served. On July 27, 1989, the defendant filed a motion to dismiss for failure of the plaintiff to effect timely service.
On July 31, 1989, respondent filed a motion to file an amended complaint. The motion was denied because respondent failed to comply with the court rules in filing a memorahdum and a copy of the amended pleading with the motion.
The case was subsequently dismissed for failure to properly serve the defendant. Respondent filed a motion requesting that the claim be reinstated and that he be allowed to withdraw from the case.
The United States District Court allowed complainant’s claim to be reinstated but denied respondent’s request to withdraw and gave respondent an additional 30 days to effect proper service.
Three months later, the defendant filed a renewed motion to dismiss, as the defendant still had not been properly served. The case was subsequently dismissed. The complainant filed a pro se appeal to the 10th Circuit Court of Appeals, which affirmed the dismissal.
Respondent stipulated to the above facts and agreed that he had violated MRPC 1.1 (1993 Kan. Ct. R. Annot. 258) (failure to competently represent his client), MRPC 1.3 (1993 Kan. Ct. R. Annot. 263) (failure to act with diligence and promptness), and MRPC 3.2 (1993 Kan. Ct. R. Annot. 313) (failure to make a reasonable effort to expedite litigation).
B5512
In March of 1992, respondent was retained to represent the complainant in a Chapter 7 bankruptcy. A petition was prepared and promptly filed. The complainant then notified respondent that the amount owing to a bank needed to be corrected. The amendment was not prepared and filed, and at the first meeting of creditors the complainant testified that he would be signing the amended schedule that afternoon in respondent’s office. After the hearing, respondent informed the complainant that he had not yet made the corrections and that he would prepare them and send them to the complainant over the following weekend. He failed to do so.
The complainant called respondent’s law office on numerous occasions and spoke with respondent’s secretary and his assistant. A letter to respondent was ignored. The complainant sent a letter to the Office of Judicial Administration inquiring as to the procedure for filing a complaint against an attorney. A copy of that letter was sent to respondent. Respondent still failed to reply. A complaint was filed with the Disciplinary Administrator s office, and respondent failed to respond. Finally, respondent prepared the amended schedule and mailed it to the complainant, who signed it and returned it to respondent.
Respondent stipulated to the above facts and agreed that he had violated MRPC 1.3 (1993 Kan. Ct. R. Annot. 263) (failure to act with diligence and promptness), MRPC 1.4 (1993 Kan. Ct. R. Annot. 267) (failure to communicate with a client and keep the client reasonably informed), and Supreme Court Rule 207 (1993 Kan. Ct. R. Annot. 170) (failure, to cooperate with the Disciplinaiy Administrator’s investigation).
B5520
Respondent was retained as counsel to take a criminal appeal from die United States District Court to the 10th Circuit Court of Appeals. He prompdy filed a notice of appeal but failed to timely docket the appeal and failed to arrange for the payment of a transcript. He received an order to show cause why he should not be disciplined for his failure to prosecute the defendant’s appeal. He filed a response requesting that the defendant be found indigent and that the court pay for the costs of the transcript.
Respondent failed to obtain leave to appeal in forma pauperis on behalf of the defendant and did not comply with the provisions of Rule 24 of the Federal Rules of Appellate Procedure by filing the required affidavit of indigency by the defendant. He was ordered to obtain the defendant’s affidavit and submit it to the district court or show cause within 10 days why he should not be disciplined for failure to prosecute the appeal. Respondent made a trip out of state to obtain the defendant’s signature on the affidavit but did so on a weekend, and no notary public was available. Respondent signed the document himself, which was not in compliance with the rules, and the affidavit was held insufficient.
The 10th Circuit struck respondent from the docket as counsel for the defendant. The federal public defender for the district of Kansas was appointed to represent the defendant, and his appeal has been processed. Respondent, who was not a member of the 10th Circuit Bar, has been barred from membership in that court, and a disciplinary proceeding is pending against him in the United States District Court for the District of Kansas at this time.
Respondent stipulated to the above facts and agreed that he had violated MRPC 1.1 (1993 Kan. Ct. R. Annot. 258) (failure to competently represent his client), MRPC 1.3 (1993 Kan. Ct. R. Annot. 263) (failure to act with diligence and promptness), and MRPC 3.2 (1993 Kan. Ct. R. Annot. 313) (failure to make a reasonable effort to expedite litigation).
The disciplinary panel found that respondent’s law office was inadequately staffed when he accepted employment in several federal court actions. It also found that he had restructured his practice in 1992 by referring selected files that he did not have experience to handle to other attorneys and by using a computer to control his docket and other deadlines. He has since confined his practice to matters he feels qualified to handle. The Disciplinary Administrator did not charge intentional or willful misconduct on the part of respondent, and the panel found there was no evidence to show such a pattern of misconduct. The panel was of the opinion that with proper supervision respondent will avoid past errors and practices. We believe respondent should have that opportunity.
It Is The Order Of The Court that the imposition of discipline against Gary W. Long, II, be and is hereby suspended, and he is placed on supervised probation for a period of two years from the date of this order.
It Is Further Ordered that during the probation period respondent’s practice of law is to be supervised by Jeffrey A. Dehon according to the plan submitted to this court, with quarterly reports sent to the Disciplinary Administrator concerning the status of respondent’s practice as well as the status of his trust account. The schedule for the reports will be set by the Disciplinary Administrator.
It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order shall issue to respondent, and this court will take whatever dis ciplinary action it deems just and proper without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error, who was plaintiff in the court below, brought his action to recover Lots 11 and 12, in Block 24, in Leavenworth city, in this State. The action was tried before a jury. The record shows the following proceedings at the close of the trial:
“ The court instructed the jury to find for the plaintiff. The defendants then requested the court to submit the case to the jury, which the court refused to do, to which ruling and decision of the court the defendants at the time excepted. The court then instructed the jury to find a verdict for the plaintiff, to which instruction the defendants at the time excepted. The court then directed the clerk to write out a verdict for the plaintiff, and hand it to the jury to be signed. The clerk drew up a verdict as follows: ‘ We the jury find for the plaintiff,’ and presented it to the jury. Several of the jurors refused to sign it, when Jacob Ketner signed it as foreman, and returned it to the clerk, when it was read to the jury. The defendants then demanded that the jury be polled, which the court refused to permit, to which ruling and decision of the court the defendants at the time excepted.
“ The jury were then discharged. The defendants moved the court for a new trial for various reasons, which motion the court overruled, and the defendants excepted; and thereupon the court rendered judgment in favor of the plaintiff, and against the defendants for the recovery of the property in controversy, and for costs, to which judgment the defendants at the time excepted.”
This judgment is unquestionably erroneous. In a con tested case, the judgment, to be valid, must be founded uPon the findings of a court, the report of a referee, or the verdict of a jury. It'will not beclaimed that this judgment is founded upon the report of a referee. It will hardly be claimed that it is founded upon the findings of the court; for in a case like this, which can be tried by a jury only, unless the jury is waived, the court has no authority to make any findings. And it cannot be claimed that the judgment.is founded upon a verdict of the jury; for the record does not merely fail to show that the supposed verdict was the verdict of the jury, but it clearly shows that it was not such verdict. The most that can be said in favor of the plaintiff, with reference to said verdict, is, that the jury disagreed.
With all the instructions of the court, only one juror was found to sign the verdict. Several of the jurors refused to sign it; and others expressed no opinion ; and the court refused' to allow the jury to be polled. Here the court erred. The verdict of a jury is the verdict of each, and every juror. The verdict of eleven jurors, or any less number than twelve, is not the verdict of the jury. A party has, in all cases, a right to know whether a supposed verdict is the verdict of each juror, or of only one or more of the jury; and if sections 283 and 284 of the civil code, (Gen. St. 1868, p. 683,) do not apply where the jury decide, without retiring from the jury box, still the common law would give each party the right to know the verdict of each juror.
II. It is claimed however, that if the court did err in refusing to submit the case to the jury, in refusing to permit thejury to be polled, and in render-mg a judgment without a proper verdict to sustain it, still the error did not affect the substantial rights of the defendants,xand therefore they have no good reason to complain. "We do not think it is very obvious from the record, that the substantial rights of the defendants were not affected. On the contrary, we think the record tends to show that the substantial rights of the defendants were materially affected by the error of the court.
The facts in the case are not found by the jury, but the evidence tends to show the following facts : On the 19th day'of April, 1855, while the government of the United States still held the title to the lots in dispute, in trust for the Delaware Indians, Malcolm Clark, the ancestor of the plaintiff, sold said lots to Jacob Sass, the grantor of the defendants, for four hundred dollars, and received one-half of the same down, and the other half in a promissory note payable when said Sass should receive the title to said lots; and Clark bound himself, his heirs, executors, and administrators, to make to Sass a quit-claim deed for said lots, when said note should be paid. After-wards Clark died, and his administrator bought said lots of the government at the Delaware land sales, paying therefor five dollars each, from the funds of Clark’s estate, and the patent was made to the “ heirs” of said Clark. Afterwards, Sass paid the amount of said note to the administrator of Clark’s estate, which amount undoubtedly became a part of the assets of the estate, and has in all probability been paid over to the plaintiff who is the sole heir of said Clark. Now, if the proof upon all these points was sufficient, the defendants had a good defense to the plaintiff’s action. It cannot be contended for Clark, nor by his heir, that the contract between Clark and Sass is void. (Fackler v. Ford, 24 Howard, 822.) After Clark and his heir have received, by virtue of said contract, four hundred dollars, in the aggregate, óf Sass’s money, three hundred and ninety dollars more than the lots cost, no rule of law or equity would permit the heir to repudiate her ancestor’s contract. She cannot enjoy the benefits of such contract, and at the same time repudiate its burdens. She cannot hold the money, and also hold the lots. The law cannot permit such gross injustice. For authorities we refer to counsels’ briefs. •
The judgment of the court below is reversed, and the case remanded for a new trial.
All the Justices concurring.
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