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The opinion of the court was delivered by
Miller, J.:
An Overland Park ordinance, imposing a city sales tax, is challenged in this declaratory judgment and injunction action. The trial court upheld the ordinance, denied an injunction, and dismissed the action. The plaintiffs, resident taxpayers of Overland Park, appeal.
The constitutional and statutory background of the dispute before us is somewhat complicated. We will set forth chronologically the various enactments.
On July 1, 1961, the “Home Rule Amendment,” article 12, § 5 of the Kansas Constitution became effective. Those portions of the amendment germane to this case are as follows:
“(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c).
“(c)(1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.
“(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.”
Also on July 1, 1961, K.S.A. 12-137 and 12-138 (Corrick) became effective. These sections provided in substance that any city proposing to levy any tax could pass an ordinance by a two-thirds vote of a governing body; publication for two consecutive weeks in the official city newspaper was required. The ordinance could not take effect for sixty days from the date of final publication; and if within that time a petition signed by not less than ten per cent of the electors who voted at the last preceding city election was filed in the office of the city clerk demanding that the ordinance be submitted to a vote, then the ordinance should not become effective until submitted to a referendum. Procedures for calling and holding the election were provided.
Finally, on July 1, 1961, K.S.A. 12-139 (Corrick) also became effective. That statute prohibited all cities from imposing sales taxes. It read:
“No city shall impose an excise tax, or tax in the nature of an excise, upon a sale or transfer of personal or real property, or the use thereof, or the rendering or furnishing of a service.”
On April 3, 1970, K.S.A. 1970 Supp. 79-4414 became effective. That statute suspended the operation of K.S.A. 12-139 (Corrick) until the thirty-first of December, 1972.
On April 3, 1970, K.S.A. 1970 Supp. 79-4424 became effective. That section provided in substance that no city could impose a sales tax without first submitting such proposition to a vote of the electorate and having received the approval of a majority of those voting at the election. Procedures for the holding of the election and the submission of the question were provided.
The cities of Topeka, Manhattan, and Lawrence enacted sales tax ordinances, which were duly approved by the electorate in those cities, and all three cities were levying and collecting sales taxes before March 1, 1972.
On April 11, 1972, K.S.A. 1972 Supp. 12-166 and 12-167 became effective. By 12-166, the legislature classified cities for the purpose of imposing limitations and prohibitions upon the levying of excise or sales taxes. Class 1 cities were defined as all cities in this state levying and collecting sales taxes on March 1, 1972; all other cities were included in class 2. By 12-167, class 2 cities were prohibited from imposing a sales tax.
As of April 30, 1973, K.S.A. 12-139 (Corrick) was repealed.
On the same date, April 30,1973, K.S.A. 1972 Supp. 12-166 and 12-167 were repealed, and K.S.A. 1973 Supp. 12-172, -173 and -174 became effective. 12-172 authorized cities and counties to adopt sales tax levies, provided that the enacting ordinance or resolution be adopted by a specified majority of the members of the governing body, and provided that the proposition be first successfully submitted to a vote of the electorate. 12-173 continued the classification of cities as previously included in K.S.A. 1972 Supp. 12-166. 12-174 prohibited class 2 cities from imposing sales taxes.
In the 1975 session of the legislature, Senate Bill No. 524 was introduced. Its purpose was to authorize both cities and counties to impose sales taxes after a referendum. The bill failed to pass in 1975, but it was enacted in the 1976 session.
On April 26, 1976, Senate Bill No. 524 became effective; it appears as chapter 70 in the 1976 Laws. It amended K.S.A. 12-172 and repealed K.S.A. 12-173 and 12-174. This enactment provides in substance that cities, located in any county in which a countywide sales tax referendum has failed, may impose a city sales tax after a successful referendum within the city. Subsection (a) of the amended statute, K.S.A. 1977 Supp. 12-172, forms the primary basis for plaintiffs’ claim in this action; it will be set out fully in this opinion.
Effective May 13, 1977, K.S.A. 12-137 and 12-138 were amended; the amendments were technical, and do not change the thrust of the original statutes. These amended statutes were relied upon and followed by the City of Overland Park. They read:
“Where, under the power of cities granted by paragraph (b) of section 5 of article 12 of the constitution of Kansas, the governing body of any city by ordinance proposes to levy for revenue purposes any tax, excise, fee, charge or other exaction other than permit fees or license fees for regulatory purposes, which is not limited or prohibited or a procedure for the levy of which is not otherwise prescribed by enactment of the legislature as provided by said paragraph (b), such ordinance shall require a two-thirds (%) vote of the members-elect of the governing body and shall be published once each week for two (2) consecutive weeks in the official city newspaper.
“No such ordinance shall take effect until sixty (60) days after its final publication, and if within sixty (60) days of its final publication a petition signed by a number of electors of the city equal to not less than ten percent (10%) of the number of electors who voted at the last preceding regular city election shall be filed with the county election officer of the county in which such city is entirely or primarily located demanding that such ordinance be submitted to a vote of the electors, it shall not take effect until submitted to a referendum and approved by a majority of the electors voting thereon. The governing body of any city may submit any ordinance providing for such levy to a referendum without petition. Ordinances authorizing such levies submitted to referendum without petition may be passed by a majority vote of the governing body and shall be published once in the official city newspaper.” K.S.A. 1977 Supp. 12-137.
“Any city election called under the provisions of this act shall be called within thirty (30) days and held within ninety (90) days after the filing of a petition demanding such election, or after the publication of an ordinance authorizing a levy for which an election is called without petition. The governing body shall pass an ordinance calling the election and fixing the date, which ordinance shall be published once in the official city newspaper. The sufficiency of the number of signers of any petition filed under the provisions of this act shall be determined by the county election officer. Every election held under the provisions of this act shall be conducted by the county election officer. The county election officer shall publish a notice of such election once each week for three (3) consecutive weeks in the official city newspaper, the first publication to be not less than twenty-one (21) days prior to such election. Said notice shall state the time of the election and the proposition which shall appear on the ballot. The proposition shall be: ‘Shall revenue ordinance No. __, entitled (title of ordinance) take effect?’ ” K.S.A. 1977 Supp. 12-138.
On June 27, 1977, the governing body of the City of Overland Park, with not less than two-thirds of the members-elect voting in favor, enacted ordinance No. ST-931, imposing a retail sales tax in the amount of one-half of one per cent. The ordinance provided that it should be published once each week for two consecutive weeks in the official city newspaper, and that it should take effect sixty days after final publication unless a sufficient petition for a referendum was filed. We are told that a petition was timely filed, but was found not to contain the requisite number of valid signatures..
On June 27,1977, when the ordinance was enacted, the blanket prohibition against city sales taxes, K.S.A. 12-139 (Corrick) had been repealed; also, the classification ordinance, K.S.A. 12-173, and the blanket prohibition of sales taxes in class 2 cities, K.S.A. 12-174, had been repealed. K.S.A. 1977 Supp. 12-137, providing for the enactment of municipal sales tax ordinances by a two-thirds vote of the members-elect of the governing body, and requiring a referendum only in the event that a proper petition for a referendum was filed, was in effect. Also, K.S.A. 1977 Supp. 12-172 was in effect. That statute provided in part as follows:
“(a) No city shall impose a retailers’ sales tax under the provisions of this act unless more than one-half of the area of such city is located within a county in which a proposition to levy a county wide retailers’ sales tax has been submitted to and rejected by the electors of the county on or after the effective date of this act and without the governing body of such city having first submitted such proposition to and having received the approval of a majority of the electors of the city voting thereon at an election called and held therefor. The governing body of any city may submit the question of imposing a retailers’ sales tax and said governing body shall be required to submit said question upon submission of a petition signed by electors of such city equal in number to not less than ten percent (10%) of the electors of such city.”
Thus, when the ordinance was enacted, there were two statutes authorizing the enactment of sales tax ordinances by cities; K.S.A. 1977 Supp. 12-137, which authorized enactment without referendum (unless a petition were filed), and K.S.A. 1977 Supp. 12-172, which made referendum mandatory.
We should mention one other statute. K.S.A. 1978 Supp. 12-188, which became effective July 1, 1978, includes a new classification system for cities. It reads substantially as follows:
“The following classes of cities are hereby established for the purpose of imposing limitations and prohibitions upon the levying of sales . . . taxes . . ..
“Class A cities. All cities in the state of Kansas levying and collecting [sales] taxes ... on June 30, 1978.
“Class B cities. All cities in the state of Kansas not levying and collecting [sales] taxes ... on June 30, 1978.”
Overland Park was levying and collecting a sales tax on June 30, 1978, under and by virtue of the ordinance here under attack.
The central and controlling issue in this appeal is whether K.S.A. 1977 Supp. 12-172 is an enactment “applicable uniformly to all cities of the same class.” Appellants, for their first issue, contend that the statute is applicable uniformly.
The Home Rule Amendment is a grant of authority by the people of this state to the cities, authorizing and empowering them to determine their local affairs and government, including the levying of taxes, except when and as the levying of any tax ... is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class. At the time of the enactment of the ordinance, all cities of this state were included in a single class; the legislation designating class 1 and class 2 cities had been repealed. Thus unless K.S.A. 1977 Supp. 12-172 is “applicable uniformly to all cities,” that statute cannot be considered a limitation or prohibition by the legislature of the authority granted the cities by the constitution to levy a sales tax.
Although many of our cases consider home rule powers, particularly in the areas of police power, special assessments, and criminal ordinances, only Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130 (1973), addresses specifically the constitutional standard of uniform applicability. In Claflin, we found certain statutes regarding memorials, monuments, and grave markers not uniformly applicable to all cities; therefore, Kansas City’s charter ordinance was effective to remove the city from the effect of those statutes. The uniform applicability requirement construed in Claflin were those contained in art. 12, § 5 of the Kansas Constitution, subsection (c)(1), which defines a city’s power to elect that a statute does not apply, through the mechanism of a charter ordinance. Though the uniform applicability requirement regarding taxation, in subsection (b), here involved, differs from that set forth in subsection (c)(1), the alternative requirement of statewide concern contained in (c)(1) was ignored in the Claflin discussion; the primary emphasis was upon the uniform applicability requirement. Therefore, the rules of construction and analysis of Claflin are directly applicable and are helpful in determining the present controversy.
The following quotations from Claflin are instructive:
“Prior to the home rule amendment Kansas cities were seriously limited in their power .... Cities existed by and through statutes and had only such powers as were expressly conferred by statute without resort to implication. . . . No longer are cities dependent upon the state legislature for their authority to determine their local affairs and government. Since home rule, cities have power granted directly from the people through the constitution without statutory authorization. ....
“The home rule power of cities is not absolute. It is subject to the power of the legislature to act in certain areas — exclusively in some, optionally in others. These limitations on city power are expressly set forth in the home rule amendment. . . .
“. . . The home rule power is subject to optional control by legislative action in four specific areas:
“(1) Enactments of statewide concern which are applicable uniformly to all cities.
“(2) Other enactments of the legislature applicable uniformly to all cities.
“(3) Enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.
“(4) Enactments of the legislature prescribing limits of indebtedness.
“Section 5(d) of Article 12 requires a liberal construction of the powers and authority granted cities for the purpose of giving to cities the largest measure of self-government. This provision simply means that the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it. . . .
“In view of the liberal construction provision of Section 5(d), in determining whether a legislative enactment is applicable uniformly to all cities such a legislative intent should be clearly evident before the courts should deny a city the right to exercise home rule power in that area. . . .
“In some cases the legislative intention has been made clear and unequivocal. By specific language the legislative intent is shown to be that the statute is to be applied uniformly to all cities. . . .
“The difficulty is that in many statutes the legislative intention to have uniformity throughout the state is not expressly stated. In that situation courts are required to glean legislative intent by applying established rules of statutory construction. In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. ... In addition, to be in pari materia statutes need not have been enacted at the same time. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.” (pp. 6-8.)
Additional rules of statutory construction are stated in Callaway v. City of Overland Park, 211 Kan. 646, 650, 508 P.2d 902 (1973):
“The primary rule for the construction of a statute is to find the legislative intent as expressed and the court is not warranted in looking beyond the plain terms of the act when it appears plain and unambiguous. . . . The historical background and changes made in a statute are to be considered by the court in determining legislative intent for the purpose of statutory construction.”
The history of legislative action limiting the power of the cities to impose sales taxes is therefore relevant to ascertain the legislative intent. Appellant persuasively presents this history in such a way as to demonstrate legislative intent to retain control over the taxing power at all times, and to require a referendum before the imposition of a local sales tax. Without detailing that history further, that intent would appear clearly evident. However, the question of uniform applicability does not end with ascertainment of legislative intent. A plain reading of K.S.A. 1977 Supp. 12- 172(a) indicates that only a city having a specific relationship to its county may enact a sales tax. The only cities permitted to enact sales taxes under that subsection are those having more than one-half of their area in a county in which a proposition to levy a county-wide sales tax has been submitted to and rejected by the electors on or after April 26, 1976. Subsection (d) of K.S.A. 1977 Supp. 12-172 provides for the continuance of city sales taxes in the amount of one-half of one per cent, which were in effect on March 1, 1972, until repealed, or until the adoption of a one per cent county-wide sales tax; the continuance of existing city taxes is permitted where there is no such county tax. Clearly, K.S.A. 1977 Supp. 12-172 brings all cities within its scope, since all cities must examine their relationship with their county to determine their ability under the statute to impose a sales tax, but cities are not uniformly subject to the legislative restrictions. Some cities — all of the same class — are permitted to continue imposing and collecting sales taxes; some now collecting them may not be permitted to do so in the future, depending upon county action; still others may or may not be permitted to levy and collect sales taxes, depending upon the action of the board of county commissioners in submitting or failing to submit the issue of a county-wide sales tax (of one-half of one per cent or of one per cent) to referendum, and depending further upon the success or defeat of the county-wide measure at the polls. If the legislature wishes to limit or prohibit some cities from imposing sales taxes, and to permit others to do so, it must explicitly follow the constitutional mandate. Explicit classification and uniform applicability to all cities of the same class are required, where complete uniformity is not desired.
We have not overlooked other arguments advanced by industrious counsel, but we find them unpersuasive. For the reasons stated above, we hold that K.S.A. 1977 Supp. 12-172 is not applicable uniformly to all cities, and therefore was constitutionally insufficient to limit Overland Park’s home rule power to impose a sales tax.
Appellants argue in the alternative that even if K.S.A. 1977 Supp. 12-172 is not uniformly applicable, it is an enactment partially applicable to Overland Park and therefore, article 12, § 5(c)(1) requires that the city must enact a charter ordinance if it wishes to elect that the statute not apply to it. Charter ordinance procedure is required where there exists a conflict between legislative enactment and the city’s proposed ordinance. City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975).
This argument is unpersuasive. The charter ordinance procedure is required where the state and local enactments address the same subject, and there is a substantive conflict between them. Case law supports this analysis. Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P.2d 183 (1971); Claflin v. Walsh, 212 Kan. 1; City of Junction City v. Lee, 216 Kan. 495; Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976). In the case at hand, there was no substantive conflict between K.S.A. 1977 Supp. 12-172 and the city’s ordinance. The power to tax is granted to the cities by the Constitution. 12-137 and 12-172 both provided a method by which cities could enact sales taxes. Overland Park chose to follow the alternative procedure provided by K.S.A. 1977 Supp. 12-137. It is not infrequent that cities are given a choice of statutory procedures by the legislature, in order to accomplish a particular purpose. In State, ex rel., v. City of Topeka, 172 Kan. 745, 243 P.2d 218 (1952), we said:
“The legislature may in its discretion provide one or more methods for a municipality to accomplish any purpose, and the fact that there may be two general laws which reach the same end does not make either bad or one exclusive of the other.” (p. 749.)
Finally, appellants contend that the trial court improperly granted summary judgment. There were no facts in dispute when the matter came on for hearing before the trial court, and appellants were granted leave to file affidavits and to fully brief the matter before the trial court entered its final order in this action. There being no disputed issues of fact, and the sole issues being questions of law, we conclude that the trial court was correct in resolving the issues and ruling upon the merits when it did. The record was ample for the use of this court on appeal.
Appellee suggests that the ordinance has been validated by curative legislation, K.S.A. 1978 Supp. 12-193, by which the legislature recognized Overland Park as a city levying a sales tax on June 30, 1978, classified it as a class 1 city with other cities already levying sales taxes, and authorized it to continue to levy and collect the tax. In view of the disposition we make of this case, ruling upon that issue is unnecessary.
The judgment of the trial court is affirmed.
Fromme, J., not participating.
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NOW on this 26th day of November, 1979, comes on for hearing the voluntary petition of Laurence S. Holmes for transfer to disability status pursuant to Rule 220 of this court.
The court, having reviewed the record, including the voluntary petition of Laurence S. Holmes and the medical reports of Arnold M. Barnett, M.D., M.R.C.P. of the Wichita Neurological Institute, P.A., and Ernest W. Crow, M.D., F.A.C.P. of Internal Medicine Associates, P.A., of Wichita, finds:
1. Laurence S. Holmes is a duly admitted member of the bar of the State of Kansas having practiced for over 40 years.
2. Laurence S. Holmes has filed herein his verified petition in which he asks that he be transferred to disability status pursuant to Rule 220 of the rules relating to discipline of attorneys.
3. Laurence S. Holmes is under the continuing care of Dr. Arnold M. Barnett and Dr. Ernest W. Crow for cardiovascular disease and memory impairment.
4. Laurence S. Holmes is represented by T. L. O’Hara, a member of the bar of the State of Kansas in general practice in Wichita, and has been fully advised of his rights under the rules relating to discipline of attorneys.
5. Laurence S. Holmes is totally disabled and incapable of the practice of law at the present time and should be transferred to disability status pursuant to Rule 220 of this court.
IT IS THEREFORE ORDERED that Laurence S. Holmes be and he is hereby transferred from the active rolls of attorneys admitted to the practice of law in the State of Kansas to inactive disability status pursuant to Rule 220 of the rules for discipline of attorneys until further order of this court.
IT IS FURTHER ORDERED that the Clerk of the Appellate Courts shall strike the name of Laurence S. Holmes from the rolls of active attorneys admitted to practice in the State of Kansas and transfer the same to inactive status.
IT IS FURTHER ORDERED that all disciplinary proceedings, if any, pending before the office of the Disciplinary Administrator be held in abeyance until the further order of this court.
IT IS FURTHER ORDERED that Laurence S. Holmes be and he is hereby prohibited from the practice of law in the State of Kansas indefinitely and until the further order of this court.
IT IS FURTHER ORDERED that the Clerk of the Appellate Courts shall furnish a certified copy of this order to the Hon. B. Mack Bryant, Administrative Judge of the Eighteenth Judicial District, Sedgwick County Courthouse, Wichita, Kansas, and to Mr. Arthur Johnson, Clerk of the United States District Court for the District of Kansas, Federal Building, Wichita, Kansas.
IT IS FURTHER ORDERED that the costs of this action be assessed to the petitioner, Laurence S. Holmes.
Effective this 26th day of November, 1979.
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Opinion by
SimpsoN, C.:
In the month of September, 1887, the plaintiff in error, S. W. Dunn, as constable, served an order of attachment upon goods claimed- to have belonged to and to have been in the possession of John J. Davis. This order of attachment was issued by a justice of the peace of Pratt county in an action pending before him, wherein Cones, Sons & Co. were plaintiffs, and Davis was the defendant. After the levy of the order of attachment, the defendant in error, D. "W. Travis, commenced this action in replevin in the district court of Pratt county, claiming that he was the owner of a certain part of the goods seized upon by the attachment. Travis claimed twenty-three suits of clothes and five pairs of trousers, of the value of $304.80, which were included in the attachment levy, and that Dunn wrongfully detained them, and that he had demanded the delivery of them to him of Dunn, and claimed $500 as damages for their detention. A trial was had in the district court on the 26th day of April, 1888, by a jury, and a verdict was returned for Travis, “That he is entitled to the possession of said goods, and that the value thereof is $304.80, with 7 per cent, interest, and that plaintiff has sustained damages in the sum of $257.95.” A motion for a new trial was overruled, and the case is here for review.
The defendant in error claims in his brief that the record affirmatively shows that all the evidence is not contained therein, and that all the instructions are not contained therein, and they also claimed at the argument that the record does not show that the defendant in error or his attorneys had notice of the time of settling and signing the case-made, and hence that we cannot consider the errors assigned in the petition in' error.
As to the last objection, it appears from the certificate of the trial judge to the case-made, that it was settled and signed on the 23d day of December, 1888, and was attested by the clerk on the 24th day of December, 1888; that the trial was had at the April term, 1888; that the defendant was granted sixty days to make a case for the supreme court, and plaintiff was allowed thirty days to suggest amendments, and five days were allowed thereafter to settle and sign such case-made; that on the 19th day of June, 1888, and before the time first granted to make a case for the supreme court, to wit, the 27th day of June, 1888, the defendant applied for further time to make such case for the supreme court, and that on the 25th day of June, 1888, the judge of the district court of Pratt county extended said time thirty days from the 27th day of June, 1888, granting plaintiff twenty days thereafter to suggest amendments, and allowing the case-made to be settled on five days’ notice.
A motion to dismiss the case was filed and considered by the court at the May sitting in 1889. That motion was then overruled on the ground that the recitations in the record could not be controverted; but that ruling is now reconsidered and modified to the extent that questions of jurisdiction may be examined, and if it is shown that the court or the judge at chambers has made an order that neither the court or judge at chambers had the power to make, the want of jurisdiction may be shown to impeach the record. It is established beyond question now, that at the time the judge made the order extending the time for the service of the case-made and its settlement and signing, the same was made in the state of Illinois, while the judge was away from this state on a visit to that state. This order extending the time is therefore a nullity, as-it will not be seriously contended that he could make judicial orders while absent from his district. The case not having been served and settlement made within the time originally granted by the court for that purpose, we cannot review it.
It is recommended that the petition in error be dismissed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
The decision and decree of the court holding the special taxes to be illegal, and enjoining the making of any provision for their payment, is placed upon the failure of the city and its officers to make an assessment upon the property in blocks 14 and 17 for a proportion of the cost of the sewer. The other conclusions are against the defendants in error, and although they excepted to the rulings adverse to them, and asked for a new trial, they have presented no petition or cross-petition in error, asking for a review of such adverse rulings, as they might have done.
The property in blocks 14 and 17 which was omitted from the assessment is contiguous to another sewer, which, with laterals now built or that may be built, will afford adequate sewer facilities for the occupants of these blocks. The same may be said of block 18, which is in asimilar situation. The property omitted from the assessment in these blocks was not accommodated or benefited by the construction of the new sewer, and such taxes can only be imposed in proportion to the special benefits received. A part of lots 1 and 2, in block 14, which could not be reached by the sewer already constructed, and which was so subdivided as to abut on the new sewer, was benefited, and was properly assessed. It is contended, however, that no sewer district was ever created or defined by which the expense of the construction of the sewer could be placed exclusively upon the owners of the territory upon which the assessment' was made by the city council; but that if there was a distinct sewer district which might be held liable for the entire cost of the sewer, that it extended south to White Clay creek, and included blocks 14, 17, and the most of 18, as also the other property within this territory.
It appears that in 1884 a six-foot brick sewer was built from White Clay creek and Main street, northward, along the center of Fourth street, for a distance of a block and a half, and to a point twenty-nine and one-half feet south of the alley running through blocks 13 and 14, with wings extending to the ends of the alleys in said blocks, and on either side, and a lateral sewer was afterward constructed through the alley in block 14, which emptied into the brick sewer. This improvement was made at the expense of all the taxpayers of the city. The sewer in question, which was constructed' in 1889, connected with the brick sewer, and extended from the connection, northward, along the center of Fourth avenue, near to Mound street, with laterals through the alleys of the blocks on either side, thus draining the territory from Third to Fifth streets.
It is claimed that the new sewer is simply an extension of the one built in 1884, and that the entire territory between Third and Fifth streets, from White Clay creek northward to Mound street, constitutes a sewer district, and that the special taxes should be apportioned to the entire property within that district. The district court appears to have adopted the view that this territory should be treated as a distinct district, and that the exemption of the property in blocks 14 and 17 from contributing toward the cost of the sewer rendered the assessment that was made illegal.
We think this entire territory is not to be treated as a single district, and that the exemption of the property not assessed in blocks 14, 17 and 18, which is and may be accommodated by the brick sewer built prior to 1889, did not invalidate the assessment that was made. A general system of sewerage for the entire city has been adopted, and the construction of the whole at once may be impracticable and unnecessary. The fact that a sewer constructed in one district or portion of the city connects with or is an extension of another already constructed, does not make the territory drained by both a single and distinct district, nor does it require that all the property within that territory shall be assessed for the sewer last constructed. It is for the city to determine how early and rapidly the system shall be completed, and any section or extension of the system may be built whenever it is deemed necessary and expedient. When a section or extension is made, the territory drained and specially benefited by the construction of an extension or section, however small, may be regarded as a district. A lateral running through an alley of a single block, and connected with another sewer, may be constructed by the city, and the territory specially benefited will alone constitute a district upon which the entire cost of the lateral may be assessed. In this case only the property contiguous to the new sewer and specially bene-gy jj. was assesse(J for jj;S cost, To have apportioned any share of the expense to the omitted property in blocks 14 or 17, would have been palpably unjust and illegal. The owners of the lots not assessed received no benefit from the extension of the sewer, and as has been said, “only those whose property is specially benefited by the improvement can be compelled to pay such taxes. Special taxes to pay. for sewers and drains can be levied only upon the property of persons who can use such sewers and drains, and not upon persons who cannot use them. And the taxes should be apportioned in accordance with the special benefits received by each individual severally.” (Gilmore v. Hentig, 33 Kas. 167.) Even property that may be within the exterior lines or boundaries of what may be called a district, but which does not abut on the sewer, or from the topography of the ground or other cause cannot be drained or specially benefited by the sewer, cannot be specially assessed or taxed for its construction. It is not required, nor is it necessary that the boundaries of a sewer district shall be define¿ by an ordinance, and indeed the statute contemplates that sewers may be constructed by districts or otherwise. (Gen. Stat. of 1889, ¶ 563.) When a sewer system is adopted and is being built by districts, it is then important that the records shall show the territory or property assessed for any part of the sewer which is constructed, so that it shall not be again assessed for a sewer in another portion of the city. When property has paid its full proportion for a sewer in a certain territory or district, it cannot be transferred to another district, nor held liable for the construction of sewerage facilities in another district of the city. So far as the sewer in controversy is concerned, the public records sufficiently show the extent of the district, as well as the property benefited and assessed for the sewer, and no dispute can arise in the future in this regard. Under an ordinance adopted in 1888, the city of Atchison was authorized to and did enter into a contract with certain engineers to furnish the city with plans and specifications for a complete sewer system. In pursuance of this contract, maps, plans and specifications were duly prepared and furnished, which were paid for by the city. The system thus provided was adopted by the city, and the Fourth street sewer was made a separate one under the plans and system provided. These plans and specifications, together with the map made and furnished by the city engineer, and the assessment which has been made, sufficiently indicate the existence of the district and the property taxed to fully protect the tax-payers from a second assessment for the same purpose.
The further fact referred to by counsel, that a short section of the sewer was formerly built at the expense of the city, is no objection to the validity of the assessment made in this case. We might stop here, as the other points were decided against the defendants in error and they have taken no steps to obtain a review of such rulings.' It will not be improper, however, to briefly notice other of the objections to the assessment urged in the district court and somewhat discussed h.ere.
Some of the defendants in error had constructed private sewers or drains at their own expense, and they now claim that they should not be taxed for the sewer built by the city. While one of these drains was quite expensive, it is not found or stated that any of them were authorized or adopted by the city as a part of the sewer system, nor that they are suitable or adequate for the purposes intended. The legislature has conferred upon the city authorities the discretion and power to provide sewerage facilities, and for that purpose has given them control of the streets and alleys where the sewers are built. They are to determine the necessity for sewers, as well as the character and capacity of those that are required to be built. To allow property-owners to decide for themselves whether their lots needed sewerage facilities, or to permit them to provide private ditches, drains, sewers, or cesspools as they might determine to be sufficient, would be wholly impracticable and would prevent the adoption of a general sewerage system under the control of the city, as the statutes evidently contemplate. The property of ^086 w^° hac* built private sewers adjoined upon the new sewer, and we think the district court ruled correctly in holding their property liable to contribute toward the construction of the sewer.
Another objection to the assessment was, that the east half of lot 14, in block 13, was assessed, although the whole of the same was not owned by one person. It is stated that Amelia J. Otis owned the south 90 feet, while her husband, A. G. Otis, owned the north 60 feet of the half lot; and it is said that she cannot avail herself of the benefits of the sewer except by passing over the property of her husband. In ad dition to the fact that the question was not properly brought here, a sufficient answer to this objection is, that there is no recorded plat showing any subdivision of this lot, or that the frontage of the same had been changed; and it does not appear that any of the public records showed that the title to the lot was in more than one person at the time the proceedings were taken and the assessment made.
A remonstrance of a large number of the property-owners was filed with the city council before the letting of the contract for this sewer, and under the provisions of ¶ 558 of the General Statutes of 1889, it is suggested that this is a ground of objection to the assessment. The.provisions of this statute apply only to paving and macadamizing a street, and the making of assessments therefor, and is not applicable to the build-iDS of sewers. We find no statute authorizing filing or considering of such a remonstrance where sewers are about to be built. Neither the preliminary proceedings nor the mode for the apportionment of such taxes is fully prescribed by the statute; the council is therefore left to adopt such proceedings and mode of apportionment as will be fair and equitable. An examination of the proceedings, which have been set out at length in the statement of facts, leads us to agree with the conclusion of the court, that the proceedings were fair and in substantial compliance with law. The city council first adopted a resolution that the construction of the sewer was necessary, and this resolution was published. Under the direction of the city council, the'city clerk advertised for bids for the construction of the work, and the city engineer prepared plans, specifications and estimates of the work, which were filed in the office of the city clerk. Bids were received, and one made by Shaw & Downing was accepted and the contract awarded to them. The compensation for the work was to be paid by the city in cash or bonds, at the option of the city; and in pursuance of an ordinance duly enacted, the mayor and clerk entered into a contract with Shaw & Downing for the construction of the sewer. The estimate of the cost of the sewer, made by the city engineer, was $13,047.28, while the contract price was $11,-500. In pursuance of a resolution, appraisers were appointed to make an assessment of all lots and pieces of ground liable to assessment, without regard to buildings and improvements thereon, and after their appointment and qualification they proceeded to the discharge of their duties, and made a report in writing of their appraisement. This report was subsequently amended and corrected. Thereafter, and upon due notice, a board of equalization met to hear any complaints which might be made of the appraisement, and all the property-owners were given a fair opportuuity to test the fairness and validity of the valuation and assessment that were made. Quite a number of the property-owners appeared and presented objections, but these were mainly disallowed, and the report of the appraisers, with one correction, was adopted. The contractors commenced the construction of the sewer and prosecuted the work without delay, under the supervision of an inspector appointed by the city, in connection with the city engineer, and the work was completed about December 2, 1889, at a total cost of $11,516.41. All of the complaining parties knew that the sewer was being constructed, and quite a number of them connected with the sewer during its construction, and since, and are now using the same, and these legal proceedings were not begun by any of them until after the completion of the work and its acceptance by the city. It thus appears, that before the tax was made a permanent charge upon the property, the owners had full notice of the proceedings, and had an opportunity to contest the validity and the fairness of the valuations and assessments that were made.
An objection was also made that the cost of the construction of the sewer and the assessments made to pay the same included an item for the expense of engineering and superintending the construction of the sewer. The entire expense of such an improvement is to be charged to the property peculiarly benefited, and the engineering and supervision of the work are as essential as the excavations to be made, and we see no reason why the expense of the same should not be included in the assessment. (Gen. Stat. of 1889, ¶563; In re Lowden, 89 N. Y. 548; City of St. Paul v. Mullen, 27 Minn. 78; In re Tappen, 36 How. Pr. 390; The State v. Council of Elizabeth, 30 N. J. L. 365.)
The validity of the tax proceedings was assailed upon the ground that there were no funds in the treasury at-the time with which to pay for the improvements, and that no ordinance had been enacted setting aside in the city treasury the money to pay therefor; and reference is made to the 40th subdivision of ¶ 555, Gen. Stat. of 1889, and also to §3, ch. 34, of the Laws of 1883. The provisions of the statute cited, however, are not controlling. Whatever might be the rule where the improvements are to be made by a general tax levy, it is clear that the legislature has provided specifically for the construction of improvements at the expense of the abutting property, and to pay the costs thereof by installments, and that for such installments they may issue improvement bonds of the city, to run not more than ten years, nor to bear interest exceeding 7 per cent, per annum. These bonds may be issued to the contractor in payment of the improvement, and provision is made for the levying of special assessments upon the property specially benefited for the redemption of su°h bonds. This is a later act of the legislature, aDC¡ js framed upon the theory that the work shall be done upon credit and when there is no money provided or set apart for the payment of the same. (Laws of 1887, ch. 101.)
There are no other objections which we deem it necessary to notice. From an examination of the record, we are satisfied that the tax proceedings are in substantial compliance with law and should be sustained, and that the injunction prayed for should be denied.
The judgment of the district court will be reversed, and the cause remanded with directions to enter judgment on the findings in favor of the plaintiffs in error.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The present proceeding in error was instituted in this court by the First National Bank of Newton, and others, against the Wm. B. Grimes Dry Goods Company, a corporation, to reverse an. order of the district court of Harvey county, made upon a motion filed in such court by the Wm. B. Grimes Dry Goods Co., under the third subdi vision of §568 and the last clause of §575 of the civil code, for the purpose of having a judgment, formerly rendered by such court, vacated or modified so far as the same might seem to affect or interfere with any of the rights or interests of the Wm, B. Grimes Dry Goods Company. In the original action in which such judgment was rendered, Tootle, Hosea & Co. were the plaintiffs, and the First National Bank of Newton, and a great many others,- were the defendants. The petition of the plaintiffs in that action named the Wm. B. Grimes Dry Goods Co. as a defendant, but no service of summons was ever made upon the company, nor did it in fact at any time appear in the action, except at a time long after the time when such judgment was rendered, to file and prosecute the aforesaid motion. Some of the attorneys of the other parties, however, who were friendly to the Wm. B. Grimes Dry Goods Co., upon their own volition and without any authority from the dry goods company, made an appearance for the company and filed an answer for it, and also on the trial attempted to introduce evidence to prove its case; but counsel representing the First National Bank of Newton and others objected to the introduction of any such evidence, for the reason, among others, that another suit was pending in the same court in which such matters should be litigated; and the court for that reason sustained the objection, and the aforesaid attorneys appearing for the Wm. B. Grimes Dry Goods Co. were not permitted to litigate or protect its alleged rights or interests at that time nor in that action. Afterward the court rendered a judgment in the action, but it did not at that time have, and never had, any intention to render any judgment that would in any manner or degree affect any of the rights or interests of the Wm. B. Grimes Dry Goods Co., but always intended otherwise; but after the decision of the court, counsel for the First National Bank of Newton and others drew up the form of the judgment which they desired-to have entered, and the court, believing that it did not in any manner affect or interfere with any of the rights or interests of the Wm. B. Grimes Dry Goods Co., permitted it to be entered. This form of judgment, however, if permitted to remain, would, it is now believed, contrary to the intention of the court, seriously and materially affect the rights and interests of the Wm. B. Grimes Dry Goods Company, but the judgment as entered is not only irregular for the reason that it did not and does not express the real intention of the court, but it is also absolutely void as against the Wm. B. Grimes Dry Goods Co., for the reason that such company was never a real party to the action. The attorneys who appeared for the Wm. B. Grimes Dry Goods Co. in that action had no authority from the company to make any such appearance, or to file any answer, or to do anything else for the company in that action; and the company never ratified' or confirmed any of the acts of such attorneys. The judgment was rendered on February 6, 1889.
On February 17,1890, the Wm. B. Grimes Dry Goods Co. instituted proceedings in the said district court to vacate or modify the judgment so that it would not in any manner affect, or seem to affect, any of the rights or interests of the company. Such proceedings were instituted upon the aforesaid motion filed by the company in the district court, with proper notice thereof given to the adverse parties or to their attorneys. The motion was founded upon the third subdivision of § 568 of the civil code, which provides, among other things, for vacating or modifying judgments or orders “for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order;” and also upon the last clause of §575 of the civil code, which reads as follows: “A void judgment may be vacated at any time, on motion of a party, or any person affected thereby.” And the motion was also filed and notice given upon the authority of § 569 of the civil code, which reads, so far as it is necessary to quote it, as follows:
“The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action.”
See also generally, as to the notice required to be given of the hearing of motions, § 535 of the civil code. At the hearing of the motion a great many objections were urged by counsel for the First National Bank of Newton and others, but it will be necessary to mention only a very few of them.
The court below in effect found that sufficient notice had been given to every “adverse party or his attorney in the action ; ” that is, to every party or his attorney who really Had had any interest in the case adverse to the Wm. B. Grimes Dry Goods Company; and in our opinion the finding of the court below was correct. It is not necessary that a proceeding to vacate or modify a judgment in a case like the present should be by petition; but it may be upon motion; and it is not necessary that the motion should be J filed at the same term at which the judgment was rendered, but it may be filed afterward and at any time within three years after the judgment was rendered, (Civil Code, § 575,) and even at a later period of time, if the judgment should be considered as absolutely void. (Foreman v. Carter, 9 Kas. 674; Hanson v. Wolcott, 19 id. 207; Tobie v. Comm’rs of Brown Co., 20 id. 14.) And a service of the notice upon the adverse party’s attorney is certainly sufficient, for the statute itself so provides. (Civil Code, §§ 535, 569.) And.where the attorney has been the attorney of record in the action of the adverse party, it can certainly make no difference that the attorney may not at the time of the service of the notice be the attorney of the adverse party unless the party making the motion knew that fact. And possibly even knowledge of that fact would not make any difference unless the adverse party should have designated some other attorney or person equally accessible upon whom the service could be made. All that the statute requires is, that the attorney shall be the adverse party’s “attorney of record,” (Civil Code, §535), or “his attorney in the action,” (Civil Code, §569.) We would also think that service upon the adverse party or his attorney “of record’? or “in the action” might be made through the United States mails; though it is probably not necessary to decide this question in this case. Under the facts of this case, about the only party interested in preventing the Wm. B. Grimes Dry Goods Company from having the judgment vacated or modified as such company desired, was and is the First National Bank of Newton; and there can be no question but that the bank had ample notice. And it and all or nearly all the other parties were present at the hearing of the motion. The bank, with some of the other parties, urge another objection which we might perhaps mention. It is this: The notice states that the motion will be heard before the district court on February 27, 1890, “or as soon thereafter as the same can be heard by said court.” The notice was not served on some of the parties until after February 27, 1890, but it was served long before the hearing of the motion, which was on March 24, 1890, and the First National Bank of Newton was present at the hearing by its attorneys, and so were all or nearly all the other parties. The judgment, however, as we think, was absolutely void as against the Wm. B. Grimes Dry Goods Company, and therefore it was not necessary that all the adverse parties should have notice or be present, but only those against whom the Wm. B. Grimes Dry Goods Company might desire to have the judgment declared void as entered. The findings of the court below gjjow that the judgment as entered was absolutely void as against the Wm. B. Grimes Dry Goods Company. The court below made the following finding, among others, to wit:
“That no summons in this action was ever served on the defendant Wm. B. Grimes Dry Goods Company; that the act of the attorneys, Bowman & Bucher, and of E. C. Ellis, and of J. D. Henry, in appearing on behalf of the defendant Wm. B. Grimes Dry Goods Company, and filing the various pleadings on its behalf in this action, to have been wholly unauthorized by said defendant, and that said defendant has never ratified or confirmed said acts other than by this motion.”
And certainly the defendant did not by this motion ratify or confirm any of the aforesaid acts of the attorneys so as to render the previously void judgment valid. (Shaw v. Rowland, 32 Kas. 154; Green v. Green, 42 id. 654, 657.) It is true the motion stated all the facts of the case, giving a complete history of the case up to the filing of the motion, but the object of the motion was simply to have the judgment as entered so modified that it would not affect or seemingly affect any of the rights or interests of the ¥m. B. Grimes Dry Goods Company. It was virtually and in effect an application to have the judgment as entered declared void as against the ¥m. B. Grimes Dry Goods Company, and certainly an application to have a void judgment declared void would not render such iudgment valid. The court . # ° corrected the judgment, or rather the entry thereof, as desired by the Wm. B. Grimes Dry Goods Company, and so modified it that it does not now affect or seemingly affect any of such company’s rights or interests, but with this exception ; and as to all the other parties and the other matters, the judgment remains precisely the same as the original entry thereof made it appear to be. With this modification it is now precisely as it was originally intended to be, and as it was in fact rendered by the trial court, although it is not the same as it was originally entered upon the records of the court.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
StraNG, C.:
March 8, 1887, the plaintiff in error issued its policy of insurance to the defendant in error, promising therein to indemnify him against loss or damage by cyclone in the sum of $1,300, upon his stone dwelling-house and household effects therein. April 21, 1887, the neighborhood of the defendant in error was visited by a heavy wind storm, cyclonic in its character, which struck and severely wrecked his house, and also destroyed some of his household goods therein, resulting in a loss to him, as he alleges, of $1,040 — $1,000 on his dwelling-house and $40 on his goods. On the same day he notified the insurance company of his loss by the storm. May 31, 1887, he made and sent to the company proof of his loss. A few days after the storm, Odell and Forward, agents of the company, visited the premises and looked them over. Afterward there was some talk between the defendant in error and the agents of the plaintiff in error about arbitrating the matter, but no arbitration was ever had. January 2, 1888, Wilson began his action in the district court of Linn county. January 12th the insurance company filed its answer challenging the amount of loss sustained by Wilson, and pleading that by the terms of their policy they had a right to arbitrate the difference between the company and Wilson; that the company had demanded arbitration and Wilson had refused to join therein, and claiming that, as Wilson had refused to arbitrate, he could not maintain his action. The company also claimed an offset in the form of a premium note given by Wilson to the company for $52, and which, they allege, had never been paid. January 22,1888, a reply was filed confessing the off set and averring that the plaintiff below was ready and willing to arbitrate, bat that the insurance company had refused to submit to arbitration. The case was tried by the court and a jury April 5, 1888. The jury returned a verdict for the plaintiff below, assessing his damages at $838.95. A motion for a new trial was’overruled, and time given to make a case for this court.
As we view the record, there is but one question for this court to determine. The alleged error in the assessment of the amount of damages hardly rises to the dignity of a question, under the oft-repeated decisions of this court, and the evidence in the case. There is certainly evidence to support the finding of the jury in the sum returned by them. Some of the witnesses fixed the amount of damages suffered by Wilson at much more than the amount returned by the jury. The trial court approved the verdict. The real question is, Was Wilson estopped from maintaining his action by any refusal of his to submit the question of the amount of his loss to arbitration, or by failure to submit to the company proper proof of loss ? The policy upon which this action is founded requires that the insured shall give the company notice in writing of his loss, in case loss occurs, within fifteen days, and that he make and transmit to the company his proof of loss within sixty days after it occurs. In this case the defendant gave the agents of the company notice the next day after the storm, and forty days thereafter made and sent the company proof of his loss. There is no complaint of want of notice of the loss within fifteen days, and actual notice was given the next day after the storm.
Plaintiff in error does complain of the sufficiency of the proof of loss. As the proof of loss was made and sent to the company May 31, 1887, twenty days before the expiration of the period of time fixed in the policy during which it must be made, and the company held it without making any objection thereto until the 29th of July, 1887, and until long after the time as fixed in the policy for making the proof of loss had expired, it is estopped from making any complaint now. (98 Pa. St. 627; 67 Ga. 14; 67 id. 661; 132 Mass. 489; 54 Cal. 442; 28 Wis. 472; 31 id. 160; 52 Me. 492; 60 Ill. 465; 43 Barb. 351; 16 Wend. 85; 11 Mo. 278; 91 U. S. 238.) The arbitration clause of the policy reads as follows:
“Differences of opinion arising between the parties hereto as to the amount of loss or damage may be settled by arbitration; each party to select one arbitrator, and in case of disagreement, they to select a third, and their award in writing, under oath, shall be binding as to the amount of loss, the cost of said arbitration to be borne by the parties hereto equally.”
There is nothing in the above provision to render the arbitration proceeding a condition precedent to the maintenance of an action on. the policy for loss sustained under it. (79 Pa. St. 478; 138 Mass. 572; 67 Iowa, 272; 54 Wis. 418; 30 N. W. Rep. 350; 4 McCrary, 125.) The language provision quoted allows arbitration, but leaves it optional with the parties to the contract, and it therefore follows, that either may decline arbitration. (2 Wood, Ins. 1014, 1015.)
Counsel argues that the following provision renders the arbitration clause absolute and binding upon the parties, and also makes it a condition precedent:
“And it is hereby mutually underslood and agreed by and between this company and the assured, that this policy is made and accepted upon and with reference to the foregoing terms, conditions, stipulations and restrictions, all of which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise especially provided for in writing.”
This provision adds nothing to the one in relation to arbitration. It simply refers to all preceding “terms, conditions, stipulations and restrictions,” and declares they are to be used and resorted to to determine the rights and obligations of the parties to the policy. It can hardly be claimed that this very ‘ general provision at the end of the policy, changes any of the preceding terms, conditions, stipulations, and restrictions of the policy, rendering an optional provision absolute and im perative. It would require a much more definite provision than this one to oust the jurisdiction of the courts. But the contention of the plaintiff in error has been settled against it by frequent decisions of the courts of this country. (Nurney v. Fireman’s Fund Ins. Co., Mich., 30 N. W. Rep. 350, and cases there cited.) There being nothing in the policy requiring arbitration as a condition precedent to the maintenance of an action thereon by the plaintiff below, it follows that the trial court did not err in holding that evidence in relation to arbitration was irrelevant and therefore incompetent, nor in taking such evidence from the jury.
There is one other phase of the question to which our attention is called. The evidence shows that the defendant in error, very soon after the injury to his property, notified the plaintiff in error that he wanted to arbitrate the question of' damages, and was informe^ by Odell, agent of the company, that he did not have time then to attend to it; that some days after he notified Forward, agent of the company, that he wanted to arbitrate, who said in reply, he’d “ be d-d if he would arbitrate;” and added, “You may sue if you want to.” If the arbitration provision in the policy in this case required arbitration as a condition precedent, the reply of Forward to Wilson’s demand for arbitration, would . . . . amount to a waiver of the arbitration provision. When, in response to Wilson’s demand for arbitration, the company, by its agent, refused to arbitrate, it was estopped from calling on Wilson subsequently to arbitrate, and estopped from claiming any right of arbitration thereafter. The company could not decline arbitration when demanded by Wilson, and still hold him to it. The company having declined arbitration, Wilson would have the right to bring suit at once.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
T. E. Griffith was convicted under § 90 of the crimes act of embezzling a certain inventory of household goods and furniture. The information on which he was convicted alleged that—
“On the 22d day of August, 1889, in Finney county and state of Kansas, one T. E. Griffith did then and there unlawfully and feloniously embezzle and convert to his own use, and did then and there unlawfully make way with and secrete, with intent to embezzle and convert to his own use, the following property of one Simpson W. Day, then and there being, which property had been prior thereto delivered to him, the said T. E. Griffith, as bailee, said property being an inventory of household goods and kitchen furniture.”
After giving a copy of the inventory, it is alleged that it was of special value to Day, and the reasons therefor are set out. The money value of the property is alleged to be $100. Nothing is stated in the information as to the character or circumstances of the bailment, why, or by whom it was delivered to the defendant, or anything indicating the special purpose for which it was placed in his hands, or the conditions upon which he was expected to hold,' dispose of or return it. The sufficiency of the information in this respect was raised early in the prosecution by a motion to quash, but the motion was overruled.
The charge against the defendant should have stated the principal facts and circumstances constituting the bailment, and the acts of the defendant that were inconsistent with the trust confided to him. It is necessary at the trial that proof of these facts should be made, and the information should contain the essential facts to be proved, and whatever is necessary to put the defendant on notice of that with which he is charged and of which he is to be convicted. The mere allegation that he was a bailee is too general and indefinite, and does not fairly inform the defendant of the nature and cause of the accusation made against him. The”information should state who placed the proper!'n the hands of the defendant, the purpose or use to which’ 1; was to be applied, and the time within which this purpose was to be carried out, or the time within which the property was to be returned. The details need not be set out with unnecessary particularity, but the defendant should so far as is reasonably practicable be informed by the information of the precise nature of the charge made against him. Was the inventory given to him for safe - keeping for a stated period, and had that time elapsed before he actually returned it? Was it given to him to accomplish a purpose of his own, or to accomplish some purpose of Day’s, and was the purpose effected when the prosecution was begun? Was it entrusted to him to deliver to another upon the happening.of a certain contingency? And has that contingency happened? Was it given to him in pursuance of some agreement for his own or Day’s use? And if so, is he not entitled to know what the agreement was, and wherein he has violated it? Bailments are so numerous and various in their character that one charged with a violation of his contract and his trust, and of a misapplication and embezzlement of property, should be informed of the object of the trust as claimed by the prosecution, and wherein he has failed to conform to that object. In the present case, the charge does not even state the name of the person from whom the inventory was received. It has generally been held under similar statutes that the indictment, or information, should not merely state the bailment or trust, but should aver the facts and circumstances which made the case embezzlement; and it is also necessary to state the purpose for which the defendant was entrusted with the property. (The People v. Cohen, 8 Cal. 42; The People v. Poggi, 19 id. 600; The People v. Peterson, 9 id. 313; Commonwealth v. Smart, 6 Gray, 15; The State v. Grisham, 90 Mo. 163; Gaddy v. The State, 8 Tex. App. 127; The State v. Mims, 26 Minn. 191; Whart. Cr. Law, § 1061.)
One author doubts the necessity of alleging the character of the bailment, but he cites no contrary decisions. (Bishop, Stat. Cr., §422.)
We think the information was fatally defective, and hence the judgment of the district court must be reversed and a new trial granted.
Horton, C. J., concurring.
VALENTINE, J.:
With grave doubts, I concur. The defendant was prosecuted upon an information which was not filed until after he had had a preliminary examination. In addition to Bishop, Stat. Cr., § 422, see, also, 6 Am. & Eng. Encyc. of Law, 498e, which cites People v. Hill, 3 Utah, 334; same case, 3 Pac. Rep. 75.
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action to recover for injuries received' by L. C. Walsh while a passenger on one of the trains of the Southern Kansas Railway Company en route from Moline to Independence. The train was derailed between the points mentioned, and he alleged in his petition that the track of the railroad between the points named was out of repair and dangerous for travel; that the company willfully and wantonly permitted the rails to become battered and worn, the cross-ties rotten and unfit for use, and negligently failed to use a proper quantity and quality of ballast on the track; and that on February 14, 1887, when the de railment occurred, tbe road was utterly unsafe and unfit for use. He avers that, as a result of this condition, the train was thrown from the track’ when running at a high rate of speed, and he was injured as follows:
“Severe wound on left side of the head, laying open the scalp for two inches in length, cutting through to the bone; also severe contused injury of left shoulder, and to the entire scapular region of the left shoulder, tearing the scapula from its muscular attachments, and tilting it forward; and also causing a separation of the first, second and third ribs from their sternal attachment; also causing a separation of the clavicle from its sternal attachment, throwing it forward and upward, permanently dislocating the said clavicle; also a severe contusion of the left lung, causing spitting and coughing of blood; also bruises in face and over various parts of the body.”
A verdict was rendered in favor of Walsh, in which the jury assessed his damages at $5,246.
It is first insisted that? the evidence was insufficient to sustain the verdict rendered, or to show any liability whatever on the part of the company. It appears that on February 14, 1887, Walsh purchased a ticket at Moline for a passage from that point over the Southern Kansas Railway to Independence, paying therefor the sum of $1.10. The train was behind time, and when it arrived at Moline he entered one of the coaches, seated himself, and proceeded on his journey until they reached a point about two miles east of Longton, where the train was derailed. Some of the coaches were overturned down an embankment and Walsh was severely injured. There is testimony tending to show that the track was in bad condition where the accident occurred; that the ties were unsound and not properly ballasted. It is shown and conceded that the immediate cause of the derailment was the breaking of a rail. It had been put in the track only two days before to replace one which had also been broken at the same place. The company contends that an examination of the broken place disclosed'no flaws or defects which could have been detected by the exercise of the utmost caution and foresight, and that therefore the accident was fortuitous and unavoidable, for which it should not and could not be held liable. On the other side it is contended, that although there were no apparent flaws or cracks in the rail, that it was broken because it was not sufficiently supported by ties and ballast. Upon this question there is a sharp conflict in the testimony. The section-men who put in the rail two days before the occurrence of the wreck testified that the rail was placed on a solid bearing; that ties were placed under the end of the rail which broke off, and that soil and ballast were tamped about the ties so as to make the track solid and secure. On the other hand, there is positive testimony offered by Walsh that the rail which broke extended about two feet over a cattle-guard, the frame work of which was solid, and that the end which projected beyond the cattle-guard was spiked to ties, but that the ties were drawn or lifted from the ground at one end about six inches, and that the soil and ballast were not filled in and tamped under and about than. If the track was in this condition, it was dangerous and unfit for use, and this defect would fairly account for the breaking of the rail_ and the wreck of the train. In view of this testimony, and the finding of the jury that the section-men did not fill the space between the tie and the ground, but left the end of the rail with the ties attached suspended several inches from the ground, and that the ties at the place of the accident were unsound, we cannot say that the verdict is without support.
The company is not an insurer of its passengers nor liable for injuries resulting from unavoidable accident in the operation of passenger trains; but there is testimony tending to show a great lack of care in providing a safe road-bed and track, and “if the defendant could have prevented the accident by the utmost human sagacity or foresight with respect to their track, then the defendant is liable.” (Railroad Co. v. Hand, 7 Kas. 392.)
It is also contended that there was error in permitting testimony to be offered by Walsh in regard to the condition of the track at other points than where the wreck occurred. Of course, testimony of defects which did not cause the derailment nor contribuute to the injury was not admissible. An examination of the record indicates that the purpose of the court was to confine the testimony to the condition of the track in the immediate vicinity of the place and near to thé time where and when the train was derailed. The inquiry as to the condition of the company’s track was considerably extended by both parties, aud in many cases without objection, for the purpose of determining the real cause of the wreck; but as the trial proceeded, it soon became evident to all that the breaking of the rail caused the derailment of the cars, and the findings of the jury showed that they attributed the accident to this cause; and, looking at the testimony and , ° * findings together, we see nothing substantial in any of the objections to the admission of evidence.
Complaint is also made that the court erred in refusing to submit three special questions which were asked. No error was committed in this respect. A long list of particular questions was submitted and answered, and, so far as any facts inquired about in those refused were proper and material, they were covered by the questions that were submitted and answered. The principal question refused was: “ Could any reasonable and ordinary foresight have anticipated the breaking of. the iron rail after it had been left in the track by the workmen?” In the first place, the question'is somewhat general, while only particular questions of fact are required to be submitted ; and the question of how general or how particular the question of fact to be submitted to a jury -*■ o j in any particular case should be, rests very largely in the sound judicial discretion of the trial court. (Foster v. Turner, 31 Kas. 62.) Then, again, as we have seen, the company owes a higher duty to its passengers than mere ordinary care and foresight in the construction and maintenance of its tracks. It must use the most exact diligence, and is answerable for any negligence, however slight. It is bound to exercise the highest degree of practicable care; not the utmost possible precaution that might be imagined, but the highest care and best precaution known to practical use, and which are consistent with the mode of transportation adopted. (Railroad Co. v. Hand, supra; 2 Wood’s Rly. Law, 1088.)
There is also complaint that the court erred in the instructions given to the jury. The charge was very elaborate, calling attention to some of the evidence, and it is claimed that in doing so the court indicated its opinion of the facts, and improperly influenced the jury. A reading of the entire charge satisfies us that the court expressed no opinion on the facts, and that the company was not prejudiced by the course taken. The trial judge simply called attention in a general way to the theories advanced by the respective parties, and the testimony offered in support of their theories, without indicating his view on any disputed point in the testimony. Besides, he repeatedly stated to the jury that he did not intend to express any opinion on the facts, and told them that they were the exclusive judges of the facts 'established by the evidence in the case, the credibility of the witnesses, and the weight to be given to the testimony of each.
Special objection is taken to an instruction, a portion of which reads as follows: “ I may likewise say to you there is still another rule applicable to this case: That if you find from the evidence in this case that the plaintiff in this action was free from fault and was injured, then the law presumes negligence on the part of the defendant.” It is contended that this instruction was erroneous and misleading, and permitted the jury to find the company guilty of negligence and liable therefor, on the mere evidence that the plaintiff was injured. It is conceded that if the court had added to this instruction, that if the jury found that Walsh was a passenger on the train of the company, and was injured on account of a defect in the track or some of the appliances of the road or its machinery, then the presumption of negligence would arise; but as injuries frequently happen without any fault or misconduct on the part of the company or its employés, that therefore the instruction was erroneous and prejudicial. The instruction complained of is not to be taken by itself and without reference to the other portions of the charge in which it is found. The court expressly stated to the jury that the burden rested on the plaintiff to show that the injury resulted from the negligence of the company, and that negligence could not be presumed. The part of the charge criticised referred to the presumption which arises where a collision between railway trains occurs, or where' a train is derailed and passengers thereon are injured. It is well set-by the authorities, that in such cases a prima fade presumption of negligence on the part of the railroad company arises, which throws the onus upon the company of disproving a want of care on its part. Proof of the occurrence of the accident and the extent of the passenger’s injury makes a prima fade case in his favor; but this may be overthrown by showing that the injury resulted from inevitable accident, or something against which no human prudence or foresight on the part of the company could provide. (Breen v. Railroad Co., 109 N. Y. 297; Railway Co. v. Napheys, 90 Pa. St. 133; Stokes v. Saltonstall, 13 Pet. 190; Railroad Co. v. Pollard, 22 Wall. 341; Smith v. Railroad Co., 32 Minn. 1; Railroad Co. v. Anderson, 6 Am. & Eng. Rld. Cases, 407; Hipsley v. Railroad Co., 27 id. 287; Railroad Co. v. Walrath, 38 Ohio St. 461; Bowen v. Railroad Co., 18 N. Y. 408; Feital v. Railway Co., 109 Mass. 398; Railway Co. v. Findley, 76 Ga. 311; 2 Wood’s Rly. Law, 1096; Patterson, Rly. Acc. Law, 438, and cases cited.)
The instruction complained of should have required a finding by the jury that the injury resulted from the derailment; but this fact was not disputed, and as the derailment is conceded to have been caused by a broken rail in the track of the company, the omission is unimportant. In other portions of the charge, the jury are advised that if the derailment was an inevitable accident, and not the fault of the company, the law will hold it blameless and free from liability. The degree of care required of the company and of Walsh, and the rules of law applicable to the ease under the evidence that was given, were fairly stated, and we find nothing in the charge which requires a reversal.
One other objection remains, and that is, that the damages ■-awarded are excessive. Only compensatory damages were allowed, and the amount of the allowance — $5,246 — was'itemized by the jury as follows:
“For suffering in the past, $1,000; for suffering in the future, $1,000; for inability to perform physical labor, $3,000; for physician’s bills, $150; for board and lodging, $42; for loss of time, 18 days at $3 per day, $54.”
While it appears to us that the amount awarded is liberal, we cannot say that the jury acted corruptly, or under the influence of passion, pártiality, or prejudice. At the time of the accident, Walsh was 31 years of age, in excellent health, and held the position of United States pension examiner, the compensation of which was about $2,500 per year. Dr. Mc-Culley, who examined him shortly after the injury occurred, found a wound on the back of his head, two inches in length and half an inch deep; a fracture of the clavicle bone near the middle breast-bone; a complete fracture of the first, second and third ribs; the scapula was thrown out of its natural position, and one of the large muscles which held the scapula was torn from its attachment; the pleura which surrounds one of the lungs was ruptured; and he also found' a continual coughing and an occasional coughing up of blood. On a subsequent examination, shortly before the trial, the same witness stated that he found a vesicular condition of the lungs and inability to expire air, and that it was his opinion that his ability for labor was greatly impaired, and perhaps to the extent of one-half; that the effect of his injury would be to render him liable to attacks of asthma and diseases of the lungs, and to shorten his life. Dr. Masterson, one of the surgeons of the railway company, examined Walsh shortly after his injury and discovered the same fractures and injuries that were found by Dr. McCulley. He also found that there was an emphysematous condition of the lungs, and that the upper lobe of the left lung was injured. There was also a cough and bloody expectoration; that on account of a rupture of the lung tissue the air escaped and passed through the pleura of the lung into the cellular tissues. On another examination, shortly before the trial, he found that there was a dilation of the air-vessels and enlarged condition of the terminal ends of the bronchial tubes, and that, in his opinion, Walsh would never fully recover from the effects of the injuries. Another physician who examined him stated that the effect of the injury would be to weaken his lungs, shorten his life, and occasion him pain and suffering. Walsh testified that he had suffered great pain from the injuries until the wounds were healed and the bones united; that the injuries had greatly affected his general health; that he had continuous pain in the region of his kidneys, a bloody discharge with his urine, a continuous cough with pain in the lungs; that his powers of endurance were greatly lessened and his ability to perform manual or mental labor was not more'than one-half of what it was prior to the injury. The testimony shows that the injury, which has already caused Walsh great pain and suffering, is of a permanent character; that it greatly impairs his ability for labor, will subject him to discomfort and pain during the future, and render him less able to resist or recover from other diseases hereafter. In view of the age, former good health and earning capacity of Walsh, and his condition as shown by the testimony referred ^ n0£ fee¡ warranted in interfering with the verdict upon the ground that the award of damages is excessive.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The Kansas, Nebraska & Dakota Railway Company commenced its action in the district court of Anderson county to perpetually enjoin the defendants, J. T. Harvey and George E. Harvey and another, from prosecuting certain condemnation proceedings already instituted by them and pending in that court. A temporary injunction was also prayed for, and the question whether a temporary injunction .should be allowed or not was heard before the court, and the temporary injunction was granted, restraining the Harveys from further prosecuting their condemnation proceedings until the final hearing in the injunction case should be had; and to reverse this order of the district court granting the temporary injunction, the Harveys, as plaintiffs in error, bring the case to this court.
It appears that prior to the construction of the railway and on April 8, 1886, the Harveys, for the consideration of $1 and other benefits, entered into a written' contract with the railway company to grant and finally to convey to it by a proper deed the right-of-way across their land; and they permitted the railway company to take the immediate possession of such right-of-way under such contract and to construct thereon its railway. This contract contains the following clause:
“The condition upon which said right-of-way is granted is, that the railway company shall erect and maintain a passenger depot, with proper side-tracks and stock yards sufficient to do the business there offered, at a point on the east half of the northwest quarter of 17-22-21, in Anderson county, Kansas.”
The record shows that the second word in the above clause is “condition,” but it seems to be admitted by the parties that the word in the contract itself is “consideration.” It seems to be admitted by the parties that the railway company has constructed its railway across the defendants’ land, and that it has erected and is maintaining a passenger depot and a side-track and stock yards; but the Harveys claim that they are not sufficient for the business offered at that point, and that they have not been continuously maintained; and indeed that the extra track there constructed is not a “sidetrack” at all, but is merely a “spur track,” and this for the reason that it is connected with the main track only at one end. It is between three and four hundred feet long. The railway company, however, claims -that it has substantially at least, if not fully and completely, complied with all the conditions of the contract. It would seem, under such circumstances, that condemnation proceedings under the statutes would hardly be the proper remedy. (K. P. Rly. Co. v. Hopkins, 18 Kas. 494.) In such proceedings the Harveys would recover damages precisely the same as though no contract had ever been entered into between the parties, and as though no side-track or depot or stock yards had ever been constructed or maintained. This would seem wrong. Must the company lose all? If the Harveys can maintain ordinary condemnation proceedings, they would have the right, if they should so choose, to maintain an action in the nature of ejectment to evict the railway company entirely from their premises. Would this be right? It would seem that a more proper remedy for the Harveys, if they think that the railway company has not fully performed its part of the contract, would be to commence an action to compel the company to so perform, or to commence an action for damages for its failure to perform, or to commence an action to have a forfeiture declared. In an ordinary action for damages the Harveys could recover exact compensation for all the losses which they may have sustained by reason of any non-fulfillment on the part of the railway company of any of the provisions of the contract which the railway company should perform. This would seem to be just, while, if they are permitted to maintain their condemnation proceedings and to obtain full compensation as though no depot or side-track or stock ■ yards had ever been constructed or maintained, it would seem to permit them to do a great injustice to the railway company. But we shall not decide this case upon its merits, as it has not been brought to this court in such a condition that we can do so. The only question for us now to consider is, whether the temporary injunction was properly granted or not. It was granted to remain in force only until the case should be finally heard and determined upon its merits in the district court; and we think it was properly granted. There seems to have been an honest difference of opinion and an honest dispute between the parties as to whether the conditions of the contract had been fully complied with or not on the part of the railway company, and if not complied with, then as to how great the failure on the part of the railway company was; and certainly under such circumstances condemnation proceedings should not be prosecuted prior to the final determination in the district court, as to just what had been done or omitted to be done by the railway company. (St. Jos. & D. C. Rld. Co. v. Dryden, 11 Kas. 186.)
We think the temporary injunction was properly granted, and the order of the court below granting the same will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
JohkstoN, J.:
This was an appeal from an award made by commissioners appointed at the instance of the railway company to condemn lands of the defendants in error taken as a right-of-way for a railroad. In the district court the amount of the award was increased, and the railway company complains of the rulings and result of that trial. There are numerous errors assigned, but we find nothing substantial in any of them. It is insisted at length that the court erred in excluding from the consideration of the jury all benefits accruing to the land-owners by reason of the establishment of the road. It is conceded that, under the constitutional provision ordaining that full compensation shall be made to the land-owner without regard to benefits, neither general nor special benefits can be deducted from the value of the land actually taken. But it is contended that this restriction does not extend to the residue of the land; and as to that, the special benefits resulting from the construction of the road may be set off against the damages, and that the measure of damages done to the remainder of the land is its value after deducting benefits. This particular question has recently received the consideration of the court, and it determined that no benefit resulting from the construction of the road could be considered or deducted from the damages sustained by the land-owner. (Rld. Co. v. Ross, 40 Kas. 598.)
Complaint is made of several rulings of the court in, sustaining objections to questions asked upon cross-examination. It came out during the trial that the defendants in error had offered to give a strip of land through their property for the purposes of a public street, upon certain conditions, and inquiries were made of several witnesses in regard to the condi tions of the proposal and the reason for its non-acceptance. In most cases the objections to the questions were properly sustained, because they were not proper on cross-examination. It is difficult to see the importance or materiality of such testimony, as it appears that the land was not given for a street, but still remained the property of the defendants in error when the condemnation proceedings were had. And if there was any materiality in the testimony, it was subsequently fully developed by W. A. Simpson, who testified in behalf of the defendants in error as to the proposal with all its conditions.
The court also excluded testimony in regard to the action of some of the defendants in error in having the property stricken from the tax-roll upon the theory that it was a public street. As the land was not a public street, but belonged to the defendants in error, their action in that regard would not prevent them from recovering the value of their land appropriated by the railroad, and any damage done to the same. The court made no mistake in excluding the testimony.
Some of the questions asked upon cross-examination in regard to statements made to officers of the railroad company respecting the street might properly have been answered, but they are not sufficiently material to warrant us in disturbing the judgment.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StraNG, C.:
August 2, 1887, the defendant contracted to sell and deliver to the plaintiff at Dodge City, Kansas, all the corn he then owned, at 80 cents per hundred pounds. The said corn was in crib at Stafford, Kansas, and amounted to 5,091 bushels, or 285,096 pounds. The jury found that the corn was to be delivered in a reasonable time. On the same day, August 2, after the contract was completed between the parties, the defendant wrote a letter to the plaintiff at Dodge City, which was received there on the 3d, notifying it, the plaintiff, that he would not deliver the corn at 80 cents per hundred pounds, but said he would deliver it at 85 cents per hundred. And on the next day, August 3, the defendant wrote the plaintiff at Dodge City, that he would not deliver the corn at 85 cents, which letter was received by plaintiff August 4. On August 3, corn was worth 80 to 85 cents per hundred at Dodge City. August 8, it was worth $1 per hundred, and continued at that price until the 1st of September, when it went to $1.15.
At the September term, 1888, the case was tried by a jury, which gave a verdict for the plaintiff for $153.31. The plaintiff filed a motion for a new trial, which was overruled.
The only question in the case is, What is the proper measure of damages? The plaintiff claimed the measure of damages was the difference between the contract price, and the price of corn at the time and place of delivery, and asked the court to so charge the jury. The court refused to charge the jury as requested, and instructed them that the measure of damages was the difference between the contract price, and the price of the corn at Dodge City at the time the defendant notified the plaintiff that he would not deliver the corn. This instruction and the refusal of the court to grant a new trial are complained of as error.
It is well settled that the general rule for the measure of damages, in cases like this, is the difference between the contract price and the market value of the article purchased, at the time and place of delivery. (Stewart v. Power, 12 Kas. 596; Gray v. Hall, 29 id. 704. Where the buyer refuses to accept the goods purchased, Benjamin on Sales, lays down the rule as follows:
“SECTION 1118. The date at which the contract is considered to have been broken, is that at which the goods were to have been delivered, not that at which the buyer may give notice that he intends to break the contract, and to refuse accepting the goods.” (5 M. & W. 475; 96 Ill. 13; 108 id. 170.)
We do not find the exact converse of this rule stated in Benjamin. But we know of no reason why it should not be equally the law. “The same doctrine prevails in cases where the contract is to be performed on a certain day, and before that time the vendor declines to carry out the contract.” (Wood, Mayne, Dam. §205; 8 Taunt. 540; 5 M. & W., 476.)
“The time of delivery, and not the time when the seller gives notice that he intends to break the contract, is the rule. Thus, where the defendants renounced a contract for the delivery of iron rails, it was held that the time when the contract was to be considered as broken, was at the time of delivery.” ( Windmuller v. Pope, 107 N. Y. 674, 14 N. E. Rep. 436.)
“If the vendor puts it out of his power to comply with his contract, by a sale of a portion of the goods to another, before the time stipulated for the delivery, the vendee is entitled to the difference between the contract price, and the market price of all the goods purchased at the time and place of delivery.” (Field, Dam. § 247; Crist v. Armour, 34 Barb. 378.)
“In the absence of any evidence on the part of the defendants, that the plaintiffs could have gone into the market and obtained another similar contract on such terms as would mitigate their loss, the measure of damages was the sum of the difference between the contract price, and the market price at the period of delivery.” (Benj. Sales, § 1333.)
“As to the effect of breach of contract of sales, when the bargain was for delivery by installments, it is held that in the absence of any evidence on the part of the defaulting seller, that the buyer could have gone into the market and obtained another similar contract on such terms as would mitigate the loss, the measure of the damages is the sum of the difference between the contract price and the market price at the several periods of delivery.” (5 Wait, Act. & Def. 622; 3 Eng. R. 429; 6 id. 689, there cited.)
The rule of the last two citations requires the defaulting seller, if he wishes to take his case out of the general rule as to damages, as above stated, to show by proof that the vendee could have gone into the market and purchased' the goods he wanted without loss. This seems to be a very proper rule. The goods purchased may be of a kind not readily found in the market; but if they may be had in the market, it would seem to be more in accord with fairness to require the defaulting seller to prove that the goods could readily have been procured in the market without loss to the vendee, than to require the vendee to show that he could not obtain the goods in the market.
In the case at bar, if the plaintiff could not have obtained the amount of corn purchased of the defendant, in the market, and thus saved itself from partial or total loss from defendant’s default, it would be entitled to damages under the general rule. And in the absence of any proof on the part of the defaulting seller that the corn could have been purchased by the plaintiff so as to save itself, it should have been allowed its damage under the general rule, and recovered the difference between the contract price and the value of the corn at Dodge City at the time of delivery. The delivery was to be within a reasonable time. The evidence shows that it would take from one to two weeks to shell and deliver the corn. The average time as fixed by the evidence would probably be a reasonable time. The average time would, under the evidence, be about ten days. Considering then the reasonable time for delivery to be ten days, the measure of damages would be the difference between the contract price and the value of the corn at Dodge City about the 13th of August, 1887. But as this case goes back for a new trial, the question of reasonable time will be one for the jury.
There is another matter we desire to call attention to which should have some force in this case. The defendant, after accepting, by wire on August 2, 1887, the proposition of the plaintiff to purchase all his corn at 80 cents per hundred, wrote it a letter which was received by it the next day, in which he said he would not fill the contract at 80 cents per hundred, but would fill it at 85 cents. On the 3d he wrote plaintiff another letter, received by it at Dodge City on the 4th, in which he said he would not fill the contract at 85 cents, and did not state any price at which he would fill it. Under such circumstances the plaintiff could hardly know what to do, as it did not know how soon it might receive another declaration from the defendant, and it may be questioned whether, if this case had been, in other respects, taken out of the general rule, the general rule should not still apply, because of the uncertainty as to what the defendant would do.
Under the circumstances of this case, we recommend that it be reversed, and sent back for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
Action of injunction. After the property of the Topeka Water Supply Company had been assessed for the year 1885, and the taxes thereon had been levied and paid, the county clerk of the county in which the property was situated, and in February, 1886, entered on the tax-roll, opposite the name of the company, the sum of $7,769, as an additional assessment of its capital stock for the year 1885, and charged taxes thereon to the amount of $268.03. A special agent, appointed by the county to look up property that had escaped taxation for the year 1885, reported to the board, in January, 1886, that the company had not listed its property at its true value, and recommended the increased valuation and the additional levy of taxes that have been mentioned. On this report alone, the board acted, without notice to the company of any proceeding or intended proceeding to correct the assessment and to increase the taxes. No statement of any facts or evidence upon which the increased valuation was based was ever filed and kept in the office of the county clerk, except the report and recommendation of the special agent. Afterward, the company was notified by the county treasurer that there were additional taxes charged against the company, and thereupon an application was made by the company to cancel and strike from the tax-roll the additional assessment and charges which had been entered, but the application was denied.
The action of the county board and county clerk, in correcting and changing the valuation, and imposing additional taxes upon the company, without notice or opportunity to be heard before the increase in valuation and additional charges were made, is unauthorized and the tax levied illegal. Injunction to restrain'the collection of the illegal tax may be maintained, and the fact that the company first applied to the county officers to cancel and set aside tbe illegal tax, and that it failed to appeal from the refusal, will not defeat the remedy.
The facts in this case are quite similar to those of the City Rly. Co. v. Roberts, just decided, and the decision therein is controlling here. (See, also, Comm’rs of Leavenworth Co. v. Lang, 8 Kas. 284; Griffith v. Watson, 19 id. 27; Comm’rs of Lyon Co. v. Sergeant, 24 id. 572; Gen. Stat. of 1889, ¶ 6918.)
The judgment of the district court will be reversed, and the cause remanded with directions to render judgment upon the findings in favor of the plaintiff in error.
All the Justices concurring.
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The opinion of the court was delivered by
PIortoN, C. J.:
After the Leavenworth, Lawrence & Galveston Railroad Company obtained its title to the land in controversy from the United States, Henry Tidman obtained his deed from the Leavenworth, Lawrence & Galveston Railroad Company, and B. S. Henning, the receiver of the company. The receiver was appointed March 5, 1875, in an action then pending in the United States circuit court for the state of Kansas, wherein the Farmers’ Loan and Trust Company was plaintiff and the Leavenworth, Lawrence & Galveston Railroad Company was defendant, to foreclose a mortgage long prior to that time executed and delivered by the Leavenworth, Lawrence & Galveston Railroad Company to the Farmers’ Loan and Trust Company. Pettigrew holds under Tidman and wife. The judgment of W. J. Richards was rendered July 5, 1876, more than a year after the appointment of the receiver.
The contention of James Mills that his title to the premises is superior, either' in law or equity, cannot be sustained. He bases his contention upon the ground that D. E, Petti-grew and his prior grantor, Henry Tidman, are estopped by their action commenced September 3, 1881, to enjoin the sale of the premises upon the judgment in favor of Richards, and also by their filing a motion to set aside the sale of the premises made by the sheriff upon an execution issued upon that judgment. The action to enjoin the sheriff’s sale was dismissed for the want of prosecution only; it was not decided upon its merits, or upon any hearing. It was therefore no bar. (Smith v. Auld, 31 Kas. 262, and cases there cited.)
The overruling of the motion to set aside the sale was not conclusive on the parties making the motion. (Benz v. Hines, 3 Kas. 386; White-Crow v. White-Wing, 3 id. 276; Rice v. Pointer, 15 id. 269; Harrison v. Andrews, 18 id. 535; Capital Bank v. Huntoon, 35 id. 577, 587, 588.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
SimpsoN, C.:
The plaintiff in error, Davidson, commenced an action in the district court of Dickinson county against E. T. Pulliam, Malinda Pulliam, and Charles Beers, under chapter 92 of the Laws of 1883, to establish a judgment rendered by the district court of Dickinson county, the record of such judgment having been destroyed by fire. This law provides in substance that any person desiring to establish such a judgment shall file a petition containing certain aver-ments, (the parties being the same as in the original case,) and notify the parties by personal service of summons, or by the publication of summons, and upon the trial the court may render judgment according to the fact established by the record of such destroyed judgment. Section 5 of the act provides, that “the defendant may answer by general denial, or by setting forth such new matter arising subsequent to the decree, judgment or order which operated in whole or in part to extinguish or set aside the same, or both, as the facts may warrant.” To new matter the plaintiff may reply; the issues are tried by the court, who may, in addition to the evidence, refer to his own recollection, etc. Beers filed an answer, alleging in substance that after the plaintiff had obtained the judgment he is seeking to establish of record, that he, Beers, had obtained a judgment upon a prior mortgage, and that the land had been sold at judicial sale by the sheriff of the county. It appears from the recitations in the petition in this case that in the judgment sought to be restored there was a finding that Beers was the owner and holder of a prior mortgage on the land against which Davidson was enforcing his mortgage lien. Counsel for plaintiff in error filed a motion to strike Beers’ answer from the files. This motion was overruled. The plaintiff filed a reply to the answer of Beers, and at the trial the court finds —
“That on the 17th day of January, 1882, a fire destroyed the record of said judgment in this court; that subsequently the defendant, Charles Beers, sold said premises by virtue of an order of sale issued by the clerk of this court after said fire, on a judgment obtained prior to said fire, and without establishing his judgment of record, on a prior mortgage to that of the plaintiff herein. The court finds further, that the plaintiff’s former judgment be modified, so that he recover judgment against said defendants, E. J. Pulliam and Ma linda Pulliam, for the amount of bis judgment and costs, without having an order for the sale of said premises, or to have his former lien enforced by reason of said subsequent sale as above set forth.”
The proper exceptions were saved and the cause is here for review. Counsel for plaintiff in error insists that the trial court committed error in overruling his motion to strike the answer of Beers from the files. In his answer Beers recites the execution of a prior mortgage by Pulliam and wife to T. C. Henry; the assignment of the same to him; that he had brought suit to foreclose it; that Davidson was a party to that action, and had full knowledge of all the proceedings therein; that Beers had obtained judgment; that on the 29th day of May, 1882, the sheriff of Dickinson county, pursuant to the order of said court, sold said premises as provided by law, and that T. C. Henry became the purchaser, and that a sheriff’s deed is hereto attached, etc. Now, this answer alleges certain new matter arising subsequent to the judgment of Davidson. This new matter consists in an institution of a suit by Beers, the recovery of a judgment, an order for and a sale of the premises, and the execution of a sheriff’s deed. All these things occurred subsequent to the judgment of Davidson, and the judicial sale took place after the fire occurred. This answer was fully authorized by the fifth section of the act of 1883, and there was no error in the ruling of the court in this respect.
Again, it is insisted that the judicial sale made on the Beers judgment is void because there was no record of said judgment, and before it could be enforced it must have been established of record by proper proceedings under the act of 1883. This is the most serious question in the case. It is established by the evidence of Mahan and the recitations contained in the- order of sale, that Beers had before the fire obtained a judgment against Pulliam and wife; it also appears from the order of sale, notice of sale, and from the order confirming the sale, that Davidson was made a party in the action of Beers v. Pulliam and others, in which the judgment was rendered. All these things are matters of record in the district court of Dickinson county. We cannot accept the theory that the legislative act of 1883 is and was the only mode in which the burned contents of records could be established. We suppose that, outside of this statute, proceedings could be instituted and the records supplied. When a judgment has been ordered by the court and the clerk has failed to enter it of record, the fact that it has been ordered must be established by some memoranda among the papers in the case, and then parol evidence is admissible to show the nature of the judgment so ordered. (See a long list of cases cited in 12 Am. and Eng. Encyc. of Law, p. 82.) If parol evidence can establish the nature of a judgment that was not made a matter of record, it seems that it ought to be admissible to show the nature of a judgment that was duly entered on the records of the court, when the record was subsequently destroyed by fire.
Again, this whole proceeding, both on the part of the plaintiff in error as well as the defendant in error, is under the law of 1883. We do not understand that Beers would have to commence a separate and independent action to establish his judgment; he could do so as a defendant. We are satisfied that there is no material error in the case, and that substantial justice has been done between all the parties.
We recommend that the judgment be affirmed'.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This was an action to enjoin the collection of certain taxes alleged to have been illegally charged against the property of the plaintiff by the'county clerk of Shawnee county. It appears that the Topeka City Railway Company was engaged in business in the city of Topeka in 1885, and had property subject to taxation for that year. On the 1st day of June, 1885, Joab Mulvane, the president of the company, made a statement to the assessor of the company’s personal property subject to taxation for that year, which statement the assessor accepted, and returned the valuation of the company’s property to the county clerk as the same had been returned by the company in the statement aforesaid, which return the assessor duly certified under oath. Subsequently, the county board of equalization met and equalized the property of the county, but it did not change the valuation of the property listed and returned as aforesaid. The county clerk placed upon the tax-roll of the county for that year the valuation so returned, and charged against the company a due proportion of all the taxes for that year, and afterward the company in due time paid to the county treasurer the full amount of all the taxes charged against it. Subsequently, a special agent of the county, who had been appointed to search for property subject to and which had escaped taxation, or which had been taxed at less than its true value, made a report that the company had omitted in its statement made to the assessor $25,395 of its personal property subject to taxation for 1885, by making an undervaluation thereof. On February 6, 1886, the board of county commissioners made an order, directing the county clerk to place upon the tax-roll of the county a valuation of $25,395 opposite the name of the company as an additional assessment on the plaintiff’s property, and to charge taxes thereon for that year to the amount of $1,086.86, which was done. No notice in writing of the proceedings by the special agent or the board of county commissioners or county clerk, in correcting the assessor’s return, and in entering an increased valuation of the company’s property on the tax-roll, was given to plaintiff until the proceedings had been taken, nor until February 27, 1886, when the president of the company received through the post office a postal card from the county treasurer, stating that additional taxes had been charged against the company. On March 13, 1886, the president of the company attended a meeting of the board of county commissioners, and made a statement under oath, and advanced arguments to the board to obtain an order for the cancellation and setting aside of the additional assessments and charges, and for an order to the county clerk to strike the same from the tax-roll. Subsequently, the board reduced the charge of taxes against the plaintiff from $1,086.86 to the amount of $272.20. The county treasurer was about to collect the taxes charged, when this proceeding was brought to restrain him.
The only authority for the increase of the valuation and for the additional taxes charged against the company was under §70 of chapter 34 of the Laws of 1876. This statute, however, provides that no change or correction shall be made until notice has been given. No notice or opportunity to be heard was given to the company before the increased valuation and additional tax were entered and charged against the company on the tax-roll, and the action of the board and the clerk in entering and charging the same was clearly invalid, and the tax sought to be collected by the treasurer is wholly void. The invalidity of their action is conceded, but it is claimed that the appearance and action of the company before the board on March 13, 1886, waived the notice and cured the invalidity of the levy. We do not agree with this contention. The appearance at that time was for the sole purpose of inducing the board to order the clerk to strike from the tax-roll and to cancel and set aside the illegal assessment and charges that had been made and entered against the company. The right of the county clerk or commissioners to proceed at that time under § 70 of the tax law to correct the assessment of the company was not conceded, nor did the findings show that the company waived the want of notice. The facts and proceedings in this case are very similar to those in Comm’rs of Leavenworth Co. v. Lang, 8 Kas. 284. There, the board attempted to increase the valuation of Lang's property without giving the notice required'by law. After Lang learned of the increase, he went before the board and moved to have the error corrected, as was done by the city railway company in the present case; but failing in this, he sued out an injunction to stop the collection of the additional tax sought to be charged against him. Chief Justice Kingman, who delivered the opinion of the court, held that the board was not authorized to proceed without notice, and that “ their action in the premises was clearly invalid. Defendant, when he learned of the action of the board in December, moved the board to correct their error. Failing there, he paid the taxes he was justly chargeable with, and obtained an injunction to stop the collection of the illegal portion of the tax. This he was entitled to.” (See, also, Griffith v. Watson, 19 Kas. 27; Comm’rs of Lyon Co. v. Sergeant, 24 id. 572.) These authorities settle the question that the tax-payer is entitled to the remedy of injunction, although he may have first asked the board to cancel and set aside the illegal assessment and levy made against him, and although he may not have appealed from the decision of the commissioners refusing to cancel and set aside such illegal assessment and charge.
The judgment of the district court will be reversed, and the cause remanded with directions to enter judgment upon the findings in favor of the plaintiff in error.
All the Justices concurring.
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The opinion of the court was delivered by
Hokton, C. J.:
This was an action brought in the court below by Charles H. Blaisdell against F. R. Gammon and M. E. Fowler, partners as Gammon & Fowler, for damages for an alleged breach of contract for the sale of real estate. On the 22d day of May, 1886, Gammon & Fowler received from Blaisdell $150, as part of the purchase-money for lots 1, 2, and 3, in block 55, in North Cullison, Pratt county, and gave a receipt, a copy of which is as follows:
“Topeka, Kansas, May 22, 1886.
“Received this day from Charles H. Blaisdell one hundred and fifty dollars as part payment on lots 1, 2, and 3, in block 55, Cullison, Pratt county, Kansas, whole purchase-price to be $300; the $150 balance due in one year from date.
Gammon & Fowler.”
In his petition, Blaisdell alleged that at the time he -paid the $150 and obtained his receipt, Gammon & Fowler had no legal or equitable title to the lots; therefore, that he was entitled to recover his damages. After his purchase, Blaisdell received $45 from Gammon, and upon the trial obtained judgment against Gammon & Fowler for $124.54, being the balance of the money that he had paid, with interest thereon. Gammon & Fowler excepted to the judgment of the court, and bring the case here.
It appears from the record that on the 2d day of March, 1887, after Gammon & Fowler had executed the receipt to Blaisdell, the Chicago, Kansas & Nebraska Railroad Company condemned and took possession of all of the lots which Gammon & Fowler had agreed to sell. Lot 1 was appraised at the sum of $20, lots 2 and 3 at $15 each, making $50. This amount was deposited by the railroad company with the treasurer of Pratt county. It was subsequently paid to F. R. Gammon, and $45 of it sent, on August 30, 1887, by Gammon, in a letter to Blaisdell. He received thei money, but refused to accept it in condemnation of the lots. In the absence of instructions from Gammon, he gave him credit for $45 on the value of the lots, but stated he would look to him for the balance of the money paid by him.
We do not think that the condemnation proceedings gave any authority to Blaisdell to commence or maintain his action for a breach of the contract for the sale of the lots. It was said in Kuhn v. Freeman, 15 Kas. 423, that—
“None of the usual or ordinary covenants in a deed can be broken by a portion of the land covered by the covenant being taken under the right of eminent domain. The exercise of the right of eminent domain is .■> . /> . ■» the exercise oí a sovereign power; and no person presume(j covenant against the acts of sovereignty. Hence, where the deed has already been executed, and afterward the vendor sues the vendee for the purchase-money, it is universally held that the vendee cannot set* up as a defense to the action, that a portion of the land has, since the execution of the deed, been taken under the right of eminent domain, and therefore that some of the covenants in the deed have been broken. Nor .can the vendee sue the vendor in such a case in a separate action, on the supposed broken covenant. He must pay the vendor the full amount of the purchase-money and receive the condemnation money paid as damages for his compensation. This is the only remedy he has. The case at bar, however, is, to some extent, different from the above. The deed in this case was not executed at the time when the sale was made; and before the deed was executed the easement of the right-of-way had attached to the land, so that the vendor cannot now make as absolute and perfect conveyance as he agreed to do. But still this difference in the facts, we do not think, should make a difference in the decision of the question involved. It cannot be presumed when the vendor agreed to make a good and perfect conveyance, that the parties contemplated that he was agreeing to do a thing notwithstanding what might be the future acts of the sovereign authority. When Weisbach agreed that he would make a good title, he had absolute and complete title to the land. By the agreement and sale, the land became, in equity, the property of Hamaker. The legal title was allowed to remain in Weisbach merely as a security for the payment of the notes, and may be considered merely in the light of an equitable mortgage.” 1
It is urged, however, by the counsel for the plaintiff below, that neither Gammon nor Fowler had any legal or equitable title to the lots sold by them, and, therefore, that the case of Kuhn v. Freeman is not applicable. In support of this assertion, they say that Gammon testified upon the trial that the only thing that he had at the time of the contract with Blaisdell, and that the only thing that he had at the time the second payment from Blaisdell became due, was a contract with the Occidental Town Company, in which he had agreed to purchase the lots from them; therefore, as he only had an agreement to purchase, he had no legal or equitable title, because such an agreement does not amount to a sale.
Under the petition, the burden of proof was upon the plaintiff' below to show that neither Gammon nor Fowler had any legal or equitable title to the lots at the time of the contract with Blaisdell. Gammon testified upon the trial, among other things, as follows:
“Q,. Prior to the sale of these lots to Blaisdell, who did they belong to? A. They belonged to Gammon & Fowler.
“Q,. Who did they buy them of? A. The Occidental Town Company.
"Q. Did you have a contract? A. Yes, sir.
“Q. In whose name was the contract; in yours, or in the name of Gammon“& Fowler? A. I think in my name; I think these lots were in my name.
“Q. Did the Occidental Town Company subsequently convey the lots to you under the contract? A. They did.
“Q,. Have you ever refused to make a deed for these lots to Mr. Blaisdell? A. No, sir.
“Q,. You may state if you now are ready to make a deed conveying these lots to Mr. Blaisdell, subject to the rights of the Chicago, Kansas & Nebraska Railroad Company, acquired by the condemnation proceedings? A. I am.”
Upon cross-examination, he further testified:
“Q,. When did you make the contract with the Occidental Town Company for these lots? A. I think in April or May following.
“Q,. In April or May following? A. Yes, sir, in 1886.
“ Q,. How many lots did you buy at the time you bought them; all of them? A. Oh, no, sir; only a very small portion of them, I think.
“Q,. What kind of an instrument of writing did they give you? A. A regular printed contract, like the Arkansas Valley Town Company which operates on the Santa Fé.
“Q. You did not have title to this property at the time of your contract with Blaisdell? A. I had a contract.
“Q. You did not have any deed to this property? A. No, sir; I had a contract with the town company.
“ Q. When did you get the deed from the town company ? A. Within the last six months, I should say; it may be longer.
“ Q. Did you have a deed for this property at the time Blaisdell was down to make this second payment? A. No, sir.
“ Q,. Then you did not have a deed at the time the second payment became due? A. No, sir.
“Q. You only had a contract? A. That is all.
“Q,. Where is that contract; have you got one with you? A. No, sir; it is in Cullison, at home.
“Q,. 'You have not got any contract with you? A. No, sir; I have not.”
All of this evidence tends to show that Gammon & Fowler had, at the time of the contract with Blaisdell, the equitable title to the lots mentioned in the receipt under a written contract from the Occidental Town Company. Sub- ,, , . • .» rn sequentiy, upon his cross-examination, Gammon used language to the effect that his contract from the town company was only an agreement to sell. This language, however, was more in the nature of an opinion or construction of a written contract, than anything else. The written contract between the Occidental Town Company and Gammon & Fowler will show whether it was a contract to sell, or a sale of the lots by the town company. This, of course, should have been produced upon the trial, but as the plaintiff below alleged that Gammon & Fowler had no legal or equitable title to the lots sold by them, he should have established this by competent testimony. Plaintiff below could have obtained this contract, if he had made proper efforts so to do. If the contract could not have been obtained, then secondary evidence of its contents would have been admissible.
At the time that defendants below interposed their demurrer to the evidence, it was not sufficient, under the issues of the pleadings, for the plaintiff below to recover. The subsequent evidence of Gammon, which was wholly incompetent, if proper objections had been taken thereto, did not supply the defects.
Upon the trial, plaintiff below offered in evidence a copy of a letter written by him to F. R. Gammon on September 1, 1887, without laying any proper foundation therefor. It is doubtful, however, if the objection made to the copy was sufficiently definite to establish error. (Smith v. Leighton, 38 Kas. 544.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The deed of assignment is assailed upon two grounds: First, because of a reservation in the instrument, in these words: “Except such articles as may he exempt by law from levy and sale on execution;” and,-second, the failure to include in the deed the individual property of Anna Bate, one of the assignors.
As to the first objection, it may be said that only partnership property was conveyed or intended to be conveyed by the deed of assignment, and as none of it was or is exempt, there was no reservation for the benefit of the assignors, and it does not appear that any portion of the partnership property was set apart or reserved for the benefit of the assignors. It has already been decided that such an exception is nugatory and will not invalidate the assignment. (Dodd v. Hills, 21 Kas. 707; Guptil v. McFee, 9 id. 30.)
As to the second objection, it appears that the assignment covered only the partnership property, and that one of the partners had individual property beyond what was exempt from the process of creditors. It is contended that the exclusion of individual property from the assignment was sufficient to invalidate it. There is nothing deceptive or misleading in the terms of the instrument, nor do we find anything indicating an intentional fraud upon any of the creditors. The whole partnership property was surrendered without reservation or preference. All the creditors of the assignors were free to participate in the assigned assets, and no releases were exacted from those who did participate, nor any conditions imposed which would debar or hamper them from proceeding against the individual or other property not included in the assignment. It is true, it is only a partial assignment, but such a transfer is not necessarily invalid. Its validity depends upon the statute regulating assignments, and it is well settled that unless prohibited by statute, the debtor may assign a por- . tion of his property for the benefit of his creditors, if all may unconditionally participate in that which is assigned, and if that which is not assigned is open and available to the remedies of all creditors. (Estabrook v. Messersmith, 18 Wis. 572; Carpenter v. Underwood, 19 N. Y. 520; Bates v. Ableman, 13 Wis. 644; Burrill, Assignm., 203, 232, 272; Bump, Fraud. Conv., 369, 391.) The same principle has been sustained where it was held that the assignment of all partnership property for the benefit of creditors is not invalid by reason of the fact that the individual property was not also assigned. (Auley v. Ostermann, 25 N. W. Rep. 657; Blair v. Black, 9 S. E. Rep. 1033; Trumbo v. Hamel, 8 id. 83; Blake v. Faulkner, 18 Ind. 47; Ex parte Hopkins, 2 N. E. Rep. 587.)
We are cited to several cases holding against the validity of partial assignments, but these authorities are based on statutes requiring that all the property or estate of the creditor shall be conveyed, or where one of the conditions of the deed making a partial assignment was that the creditors accepting its terms should give releases in full of their several debts. It may now be considered to be established by the weight of authority that a partial assignment which exacts releases from accepting creditors and deprives them from access to the residue not assigned is invalid. In this case, however, no releases were required, no preferences given, nor any reservations made, and our statutes do not prohibit partial assignments ; and hence the cases cited do not apply here. Although our statute relating to assignments requires that such property as is conveyed shall be for the benefit of all the creditors of the assignor in proportion to their respective claims, it does not require that all the estate of the debtor shall be assigned. (Gen. Stat. of 1889, ¶342.) The legislative purpose is further indicated in the subsequent paragraphs of that act, wherein it is provided that only an inventory of the property assigned shall be filed, and not an inventory of all the debtor’s estate, and also that the affidavit attached to the inventory shall be likewise limited. The court proceeded upon this theory when it held that in the absence of any statute prescribing the manner of closing up partnership estates, a surviving partner might make an assignment of partnership property for the benefit of the creditors of the firm. (Shattuck v. Chandler, 40 Kas. 516.) It is certain that the surviving partner could not assign the individual assets of his deceased partner, and equally certain that the individual property is subject to the payment of the unsatisfied claims of the firm’s creditors. We conclude that partial assignments are not prohibited by our statutes, and that the assignment of a firm need not necessarily include the individual estates of the partners. So far as the record shows, the action of the assignors was fair and honest; the assignment was openly made by them, and it purported to convey partnership property only. There was nothing in the instrument which tended to show that it included the individual property; nor does it appear that the individual property not assigned was concealed or placed beyond the reach of the plaintiff or any other creditor. The unassigned residue was accessible to all the creditors, and the record shows that all of this residue has been taken to satisfy the claims of the individual creditors of Mrs. Bates. The assignment upon its face is valid, and we find nothing in the record which renders it void.
The judgment of the district court is affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
The plaintiffs in error filed their petition in the district court of Cherokee county, praying for a temporary and permanent injunction to prevent the collection of a tax levied on the railroads of the plaintiffs in error, in certain townships in said county, by the township trustees, with the concurrence of the board of county .commissioners, for township bridge purposes. To this petition a demurrer was interposed, which was sustained by the court; the plaintiffs excepted to the ruling of the court, and stood upon their petition, and judgment was rendered against them for costs; to reverse the ruling and judgment of the court below, this proceeding in error is prosecuted.
The record shows a waiver of any question in regard to a misjoinder of parties, so the only question presented is the authority of the township trustees acting with the concurrence of the board of county commissioners, to levy a separate tax for township bridge purposes. The claim is made that the township tax attempted to be levied for bridge purposes is without warrant or authority of law. The authority for such a tax levy as the one complained of is found in ¶ 7084, Gen. Stat. of 1889, which requires that the township trustee “shall, at the July session of the board of county commissioners annually, with the advice and concurrence of said board, levy a tax on the property in said township for township, road and other purposes,” etc. It is insisted that the levy made under this law was three-fold: First, for the general revenue and expenses of the township; second, for road purposes in said township; third, for township bridge purposes in said township; and that the latter is illegal. Can the levy for township bridge purposes be upheld under the clause, “for other purposes?” The principle is fundamental, that there must be legislative authority for every tax that is levied, whether state or municipal; hence, we must examine the power conferred under the phrase “for other purposes,” which is indeed quite broad. In defining the clause “necessary charges,” Chief Justice Parker took occasion to say, in the case of Stetson v. Kempton, 13 Mass. 272:
“ The proper construction of the terms must be, that in addition to the money to be raised for the poor, schools, etc., towns might raise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to employ, the support and defense of such actions as they might be parties to, and the expenses they would incur in performing such duties as the laws imposed, as the erection of powder-houses, providing ammunition, making and repairing highways and town roads, and other things of like nature; which are necessary charges, because the effect of a legal discharge of their corporate duty. The erection of public buildings for the accommodation of the inhabitants, such as town-houses to assemble in, and market-houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary.”
It is not claimed that the phrase, “other purposes,” as used in the statute, would authorize every expense a towuship, through its officers, might incur, but where the statutes of the state impose certain duties upon the township to build bridges and keep them in repair, that the clause, “other purposes,” certainly authorizes the township trustees, with the advice and concurrence of the board of county commissioners, to levy a tax for township bridge purposes. The township board, consisting of the trustee, clerk and treasurer, constitute a board of commissioners of highways, and have charge of the roads and bridges of their respective townships, and it is made the duty of such board to keep the same in repair and to improve the roads and bridges so far as practicable. (Laws of 1885, eh. 168, p. 269.) To carry out the provisions of this statute, funds must be provided, and there can be no other method devised, except by taxation.
It is contended by plaintiffs in error, that under the doctrine laid down in the Lawrence Bridge Case, 22 Kas. 438, bridges upon public highways are public roads, and that there are, therefore, two different levies in the same township for road purposes. Still, we do not see any objection to apportioning a certain per cent, of the levy to one specific purpose, and another portion to another purpose, so long as the levies are within the limits authorized by law. Upon this question of apportioning the levies, in a case not unlike this, in the supreme court of Nebraska, Chief Justice Lake, in delivering the opinion of the court, said:
“The ‘general fund’ of a county, as its name implies, is one devoted to a variety of uses, and expenditure is left mainly to the discretion of the board of county commissioners. The amount which may be raised for this fund the legislature has wisely restricted, the limitation being, as we have seen, ten mills on the dollar of taxable property. Now, in the performance of the duty of determining the amount that should be raised within this limit, the commissioners must necessarily make an estimate of the probable needs of the county for the current year in the way of legitimate expenditures. Having done this, and the total rate being ascertained, suppose that, in making the levy, instead of grouping the several items together under the comprehensive head of 4general fund/ as is usually done, and as the statute above ■quoted evidently contemplates, they are set forth in detail, giving the amount estimated for each, would the tax, therefore, be illegal? We think not, so long at least as no item is included not proper to be satisfied from the general fund of the county. It would be at most an informality, in no way invalidating the levy.” (B. & M. Rld. Co. v. Lancaster Co., 12 Neb. 324.)
It is not claimed that the levies were excessive in amount; the only contention being that there was no authority to levy “a township bridge tax.” We think the levy was authorized; and the doctrine has long since been settled by this court, that equity will not interfere to restrain by injunction the collection of taxes, where the property is subject to taxation, the tax legal, and the valuation not excessive, simply because of irregularities in the tax proceedings.
(Challiss v. Comm’rs of Atchison Co., 15 Kas. 50; Cooley, Tax., 2d ed., 775.)
We think the demurrer was properly sustained, and recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
StraNG, C.:
This was an action brought by the state of Kansas against Charles N. Elliott, charging the said Elliott with the violation of the prohibitory liquor law of Kansas. The information contained ten counts. The defendant was acquitted upon all of them but the last one. Upon this count he was convicted. A motion for a new trial was overruled, also a motion in arrest of judgment, and the defendant was sentenced to pay a fine of $100 and the costs accruing on the tenth count, and to undergo imprisonment in the county jail for the period of thirty days. From this sentence the defendant appeals to this court.
The tenth count of the information reads as follows:
“And I, the county attorney, come now here and give the court to understand and be informed that, on the 15th day of August, 1889, the said Charles N. Elliott, in Republic county, Kansas, did then and there willfully and unlawfully sell and barter malt, vinous, fermented, spirituous and other intoxicating liquors for other than medical, mechanical and scientific purposes.”
The charge against the defendant in this count is the sale of intoxicating liquor for unlawful purposes. The defendant could not under this count be tried for selling in an unlawful manner for a lawful purpose; nor do we gather from the record that there was any attempt in the court below to try the defendant for so selling. We do not understand that the defendant was tried for selling without the statement required by law having been first made; nor for selling upon a statement mistakenly filled out. If the liquor sold to Emil Rude-man on April 6 was for medicine, then the fact that there was a technical error in the filling of the blank application for the liquor would not render the defendant guilty of a violation of the law and subject to punishment. The state does not seek to convict her citizens of crime upon mere technicalities, growing out of immaterial errors. In this case the attorney general disclaims any desire to hold the defendant guilty because of the error in the manner of filling up the blank ap plication for the liquors. The contention of the state is, that the defendant was tried for selling liquor for an unlawful purpose — a purpose for which, under the constitution and laws of Kansas, it cannot be lawfully sold, no matter what the manner of the sale may be. The purpose for which it was sold was clearly set out in the tenth count of the information; and upon the trial the defendant was convicted. There was some evidence to support the verdict of the jury, and therefore this court cannot disturb the judgment of the court below. The sale complained of was admitted, and also proved by the application for the liquor sold. The only question is, Was it sold for a lawful purpose? If it was, then the judgment of the court below should be reversed. If it was sold for an unlawful purpose, then the judgment should stand. The appellant complains of the character of the evidence to show that the sale was unlawful. He says the evidence consisted in statements that the law compelled the defendant to take in his business, and that they could not be used against him, because he could not under the law be required to criminate himself. There is no force in this position of the appellant. The statements taken by a druggist who has a permit to sell intoxicating liquors for lawful purposes are not his statements, but are the statements of the applicant for the liquor. There is nothing in the law that requires a druggist to sell even upon such statements. He may refuse to sell notwithstanding the statement. And besides, the purpose to be sub-served by the requirement in the law, which necessitates the taking and filing with the probate judge of such statements, is that the public may ascertain whether the druggist, who has been given the right to sell for legitimate purposes, is complying with the law, or otherwise.
The appellant also complains that statements relating to other sales were introduced in evidence, after they had been withdrawn by reason of the state electing to rely on the sale made on the 6th of April. The state denies that such statements were re-introduced, but says the defendant was simply cross-examined with reference to them. We think, however, that the state had a right to such statements in evidence, not for the purpose of convicting the defendant of other sales, nor for the purpose of proving the sale relied on, but for the purpose of showing, first, that the defendant had made other sales to Rudeman of liquor so recently before the sale complained of that Rudeman could not have wanted the liquor, the sale of which was relied on to convict him, for medical purposes; and second, to show that the defendant knew the appellant did not want the liquor, the sale of which was complained of, for medical purposes; and to show the defendant’s want of good faith in making the sale. The application for liquor made by the purchaser, no matter how regular it is, does not constitute an absolute shield to the druggist selling thereon. If, from any source, he knows the liquor is sought to be used as a beverage, and with such knowledge he sells it, he is guilty of a violation of the law, notwithstanding the statement. In this case, the evidence shows that the defendant sold Rudeman one-half pint of alcohol on April 1, one-half pint April 2, a half pint April 3, a half pint April 5, one pint April 6, a pint April 9, and a half pint April 10, and so on. The question on this evidence was, Did Rudeman need the liquor sold him on the 6th for medical purposes, or did he want it for use as a beverage? and second, if he wanted it for use as a beverage, did the defendant know that the appellant wanted the liquor to be used as a beverage? The appellant had purchased from the defendant a pint of alcohol, equivalent to at least half a gallon of whisky, the very day before the sale on the 6th. He also purchased on the 1st, 3d and 5th of the month a half pint each time. We think the jury had a right to this evidence for the purposes mentioned, and that, having heard it, together with the other evidence, had a right to say that Rudeman did not need the alcohol purchased on the 6th for medical purposes, but wanted it for a beverage; and had a right also to say that the defendant knew it was wanted as a beverage when he sold .it, and that he was therefore guilty of a violation of the law. A druggist who does not know that a man does not need a pint or half pint of al- cobol every day for a mere tonic, or “stimulant,” should be disqualified to handle poisons of any kind.
The appellant complains of the eleventh instruction given by the court to the jury, and says that the court should have limited the sale to the 6th of April instead of the statutory limit. Where, in a prosecution for an alleged violation of the prohibitory law, the state relies on a single sale of intoxi- • eating liquor, it may prove the sale on any day within the statutory limitation.
We have examined the 3d, 5th and 6th instructions asked by the appellant, and refused by the court, which refusal is complained of, and do not think any error was committed in refusing to submit them to the jury.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GkeeN, C.:
The defendant in this case was charged with unlawfully permitting ninety head of cattle under his control to run at large, in Grant county, in violation of chapter 128 of the Laws of 1874, as adopted by the board of county commissioners.
A trial was had before a justice of the peace and the defendant found guilty and fined in the sum of $50, and he appealed to the district court; at the April term, 1890, of the district court a jury was impaneled and sworn to try the defendant, when counsel objected to the introduction of any evidence, because the section of the statute under-which defendant was prosecuted was unconstitutional. The court, in the first instance, overruled this objection, and a number of witnesses were then called and testified in behalf of the state, and the state rested; the defendant, by his counsel, then asked the court to instruct the jury to find for the defendant, for the reason that the complaint did not charge a public offense, and that the evidence offered by the state failed to prove a crime against the defendant. Pending this motion, the state asked leave of the court to introduce other evidence, and in passing upon this application, the court held that § 2 of chapter 128 of the Laws of 1874 was unconstitutional, because it was in conflict with §§16 and 17 of art. 2 of the constitution, and thereupon ordered a judgment of acquittal to be entered for the defendant, and discharged the jury. The state excepted to the ruling of the court, and appealed.
We must dispose of the case without passing upon the validity of the law under which the defendant was prosecuted, for the reason that the state cannot appeal, where the defendant has been tried and acquitted; this court has no authority to set aside such a judgment. The decisions of this court in The State v. Carmichael, 3 Kas. 102, City of Olathe v. Adams, 15 id. 391, and The State v. Crosby, 17 id. 396, are decisive of this case.
We recommend the appeal be dismissed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
West, J.:
On the 21st day of July, 1911, R. W. Wilson, an agent for the defendant company, was upon the land which the plaintiff for a number of years had rented of the company and occupied. An altercation ensued, and Wilson procured the issuance of a warrant from a justice of the peace for the arrest of the plaintiff. The next day the constable and Wilson with a number of other men went upon the place ostensibly for the purpose of arresting the plaintiff, certain of the others referred to being deputized by the constable to assist in making the arrest. They were all ordered off the place by the plaintiff, who claimed under a written lease and also under an oral lease. One of the others who had been deputized claimed the right of possession by virtue of a written lease, and came with a steam plow and some hands and proceeded to put the plow at work. The constable claims to have told the plaintiff that he had a warrant for his arrest. The plaintiff claims that all the constable said was that he had papers or paper for him which plaintiff understood meant a lease. A general fight ensued, during which the plaintiff was shot at a number of times and seriously wounded twice. He sued the defendant company, alleging that its agent, R. W. Wilson, brought the other men for the purpose of forcibly ejecting the plaintiff, and that they were all trespassers when the shooting occurred. The plaintiff recovered, and the defendant appeals and urges error in overruling the motion to quash the service by publication and to discharge the attachment,. in certain other rulings, in certain instructions, and in the refusal to hold that the acts of Wilson were outside the scope of his employment. Complaint is also made that the charge of conspiracy was not sustained by the proof, and that error was committed in overruling a motion for judgment on the special findings.
The action was one in which an attachment would lie, and hence the first complaint is without merit. (Cain v. Perfect, 89 Kan. 361, 131 Pac. 573.)
As to the question of the authority of the agent, the record shows that his duties were to rent the company’s land and collect rents in the neighborhood where the plaintiff lived; that the headquarters of the company were at Arcade, N. Y.; that it is a New York corporation and had sixteen or eighteen hundred acres of land in the locality rented by the plaintiff, and maintained an office at Anness in the vicinity occupied by the agent in question. Another Mr. Wilson, who was general manager, secretary and treasurer, testified that the local agent was authorized to rent land and collect the rents and look after the land to that extent. The plaintiff testified that during the years he had been on the land his dealings were with the agent in question, who received the rent and came out when the grain was threshed. O’Brian, who claimed the right of possession under a written lease, testified that the agent Wilson ordered him to go upon the land, and that he claimed the right to- go there under the lease. The constable and O’Brian both shot several times, and it was testified that after the latter had emptied his' revolver he remarked that he was out of ammunition and agent Wilson directed him to take a team and go for some more, which he promptly did. It appeared that when the first lease was drawn the general manager Wilson from New York and the local agent Wilson were together at the plaintiff’s house. One witness testified that he was working for O’Brian, running an engine for a thresher; that on July 21 he took the engine to a Mr. Harrison’s place, O’Brian and a man named Burke being on the engine; that that night they did a lot of work on the plow; that he arose at 3:30 the next morning, at O’Brian’s instructions, and went to Anness to get the plowshares, and they were fastened on, and about seven o’clock they started for the Wilson land as instructed by O’Brian who told him to hurry up and get up as quick as he could; that they cut across the field towards the Wilson land, arriving there about 9:30; that R. W. Wilson drove up to the Harrison place and inquired for O’Brian about seven that morning, and af-terwards went towards O’Brian’s, and the witness met him in company with the constable about a quarter of a mile south of the Wilson land later in the morning; that O’Brian stayed along with the plow and Wilson and Armstrong went back with the witness to the Wilson land. When they got to the Wilson land Wilson told O’Brian to go ahead and plow and he would stand behind him if anything was done; that when the plaintiff appeared O’Brian said: “You fellows take care of the old lady and I will handle the old man,” and the plow started; that when the plaintiff came up O’Brian said: “Get ready for battle”; that when O’Brian returned with the guri he had been directed by Wilson to go after he laid it on the plow and remarked that he could hit the plaintiff with that; that during the time he was gone the plaintiff, the constable, young O’Brian, the witness, Snyder and two others remained with the plow and that Wilson, who was standing' around the plow remarked that “we would not plow there until after they seen how the trial come out”; that the constable did not tell Sipult he had a warrant. Another witness testified that there was an office at Anness with a sign bearing the defendant’s name, and that the agent, Robert W. Wilson, acted for the company, leased land and looked after its interests and was seen around where they were threshing and took care of the crops in that vicinity for three years; that he was the only representative of the company there unless it was the Mr. Wilson of Arcade, N. Y., who had been out there once. The constable testified that Robert W. Wilson came to his house about seven o’clock of the morning of the 22d and placed the warrant in his hands. “I knew he had a horse and buggy and I deputized him right on the spot, and asked him to take me out.” The testimony showed that on the 14th day of August, 1911, the defendant company, by Robert W. Wilson, foreman and agent, filed a complaint in forcible detention against the plaintiff. It does not appear that the warrant heretofore spoken of was ever served.
Without going into other matters testified to, which the jury apparently believed, and without stopping to consider conflicting and contradictory evidence the record is abundantly sufficient to warrant the jury in finding an agency on the part of Robert W. Wilson to put O’Brian in possession as lessee and put the plaintiff out of possession, and' that in making the attempt so to do he was acting within'the scope of his authority. Having taken the wrong means and having proceeded in the wrong course to accomplish his object, it remains to be determined whether or not the company for whom he acted must be held responsible. While ordinarily the mere procuring of a warrant really intended for the apprehension of the plaintiff for the unnamed offense of the day before might not of itself have been within the scope of his agency, another situation is presented if it appears that such warrant was used and intended merely as a cover and excuse for the violent ouster of the person apparently sought to be arrested. If the brief reference to the evidence already made is not sufficient the record contains ample to justify the jury in believing that the entire scheme of forcibly putting O’Briah in possession and forcibly putting the plaintiff out was devised, mánned and managed by the company’s agent, in all of which he was not acting for himself but for his principal.
The dividing line between authorized and unauthorized acts and those within and those without the scope of employment is often difficult to locate, but a. workable approximation is made possible by the former decisions of this court. In Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, it appears that while Hudson was at the depot, after freight consigned to certain persons for whom he was acting, he was assaulted by the railway company’s agent. Upon the question of the liability of the company it was said:
“Was Trotter acting in the course of his employment in making the assault? For it does not appear that it was a part of his employment, that is, that he was employed directly to make the assault. Was it in the line of his duty, and growing out of the services he was employed to perform? He was as it appears in charge of the company’s depot. As such it was his duty to remove therefrom all persons improperly there, or improperly conducting themselves, though otherwise lawfully there. If in the supposed performance of this duty, and in ejecting plaintiff from the depot, he had improperly ejected him, or had used unnecessary force in ejecting him, the company would have been liable, because he was doing that' which the company had employed him to do, acting in the very line and course of his employment, and any mistake or violence on his part was the mistake or violence of his principal, the company.” (p. 473.)
It is fair to say that Wilson was doing that which the company had employed him to do, and acting in the line and course of his employment in putting the company’s lessee in possession of the land or in putting its former lessee, Sipult, off, and “any mistake or violence on his part was the mistake or violence of his principal, the company.” Later in the Hudson opinion, it was pointed out that the assault was not in the course of the agent’s employment and was clearly disconnected therefrom and a mere volunteer assault.
“True, the employment may have given the opportunity and occasion, but it was not an act which in any fair sense the company could have been said to have employed him to do, or to have anticipated that, he would do, nor an act which was the act of the company.” (p. 474.)
Here the testimony expressly shows that Wilson was authorized to rent the land and collect the proceeds; that he had for several years looked after the large body of land in the vicinity owned by his principal, and that he was in charge of the company’s office at Anness. These things, considered in connection with the further fact that he seems to have been the only man this side of Arcade, N. Y., who had spoken or acted for years, or who could speak or act with reference to the land, save when the officer from the east happened to be on a visit to the office or property, are ample ground for the fair inference and belief that in seeking to seat one lessee and unseat (another he was acting for the company, precisely as he was when a month later he made complaint against Sipult in forcible detention for the purpose of getting him off the land by orderly and lawful means. In Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609, it was held that a corporation is respon- ' sible for the tortious acts of its general agent in the line of its employment and in the exercise of the authority conferred, although not previously authorizing nor subsequently ratifying such acts. A general agent of the company caused the arrest of certain parties on the pretense that they had refused to deliver a machine which had been purchased by the wife, and on which a balance was claimed to be due. The company denied liability, but it was held that its general agent had not only authority to sell machines and collect money therefor but to institute legal proceedings to recover possession of machines in the condition when sold and for which payment had not been made in accordance with the terms of the sale.
“The arrest and detention of Boyce was incidental to the replevin action, and was made as alleged to compel the delivery of the machine. ... He had full authority to represent the company, and whatever was done by him was done for the benefit of the company and for the accomplishment of its purpose. His act, ■ although wrongful, was in the line of his employment, was done in the execution of the authority conferred upon him, and must be regarded as the act of the company.” (p. 354.)
In Laird v. Farwell, 60 Kan. 512, 57 Pac. 98, a chattel mortgagee in possession of a stock of goods employed an agent to take charge and sell and account. He was held not liable for the acts of such agent in causing the arrest of a person for perjury in making an attachment affidavit in. an action wherein some of the goods were taken from the agent, such arrest not being within the scope of the employment. In O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353, it was held to be for the jury to determine whether a brakeman who forcibly ejected a trespasser did so in the discharge of his duty or for the purpose of extorting money. In the opinion it was said that he owed the duty to his employer to remove trespassers, and if “in the discharge of such duty, he recklessly or in a willful, wanton or malicious manner performed it, and ejected a trespasser in a way to cause bodily injury, the railway company was liable for his acts.” (p. 357.) Section 615 of volume 1 of Thompson’s Commentaries on the Law of Negligence was quoted, to the effect that it was a question for the jury whether at the time of the particular act which caused the injury the agent was acting “within the scope of his employment, or acting outside of it to effect some purpose of his own.” (p, 358.) In Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, in holding that the assault by the local manager was not within the scope of his employment, it was said:
“In this case the use of force did not pertain to the business intrusted to Cásen by the company. It was not an incident of the authority vested in him to compute what was due operators and to procure their signatures to vouchers, and we find no basis in the pleadings or the evidence which would justify a holding that an assault upon an operator who refused to sign a voucher came within the implied authority of Casen or' can in any sensé be regarded as within the scope of his employment.” (p. 24.)
In Whitman v. Railway Co., 85 Kan. 150, 116 Pac. 234, approving reference was made to Collette v. Re-bori, 107 Mo. App. 711, holding that the master is liable for the tortious acts of his servant when it is shown that the act complained of was done for the purpose of doing the work assigned by the master. In Lehnen v. Hines & Co., 88 Kan. 58, 127 Pac. 612, it was said in the opinion (p. 68) that when the duties of the night clerk of the hotel were to- attend to the calls and wants of guests and an assault was made by him while in response to a call, this and the subsequent arrest caused by him were wrongs committed while he was performing those duties and attending to his master’s business. In Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, after an examination of the authorities it was said:
“To fix liability upon the master or employer the act must not only be done in the time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s own purpose or device, although in an interval of his regular service, the employer is not liable.” (p. 481.)
As to the term “Course of Employment” it is said:
“The act of an agent is within the course of his employment When the agent in performing it is endeavoring to promote his principal’s business within the scope of the actual or apparent authority conferred upon him for that purpose.” (31 Cyc. 1585.)
The jury were correctly instructed as to the responsibility of the defendant for the acts of its agent, and a general verdict in favor of the plaintiff was returned which involves and implies a finding by the' jury that the agent’s acts were within the scope of his authority, and within the decisions referred to and from the evidence shown by the record such instructions and conclusion were fairly authorized and supported.
It is urged that the charge of conspiracy was not sustained, and in reply the distinction between civil and criminal conspiracy is brought forward. But the amended petition on which the case went to trial makes no charge or mention of conspiracy, hence this point needs no further attention.
The instructions submitted to the defendant and refused by the court were in reference to the scope of the agency and the duty of an arresting officer. In view of those given we find no error in those refused.
It is complained that certain instructions given touching the duty of an arresting officer and one to whom a warrant is exhibited or made known were erroneoüs. The jury were charged in conformity with the provisions of sections 129 to 132, inclusive, of the criminal code. We have carefully examined all the instructions given, and they appear to have been fair both to the constable and to the person sought to be arrested as well as to the others concerned. It must be remembered that the evidence was decidedly conflicting as to whether the warrant was shown or whether Sipult understood that the constable had such a paper, and the charge was framed to meet both contentions and we find no error therein.
The court denied a motion for judgment on the speciál findings, which were to the effect that Armstrong was a constable, directed by a warrant to arrest Sipult; that he deputized Wilson and O’Brian; that the. defendant company did not direct or instruct the issuance of the warrant; that O’Brian knew of the warrant when he “directed his outfit to the place on which Sipult was living”; that Sipult knew Armstrong was a constable; that the latter was afraid to attempt the arrest alone; that Sipult struck the first blow but did not have the general reputation of being a quarrelsome person and a fighter. There is nothing in these answers essentially inconsistent with the general verdict, and hence the motion was properly denied.
It is complained that the evidence failed to show authority and therefore was erroneously admitted, and that a demurrer thereto was overruled. But the testimony was properly submitted to the jury for their consideration and interpretation.
Finally, it is argued that the plaintiff’s injuries resulted from his reliance upon his own prowess and his utter disregard of law. There is much to criticise in the conduct of each of the belligerent forces, and as usual in such cases most, if not all, the violence and consequent injury were entirely needless. The facts shown by the record, however, so fairly support the jury in the result reached that in the absence of any material error such result must stand.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
By this proceeding the state, on the relation of the attorney-general, inquires by what warrant the defendant exercises its jurisdiction as a city of the second class over certain territory. The city filed its answer setting out the facts upon which it relied, to which the plaintiff demurred. The district court sustained the demurrer, and the city, having elected to stand upon its demurrer, the court rendered judgment ousting the city from exercising or claiming any municipal control or supervision over the territory in controversy and the inhabitants thereof.
The appeal presents the question whether the demurrer was rightly sustained, and this depends upon whether or not the land involved is a part of the city. The following facts appear from the answer: The city of Harper during the year 1884 was a city of the third class; during that year the then owner of the land described in plaintiff’s petition duly made and executed a plat comprising the land in controversy, and filed the same in the office of the register of deeds of Harper county as and for an addition to the city of Harper; the lands comprised in the plat lay adjacent to the territory then comprising the city. Part of the land was platted, and part unplatted. The portion platted was divided into blocks to correspond in size to the blocks within the corporate limits of the city, and the streets and avenues described in the plat were made to correspond to the streets and avenues existing in the city, and were given upon the plat the same name 'as the streets and avenues of the city to which they corresponded. A copy of the plat was attached to the answer. The city continued to exist as a city of the third class until the year 1889, when proceedings were had to change the organization from that of the third to a city of the second class, as provided by law. As part of such proceedings, the mayor and council made out and transmitted to the governor an accurate description by metes and bounds of all lands within the limits of the city as it then existed, in which description was included the territory now in controversy. Thereafter the governor issued a proclamation declaring the defendant to be a city of the second class, having the metes and bounds so certified by the mayor and council. Since 1884 the land herein involved has been treated by the owners and by the city in every respect as part of and within the corporate limits of the city.
At the time the plat of this land was executed and filed for record the only statutory provision respecting the power of a city of the third class to extend its limits was embraced in section 2 of chapter 37 of the Laws of 1883. So much of section 2 of the act as is applicable here, reads:
“The city council in their discretion may add to the territory adjacent to the city limits as defined and existing at the date of the approval of this act such additional territory as they may deem proper, and shall in every case have power to increase or diminish the city limits in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, That in no case shall any adjacent territory, except when divided into town lots, be added to the limits of a city without the consent in writing of the owner of the territory proposed to be added.”
.Substantially the same provision was in section 56 of chapter 26 of the Laws of 1869, which was the first act of the legislature authorizing the organization of cities of the third class. (A. & N. Rld. Co. v. Maquilkin, Sheriff, 12 Kan. 301.) The act provides for no special procedure for acquiring new territory, but leaves it to the discretion of the council to add additional territory as they may deem proper, and “in such manner” as in their j udgment and discretion will redound to the benefit of the city. Except when divided into town lots, however, no adjacent land was to be added to the limits of the city without the consent, in writing, of the owner. The plat, a copy of which is attached to the answer, shows that only a portion of the land embraced in the plat was divided into town lots, and it is this portion of the tract over which the controversy in the present case arises. The act makes no provision as-to where the consent shall be filed, and we think there can be no question that the filing of it in the office of the register of deeds was sufficient. The procedure for extending the boundaries of the cities of the third class at that time was very informal. It does not appear from the answer that the city ever enacted an ordinance declaring this territory to be within the city limits, but the petition shows that the city is exercising authority over it, and the answer alleges that the city has continuously done so for more than twenty-nine years.
While ordinarily estoppel will not lie against the state, some importance must be attached to the fact that the city has exercised jurisdiction over the tract in question for this long period of time with the consent of the owners of the tract, and that the state by the proclamation of the governor in 1889 recognized this territory to be within the limits of the city as then certified and claimed by the city itself. It may be that at this late date the city is not able to show the formal adoption of an ordinance extending its limits to embrace the territory in question. It had the undoubted right in 1884, under the law as it then stood, so to extend its limits, because it had the written consent of the then owners of the land. It must, therefore, be presumed after this length of time that all the proper steps were taken by the city for the purpose of extending its boundaries so as to include this tract of land.
In a very recent case the state sought to inquire as to the right of a city of the first class to exercise authority over territory it claimed to have annexed, and we held that where the validity of an ordinance depended upon the existence of certain jurisdictional facts at the time the ordinance was enacted, the existence and not the nonexistence of such facts necessary to sustain the ordinance should be presumed in the absence of evidence to the contrary. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873.) It was vigorously contended in that case by the state that where the sovereign inquires by quo warranto into the right of an individual to exercise the privileges of an office or the right of a municipal corporation to exercise authority, the burden of proof rests upon the person or municipality to show its right, and that no presumptions are to be indulged in such case as against the state in favor of the defendant. This contention was not upheld. It rests upon the common-law theory as to the nature and character of the writ in quo war-ranto. One of the cases much relied upon by the state in the Atchison case is McGahan v. The People, 191 Ill. 498, 61 N. E. 418. The Illinois case is in line with the authorities in that state running back as far as Clark v. The People, ex rel. Crane, 15 Ill. 218, 217, holding that the people, that is the state, are not bound to show anything in a proceeding by quo warranto. That was the doctrine of the common law, but our code- (§ 679) abolishes the writ of quo warranto and substitutes in its stead a civil action. It is true, as we held in The State v. Brewing Association, 76 Kan. 184, 189, 90 Pac. 777, the language of the constitution conferring original jurisdiction upon this court in quo warranto is broad enough to authorize “all the relief which at common law could be given by a quo warranto proceeding of any kind.” (p. 189.) But the action itself is to be tried with the same procedure and the same rules of evidence that apply to other civil actions. Presumptions, which are but rules of evidence, may be invoked against the state as readily as against an individual.
In the numerous quo warranto proceedings filed in this court in recent years wherein the state has sought to oust cities and city and county officials from the exercise of functions and privileges unauthorized by law, it has never been supposed that the burden of proof rested upon the defendants to show that they were not exercising privileges, offices or functions without authority. On the contrary, the usual practice has been to appoint a commissioner and have evidence taken, and the burden of proof has always been assumed by the state.
To follow the decision of the court in The State, ex rel., v. City of Atchison, supra, would require us to reverse the judgment here and remand the case for further proceedings, upon the well-settled theory that the exercise by the city during all these years of authority over this territory without dispute presupposes the existence of all jurisdictional acts to make the conduct of the city legal, and that as against a demurrer, at least, this presumption must obtain until overcome by evidence, and therefore that the court should have overruled the demurrer to the answer. (Knox County v. Ninth National Bank, 147 U. S. 91, where it is said that it is “a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the .later carries with it a presumption of the due performance of the prior act.”) (p. 97.) See, also, Bank of the U. S. v. Dandridge, 25 U. S. 64, 70, and Nofire v. United States, 164 U. S. 657, where the rule was referred to as follows:
“This is the general rule in respect to official action, and one who claims that any such prerequisite did not exist must affirmatively show the fact.” (p. 660.)
It is quite apparent from the record that the city would never be able to establish proof that an ordinance was passed annexing the disputed territory, so that if the case was sent back for trial the state would be able to prove that there was no record of such an ordinance. However, we are impressed with the belief that this case should be ended, and that the city under the particular circumstances of the case and after the expiration of such a period of time should not be prejudiced in any way by its inability to show that an ordinance was passed annexing the territory. As observed, there was no express provision as to the manner in which cities of the third class should proceed in annexing territory. It was from the time of the filing of the plat treated by the city and the owner as a part of the city. In 1889 the state, through the governor, proclaimed it to be a city of the second class, having metes and bounds certified to it by the then council of the city which included this territory, and, in our opinion, this made it a city of the second class with the boun daries thus declared. The answer, therefore, stated a good defense, and it was error to sustain the demurrer.
The judgment will be reversed, and the cause remanded with directions to overrule the demurrer and to render judgment for the defendant.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Brewer, J.:
This was an action for work and labor, brought before a justice of the peace, and taken on appeal to the district court. In both courts judgment was rendered in favor of the plaintiff, defendant in error. Three questions are raised by counsel for plaintiff in error. He insists that the bill of particulars is fatally defective, in that it gives no dates, and specifies no time during which the plaintiff was working for defendant, but simply asks judgment for a certain amount “for work and labor done and performed by plaintiff for defendant, at the special instance and request of defendant, and for which defendant promised to pay.” No objection was made to the pleading in the district court. No motion to make it more definite and certain; and no objection to the introduction of evidence under it. And it was decided in the early case of Backus v. Clark, 1 Kas. 303, that even in a petition an omission of any allegation of the time when the work was done, was not a fatal defect.
A second point made is, that the verdict was contrary to the evidence. Each party was his own principal witness. Each had some slight corroboration. And a verdict either way, upon such conflicting testimony, would be conclusive upon this court. True, the plaintiff appears to have been an ignorant man, and to have kept no book account of the number of days’ work, or the payments made, while the defendant presented an itemized account showing every day’s work, and every payment made; and so his testimony upon the record seems clearer, more definite and precise. But the jury do not seem to have fully credited his statements, and we cannot say that they were bound to believe him, and disbelieve the plaintiff. Perhaps the very particularity of his account may have justly excited suspicion.
But the principal question arises on the overruling of the motion for a new trial. One of the grounds therefor was newly-discovered evidence. Upon the trial plaintiff testified that defendant was to pay him $1.50 per day for certain work. The defendant, conceding that such was the original agreement, testified that subsequently a new arrangement was made by which the plaintiff was to work for $1 a day; and according to his account there were 34J days’ work under this new arrangement. This would make a difference of $17.25. The plaintiff claimed $39, but the jury only found in his favor $23.55. Upon this question there was no testimony other than that of the two parties. As newly-discovered evidence defendant claimed that since the trial he had ascertained that one Cassiday would testify that plaintiff had upon two different occasions told him that he was receiving only $1 a day for his work. He testifies that he did not know of this testimony before the trial. It does not appear how he obtained the knowledge of this testimony, nor whether the situation and relation of the witness to the matters in issue were such that due diligence would have compelled inquiry of the witness as of one likely to know something about the case. But •conceding the matter of diligence, it does not seem to us that we are justified in reversing the ruling of the district court refusing a new trial. In the first place, it would seem probable that the jury had given credence to the testimony of defendant upon this very point. For according to the testimony of the plaintiff he was entitled to a verdict for the full amount claimed, and a trifle more. Deducting the $17.25 and allowing interest as claimed would make the amount very nearly that of the verdict. As the verdict was general, we cannot of course know that this was the matter upon which the jury found for less than the claim, but it at least seems quite probable from the testimony. The instructions are not preserved in the record, and perhaps they were so strong and direct upon this matter that the court was clear in the belief that this was the very matter upon which the jury found less than the plaintiff’s claim. Again, the amount to be affected by this new testimony is small. True, it is more than one-half the amount of the verdict, but the amount in controversy is small. This is a matter which the court may properly take into consideration in determining a question like this. There is no certainty that with this testimony a subsequent jury would find differently. The expense of a new trial, both to the public and the parties, would probably exceed the amount affected by the new testimony. It is for the interest of the public, as well as of the parties, that the litigation Cease. We do not decide that this testimony is strictly cumulative, and therefore not of a character to justify the granting of a new trial, but we do hold that in this case, after two trials have been had, where the amount affected by the new testimony is small, and where it is at least uncertain whether the jury did not find the fact to be as it is claimed this testimony would show it to be, and,where it is not clear that, even if they did not so find, a subsequent jury would, with the new testimony, find a different verdict, this court will not say that the district court abused its discretion in refusing to grant a new trial.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by Ezekiel J. Boring against William Simpson to recover certain land in Bourbon county. The pleadings show that the title to the land passed originally from the government of the United States to the Missouri River, Fort Scott & Gulf Railroad Company, and that the plaintiff claims title under and through said railroad company. The pleadings also show that the defendant claims adversely to both the plaintiff and the railroad company. He claims that at the time the patent for the land was issued by the government to said railroad company, one Alexander Haskins had the right under the Cherokee treaty of July 19th 1866, (14 U. S. Stat. at Large, 799, 804, § 17,) to purchase said land from the government, and that he (the defendant) has succeeded to the rights of Haskins, and that therefore the railroad company holds said property in trust for him, the defendant. The defendant set forth in his answer all the facts of his claim, fully and specifically, and upon the truth of these facts the plaintiff took issue by denying the same generally in his reply. The issues of fact thus made were submitted to a jury, and the jury on the merits of the case found in favor of the plaintiff, and against the defendant. This is about all there is of the case. The defendant failed upon the facts of the case, and not upon the law. His allegations of fact were found by the jury not to be true; and hence there is no question of law now' involved in the case that merits much consideration from this court. If the defendant’s facts had been found to be true, he would have recovered so far as the law is concerned. The case was very fairly submitted to the jury. The jury found against the defendant, and their verdict is unquestionably correct. It is true, the plaintiff did not hold the legal title (as contradistinguished from the equitable title) to the property in dispute; but that was not necessary. (Gen. Stat. 747, § 595; Duffey v. Rafferty, 15 Kas. 9.) The railroad company held the legal title, and the plaintiff claimed by virtue of a written contract of purchase of said property from the railroad company. Under' said contract the plaintiff had the right of possession of the property as against the railroad company, or as against any person holding under the railroad company. The contract was still subsisting and in full force when this action was commenced, and when it was tried; and this we think was sufficient to enable the plaintiff to recover. The defendant had no interest whatever in the property as against the. railroad company, or the plaintiff. And any kind of an estate in land, legal or equitable, is sufficient to enable a plaintiff to recover in this kind of action as against a party who has no interest in the property. The question of who shall recover in this kind of action depends entirely upon the question who has the paramount right to the property. (Duffey v. Rafferty, supra. See also, K. P. Rly. Co. v. McBratney, 10 Kas. 415; The State v. Stringfellow, 2 Kas. 263.)
The former case of Simpson v. Boring can have no possible bearing upon the present case. Simpson might have recovered in that case upon the second count of his petition for the “boards, rails, posts and stakes, and other fencing materials,” “personal property,” which he alleges Boring injured and destroyed, without showing that be (Simpson) ever had the least interest in the real estate now in controversy, or that he had ever been in the possession thereof, or even that he had ever seen or heard of the same.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding in error to review the action of the district court in granting a new trial. In such a case it is settled, that the “supreme court will require a stronger case for interference than when one has been refused.” Field v. Kinnear, 5 Kas. 233. The reasons for this are fully given in the opinion in that case, “and need not be repeated. It seems to us that they are controlling in this case, and compel an affirmance. The facts are these: The.bank was a purchaser before due of a negotiable promissory note executed by Bedell. The claim was, that the note was obtained from Bedell by fraud and without consideration, and that the bank had knowledge of this, or notice sufficient to put it upon inquiry. The verdict of the jury was in favor of Bedell. The new trial was granted for the reason, as stated by the court, that it appeared to it that the jury might have been misled by one of the instructions. That instruction was as follows:
“And the plaintiff being a banking institution, and accustomed to buy and sell and deal in commercial paper, was bound to greater diligence as to what defenses there might be against the note between the original parties, than ordinary persons.”
The note was given by Bedell in part payment of a subscription to the capital stock of the Great Western Telegraph Co., was obtained from him upon representations that the company was at work on the line between Humboldt and Chetopa, and would have the line completed to Chetopa, where Bedell resided, and in working order before the maturity of the note. The note was an ordinary negotiable note, payable to the order of O. D. Bond, General Agent Gt. W. Tel. Co., by him indorsed to McDonald, Whitcomb & Balt, the contractors for building the line of telegraph, and discounted for them by the bank. It appears that other parties at Chetopa besides Bedell were induced to take stock and give their notes therefor, as were also parties at Burlington, including the plaintiff, the Burlington National Bank. The notes of the latter were still • outstanding, and not yet due, when it discounted the note in controversy. Before discounting it, the bank took the precaution to ascertain the responsibility of Bedell. While it must be conceded that the testimony points to a gross imposition practiced upon Bedell, yet it seems that others, including the bank, were equally victimized. Upon the other and equally essential matter, knowledge of or notice to the bank, we are constrained to say that the testimony is very deficient. We can well imagine that the district court, impressed with this deficiency, scrutinized carefully the instructions it had given to see if some one had not unduly influenced the jury to its apparently unwarranted conclusion. Unwilling perhaps to say that there was absolutely no testimony inculpating the bank, it nevertheless felt that the verdict was wrong, and charitably assumed the responsibility for the error which was properly imputable to the jury. Regarding the instruction itself/it may be true that a party engaged in dealing in commercial paper may be more familiar with the habits of business men in the making and discounting of such paper, and therefore more chargeable with notice of anything unusual in the form of the paper, or the conduct of the holder/but beyond that we do not understand that he is under any greater obligations than any other purchaser of such paper to inquire into and ascertain the true nature of the transaction between the maker and the payee. He is at equal liberty with all other persons, if the paper be in proper form, and the conduct of the holder without suspicion, to purchase in full reliance upon the protection which the law casts around such paper. This instruction particularly, as applicable to the facts in this case, seems to cast an unwarranted restriction upon the free circulation of commercial paper, and doubtless improperly influenced the jury in its verdict. We see no error in the order granting a new trial.
Counsel for defendant in error has attached to the transcript a cross-petition, alleging error in taxing the costs of the term to the bank as a condition of the new trial. Whether there were error in this ruling or not, we do not think the question can be raised before us in this manner. A party alleging error in the proceedings in the district court must bring his separate action to have those errors examined, and cannot bring those errors up for review by simply attaching a cross-petition in error to the plaintiff’s record.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court of Cherokee county upon the following bond or agreement:
This agreement made and entered into this 1st day of April, 1870' between Abraham Livingston, of Cherokee county, Kansas, of the first part, and E. F. Botkin, W. A. Botkin, W. B. Spencer, H. A. Hanford, J. E. Williams, Robt. McGarvin, J. F. Gibbs, G. W. Hedge, John Cahl, and Joseph Benoist, of Baxter Springs, Cherokee county, Kansas, of the second part, witnesseth: That in consideration of one dollar, this day paid to said parties of second part by said first party, and in further consideration that the said party of the first part will permit the Missouri River, Fort Scott & Gulf Railroad Co. to build and complete the said road through the northwest quarter of section 5, township 34, range 24 east of sixth principal meridian, without any hindrance or obstruction whatever, the said parties of the second part hereby agree to pay to the said party of the first part, forthwith on demand, all damages which the commissioners of Cherokee county may assess to be done to said land by the building of said railroad through said premises, without any appeal whatever. Abraham Livingston.
E. F. Botkin. W. A. Botkin.
W. B. Spencer. H. A. Hanpord.
J. E. Williams. Robt. McGarvin.
J. F. Gibbs. G. W. Hedge.
John Cahl. Joseph Benoist.
Judgment was rendered in favor of Livingston against all of the other parties, five of whom took proper exceptions, and bring the case here on error.
It is insisted that this agreement is void for uncertainty, because’the “time for the performance of its conditions, the county in which the land is situated, and the parties to assess the damages, are not mentioned, and because the matters and things to be done are entirely too indefinite; and the power given too unlimited.” The objections are not well taken. No time being specified, the law will imply a reasonable time. The land is sufficiently identified by section, township, and range, and by the line of the railroad. The assessors of the damages are expressly named. And the obligation of the parties is specific, definite, and limited.
Again, it is insisted that the instrument is void for want of consideration. On the contrary, a double consideration is expressed. First, a small money-consideration, and then a stipulation to make no hindrance or obstruction to the building of. a railroad through certain lands. This does not, as counsel seems to think, refer to “violent, illegal, and forcible resistance and obstruction;” but to a legal and peaceable resistance, by appeal from the assessment of damages, and application to the courts for injunctions, which often hinder if they do not finally prevent the construction of a road.
Still, again, it is insisted that the execution of the instrument is denied under oath, and that there was no proof of its execution. But the only objection made when the instrument was offered, was, that “it showed no liability on the face thereof.” If a party fails to object to the introduction, of an. instrument on the ground that its execution is not proven, he cannot thereafter raise the question. He has waived that point. The court is under no obligation to make an objection for him." It is enough if it rules on the questions presented.
Again, it is objected that there was no proof of demand, and that the obligation is only to pay upon demand. It is doubtless true, that a promise to pay a specific sum, primarily the debt of the promisor, on demand, is treated as a promise to pay generally, and that an action may be maintained thereon without proving any prior demand. This, though it seems at variance with the expressed obligation of the parties, is the settled law. (Though see Carter v. Ring, 3 Camp. 459; Simpson v. Routh, 2 Barn. & Cress. 685; 1 Chitty’s Pl. 330.) “But,” as said by Mr. Justice Bronson, “it is otherwise when one undertakes for a collateral matter, or as surety for a third person. There, if the agreement be that he will pay on request, the request is parcel of the contract, and must be specially alleged and proved.” Nelson v. Bostwick, 5 Hill, 39. Or, as said by Mr. Justice Co wen in the same case, “A bond to pay a precedent debt on demand is satisfied by the commencement of the suit itself, which is considered a sufficient demand; but in case of any agreement to pay a sum on demand or on request, not itself due independently of the contract, the terms of the contract must be pursued.” This it seems to us must be treated as an undertaking for a collateral matter. In case of the condemnation of the right of way for the use of a railroad, the latter is the debtor to the land-owner. The appropriation is to its use, and it must pay for such appropriation. 'This obligation is to pay such' debt. The parties contract to pay no other or different sum. True, it does not in terms recite a promise to pay, if the railroad company does not; and it is not, in form, the contract of principal and surety. It reads ás a principal promise. But still it must be construed with reference to the extrinsic facts upon which it is based. The promisors could not initiate the condemnation proceedings. This must be done by the railroad company. And when the condemnation, is had, it is the company which owes the debt. If it pays, all right of action on this undertaking is discharged. Nothing more can be recovered of these promisors.- The amount is not to be paid twice. Whether this obligation was assumed at the request of the company, does not appear; and whether, if assumed without such request, and then paid, the payors would have any claim on the company, is a question not involved in this case, and therefore not necessary to determine. It is clearly however a promise to pay the debt of another, and therefore an undertaking for a collateral matter. We think therefore a demand was necessary. This was alleged, but after a careful reading of the testimony we do not find that one was proven. The only testimony bearing on this matter is thus stated: “ J. R. H. being duly sworn said that he recognized the signature of W. A. B. and W. B. S., and had talked with them about the bond, and that he had talked with Jos. Benoist and R. McG., and each had paid a part of said bond, and acknowledged their execution thereof, and that he had made demand of said Benoist and McG., W. A. B., and J. C., before the commencement of this suit, for the amount due, but before this assessment was made.” Now a demand before a right to make it exists, amounts to nothing; and the only demand shown is one before the assessment had determined what damages, if any, had been sus tamed. A demand after the assessment, and before the commencement of the action, was essential to a right of recovery. For lack of this, the judgment must be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by Weaver to recover damages for a forcible expulsion by the company from one of its coaches. Verdict and judgment were in favor of Weaver for $5,000. Special questions of fact were submitted to the jury, and answered as follows:
lst.-Was the plaintiff informed by the agent of the defendant at New Chicago, that the paper in his possession, and upon which he demanded a ride in defendant’s cars to Chetopa, was not a good ticket, and would not entitle him to a passage on defendant’s cars? Answer, No.
2d.-Was the conductor of defendant’s train, upon which the plaintiff entered, instructed by the defendant to eject from the cars any person who refused to produce a ticket or pass, duly signed, or to pay the money for his passage? Answer, Yes.
3d.-Did the plaintiff tender to the conductor of the defendant’s cars a ticket entitling him to be carried from New Chicago to Chetopaj or any other point on defendant’s road? Answer, Yes.
4th.-If the jury answer the last question in the affirmative, please describe the ticket. Answer, From Kansas City to Chetopa.
5th. — Did the plaintiff offer to pay his fare at any time before the stoppage of the train and the commencement of his expulsion, or did he offer a pass duly signed by any authorized officer of the company? Answer, Yes.
6th.-Did the conductor' of the defendant’s train inform the plaintiff that, in the absence of a ticket, he must pay for his passage in defendant’s cars? Answer, Yes.
7th.-Did the conductor of the defendant’s train inform the plaintiff that unless he so paid he should be compelled to stop the train and expel him from the cars? Answer, Yes.
8th.-After he so informed him, did plaintiff refuse to produce a ticket or pay for his passage before the train was stopped, and his expulsion attempted? Answer, No.
9th.-Did the servants and agents of the defendant use more force in the expulsion of the plaintiff from the cars of the defendant than was necessary to eject him and overcome his resistance? Answer, Yes..
10th.-Was any unusual or unnecessary violence or force employed by the defendant’s servants and agents, before the plaintiff was put upon the ground? Answer, Yes.
llth.-After the plaintiff had been ejected and put on the ground, who was the aggressor in the conflict that afterward ensued, if there was any conflict? Answer, Defendant.
A motion was made to set aside the verdict on the ground that it was against the evidence, and that the damages were excessive. This motion was overruled, and this presents the principal question for our consideration.
Are the damages excessive? "We are constrained to think they are greatly excessive. We quote so much of the plaintiff’s testimony as bears upon this matter. He testified as follows, on his examination in chief:
“ Mr. Hall was the conductor. He passed on some distance in the cars, and came back to me, and he asked me something in regard to my ticket, where I purchased it, and said I had the wrong coupon. He stated I’d have to pay my fare to Chetopa. I-remarked that I did not feel willing to pay it a second time; that I paid it once. We discussed the matter in friendly tone and quiet, in the beginning of it. I told him that if a mistake was made, it was their mistake, and not mine. Hall said he should put himself to no trouble to correct the mistake of the other road. I said I did not intend to deprive them of anything; that as soon as we arrived at a station they could telegraph to know if I had bought a ticket. I told him I would deposit a hundred dollars with him or any other responsible man in the car, for the purpose of indemnifying the company that I was not wronging them out of their rights. He then stated I should pay, or he would put me off the train; and I refused to pay under the circumstances. He stopped the train, and there was twó or three men came to his assistance. I did not think they were going to do it, and I held on to the seat some time, and they finally pulled me loose and took me toward the door. I offered to pay, and Hall said, ‘Pay hell,’ and shoved me out. There were three, and perhaps four, had hold of me. There was nothing unusually abusive until I was out of doors. I don’t remember anything that occurred after I reached the steps. I had used a great deal of exertion in trying to keep in. The last I remember we were all tugging on the platform — some had hold of me in front, and some behind. The blood rushed to my head so that I was as blind as a bat. I remember nothing after that. I was sitting on the ground when I came to myself. My face was bloody, and my mouth was bleeding. My mouth was cut, and there were two other wounds on my head. About the time I got up, some one threw my hat out of the window. The cars were just moving off. I walked about forty rods, to what I took to be a railroad station-house. There I washed, and lay down, and rested a while. The section hands I hired to take me to New Chicago on the hand-car.
“ (J.-What was the condition of your health at the time you were ejected from the cars?
“A.-It was poor; I had been in poor health for four years, and had been to the mountains to see if I could improve it. This trip was on my return from the mountains.”
On cross-examination he testified: “Hall insisted on having the money. Don’t think he said anything about instructions. I refused to pay, and he put me off. I was very near the center of. the car. I struggled and held on to the .seats as long as I could. I was very near the steps when my recollection ceased. Don’t remember when striking the ground of hitting any one a severe blow. At the time my consciousness ceased, there had been no blows struck at all. I don’t recollect of striking Alexander a severe blow and cutting his cheek open.”
¥m. A. Nichols, who saw the plaintiff after his expulsion, and the same day, testified:
“ Plaintiff’s appearance at the time was that of a man who had had a fight. I think there was a cut about Mr. Weaver’s mouth. His clothes were bloody. I think it was his shirt the blood was on. I saw no other wounds but those he complained of.
“$.-You may state whether at the time he complained of physical suffering or wounds? [Objected to by defendant, as incompetent, as calling for declarations of party. Objection overruled, and excepted to by defendant.]
“A.-He complained about his head. He said he was suffering from the rush of blood to his head.”
Joseph A. Wells, also a witness for the plaintiff, testified:
“About this time the train came to a standstill, and Hall said he had no time to talk now — that he must get off the train. They then started to eject him from the train, and he held on to a seat on the left side. Then he was dragged to a seat on the right side of the car, and he then clutched a seat on the other side of the car before he reached the door. About the time they reached the door, Weaver remarked to the conductor, not to put him off on the open prairie — remarked he would pay his fare to the next station, rather than be put off there. The proposal not being .accepted, he was taken to the door onto the platform, and to the steps leading to the right side of the coach, his face fronting to the coach, with one hand holding to the platform, and one to the car railing, when one of the parties jumped down on the ground from the car and took hold of Weaver in the rear, and by the efforts of the three they put him on the ground. My impression is, that he struck the ground with his feet and staggered backward, and recovered, coming to nearly an upright attitude. After they ware off the car, Weaver made a kind of old-woman’s lick, sorter round like. I thought he was trying to strike the brakeman. The brakeman came at him, and struck him three or four times. Weaver got up afterward, and staggered off to the side of the ditch and sat down. I then went in the car and took Weaver’s hat and the ticket, and threw off the hat and ticket. I was present when it was done. I saw the parties that removed Weaver from the cars after they came back, and were washing up. The smallest one of the three got his face cut with the glass of the door. I believe now that Hall got cut with the glass, and that the smallest one of the three got a cut under the left eye. I could not say positively that Weaver hit him or not.”
This was all of the testimony given by the plaintiff which in any way bears upon the question of the injuries sustained. The expulsion was participated in by three parties — Hall, the conductor, and two other employés, Alexander, and Holcomb. All were retained in the employ of the company thereafter, and one, Holcomb, was shortly promoted. They were all witnesses on the- trial. We quote the testimony of Alexander — the others being far more favorable to the company, and being less full and detailed than his. Alexander says:
“The first- I noticed was when the train stopped, and I went back to see. When I went back into the coach, Hall and Holcomb, the brakeman, were trying to get Weaver out of the train. Hall ordered me to assist in expelling him. We took hold of him and started to get him toward the door, when he got down into another seat. Next move we got him on the platform, and he got hold of the railing of the car. I then jumped down on the ground, and got hold of him by the right arm and pulled him down on the ground. I turned round partly, to get on the train, and "Weaver invited Hall to get down and fight him. Hall didn’t accept the invitation, and he turned round to me, and said, You son of a bitch, I’ll give you one — and turned round to strike, and struck round this way, (witness motions,) and hit me here. Weaver had something in his hand that cut me. Then I struck him. The blow from Weaver didn’t knock me down. No force was used except what was necessary.”
On cross-examination, witness said: “I did not know of any difficulty. My going back into the car was simply caused by the train stopping. When I went in, Weaver was in a seat. They were trying to get him out. I believe Hall had hold behind him, and Holcomb was in front. They got him started before I took hold of him. When about three seats from the door, Weaver got into another seat. Holcomb said, You may as well get'off first as last. We got him into the aisle, and to the door. When outside of the door Weaver got hold of the railing of the car. When I - got down on the ground and took hold of his right arm, Holcomb and Hall were on the platform of the car, when Weaver invited Hall to fight. The blow he gave me was not so heavy, but it cut my face. Next I struck him, and knocked him down. I attempted to strike him again; he put his hands over his face. I got on him; I was trying to take his arms away so that I could strike him. There was so much blood flowing from my face that I could not see whether any come from plaintiff or not. I did not see any blood coming from his nose or mouth. Weaver did not say, ‘enough.’ Hall called me, and I got on the train. Did not hear Weaver say that he would pay when on the ground, if they would let him ride.”
Now, what may fairly be deduced from this testimony? ‘That there was a sharp scuffle in which three men overpowered one, and ejected him from the cars; that some blows were given.; some blood drawn, but no broken limbs or bones, no permanent injury or disfiguration. There was no aggravated insult and abuse; no circumstances of gross outrage independent of the forcible expulsion. There was little loss of time, as the expulsion was within three miles of the place ■ where Weaver entered the cars, and he was taken back there the same day. There was no long confinement, no protracted pain and suffering, no heavy expenses for medicine, nursing, or physician. In short, if an individual had committed the assault and battery, a few hundred dollars would have been deemed ample compensation for the injury. We know that this is not a parallel case — that there is a special duty on the carrier to protect his passengers, not only “ against the violence and insults of strangers,.and co-passengers, but a fortiori, against the violence and insults of its own servants,” and that for a breach of that duty he ought to be compelled to make the amplest reparation. The law wisely and justly holds him to a strict and rigorous accountability. We would not relax in the slightest degree this strict accountability. We know that upon it, in no small degree, depends the safety and comfort of passengers. The carrier selects his own agents, and unless he finds that violence and abuse on the part of such agents toward his passengers meets with swift and severe punishment, he will soon become indifferent to the character and conduct of such agent, and rudeness, insult and violence will take the place of politeness, courtesy, and assistance. Any one who travels sees so much of rudeness and inattention on the part of employés, is subjected to so many annoyances, petty and large, and not seldom is witness to so much actual outrage and abuse, that we would be exceedingly loth to have any relaxation of the rule which holds carriers to the most rigorous accountability for violence and wrong to their passengers. We know that in the case of Goddard v. G. T. Railway Co., 57 Maine, 202, where the supreme court of Maine discussed the obligations and liabilities of railroad companies in an opinion of great ability, and with an exhaustive examination of authorities, (and with the general conclusions of which we heartily agree,) a verdict for $4,850 was sustained where there was'no actual battery, but only a gross, outrageous, and protracted assault. But the circumstances of that outrage were so wanton, so vilely abusive, as perhaps to justify the verdict. Here, the expulsion may have been wrongful, but it does not seem to have been wanton, or excessively cruel. We are constrained therefore to believe that this verdict was excessive, and that the jury, in their anxiety to punish the company for its wrong, have failed to administer equal and impartial justice between it and its passengers.
Was the verdict, or were any of the answers to the special questions, against the evidence? Counsel contends earnestly that some of them were. He challenges, in the first place, the third and fourth answers, and contends that it is clear that Weaver had no ticket when he entered the company’s train at New Chicago. Upon this point we think the counsel is mistaken, and that there was testimony sufficient to support these answers. Weaver testifies that he purchased a ticket at Kansas City for Chetopa, and paid between eight and nine dollars for it, and gives the day upon which he purchased. There is no contradictory testimony upon this. It was evidently a coupon ticket, for he says that soon after leaving Kansas City a conductor came along and tore off a portion, and afterward another conductor tore off another portion. Upon cross-examination he says that there were two coupons and a stub to the ticket. When he reached New Chicago he unquestionably had some portion of the paper given him as his ticket at Kansas City. Here he entered the cars of the defendant. Before entering, he presented this paper to the baggage-master, who upon the faith of it checked his baggage to Chetopa. The baggage-master, who was also ticket agent, testified to a conversation with Weaver concerning this paper, which Weaver denies. The conductor took up this paper, punched it, and passed along through the car. He shortly returned, and told Weaver that he had the wrong coupon. There was some talk about a mistake having been made by the conductor on the other road, (the L. L. & G. railroad,) and Hall said he should put himself to no trouble to correct the mistake of that road. Nichols testifies to seeing this paper, that on it was printed, “Kansas City to Chetopa,” and also in one corner, in small letters, “ Chetopa,” and that it was punched. The conductor testifies that Weaver handed him “a portion of a coupon reading from Kansas City to Tioga;” that he said to him that it was not good; may have said that it belonged to L. L. & G. road, and did tell him that he could hold the ticket, and that it was as good as a bank note. He says that “punching” generally destroys a ticket, and that he does not recollect whether he punched this ticket or not. The paper itself was lost before the trial. There seems no reason to doubt the good faith and honesty of Weaver. He offered to deposit $100 with the conductor, to be forfeited if his statement as to the purchase of the ticket was not correct. And it is clear that he bought a ticket to Chetopa, and that he had in his possession all that had not been taken off by prior conductors. This remnant was good enough to secure the checking of his baggage, and was taken by.the conductor at first as good for his ride. Further than that, the testimony is .conflicting. It seems quite probable that the conductors on the L. L. & G. road had removed all the coupons, and left nothing but the stub; but still this is not clear, certainly not so clear as to entirely do away with the presumption arising from the purchase and use of the ticket. We think therefore, the answers of the jury to these questions cannot be held to be against the evidence and wholly unsupported by it.
The answer to the fifth question is challenged, and it is claimed that there was no testimony tending to show a “pass,” or that Weaver offered to pay the fare before the stoppage of the train and the commencement of his expulsion. Here we think counsel is correct. There was no pretense that Weaver had a “pass,” and the testimony of Weaver and Wells (his witness) heretofore quoted, plainly shows that Weaver’s offer to pay was not till after the stoppage of the train and the employés had commenced to eject him. We fail to find any testimony which tends to show any offer to pay before the stoppage of the train and the commencement of the expulsion.
The answer to the ninth question is also challenged, and it is contended that it is clear that no unnecessary violence was offered. We think the testimony discloses about this, that no unnecessary force was used in actually removing plaintiff from the cars, but that after he was landed on the ground there.was unnecessary violence done to him. Whether this needless violence was so disconnected from the expulsion as to be wholly a volunteer assault by the brakeman, or a part of the force used to complete the expulsion, by preventing Weaver from getting onto the train, is not clear, though we are inclined to consider it a mere volunteer assault. If a volunteer assault, the answer was not supported by the evidence ; if not, it was.
A general verdict was returned. This verdict can be sustained upon either one of three facts, that Weaver tendered a ticket entitling him to a ride, or that before the stoppage of the train he offered to pay his fare, or that unnecessary violence was used in ejecting him. In our review of these facts, it will be seen that we have concluded that the findings of the jury can be sustained as to the first fact, that it is clearly against the testimony as to the second, and probably so as to the third. The first fact however sustains the verdict as against a motion to set it aside on the ground that it is against the evidence. What then should be the disposition of the case in this court ? We have found that the damages were excessive, that to each of the three principal questions asked of the jury they answered yes — one'of which was clearly not warranted by the testimony, one probably not, and the third only barely supported by the evidence. The mere fact that damages are excessive, and above that amount which the court thinks would be just, is not of itself sufficient ground for a new trial. The statute says, “ excessive damages, appearing to have been given under the influence of passion or prejudice.” (Gen. Stat. p.687, Code, §306.) But often the amount of the verdict may be so excessive as of itself to indicate passion or prejudice. It may be so wholly disproportioned to the wrong done, and injury'sustained, as to be susceptible of no other explanation than that the jury were carried away by an im proper eagerness to punish. We are not prepared to say in this case that the mere size of the verdict carries a conviction of that, considering the special duty of care and protection due from the company to the passenger. It would, if the assault were free from that special consideration, and regard were to be had simply to the extent of the injuries received by Weaver. But here, in addition, the state of mind of the jury is disclosed by the answers they returned. Everything was decided against the company, and in favor of Weaver, and decided too in some instances in plain disregard of the testimony. Not content with resolving every doubt in his favor, they answer every question in the same way, and without regard to the facts. This shows that they were not so impartial, so free from passion or prejudice, as to be fit triers of this controversy. It shows that they failed to give due consideration to those matters making in favor of the company; and if they did as to the facts of the case, it tends strongly to show that they did also as to the damages sustained. We are constrained therefore to order a reversal of the judgment, and remand the case for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal in a products liability case, by defendant R. D. Werner Company, Inc., from a jury verdict granting plaintiff judgment for $13,500.00 actual damages and $18,500.00 punitive damages. The jury found no liability on the part of the codefendants Raymond H. Moore, d/b/a Gambles, and Amarillo Hardware Company. Underwriters Laboratories, Inc., also a defendant, was granted summary judgment on the second day of trial. We find no error in the trial court’s rulings and affirm the judgments.
In February, 1974, the plaintiff Henry Cantrell purchased a Werner Saf-T-Master, Model 366, Mark V aluminum stepladder from a retail merchant, Raymond H. Moore, d/b/a Gambles. The ladder had been purchased by Moore from Amarillo Hardware Company, a wholesaler, and had been manufactured by Werner in January, 1974, and sold to Amarillo Hardware. Underwriters had issued its seal of approval of the Mark V ladder to Werner. Werner first began construction of the Mark V in 1968.
On June 26, 1974, plaintiff was using the ladder at his place of business, in a proper manner and upon a clean, level concrete floor. As plaintiff proceeded up the ladder, the front rails or legs below the first step suddenly collapsed throwing plaintiff to the floor. He was knocked unconscious, suffered a Colies’ fracture of the right wrist, bruises and abrasions to the head and face and soft tissue injuries to the back and hips. Expert testimony revealed permanent disability to plaintiff’s right arm, back and hips.
Cantrell brought this action for actual and punitive damages against Werner, Amarillo Hardware, Moore, and Underwriters based upon a breach of express and implied warranties in the design, material and workmanship of the Mark V ladder and the failure to warn plaintiff of known defects in the ladder. Additional facts will be developed as we consider appellant’s points on appeal.
Following the jury verdicts against Werner and in favor of Amarillo Hardware and Moore, Werner filed a motion for a directed verdict, new trial and/or a remittitur which was overruled by the trial court. Appellant’s first point on appeal is that the court erred for a number of reasons in overruling the motion. On the second day of trial the court sustained a motion for summary judgment in favor of Underwriters. During pretrial proceedings, at the start of trial and during trial, Underwriters repeatedly moved for summary judgment. These motions were not opposed by Werner and, in fact, Werner conceded prior to trial that Underwriters was not a necessary or proper party. Werner now contends it was error to dismiss Underwriters from the case after trial had commenced. The crux of appellant’s argument is that it would appear to the jury that “the good guys have been sent home and we will proceed against the bad guys.” There were no counterclaims or cross-claims involving Underwriters and as plaintiff had no evidence which would support liability of Underwriters, the court was correct in its ruling and the complaint by appellant, if not frivolous, is without merit. K.S.A. 60-256. It might be noted that two of the “bad guys” received defendant’s verdicts.
As a part of appellant’s first point, it alleges numerous instances of misconduct by plaintiff’s counsel, which it claims resulted in the jury rendering its verdict under the influence of prejudice and passion. Appellant asserts six different areas in which it alleges plaintiff’s counsel was guilty of intentional misconduct designed to inflame and prejudice the jury. We have carefully reviewed each allegation and find them all to be without merit. In addition, many of the instances of which appellant now complains were not objected to during trial and others were invited or precipitated by defendant during trial. Appellant’s first point on appeal, considering all of its complaints individually and collectively, is without merit.
Appellant’s second point is that the court erred in failing to sustain its motion for a directed verdict on the grounds of insufficient evidence. The evidence revealed that the Mark V ladder was an aluminum six-foot stepladder warranted to be satisfactory under loads of up to 200 pounds. Plaintiff weighed 165 pounds. The ladder, at the time in question, was in the same condition as when it left defendant’s factory. The cardboard box covering the top of the ladder bore the following message:
“GOOD QUALITY; LIGHT-STRONG-SAFE; RATED LOAD 200 LBS; FOR SAFETY’S SAKE BUY ME. I’M LIGHT AND STRONG! FIVE YEAR GUARANTEE, SEE BACK PANEL. The manufacturer guarantees the ladder, under normal use and service to be free from defects in material and workmanship, for five years from date of purchase.”
The ladder had not been misused or abused. At the time it collapsed it was being used upon a clean cement floor with all braces extended and locked. The ladder had two knee braces below the first step located at the front of the side rails and while this type ladder was in use, it had a tendency to twist resulting in both front legs buckling inward. The front legs of the ladder in question buckled inward throwing plaintiff to the cement floor. While the Mark V had previously been approved by Underwriters and met their requirements and those of the American National Standards Institute, defendant had been advised by Underwriters early in 1973 that certification would be withdrawn unless modifications were made and additional braces installed below the first step. Such notice had been received by Werner several months prior to the manufacture of the ladder. As early as 1973, Werner did install on other models two additional knee braces at the rear of the front rails below the first step, but continued to manufacture the model in question with only two braces. Records were admitted showing at least five prior claims against Werner wherein the front rails on similar ladders had collapsed inward below the first step. No attempt has been made to summarize all the evidence favorable to plaintiff.
It has long been the rule that when a verdict is attacked for insufficiency of the evidence, “the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.” Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).
Werner argues there is no evidence in the record indicating that any component, design feature or material used in the ladder was defective. Relying on Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 552 P.2d 938 (1976), Werner contends that the proof of a defect is the basic element necessary for recovery in an action founded upon breach of contract. We have no quarrel with the broad general statement in Wilcheck that “[rjegardless of the theory upon which recovery is sought for injury in a products liability case, proof that a defect in the product caused the injury is a prerequisite to recovery.” Syl. ¶ 1.
The cause of action at bar is based on a breach of express warranty. K.S.A. 84-2-313 reads as follows:
“(1) Express warranties by the seller are created as follows:
“(d) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
“(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
“(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
“(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”
When plaintiff purchased the ladder in question there was a cardboard cover on the top of the ladder which expressly warranted the ladder to be of good quality, light, strong and safe. It also stated that the manufacturer (Werner) “guarantees the ladder, under normal use and service to be free from defects in material and workmanship, for five years from date of purchase.” Werner argues that since plaintiff showed no specific defect in the ladder that an essential element necessary for the recovery of damages is lacking.
In Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P.2d 1210 (1972), this court discussed the scope of express warranties by manufacturers as follows:
“A manufacturer may by express warranty assume responsibility in connection with its products which extends beyond liability for defects. All express warranties must be reasonably construed taking into consideration the nature of the product, the situation of the parties, and surrounding circumstances. However, defects in the product may be immaterial if the manufacturer warrants that a product will perform in a certain manner and the product fails to perform in that manner. Defects may be material in proving breach of an express warranty, but the approach to liability is the failure of the product to operate or perform in the manner warranted by the manufacturer.” p. 725.
In Huebert this court quoted favorably from Hansen v. Firestone Tire and Rubber Company, 276 F.2d 254 (6th Cir. 1960), as follows:
“ ‘In an action of the present character, the burden of proof resting upon the plaintiff entails merely demonstration that the goods -did not have the properties warranted. In the absence of controverting evidence adduced by the defendant, which convinces the jury that the goods were as warranted, plaintiff should prevail. Herzler v. Manshum, 228 Mich. 416, 200 N.W. 155. The plaintiff is not required to show the technical causation of the goods’ failure to match their warranty. Nor is it necessary that the manufacturer’s negligence be shown as the cause of such failure.’ ” p. 725.
See also Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, 571 P.2d 48 (1977).
Considering our scope of review, we have no hesitancy in finding there was sufficient competent evidence to support the jury’s award of actual damages and that there was a violation of the express warranty of the appellant which was the cause of plaintiff’s injuries.
Werner next argues there was no proof of such gross neglect of duty as to evince a reckless indifference to the rights of others required to sustain an award of punitive damages and that the verdict for punitive damages was so disproportionate and excessive that it offends any reasonable sense of justice and was granted under the influence of passion and prejudice.
The Court of Appeals has recently given an expansive discussion of the rules relating to punitive damages in the case of Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 318-19, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978):
“[P]unitive damages ‘are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; and 15 Am. Jur., Damages, § 266, p. 700.)’ Watkins v. Layton, 182 Kan. 702, 705, 324 P.2d 130 (1958).”
See also Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978); Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973).
In Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979), this court stated:
“The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).” p. 694.
Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict the trial court will not be reversed for not ordering a new trial, and no remittitür will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. See Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, Syl. ¶ 1, 522 P.2d 176 (1974); George v. Bolen-Williams, Realtors, 2 Kan. App. 2d 385, 580 P.2d 1357 (1978).
In the case at bar the jury awarded plaintiff $18,500 in punitive damages. There was evidence that in at least five prior instances the front rails of ladders of the same model as the one used by plaintiff and manufactured by Werner had collapsed in the same manner. There was also evidence that Werner had made design changes in order to strengthen the rails of the ladder by adding additional braces, that Underwriters Laboratories was withdrawing its certification unless corrective measures were taken, that defendant had notice of the ladder’s weaknesses many months prior to the manufacture of the ladder in question, yet continued to manufacture and market the ladder even after corrective designs and measures had been determined and agreed upon with Underwriters. There was adequate evidence from which the jury might have found a reckless disregard of plaintiff’s rights and the amount of the award for punitive damages does not shock the conscience of this court.
Finally, appellant argues the trial court abused its discretion when it refused to admit in evidence an 8mm film of tests conducted by Werner and testimony of defendant’s witness and employee, John Boenke, as to tests conducted by his department. The pretrial order disclosed that Werner had an 8mm film of its testing procedures which it intended to offer in evidence. Defendant was ordered to submit the film to plaintiff for examination and viewing but failed to do so even though plaintiff’s counsel made repeated requests for it. The record is not clear whether the film was excluded for the reason defendant refused to comply with discovery orders or because an insufficient foundation was laid for its admittance. It also appears that the defendant failed or refused to supply plaintiff with copies of the test reports that the witness Boenke wanted to testify about. Regardless of the grounds that the court utilized in excluding the film and testimony, we find no abuse of discretion by the trial court. State v. Jones, 209 Kan. 526, 498 P.2d 65 (1972); Howard v. Stoughton, 199 Kan. 787, 433 P.2d 567 (1967).
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the appellant health facilities from the decision of the district court affirming the action of the Statewide Health Coordinating Council granting a certificate of need to Olathe Community Hospital to expand its facilities. All proceedings herein arise from the Health Facilities Act, K.S.A. 1976 Supp. 65-4801 et seq.
Before proceeding to the facts of the case, it would be helpful to identify the various entities involved:
1. Suburban Medical Center, Dodge City Regional Hospital, Humana of Kansas, Inc., and Humana, Inc, (appellants herein). This group is involved, in one way or another, with Suburban Medical Center, a 400-bed hospital facility under construction in Johnson County. The facility is located in Overland Park, 6.5 miles from the site of Olathe Community Hospital. Humana, Inc., was previously named Extendicare, Inc., and bore that name in a previous case, Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975). This group will be referred to herein as “Suburban.”
2. Olathe Community Hospital (appellee). This is a 100-bed hospital facility located in the city of Olathe, Johnson County, which is seeking a certificate of need to construct a 40-bed addition and related ancillary facilities at a projected cost of $7,600,000. This party will be referred to as “Olathe Hospital.”
3. St. Joseph Hospital. This is a new 300-bed hospital relocated from another site. It is situated in Jackson County, Missouri, at the junction of 1-435 and State Line. The site is 12 miles from Olathe Hospital.
4. Shawnee Mission Medical Center. This is another Johnson County health facility in the process of constructing 112 additional beds to augment its existing 261 beds. This facility is 11 miles from Olathe Hospital.
5. Mid-America Health Systems Agency. This is the agency defined by K.S.A. 1976 Supp. 65-4801(d) and authorized by K.S.A. 1976 Supp. 65-4807 to review applications for certificates of need and report thereon to the secretary of health and environment. This agency will be referred to as “MAHSA.”
6. Kansas Department of Health and Environment (amicus curiae). The secretary of this agency is the “state agency” pursuant to K.S.A. 1976 Supp. 65-4801(c) who reviews the report and recommendations of MAHSA with regard to applications for certificates of need and may approve, approve subject to modification or deny such application (K.S.A. 1976 Supp. 65-4808). This agency shall be referred to as “KDHE.”
7. Statewide Health Coordinating Council. This was the “review agency” pursuant to K.S.A. 1976 Supp. 65-4801(J) designated to review decisions of KDHE relative to certificates of need during the period of time involved herein. The review procedures are set forth in K.S.A. 1976 Supp. 65-4809 et seq. The Statewide Health Coordinating Council shall be referred to herein as “SHCC.”
8. Mid-America Comprehensive Health Planning Agency. This was an agency whose authorized existence was July 1, 1972, to July 1, 1976, under the Regional Health Program Act, K.S.A. 1975 Supp. 65-2a01 (d), and was superseded by MAHSA as a part of the statutory shift from regional to statewide health care planning. The old agency is involved herein to the extent that its adopted plan relative to the Johnson County area was admitted into evidence. The plan found no additional beds were needed. The successor agency, MAHSA, had adopted no plan and relied, in part, on the MACHPA plan in its recommendation for denial of the application. This agency will be referred to as “MACHPA.”
Having identified the major entities involved, we turn now to a chronological summary of events leading up to this appeal.
February 8, 1977 - Olathe Hospital filed its application with MAHSA for a certificate of need for its proposed expansion project which included construction of 40 additional beds. MAHSA Resources Development Committee formed an ad hoc task force which held meetings, and a hearing, on the application.
March 31, 1977 - The task force voted 2 to 1 (with one abstention) to recommend to the MAHSA Resource Development Committee that the application be granted.
April 14, 1977 - MAHSA Resource Development Committee voted 7 to 3 to recommend that the MAHSA Board of Directors deny the application.
April 28, 1977 - MAHSA Board of Directors voted 13 to 9 to recommend KDHE deny the application.
May 23, 1977 - KDHE Certificate of Need Review Committee recommended denial of the application.
May 24, 1977 - KDHE denied the application on the following three grounds:
“1. The full impact of the additional beds at Shawnee Mission Medical Center as well as the new Suburban Medical Center has not yet been determined. However, due to the close proximity of these projects to Olathe Community Hospital, it appears that the hospital needs of Olathe residents will be fulfilled.
“2. The impact of hospitalization needs of citizens in Miami and Franklin Counties is minimal. Statistics show that less than 10% of Olathe Community Hospital’s patient caseload are from these two counties. Statistics also show that the occupancy rates of the hospitals in Franklin and Miami Counties are only 67.48% and 62.87% respectively.
“3. The total number of acute care hospital beds in Johnson County will rise to 904 upon completion of the 400 bed Suburban Medical Center. The draft Medical Facilities Plan of the Kansas Department of Health and Environment indicates a need for only 414 beds. The bed need was also calculated with the assumption that all residents of the Johnson-Wyandotte County service area who go to Missouri for hospitalization would remain in Kansas. Again, the projected bed need was 414 for Johnson County.”
Olathe Hospital appealed the denial of its application to SHCC.
June 22, 1977 - Suburban requested to be a party to all relevant proceedings before the SHCC stating it believed the granting of the application would adversely affect it. Over Olathe Hospital’s objection, Suburban’s request was granted by,the SHCC chairman. Pursuant to K.S.A. 1976 Supp. 65-4812 a hearing officer was appointed to conduct the hearing.
July 20, 1977 - Hearing held by SHCC hearing officer. The hearing officer subsequently prepared detailed proposed findings of fact and conclusions of law.
August 18, 1977 - Olathe Hospital sent to each SHCC member a copy of its own proposed findings of fact and conclusions of law, an 88-page memorandum, a brief, and a position letter. This procedure was apparently over the objection of the SHCC chairman.
August 22, 1977 - The hearing officer sent his proposed findings of fact and conclusions of law to each SHCC member. On the same date Suburban and KDHE sent each SHCC member their position summary and proposed findings of fact and conclusions of law.
August 31, 1977 - In a short meeting, SHCC conferred, granted the application, and adopted verbatim Olathe Hospital’s proposed findings of fact and conclusions of law by a vote of 14 to 9 (4 members were absent and 1 left before voting).
September 8, 1977 - Suburban filed its notice of appeal with the district court.
November 22, 1978 - District Court entered its memorandum decision affirming SHCC, although finding the SHCC order was arbitrary and capricious. This decision will be discussed in greater detail elsewhere.
December 15, 1978 - Suburban filed its notice of appeal to the Court of Appeals from the judgment of the district court.
December 29, 1978 - Appeal transferred from Court of Appeals to Supreme Court.
January 24, 1979 - KDHE granted leave to file brief as amicus curiae, asking for reversal of district court and denial of the application.
Before taking up the issues relating to the merits we will consider the jurisdictional question raised by appellee. The appellee seeks dismissal of the appeal on the ground that Suburban is not a proper party. This same issue was raised at all relevant levels of the proceedings and determined adversely to appellee.
KDHE denied Olathe Hospital’s application for a certificate of need. Review of such is authorized by K.S.A. 1976 Supp. 65-4809. K.S.A. 1976 Supp. 65-4811 provides:
Parties to the review proceedings shall be the applicant, the state agency, the health systems agency filing a written protest and the adversely affected health facility filing a written request for a hearing.”
Olathe contends that since Suburban, in essence, was the winner under the KDHE decision, it was not an “adversely affected” healtji facility and therefore could not be a party to the review proceeding.
Suburban s written request to be included as a party to the SHCC review is as follows:
Humana, Inc. [Suburban] believes that its interests will be adversely affected by a decision approving Olathe Community Hospital’s application. For that reason, this letter should be considered a written request by Humana, Inc. to participate as a party in any proceedings before the Statewide Health Coordinating Council, which is designated as the review agency.”
Olathe Hospital further contends that since Suburban was not a proper party to the SHCC proceedings, Suburban had no right of appeal to the district or appellate courts.
The issue as related to future cases has been eliminated by the 1978 amendment of K.S.A. 65-4811 as follows:
“Parties to the review proceedings shall be the applicant, the state agency, the health systems agency filing a written protest or requesting to be a party to a hearing requested by another party and the potentially adversely affected health facility filing a written request for a hearing or requesting to be a party to a hearing requested by another party.” (Emphasis added.)
In support of its position Olathe Hospital cites In re Waterman, 212 Kan. 826, Syl. ¶ 1, 512 P.2d 466 (1973):
“The right to appeal is neither a vested nor constitutional right but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely.”
The Waterman case is readily distinguished as the appeal to SHCC had already been taken by Olathe Hospital. Suburban merely sought to be a party to the appeal. Accordingly, we are not involved in the question of an unauthorized appeal as in Waterman.
It would be an incongruous result if Suburban could be a proper participant on the lower rungs of the ladder (MAHSA and KDHE) but not be a participant on the upper rungs of the ladder (SHCC and court cases) if its position prevailed on the lower rungs — yet it could be a proper party on the upper rungs if the lower rungs ruled adversely to it.
We hold that the effect of the 1978 amendment to K.S.A. 1976 Supp. 65-4811 was a statutory clarification of legislative intent and may be construed with K.S.A. 1976 Supp. 65-4811. See e.g., Kansas Savings & Loan Ass’n v. Rich Eckel Construction Co., Inc., 223 Kan. 493, 504, 576 P.2d 212 (1978).
We hold Suburban was a proper party to the SHCC proceeding, and therefore had the right to seek judicial review of the SHCC decision pursuant to K.S.A. 1976 Supp. 65-4816.
Before proceeding further we need to discuss the purpose of health facility planning legislation. An overview of such legislation is set forth in Pratt v. Board of Thomas County Comm’rs, 226 Kan. 333, 597 P.2d 664 (1979). Some additional statements relative to the legislation need to be made in light of the unique issues raised in this case.
During most of this country’s history, the construction of health facilities has been purely a matter of local concern. Each community or area pretty much built whatever facilities it desired. The rapidly escalating cost of health care of the last decade has focused public attention on two aspects of hospital operation: (1) the need for an adequate supply of health facilities, and (2) the harm arising from an oversupply of hospital facilities in any particular locale. The law of supply and demand does not function to the public’s advantage in the area of hospital facilities. Reduction of standards of service results in inadequate health care. Excessive construction and operation of facilities raises the cost of health services. Many operating costs of a hospital remain the same whether the hospital is operating at 50, 60, 70, or 80% capacity. The operating cost can only be passed on to the consumer in increased charges. The public, accordingly, has an interest in having adequate, but not excessive, hospital facilities available.
The increased public awareness of the problem has resulted in federal and state regulation of hospital expansion. The basic goal is that need, availability of staffing personnel, etc., must be demonstrated to a knowledgeable and impartial agency before substantial new construction is undertaken.
Various criteria have been established by the agencies involved to make such determinations. In this appeal the primary criteria concern has been that of need for the facility. To a lesser extent there has been controversy over the criteria of available health care personnel for staffing the proposed expansion. An effort will be made to summarize the factual contentions of the parties as much as possible. The basic controversy is the proper delineation of the service area of Olathe Community Hospital.
Olathe Hospital contends that its service area is Olathe and parts of Miami and Franklin counties. Its statistics to demonstrate need are based on this definition of the service area.
Suburban contends that the service area is at least all of Johnson County. Its statistics relative to need are based on its definition of service area. It also contends that St. Joseph Hospital, across the county line in Jackson County, Missouri, should be considered as the facility is only 12 miles from Olathe.
Olathe’s positions as to service area and need are diametrically opposed to its contentions in Suburban’s earlier application for a certificate of need. (See Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 [1975], which proceeding was made a part of the evidentiary record herein.) MAHSA, KDHE, SHCC’s hearing officer, and the district court all found against Olathe Hospital on the crucial areas of service area and need.
The concern of the agencies recommending denial was that the impact on Olathe Hospital of the new construction in progress by other area hospitals simply could not be ascertained at this time. Available hospital bed capacity was already being more than doubled by the previously authorized construction.
The agencies involved and the SHCC hearing officer (as well as district court) concluded the criteria relative to staffing was a problem. The evidence showed the trained manpower situation was tight without the additional pressure to come when facilities under construction were completed.
On appeal to the district court a major new issue arose. Suburban claimed that gross irregularities in the SHCC proceedings required reversal of its order. Numerous depositions of SHCC members and others (62 in all) as well as documentary evidence were introduced to establish that the decision of the SHCC resulted from improper consideration of extra-record evidence, improper “lobbying” by Olathe Hospital and others operating to assist Olathe, improper “lobbying” of some personally interested SHCC members, and failure to review or consider the evidence properly admitted.
The trial court, in essence, found these allegations to be correct. The trial court specifically found and concluded, inter alia:
“19. Olathe Hospital, through its staff, board members, committees, elected officials, and other citizens, made improper contacts, directly and indirectly, with members of the quasi-judicial administrative body responsible for deciding the appeal by Olathe Hospital from an adverse decision by KDHE.
“20. Olathe Hospital, through its staff, board members, committees, elected officials, and other citizens, improperly imparted considerable extra-record information to the members of the quasi-judicial administrative body responsible for deciding the appeal by Olathe Hospital from an adverse decision by KDHE.
“21. Individual members of SHCC and the administrative body as a whole improperly considered extra-record information in deciding the Olathe Hospital appeal.
“22. Numerous SHCC members acted improperly in their support for the Olathe Hospital application by lobbying other members, using extra-record information for purposes of reviewing and supporting the request at the hearing, and by improperly accepting and initiating ex parte contact directly and indirectly with Olathe Hospital, a party to the proceedings.
“25. SHCC, upon rejecting the proposed findings of its hearing officer, should have reviewed the record to make its own independent findings to support its conclusions.
“26. SHCC failed to make its own findings and conclusions of law, but merely adopted in toto the findings proposed by one of the parties to the proceedings.
“27. The gathering and using of extra-record information may be tantamount to arbitrary and capricious action by a quasi-judicial administrative body.
“28. The only satisfactory explanation of the SHCC decision in light of the record and the decisions made by all other agencies, committees and other persons responsible for the review of the Olathe Hospital application was the contact of SHCC members by the Olathe Hospital, directly and indirectly, through its staff, board members, committees, elected officials, and other citizens, and its consideration of extra-record information.
“29. The decision by SHCC to grant a certificate of need to Olathe Hospital .. . was arbitrary and capricious as a quasi-judicial act.
“30. The decision by SHCC to grant a certificate of need to Olathe Hospital was not so unreasonable in light of the record as to be clearly erroneous.
“76. According to hearing officer Peterson’s statement that he submitted to SHCC, he spent five hours at the July 20 hearings and 76.2 hours reviewing the record and preparing his proposed findings of fact and recommendations.
“77. SHCC Chairman Jarvis was the only other person connected with SHCC who reviewed the entire record in the Olathe Hospital matter.
“78. Hearing officer Peterson recommended to deny the application of Olathe Hospital for a certificate of need and set out his findings and conclusions in support of his recommendation.”
The trial court concluded:
54. If SHCC is to be considered as a quasi-judicial agency, it was certainly poisoned by the extra-record information and member contacts.”
The trial court ultimately concluded that SHCC was acting in a legislative capacity in regard to the application, and affirmed the agency’s order.
We turn to the issue of whether SHCC was acting in a legislative or quasi-judicial capacity in making its determination.
In Olathe Hospital Foundation, 217 Kan. 546, the actions of the review panel were held to be administrative. This determination is not controlling as the whole nature of the review has been altered by statutory amendment. K.S.A. 1976 Supp. 65-4810 et seq., set forth a detailed formal procedure to be followed by the review panel which is totally consistent with due process procedural requirements.
The test for determining whether an action is judicial or legislative is set forth in the often quoted Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 53 L.Ed. 150, 29 S.Ct. 67 (1908):
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.”
The rules axe set out more fully in Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, Syl. ¶¶ 1-4, 476 P.2d 966 (1970):
“There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not.”
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.”
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.”
“In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise.”
It is very clear that the proceedings before SHCC were not to set or fix criteria for use in determining the granting or denial of the application. Determination of criteria would be a legislative function. The proceedings were to determine whether a particular application met predetermined criteria. This was clearly a quasi-judicial function.
Having determined that SHCC was acting in a quasi-judicial capacity, the next issue is whether its conduct of the proceedings was appropriate. More particularly, was it incumbent upon the agency to comply with the requirements of due process, and if so, did it meet the requirements.
In Adams v. Marshall, 212 Kan. 595, 599-602, 512 P.2d 365 (1973), this court stated:
“Where an administrative body acts in a quasi-judicial capacity the requirements of due process will attach to the proceedings held before it. This principle was pointed out in Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 205 Kan. 780, 784, 473 P.2d 72, where the court said:
“ ‘. . . The constitutional guaranty of due process of law applies to administrative as well as judicial proceedings where such proceedings are quasi judicial in nature.’
“The pronouncement in Neeley is in harmony with the general rule expressed in 2 Am. Jur. 2d, Administrative Law, § 351, p. 163:
“ ‘The constitutional guaranty of due process of law applies to, and must be observed in, administrative as well as judicial proceedings, particularly where such proceedings are specifically classified as judicial or quasi-judicial in nature, or where the legislature is deemed to have intended the due process safeguard to apply. Procedure embodying due process requirements is essential not only to the legal validity of the administrative regulation, but also to the maintenance of public confidence in the value and soundness of this important governmental process. . . .’
“Two ground rules laid down by the Commission in this case are said by the plaintiff to violate basic due process demands: (1) the right to examine and cross-examine witnesses and (2) the right to an open or public hearing. We are inclined to agree.
“The right to the cross-examination of witnesses in quasi-judicial or adjudicatory proceedings is one of fundamental importance and is generally, if not universally, recognized as an important requirement of due process. This concept is emphasized by the text in 2 Am. Jur. 2d, Administrative Law, § 397, p. 202:
“ ‘A full hearing at which every party has the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts, is essential for wise and just application of the authority of administrative agencies. . . .’
“In speaking of due process requirements, the United States Supreme Court, in Int. Com. Comm. v. Louis. & Nash. R. R., 227 U.S. 88, 93, 57 L.Ed. 431, 33 S.Ct. 185, said:
“ ‘. . . All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can it test the sufficiency of the facts to support the finding. . . .’
"In 73 C.J.S., Public Administrative Bodies and Procedure, § 132, pp. 456-458, we find the essential elements of an administrative hearing summed up in this way:
“ ‘An administrative hearing, particularly where the proceedings are judicial or quasi-judicial, must be fair, or as it is frequently stated, full and fair, fair and adequate, or fair and open. The right to a full hearing includes a reasonable opportunity to know the claims of the opposing party and to meet them. In order that an administrative hearing be fair, there must be adequate notice of the issues, and the issues must be clearly defined. All parties must be apprised of the evidence, so that they may test, explain, or rebut it. They must be given an opportunity to cross-examine witnesses and to present evidence, including rebuttal evidence, and the administrative body must decide on the basis of the evidence. . . .’
“The requirements of an administrative hearing of a judicial or quasi-judicial character are phrased in this language in 2 Am. Tur. 2d, Administrative Law, § 412, p. 222:
“ ‘. . . A hearing before an administrative agency exercising judicial, quasi-judicial, or adjudicatory powers must be fair, open, and impartial, and if such a hearing has been denied, the administrative action is void. . .
The agency was required to make written findings of fact. The purpose of such a requirement is stated in Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, Syl. ¶¶ 2-4, 433 P.2d 572 (1967), as follows:
“The requirement that an administrative agency such as the State Corporation Commission make basic findings of fact is to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agency within its jurisdiction as prescribed by the Legislature.”
“In making findings of fact, the State Corporation Commission should hear and weigh evidence, both as to its accuracy and credibility; should determine facts of a basic or underlying nature from attentive consideration of the evidence; should infer ultimate facts, usually in the language of the statute, from the basic facts, and should make its decision from that finding by application of the statutory criterion.”
“In making basic findings of fact, the State Corporation Commission is not required to state its findings with such minute particularity as to amount to a summation of all the evidence. It must assume, however, the responsibility of expressing the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the courts, an adequate statement of the facts on all applicable standards which govern its determination, and which persuades it to arrive at its decision.”
We must conclude that the requirements of due process attached to the SHCC proceeding. The findings of the trial court as to the improprieties of the proceeding are supported by substantial competent evidence. Little would be gained by specifically enumerating the numerous improprieties. It is sufficient to say that massive pressure from within and without the agency was exerted; that extra-record evidence was considered; that improper contacts were made between SHCC members and Olathe Hospital boosters; and that only a small minority of SHCC members had reviewed the evidence. It is clear that the purpose of the health facility planning legislation to require, prior to hospital expansion, approval of a knowledgeable and impartial agency, was defeated. A fair decision on the merits was rendered impossible by the manner in which SHCC proceeded.
We do not determine under the evidence duly admitted whether the application should or should not have been approved. We hold, however, that the SHCC proceedings were so contaminated by irregularities and improprieties that the SHCC order must be vacated in accordance with K.S.A. 1976 Supp. 65-4816.
Olathe Hospital may file a new application for a certificate of need and the merits of same may be determined on the current situation, untainted by earlier proceedings, as the reviewing agency thereon would now be the State Corporation Commission pursuant to Executive Order No. 78-35 (December 12, 1978), issued pursuant to K.S.A. 1978 Supp. 65-4801(j).
The decision of the Statewide Health Coordinating Council granting the appellee’s application for a certificate of need is vacated. The district court’s judgment is affirmed as to its determination that Suburban (Humana, Inc.) was a proper party and is reversed as to its conclusion that the SHCC order should be affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions in two criminal cases which were consolidated and tried together. In case No. 78 CR 629, the defendant, Moses Moore, was charged with aggravated robbery (K.S.A. 21-3427), and kidnapping (K.S.A. 21-3420). The case went to trial on September 18, 1978, but ended in mistrial when the jury was unable to reach a verdict. On September 22, 1978, case No. 78 CR 1659 was filed, charging defendant with corruptly influencing a witness (K.S.A. 21-3806), and the unlawful deprivation of property (K.S.A. 21-3705). Over objection of the defendant, the two cases were consolidated and tried jointly on December 5, 1978. The defendant was convicted on all charges.
The events giving rise to the charges were disputed. The State’s evidence showed that on April 1, 1978, the defendant, Moses Moore, knocked on the apartment door of Mark Marion, and asked if Bill McCoy still lived there. When told by Marion that Bill McCoy no longer lived there, Moore asked if he could come in and see a mural which had been painted on one of the apartment walls. Marion admitted Moore into the apartment and they began discussing a variety of subjects. Marion testified at the trial that Moore began making sexual innuendos, and when asked to leave, pulled a gun on Marion. Marion further testified that Moore removed $60 from his billfold which was lying on the dresser, escorted Marion to a restroom down the hall, and left.
Defendant Moore’s version of the event differed greatly. Moore testified that, upon entering the apartment, Marion requested him to perform a homosexual act with him in consideration of payment of $30. Moore testified the act was attempted but never completed. Marion then went down the hall to the restroom. Moore dressed, took his $30, and left. A determination of the charges in this case depended upon whether the jury believed the testimony of Mark Marion or that of the defendant, Moses Moore.
The facts surrounding case No. 78 CR 1659 are also disputed. It appears that one Bruce Foggs met the defendant Moore in May, 1978, and moved in with him at the latter’s apartment a few weeks later. Apparently Foggs and Moore had some discussion about this case and the need for a witness who would testify that Marion was a homosexual. Such a witness would strengthen the defendant’s position in the trial of case No. 78 CR 629. At the second trial, in proof of the charges in case No. 78 CR 1659, Foggs testified that Moore signed a jail bond for Foggs in exchange for Foggs’ agreement to testify as to Marion’s homosexuality at Moore’s trial. The night before the trial, Foggs had agreed to so testify. Foggs apparently had second thoughts in the matter after discussing the matter with his lawyer and decided that he would not testify on Moore’s behalf. At the second trial, Foggs testified that Moore became angry with him and that Moore refused to return certain clothes that Foggs had left in Moore’s apartment. Foggs also testified that a diamond ring and a G.I. loan check had not been returned by Moore. The retention of this property was the basis for the charge of unlawful deprivation of property.
Moore testified that it was Foggs who volunteered to testify on Moore’s behalf and that Moore at all times told Foggs to either testify truthfully or not to testify at all. Moore further testified that Foggs had requested him to clean the clothing left in Moore’s apartment, and Moore was withholding the clothing only until Foggs paid for the cleaning. As noted above, the jury at the second trial found the defendant Moore guilty on all counts.
Moore’s first point is that the trial court erred in consolidating cases Nos. 78 CR 629 with 78 CR 1659 for trial. He also claims that the consolidation unduly prejudiced his defense. The joinder for trial of two or more informations against a single defendant is governed by K.S.A. 22-3203. That statute declares in substance that the court may order two informations against a single defendant to be tried together, if the crimes could have been joined in a single information. K.S.A. 22-3202 governs the charging of two or more crimes in the same information and states in part as follows:
“22-3202. Joinder of charges and defendants. (1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
The defendant contends that the criminal charges contained in the two cases which were consolidated for trial here, are not of the same or similar character nor based on the same act or transaction or connected as part of a common scheme or plan. The State argues that, because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbery and kidnapping charges, the crimes were necessarily “connected” and properly joined for trial. We have found no Kansas cases exactly in point. However, it should be noted that K.S.A. 22-3202 and K.S.A. 22-3203 correspond to Rules 8 (a) and 13 of the Federal Rules of Criminal Procedure. The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently “connected together” to allow consolidation for trial. For example, “a charge of bail jumping or escape may be deemed sufficiently ‘connected’ with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemmed directly from the substantive charges.” United States v. Ritch, 583 F.2d 1179, 1181 (1st Cir.), cert. denied 439 U.S. 970 (1978). Similar results were reached in United States v. Bourassa, 411 F.2d 69, 74 (10th Cir. [Kan.] 1969); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert. denied 423 U.S. 852 (1975). In Williams v. United States, 265 F.2d 214 (9th Cir. 1959), it was held that a charge of obstruction of justice was properly joined for trial with a charge of statutory rape when the obstruction charge was the result of the defendant’s persuasion of the victim in the statutory rape charge to repudiate her earlier statement of intercourse with defendant. Applying the reasoning of the federal cases to the factual circumstances in this case, we hold that the two criminal cases against the defendant Moore were properly consolidated for trial under the Kansas statutes. The crimes of aggravated robbery and kidnapping were “connected together” with the charge of corruptly influencing a witness because the crime charged in 78 CR 629 precipitated the conduct charged in 78 CR 1659. When charges are “connected together,” their joinder for trial rests in the sound discretion of the trial court, and such joinder is not reversible error absent abuse of discretion. State v. McGee, 224 Kan. 173, 175, 578 P.2d 269 (1978). We find no abuse of discretion by the trial court in this case and hold the defendant’s first point to be without merit.
The defendant’s second point on the appeal is that the trial court erred in denying defendant’s motion for judgment of acquittal on the two charges contained in the second case, 78 CR 1659, because the State failed to introduce evidence showing the venue on the charges was in Sedgwick County. It appears from the record that at no time in the taking of testimony in regard to the charges in the second case did the prosecutor specifically ask any witness if the alleged offenses occurred in Sedgwick County. At the close of the State’s case the defendant moved for judgment of acquittal because the State had failed to prove proper venue. In Kansas, venue of an offense is jurisdictional, but the cases do not require that venue be proved by specific questions and answers that the offense occurred in a particular county. Venue may be established by other competent evidence showing the offense was committed within the jurisdiction of the particular court. State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 (1972). We have concluded that the State’s evidence in this case was sufficient to establish venue within the guidelines of State v. Griffin. In the course of the State’s case, Bruce Foggs, the witness defendant is charged with corruptly influencing, testified that he moved in Moore’s house at 1104 East 9th in Wichita in May, 1978. Foggs testified that Moore discussed Foggs’ false testimony with him while the two were driving “home” from the office of Moore’s attorney. Foggs testified to discussing his testimony with Moore’s attorney by telephone, with Moore’s coaching, in late July or early August, 1978. Foggs moved out of Moore’s house in September, 1978. The retention of Foggs’ clothing occurred at Moore’s house in Wichita. The evidence before the trial court at the time of the motion for judgment of acquittal was sufficient so that a jury might reasonably conclude that the alleged offenses took place in Sedgwick County. The trial court properly denied defendant’s motion for judgment of acquittal.
The defendant’s final point is that the trial court erred in limiting the cross-examination of State’s witness, Detective George Anderson. This point pertains only to 78 CR 629 involving the kidnapping and aggravated robbery charges. In substance defendant maintains that the trial court erred in unduly restricting defense counsel’s cross-examination of Detective Anderson as to Mark Marion’s bias against homosexuals. Detective Anderson interviewed Marion on the date of the robbery. The information defense counsel hoped to elicit from Anderson concerned certain statements by Marion regarding his brother Buddy Marion’s involvement in “rolling queers,” that is, robbing homosexuals. The trial court sustained the objection to this line of questions as immaterial and irrelevant. It should be noted that, in sustaining the objection to this line of questions, the court specifically told defense counsel he could pursue the issue later by recalling Detective Anderson and laying a proper foundation. Defense counsel never took advantage of this suggestion and never recalled Detective Anderson for additional cross-examination. In the course of the trial, the defendant was given full opportunity to cross-examine Mark Marion, the complaining witness, for the purpose of showing his bias and prejudice. We cannot say that the trial court abused its discretion or committed reversible error in limiting the cross-examination of Detective Anderson under the circumstances.
The judgment of the district court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Holmes, J.:
This is a workmen’s compensation appeal from a Sedgwick County district court judgment affirming an order of the workmen’s compensation director which allowed death benefits to the claimant-appellee. The original appeal was dismissed by the Court of Appeals and we granted a petition for review.
On August 11, 1976, Elmer Wallace Hensley was employed by Carl Graham Glass. On this day, Mr. Hensley and other employees were installing glass around air conditioners on the roof of a parking garage adjacent to Page Court in downtown Wichita, Kansas. Shortly before 3:00 p.m. a sniper, subsequently identified as Michael Soles, began firing rifle shots from a balcony on the 26th floor of the nearby Holiday Inn. Ten individuals at various locations in the immediate area were killed or wounded. Mr. Hensley was struck and killed by the sniper fire while working on the nearby roof. There was no connection between the sniper and any of his victims.
Iva J. Hensley, claimant-appellee, is the widow of the deceased. On October 12, 1977, claimant was awarded workmen’s compensation benefits by an examiner. The director on review and the district court affirmed this award. The one substantive issue in the lower courts and in this Court, on appeal, is whether the injury to claimant’s decedent arose out of his employment as required by K.S.A. 1978 Supp. 44-501, which provides in part:
“If in any employment to which the workmen’s compensation act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his or her employer shall be liable to pay compensation to the workman in accordance with the provisions of the workmen’s compensation act.”
Before addressing the merits of the appeal, we must first consider the dismissal by the Court of Appeals. Hensley v. Carl Graham Glass, 3 Kan. App. 2d 57 (1979). The judgment of the district court was rendered February 21, 1978, although the journal entry was not filed until March 20, 1978. Appellants filed their notice of appeal on April 6, 1978. The appeal was dismissed for lack of jurisdiction on the grounds it was not timely filed within twenty days of the order of the district court as required by K.S.A. 1978 Supp. 44-556. In its opinion the court stated:
“It has long been the rule in this state that where an appeal from the district court in a workmen’s compensation case is not taken and perfected within 20 days, appellate courts have no jurisdiction to consider it and the appeal must be dismissed. The time in which such an appeal may be taken begins to run from the day the judgment is rendered, not from the date on which the journal entry of judgment is filed. Brower v. Sedgwick County Comm'rs, 142 Kan. 7, Syl. ¶ 1 and ¶ 2, 45 P.2d 835 (1935).” 3 Kan. App. 2d at 58.
The 1979 session of the Legislature amended K.S.A. 1978 Supp. 44-556(c), effective April 24, 1979, to read:
“(c) Any party to the proceedings may appeal from any findings or order of the district court to the appellate courts on questions of law. The compensation payable under the decision of the district court shall not be stayed pending such appeal. Such appeal shall be taken and perfected by the filing of a written notice of appeal with the clerk of the district court within thirty (30) days after the filing of the entry of judgment as provided in K.S.A. 60-258 and amendments thereto. Any appeal heretofore taken and pending on the effective date of this act which was filed within twenty (20) days from the date of journal entry of judgment shall be deemed timely and the appellate court in which the appeal is pending shall have jurisdiction to determine such appeal. Appeals pursuant to this subsection shall be prosecuted in like manner as other appeals in civil cases, and shall take precedence over other cases except cases of a like character.” L. 1979, ch. 158, § 1.
The purpose of the amendment was to conform the time for appeal in workmen’s compensation cases to that in other civil actions under K.S.A. 60-258 and 60-2103. The amendment specifically provides that it shall apply to any workmen’s compensation case “pending on the effective date of this act.” The decision of the Court of Appeals dismissing the appeal in this case is reversed.
Having determined that this court has jurisdiction, we turn to the merits of the appeal. The sole issue is whether claimant’s decedent’s injury and resulting death “arose out of” his employment. It is well-settled that “arising out of” and “in the course of” represent two separate requirements which must be satisfied before compensation is allowed. 1 Larson, Workmen's Compensation Law § 6.10 (1978). This court recognized this dichotomy in Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825 (1967):
“Our workmen’s compensation act (K.S.A. 44-501) provides that in order to be compensable an accidental injury must arise ‘out of’ and ‘in the course of’ the employment. The two phrases have separate and distinct meanings (Floro v. Ticehurst, 147 Kan. 426, 76 P.2d 773, Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701); they are conjunctive and each condition must exist before compensation is allowable (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P.2d 197, Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P.2d 578); and as to them every case must be determined upon its own facts.” p. 303.
There is no question but that Hensley’s death occurred during the course of his employment and neither party makes any argument to the contrary.
At the outset we pause to note the oft-stated general rule that the workmen’s compensation act is to be liberally construed in favor of the workman and compensation is to be awarded where it is reasonably possible to do so. Odell v. Unified School District, 206 Kan. 752, 481 P.2d 974 (1971).
There are three general categories of risks in workmen’s compensation cases: (1) those distinctly associated with the job; (2) risks which are personal to the workman; and (3) the so-called neutral risks which have no particular employment or personal character. The chance of being struck by sniper fire is not an ordinary risk associated with glass installers nor was the shooting of Hensley motivated by any personal connection with the sniper. The sniper’s assault on Hensley falls into the category of neutral risks. See 1 Larson, Workmen's Compensation Law, § 7 (1978).
In Kansas there have been several workmen’s compensation assault cases beginning with Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507 (1923). In Stark a death by stabbing of a street-car conductor was held compensable. The court based its award upon the theory that robbery is a hazard incident to employment that requires the employee to possess money.
This same analysis was followed in Phillips v. Kansas City, L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4 (1928), where the deceased was bludgeoned to death while selling tickets for the railroad.' Again, the job entailed handling money thereby inviting a robbery.
In Covert v. John Morrell & Co., 138 Kan. 592, 27 P.2d 553 (1933), a traveling salesman, while in the course of his employment, received eye injuries from a chunk of mud intentionally thrown through his windshield. The court denied compensation because such an injury had no causal connection to the employment. Appellants rely heavily on Covert wherein the Court stated:
“ ‘Arising out of’ means that the accident came out of the employment and makes it a condition precedent to the right to recover compensation that the occurrence shall have resulted from the risk reasonably incident to the employment and that there be a causal connection. While not ordinarily essential that it be peculiar to the particular employment in which the workman was engaged at the time of the injury, it must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business. Claimant’s injury might have been sustained while traveling for his own pleasure as well as while he was in defendant’s employment. The employment in no way provoked or invited the attack. Apparently the occupants of the car would have thrown the mud whether or not claimant had been employed by defendant.” 138 Kan. at 593.
In other traveling salesmen or truck driver cases where the injury was accidental, rather than intentional, this court has allowed compensation. Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536 (1930); Wetlaufer v. Howse, 146 Kan. 500, 71 P.2d 879 (1937); Stapleton v. State Highway Comm., 147 Kan. 419, 76 P.2d 843 (1938). Claimant cites these cases as indicative of a more liberal “arising out of” standard than applied in Covert.
Next in the line of assault cases is Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825 (1967), in which a milkman was shot and killed while asleep in his employer’s office at night. Although the milkman was in charge of collecting money, there was no evidence of a burglary.
“Viewed as a totally unexplained assault appellees still may not prevail in the light of the rules already stated. Once the burglary theory is eliminated, the record contains no showing the employment brought the workman in contact with the risk that in fact caused his death or that it increased that risk — as was the situation in Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507, and in Phillips — or of any connection at all between the employment and the death.” p. 307.
Finally, the case of Craig v. Electrolux Corporation, 212 Kan. 75, 510 P.2d 138 (1973), is one in which a salesman whose job required handling money was shot and killed while waiting in a car for a co-worker. The court allowed compensation.
“The case at bar is distinguishable from Siebert in that one of the assailants saw Craig with a large sum of money and planned to rob him. One of Craig’s duties was to make collections and carry substantial sums of money with him. Although no actual robbery occurred there was an intent to rob. No showing of personal animosity existed toward Craig as in Siebert, and under the circumstances a conclusion that robbery was intended is justified. The intent to rob, coupled with the fact Craig was required to carry substantial monies, creates the causal connection between the murder and the employment.” p. 79.
In the case now before the Court the workmen’s compensation examiner stated:
“In applying the above tests to the case at bar, the Examiner finds that the hazardous circumstances which created a causal connection between the employment and the injury were the requirement that the Claimant’s decedent be present upon the roof and perform his duties there. It appears clear from the evidence that the decedent would not have been exposed in any way to the gunfire had that not been the case. The evidence clearly showed that he was working on another project immediately prior to the assault in an area where he could not have been struck by the fire. The evidence also rather clearly indicates that Mr. Hensley, when he was a member of the public at large, would not have been in the downtown area if his life had depended on it. While the Respondent earnestly contends, and rightly so, that many other members of the public at large were also victims of this mindless assault, that fact is entirely irrelevant to the issues in this case. The fact that other workers or other members of the public were injured or killed is not the test. The test is applied to the employment of the individual workman on a case-by-case basis. In this case, it is clear that this individual workman would not have been killed or injured had it not been for the hazards created by his employment. See Faulkner v. Yellow Transit Freight Lines, supra, for a case where the worker was killed and other members of the public at large or other employees were also swept away by the elements.”
The examiner relied upon the “act of God” case of Faulkner v. Yellow Transit Freight Lines, 187 Kan. 667, 359 P.2d 833 (1961), in which a truck driver was killed at a gasoline station when it was struck by a tornado. The driver, having been involved in a minor accident, contacted his supervisor who ordered him to remain at the station until someone from the driver’s company could get there. In Faulkner we held:
Syl. f 2. “When the injury occurs from the elements, such as a tornado, or the like, the rule is that in order for it to be said the injury arose out of the employment, and thus compensable, it is essential there be a showing that the employment in some specific way can be said to have increased the workman’s hazard to the element — that is, there must be a showing of some causal connection between the employment and the injury caused by the element, and that his situation was more hazardous because of his employment than it would have been otherwise.”
Syl. f 3. “In the course of his employment as a truck driver a workman received injuries from which he later died, when a gasoline filling station, in which he was at the time, was demolished by a tornado. The record is examined and it is held: Under all of the facts and circumstances, fully set forth in the opinion, the workman’s employment subjected him to a greater hazard than his situation would have been otherwise; there was a causal connection between his employment and the injuries sustained in the tornado; such accidental injuries arose out of his employment, and death benefits to his dependents were properly awarded.”
In the present case the director on review did not rely on Faulkner but based his holding solely on the assault cases. He stated:
“From the above cases one can see the line of reasoning used by the Court in deciding whether an assault can be considered as arising ‘out of’ employment. The pivotal question to be answered is whether the employment caused the employee to be exposed to an added risk or hazard to some degree greater than if not in his employment. Respondent argues this line of reasoning and concludes that the decedent herein was not exposed to any greater risk than the some fifteen (15) other persons who were injured by the sniper. The Director does not agree with respondent’s conclusion.
“The decedent and his co-worker were on the roof of the parking garage at Page Court immediately adjacent to the Holiday Inn Plaza, from which the shots were fired. Decedent’s co-worker, Arnold Merritt, testified that he and the decedent were working together and had just completed their work. They were picking up their tools when they heard the first shot. They heard another shot and then a third. The fourth shot struck the roof where they were working. Apparently the decedent was killed by the fifth shot and Mr. Merritt struck by the sixth. According to the testimony of Mr. Jerry Bullins, a lieutenant with the Wichita Police Department, the sniper fired from 30 to forty shots over a span of eleven (11) to fifteen (15) minutes.
“It appears to the Director that, since the decedent and his co-employee became the targets with the fourth shot fired, their position on the roof of the building made them prime targets for the sniper. There is no testimony in the record to show whether anyone was struck by the first three bullets, however, the fourth struck the place where these men were working. The fact that these workmen were on top of the parking garage adjacent to the sniper’s location made them easier targets which greatly increased the risk of them being a target.
“The fact that at least three of the first six shots were fired at decedent and his co-worker clearly shows that they were prime targets, because of their physical location. Had they been on the street level, walking or driving, as was the general public they might not have been targets. In that situation they might have been on equal footing with the general public, however, since they were in an elevated position making them closer to the sniper, their risk of being shot was substantially increased.”
The trial court affirmed and adopted as its judgment the order of the director. Considering, as we must, that the workmen’s compensation law is to be liberally construed in favor of the workman we find no error in the trial court’s determination.
The order of the Court of Appeals dismissing the original appeal is reversed and the judgment of the trial court is affirmed.
Schroeder, C.J., and McFarland, J., dissenting.
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The opinion of the court 'was delivered by
NalentiNE, J.:
There can scarcely be any doubt as to the correctness of the decision of the court below, and yet, upon the record brought to this court, this court has no jurisdiction to determine whether such decision was correct or not. The decision was made and rendered on July 30,1887, and the proceeding to reverse the same was not instituted in this court until September 25, 1888 — nearly fourteen months intervening. Now, under the statutes of this state, no proceeding to reverse, vacate or modify any judgment or final order can legally be commenced in the supreme court except within one year after the making or the rendering of such judgment or final order, unless the party instituting the same has in the meantime been under some legal disability. (Civil Code, § 556; McDermott’s Estate v. Loftus, 27 Kas. 68; Bennett v. Dunn, 27 id. 194; Winkfield v. Brinkman, 31 id. 25; Association v. Rohl, 32 id. 665; A. T. & S. F. Rld. Co. v. Dougan, 39 id. 181.)
The petition in error in this case will be dismissed.
All the Justices concurring.
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Opinion by
Green, C.:
This action was commenced in the district court of Shawnee county, to enforce the payment of an attorney’s lien. As a first cause of action, the claim is made in the “amended and consolidated” petition, that one George P. White held a certificate of membership in the Southwestern Mutual Benevolent Association on the life of his wife, who had died, for the sum of $2,500; that the plaintiff, who was a practicing attorney, had made a contract with White whereby it was agreed between them that the plaintiff was to collect said certificate, and for his services was to have a sum equal to 50 per cent, of the amount of said certificate; that be sued the insurance company, and obtained a judgment thereon for $1,360, on the 26th day of July, 1886; that on the 17th day of November, 1885, the insurance company had money in its hands due and owing the said George P. White, and the plaintiff gave a notice to the company in writing that he claimed a lien upon the money in its hands due White, to the amount of $1,250, for his fees;' that he filed a copy of said notice with the clerk of the district court; that the insurance company afterward settled with White without his knowledge, by an assignment of the judgment to J. W. Brown, one of the defendants, who caused a satisfaction to be entered of said judgment.
For a second cause of action, the plaintiff declares upon a bond given by the insurance company, under chapter 131 of the Laws of 1885, and as a breach of the bond says: “That they failed, neglected and refused to proper payment and disbursement make, of the sum of twelve hundred and fifty dollars, which came into their hands, to the legitimate purposes of the association, but caused the same to be paid to George P. White and J. W. Brown.” The action is against the association and the bondsmen, and George P. White, but no service was made upon him. A demurrer was interposed to this petition, on the ground that several causes of action were improperly joined, and that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff in error brings the case here, and asks a reversal of this ruling of the court below.
A number of errors are assigned to the rulings of the court prior to the filing of the last amended petition. It is not necessary for us to pass upon them, because the plaintiff, in filing his pleading and complying with the order of the court, waived any right to complain of the order. Having filed his “consolidated and amended petition,” no substantial right of his has been thereby prejudicially affected. (Lindh v. Crowley, 26 Kas. 47.)
Can the cause of action for an attorney’s lien be united with an action on the bond given by the association, under chapter 131 of the Laws of 1885? This court has held that the bond given is an official bond, and not a corporation bond. The promise is made for the officers and not for the association itself. (Life Association v. Lemke, 40 Kas. 664.) The giving of this bond is a statutory requirement and constitutes one separate and distinct transaction, and is in no way connected with the transaction out of which the claim of the plaintiff arose, in which he claims an attorney’s lien; His contract with White, his suit against the association, and his effort to obtain a lien, grew out of one transaction, but the liability on the official bond is an entirely different transaction. Each cause of action attempted to be stated in the pleading did not arise out of the same transaction, or the same thing done; one was the failure of White to make proper compensation to his attorney, and the neglect of the association, after notice given to pay the amount claimed, all growing out of the contract made with White, for certain services. The other is the official liability of certain persons in giving a bond that certain officers of an insurance association will faithfully perform what will be required of them during their terms of office. It is quite apparent that each cause of action arose out of entirely different transactions. It will be seen, too, at a glance, that the several defendants are not charged in the same character. The defendants in each cause of action must be the same; that is, all the parties must be affected by each cause of action. The language of §83 of the code is: “But the causes so united must all belong to one of these causes, and must affect all of the parties to the action, except in actions to enforce mortgages or other liens.” The first cause of action in this case does not affect the bondsmen, who are alleged to be liable in a representative character. It is one of the prerequisites to the uniting of different causes of action that all of the causes of action must affect all the parties to the action. (Pom. Rem. § 479; Bliss, Code Pl. § 123; Harsh v. Morgan, 1 Kas. 293.) We think the plaintiff failed to state facts sufficient, in his first cause of action. The allegation that the association had money in its hands due White, at a certain time, was not sufficient to require the defendants to answer. It appears from the petition that one of the defendants was an insurance company, organized on the mutual plan, and the only way it had of raising funds to pay a particular certificate was to make assessments upon the members when a death occurred; and there is no allegation in the petition that the sum of money on hand was derived from an' assessment made on account of the particular certificate sued upon in the original action against the association. The officers of the association could only be required to pay the particular loss out of the funds derived from the assessment made on account of it, unless it was shown that they had a surplus fund in the treasury of the association, out of which it could be paid. The officers of such societies are trustees for the funds of the association and should be held to a strict account of each particular fund. We think the demurrer was properly sustained.
It appears from the record that no service was made upon the defendant George P. White. We think he is a necessary party in that branch of this action in regard to the establishment of the plaintiff’s right to an attorney’s lien, and would suggest that service should be made upon him, before further action is taken in the case.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
SimpsoN, C.:
This action was brought by John F. Struthers on the official bond of A. M. Fuller, as sheriff of Shawnee county, and Joab Mulvane, John Sutherine, and J. W. Stout, sureties on the bond, to recover the sum of $1,182.25 damages for the unlawful conversion of plaintiff’s goods and chattels attached by the defendant as such sheriff in favor of Brown Bros, against and as the property of Scher-merhorn Bros. At the January term, 1888, the case was tried by a jury and a verdict returned, and a judgment rendered for the defendants. The plaintiff, having made an unsuccessful motion for a new trial, brings the case here for review. The errors assigned are: First. Error of the court in overruling the motion of plaintiff for a continuance of the case. Second. Error in refusing to admit competent and material evidence offered by the plaintiff. Third. Error in admitting illegal and incompetent evidence for the defendants. Fourth. The verdict is not sustained by the evidence. Fifth. The verdict is contrary to law.
I. As to all the errors assigned, except the first, the record is in sucb condition that we cannot consider them. All these assignments of error are such as relate to matters'.occurring on the trial, and for which a new trial was asked, and the record must show that the action of the trial court overruling the motion for a new trial is assigned as error, or no question is properly raised for the consideration of this court. (Clark v. Schnur, 40 Kas. 72, and cases cited therein.)
II. The plaintiff below made a motion for a continuance, and supported it by an affidavit reciting that he could not go to trial safely without the presence of a material witness, one S. B. Maxwell; that he expected to prove by said Maxwell that the plaintiff purchased in good faith from Schermerhorn Bros, the personal property for the unlawful conversion of which this suit is brought; that said witness will testify that in the month of August, 1887, he resided in the city of Topeka, at No. 520 Harrison street, where he was keeping a boardinghouse, and that P. V. Schermerhorn boarded with him; that on the 11th day of August, 1887, at about 6 o’clock p. M., he had a conversation with Schermerhorn. with reference to an item printed in the Evening Journal of that date, headed “ Rather Mixed,” and mentioned the fact that a writ of attachment had that day been levied upon the goods held by the plaintiff to satisfy a claim for over $1,600, in which conversation he said to Schermerhorn, that according to this statement in the Journal, he did not sell out to Struthers, but made an assignment to him, to which Schermerhorn replied, “ This is not true; I made a fair and square sale to Struthers, and have got all my pay.” Whereupon Maxwell said to him, “How then can your creditors take Struthers’ goods to pay your debts?” To which Schermerhorn replied, “I do not know.”
Of course the only pretense under which such statements could be admissible would be to impeach Schermerhorn. And it is alleged in the affidavit that Schermerhorn’s deposition had been taken by the defendants to use on the trial. The affiant further alleged —
“That he had used due diligence to obtain the testimony of Maxwell at this time, and that he had made diligent search and inquiry as to the whereabouts of said witness in order to secure his evidence, and that on the 20th of February he caused a subpoena to be issued for him, which was returned on the 22d of February, indorsed 'not found;’ that he did not know until said subpoena was issued that Maxwell was not a resident of Shawnee county, but he is now informed and believes that he is a resident of Solomon City, Dickinson county, Kansas.”
The affidavit is in the usual form in all respects except as hereinafter stated. The sole object of the presence of this witness was to impeach Schermerhorn on some statement he bad made in his deposition. This deposition had been taken in August, 1887, and this trial was had on the 23d of February, 1888. The only showing of diligence made by the plaintiff was that he had made inquiries aud had a subpoena issued on the 20th of February; but he does not state the extent of-the inquiries, when they were made, of whom they were made, or any other fact that would allow the court to determine whether or not a proper degree of diligence was exercised. Then he expressly states in the affidavit that he did not know until since the subpoena was issued that Maxwell was not a resident of Shawnee county. This shows that a witness he regarded as an important and material one to impeach a man whose deposition was taken in August, 1887, he made no inquiry for, or obtained no knowledge of, until after the 20th day of February, 1888, when his cause was set down for trial on the 23d of February, 1888.
The trial court did not- abuse its discretion in overruling the motion for continuance.
We recommend that the judgment'be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This was a condemnation proceeding instituted by the Leavenworth, Northern & Southern Railway Company to procure a right-of-way through certain lands in Leavenworth county, some of which lands belong to the present defendants in error, Mary Herley, David F. Herley, Emma Kennedy, William Herley, and Katie Herley. The commissioners awarded to the defendants in error $317.20 as the value of the land taken, and $475 as damages to the land not taken, making a total compensation to the defendants in error of $792.20. The defendants in error appealed to the district court, and in that court became the plaintiffs, while the aforesaid railway company became the defendant. Two trials were had in the district court. At the second trial, which was before the court and a jury, a general verdict and judgment were rendered in favor of the plaintiffs below and against the railway company, awarding to such plaintiffs the sum of $5,000 as damages. The value of the land taken and the damages to that not taken were not found separately by the court or jury. The railway company brings the case to this court and asks for a reversal of the aforesaid judgment for several reasons, among which are the following:
I. The railway company claims that the court below erroneously permitted certain witnesses for the plaintiff to testify directly as to the amount of the damages which the witnesses believed the plaintiffs sustained by reason of the defendant’s procuring its right-of-way and constructing its railway across the plaintiffs’ land, or, in other words, that the court below erred in permitting such witnesses to testify as to the amount which they believed the plaintiffs were entitled to recover as damages; and the railway company cites in support of this claim the following cases: W. & W. Rld. Co. v. Kuhn, 38 Kas. 675, 676, 677, and cases there cited; L. & W. Rld. Co. v. Ross, 40 id. 605, 606; C. K. & W. Rld. Co. v. Muller, ante, p. 85; same case, 25 Pac. Rep. 210, 211, and cases there cited. (See also, Roberts v. Comm’rs of Brown Co., 21 Kas. 248, 253, and cases there cited; Water Co. v. Knapp, 33 id. 753, 756; C. K. & W. Rld. Co. v. Dill, 41 id. 737; C. K. & N. Rly. Co. v. Neiman, just decided.) We suppose that the railway company in the present case will admit that a witness sufficiently competent may testify as to the value of the land before the taking of the right-of-way and the value • of the land afterward, and indeed as to values generally, so far as the same may have application to the case; and that he may also testify in detail with regard to the situation of the land, and with regard to all things connected therewith which might tend to render the land more valuable or less valuable, or which might constitute elements of value or want of value, or that might tend to prove value or a want of value; and that the witness might also testify as to every fact which might constitute an element of damage or tend to prove damage. (See the cases of K. C. & S. W. Rld. Co. v. Ehret, 41 Kas. 22, et seq., and cases there cited ; Comm’rs of Smith Co. v. Labore, 37 id. 480, 484, 485.) But the railway company claims that a witness cannot testify in comprehensive terms to the amount of damages which he may think the land-owner has suffered or may suffer by reason of the appropriation of the right-of-way. It has been suggested in favor of a witness’s giving direct testimony as to the amount of damages to be recovered, that as the amount of the damages to be recovered is the final result to be reached upon the testimony of all the witnesses, each witness should be permitted to state in direct and explicit terms just how much he thinks the damages are. The railway company answers that this cannot be done, for . the simple reason that the amount of damages to be recovered is the final result to be reached in the action, the final fact to be ascertained by the jury; and that the jury alone, and not the witness, is the proper tribunal to determine this fact, which is generally an exceedingly comprehensive and complex fact, depending upon and including innumerable details. Suppose that the plaintiff in an action for personal injuries — an action for assault and battery, for instance — should be a witness, would it be proper to ask him such questions as these? “How much were you damaged?” “What is the amount of your damage?” “What amount are you entitled to recover?” We do not think it is necessary to determine whether the court below committed any material error in permitting witnesses to testify directly as to damages or not, and we shall therefore pass to the next question.
II. The railway company also claims that in cases like the present the owner of the land taken can recover only full and complete compensation for all his losses suffered by him, with respect to his entire tract of land, by reason of the appropriation by the railway company of its right-of-way, and of other lands, if other lands are taken, and by reason of the construction and operation of its railway in a legal and proper manner; and cannot recover in such cases for independent trespasses committed by the railway company or its agents outside of the land appropriated by the railway company; and that for the recovery of damages for any such independent trespasses the land-owner must resort to some other action or proceeding. And the railway company cites the case of L. N. & S. Rly. Co. v. Usher, 42 Kas. 637, et seq., and cases there cited. (See also, The State v. Armell, 8 Kas. 288; K. P. Rly. Co. v. Mihlman, 17 id. 224; Reisner v. Depot & Rld. Co., 27 id. 382, 389; C. K. & W. Rld. Co. v. Grovier, 41 id. 686; C. K. & W. Rld. Co. v. Willits, ante, p. 110; same case, 25 Pac. Rep. 576, and cases there cited.) The railway company claims that the court below erred in permitting the plaintiffs below to recover for trespasses outside of the right-of-way; and we think so, too. Evidence was first introduced over the objections of the defendant by the plaintiffs concerning trespasses of this character, and the court afterward refused to instruct the jury as requested by the defendant, among other things, as follows:
“That the jury should not allow any damages to the plaintiffs on account of earth or trees having been thrown outside of the right-of-way appropriated, and on to the land of the plaintiffs, in the construction of the road.”
On the contrary, the court gave to the jury the following, among other instructions:
“That in determining the amount of the plaintiffs’ damages in this case, the jury should include . . . the amount of all damage to plaintiffs, if any, caused by the removal of earth from defendant’s right-of-way in constructing its road on plaintiffs’ land outside of such right-of-way, and placing such earth so near plaintiffs’ land that from natural causes the same may have spread out over plaintiffs’ land, and all damage to plaintiffs, if any, caused by the removal of stumps and trees and brush from that right-of-way on to plaintiffs’ land outside of that right-of-way in constructing defendant’s railroad.”
The railway company claims that the foregoing refusal to instruct the jury, and also the giving of the foregoing instruction, constituted material error. In this kind of proceeding the judgment for compensation can be only an award of damages, which cannot be enforced by execution; (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239, 247, and cases there cited; L. & T. Rly. Co. v. Moore, 24 id. 323, 328; Water Co. v. Knapp, 33 id. 752, 756, 757;) while everyone knows that in a regular action for a trespass the judgment is otherwise, and can be enforced by execution. It is probably not necessary to mention any of the other claims of error on the part of the railway company.
The defendants in error, who were plaintiffs below, answer the railway company’s claims of error by saying that the questions are not properly brought or presented to this court; but after a careful consideration of the points made by the defendants in error, we are of the opinion that they are wholly untenable. The proceeding in this court is founded upon a case, made in the district court for the' supreme court, and in such a case thus made and brought to this court it is. not necessary that the entire record of the case in the district court, or indeed any portion of the record thereof, copied literally, should be brought to the supreme court. All that is necessary is, that the case-made for the supreme court should include therein a statement of so much of what occurred in the case .in the district court as will be necessary to present to the supreme court the errors complained of. (Civil Code, § 547.)
The defendants in error also present another matter as a defense to the claims of error made by the railway company. It seems that when the court below rendered judgment in favor of the defendants in error and against the railway company, it included in its judgment an order that the railway company, in order to be entitled to continue in the use of its right-of-way through the land of the plaintiffs below, should pay to such plaintiffs the aforesaid sum of $5,000, with interest, within thirty days. ' This judgment was rendered November 10, 1888, and of course the thirty days given by the court within which the railway company was required to pay said $5,000 has long ago expired. How these matters affect this proceeding in error it is difficult to understand. We suppose that the railway company has the right to institute proceedings in error in the supreme court to have the decision of the district court reviewed by the supreme court. (Civil Code, §542; Const., art. 3, §§ 1, 2, 3.) We suppose, also, that it has the right to have a stay of proceedings in the district court while the case is pending in the supreme court. (Civil-Code, § 551, et seq.) We suppose, also, that the railway company has deposited the amount awarded by the condemnation commissioners with the county treasurer and given bond as provided by law. (Act relating to Corporations, § 239; Gen. Stat. of 1889, ¶ 1395.) And we also suppose that the railway company has given a sufficient bond for a stay of proceedings in the district court while the case is pending in this court. But how can this matter affect this case as it is now presented? This same kind of proceeding was referred to in the case of L. N. & S. Rly. Co. v. Whitaker, 42 Kas. 634, and a remedy was there suggested. (See also, Rld. Co. v. Callender, 13 Kas. 496.) But counsel for the defendants in error say that these cases ought to be overruled so far as this matter is concerned. Counsel, also, for the defendants in error, in further reply to the claims of error made by the railway company, say that all the authorities or decisions relied on by the railway company should be overruled. We think otherwise, however.
For the error of the district court in permitting the plaintiffs to recover for independent trespasses, its judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
HoetON, C. J.:
This was an action brought by Mrs. Mary J. Bradbury against the city of Kansas City, to recover damages for personal injuries alleged to have been caused on the night of the 29th of August, 1886, by reason of the unsafe and defective condition of a sidewalk on Seventh street in that city. It was clearly established by the evidence that Mrs. Bradbury was tripped up and thrown down by a loose board or plank in the sidewalk, and thereby severely and permanently injured. There is no evidence in the record tending to show any contributory negligence upon her part, and the principal question of fact for the determination of the jury was, whether prior to the injuries complained of the defects in the sidewalk were known to the officers of the city having charge of the streets, or could have been known by the exercise of ordinary care and diligence upon their part. The jury found specially that the sidewalk was defective where Mrs. Bradbury was injured, and that the defects in the sidewalk had existed about six months before she was injured. The jury also found that the sidewalk was not properly constructed.
It is contended that the board or plank of the sidewalk which caused Mrs. Bradbury to fall was loose for only a short time before her injury. An instruction was asked by the city to the effect that—
“If the jury believe from the evidence the sidewalk upon which the plaintiff fell and was injured was in a reasonably safe and suitable condition of repair at the time of the alleged injury, save and except the loose board that flew up and tripped the plaintiff, they should find for the defendant.”
An examination of the record shows there was evidence supporting the findings of the jury, and therefore we cannot say that there was no proof to sustain the judgment. In this view, the instruction was properly refused. All questions of fact in such a case are for the jury to decide, not the court.
It is also contended that the trial court committed error in refusing various other instructions prayed for. The instructions given sufficiently covered the ground. The facts of the case were in a very narrow compass. Other and further instructions would not have been beneficial, unless the court had explained to the jury what it meant when it referred to “the proper officers of the city having notice of the condition of the sidewalk.” The court undoubtedly meant the officers of the city having charge of the repairs of the streets, but the city did not ask the couit to define “the proper officers,” and the instruction cannot be said to have been erroneous or misleading.
The objection to the order in which the evidence was admitted is not well taken, because in such matters a court has some discretion. A trial court may even open a ease for the purpose of receiving further evidence. ( West v. Cameron, 39 Kas. 736; The State v. Sowders, 42 id. 312, and cases there cited.)
It is further contended that the court erred in refusing to submit to the jury the following questions:
“Q,. What sum do you find, if any, that the plaintiff is entitled to on account of money paid for medicine and the services of a physician ?
“Q,. What damage do you find, if any, for the plaintiff for loss of time from the performance of her usual labors and duties?”
The court very properly might have submitted the first question. A similar question was submitted in City of Satina v. Trosper, 27 Kas. 544. Either party has a right to a written finding upon any particular question of fact involved in the case. (K. P. Rly. Co. v. Reynolds, 8 Kas. 623; Bent v. Philbrick, 16 id. 190; City of Wyandotte v. Gibson, 25 id. 236.) But an examination of the record shows that no material error was committed in the refusal to submit the first question, and no error whatever in refusing to submit the last one.
The evidence as to expenses for medicines and medical attendance was uncontradicted. Mrs. Bradbury testified upon that matter. Her evidence was not controverted. As to the last question, there was no positive or specific statement by any witness of the value of the services of Mrs. Bradbury. She testified that she was a nurse, but did not state what her daily, weekly or monthly wages were; therefore there was no evidence offered upon which to submit the last question.
Upon the record presented to us, we cannot perceive any error occurring upon the trial prejudicial to'the rights of the defendant, and therefore the judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
B. M. Davies commenced this action in the district court of Shawnee county against Carl Jockheck and Helena Schaffer, whom he alleged were tenants • in common with him, for the partition of lot No. 250 Kansas avenue, city of Topeka. Joseph Erhart was also made a party, for the purpose of determining whatever interest he might have in the property. Davies alleged possession in' his petition. Jockbeek and Schaffer filed answers denying that Davies had any interest in the lot, and claiming to be the owners. Erhart filed his answer claiming a mortgage on the lot executed by Davies. A jury was waived, a trial had, and a judgment rendered in favor of Davies. The court found that Davies was the owner in fee simple of an undivided one-half interest, and that Jockheck and Schaffer, as the heirs of John A. Schaffer, were the owners of the other undivided half interest, and ordered partition if it could be made, or if not, that the lot be sold, and the proceeds of sale be divided accordingly. From this order of partition Jockheck and Schaffer bring the case here for review.
The material facts are these: The record shows that on the 7th day of November, 1862, the fee-simple title to the lot in question was in John P. Greer and Robert Walker, and all the parties to the action claim title from that source. During the year 1862, Schaffer (the father of Helena Schaffer, who died in January, 1872, and whose widow Carl Jockheck subsequently married) and Erhart were in partnership, contracting and building masonry work in the city of Topeka. John P. Greer contracted with them to do the masonry work on a building that he was erecting on Sixth street, and in payment of said work John P. Greer and wife and Walker made a deed to Erhart and Schaffer for the lot in controversy. This deed was signed and acknowledged on the 7th day of November, 1862; whether it was ever delivered or not was one of the controverted questions of fact at the trial. This deed was not recorded until July, 1886. On the 11th day of December, 1862, J. P. Greer and wife and Walker made a deed for the lot in suit to Joe Erhart that was recorded in February, 1863. Erhart paid the taxes and produced the tax receipts at the trial for the years 1863, ’64, ’65, ’66, ’67, ’76, ’77, ’78, ’79, ’80, ’81, ’82, ’83, ’84, ’85. During a part of these years Erhart received small sums of money for the use of the lot for exhibitions and sale of nursery trees, and by the owner of a daguerreotype wagon. Erhart also constructed the sidewalks in front of said lot. The taxes of 1867 were paid by Erhart and Schaffer. Erhart states in his evidence that he thought that when he paid taxes Schaffer or Jockheck paid him back. On the 9th day of December, 1871, Joe Erhart made a quitclaim deed to John A. Schaffer for the one undivided half of and interest in lot No. 250, which was recorded on the 14th day of December, 1871, but before the execution of this deed Erhart had recognized Schaffer’s interest in the lot, and they had joined in the payment of the taxes due thereon. At the time of Schaffer’s death he left a widow and one child, Helena Schaffer, surviving. The widow married Carl Jockheck and died before the commencement of this action. After the death of Schaffer the same relations were sustained towards this lot by Erhart and Jockheck as existed between Erhart and Schaffer. They shared in the payment of taxes, and in the small rental received. On the 19th day of January, 1884, a contract was executed between Elizabeth F, Richie, who owned lot No. 248, lying north and immediately adjoining the lot in controversy, and Joseph Er-hart and Rosa Jockheck, that recites that the parties of the second part, being Joseph Erhárt and Rosa Jockheck, own lot No. 250. This agreement was about a party wall, and is signed by Joseph Erhart and Rosa Jockheck. On the 28th day of May, 1885, an agreement was made with B. M. Davies, who owned lot No. 252, immediately south and adjoining lot No. 250, by Rosa Jockheck, as guardian of Helena Schaffer, and Joseph Erhart about a party wall. On the 20th day of July, 1886, Joseph Erhart and wife sold and conveyed by warranty deed an undivided one-half of said lot No. 250 to B. M. Davies, and took a mortgage to secure the payment of the purchase-money from Davies.
At the trial Howel Jones was allowed to testify, over the objection of the plaintiffs in error, that, after the purchase of Davies from Erhart, he had a conversation with John P. Greer, who was in possession of the deed from himself and wife to Erhart and Schaffer, of date November 7, 1862, in which Greer told him that this deed had never been deliv ered. The admission of this evidence is claimed as error. Joseph Erhart, while testifying at the trial, was asked if Schaffer paid him anything for conveying one-half of the lot to him, and he answered “No, sir.” Both the question and the answer were objected to, and this ruling is insisted on as error. It is also urged that as Davies alleged possession and failed to prove it, he could not maintain this action. Finally the contention is, that the judgment is not sustained by the evidence.
Separate and apart from the special errors assigned, the trend of the material facts and the application of legal principles are in favor of an affirmance of the judgment. Er-hart had been in possession of and had paid taxes on the lot for more than twenty years before his conveyance to Davies. The deed from Greer and wife and Walker to him had been of record for more than twenty-four years before he sold to Davies. The deed of November 7, 1862, from Greer and wife and Walker to Erhart and Schaffer was not recorded until after the sale to Davies. There is no intimation in the record from any source that Davies had either notice or knowledge of the existence of this deed before his purchase. Greer, the custodian, and one of the grantors of this conveyance, declared to the agent of Davies, who was seeking to make an abstract of the title to the lot, that the deed of November 7, 1862, was never delivered. Schaffer in his lifetime, his wife after his death, and her heirs after her death, had continuously until the commencement of this suit recognized that Erhart was a part owner of the lot. The only title shown by the heirs of Schaffer at the trial was the quitclaim-deed from Erhart for an undivided half to their ancestor. The antecedent facts are harmonious with the theory that for some reason Erhart- and Schaffer had determined that the title from Greer and wife and Walker should vest solely in Er-hart, as shown by the deed of December 11, rather than in them both, as was contemplated by the deed of November 7, 1862. The subsequent quitclaim of the 9th day of December, 1871, from Erhart to Schaffer, is easily explainable on this theory. That Erhart divested himself of all interest or title to the lot by that quitclaim, cannot be reconciled with the subsequent action of Schaffer and his heirs with reference to the possession, payment of taxes, and reception of rents by them and Erhart conjointly. The stress of these general considerations; the strong inferences arising from the particular facts recited in the record; the irresistible construction arising from the acts of Schaffer and his heirs; the application of indisputable rules of law — all compel us to say that the judgment rendered by the trial court is a legal sequence, produced by the concurrence of legal principles, equitable considerations, and facts proven.
Had the delivery of the deed of November 7, 1862, to Erhart and Schaffer been conclusively shown, it would not have affected the general result, unless knowledge of it had been brought home to Davies prior to his purchase. In the attitude of the proof on the question of delivery, Greer having at one time stated that it was not delivered, and at another time stating that it was, we could not disturb the general finding, perhaps included in the judgment, for evident reasons. Besides the fact that it was found after the lapse of many years in Greer’s possession, and never having been recorded until after the Davies purchase, very greatly increases the probabilities of non-delivery. Whether or not Greer’s declaration is admissible does not become very material, in the view that we have taken. It would seem that Erhart and Davies, who claims under him, are entitled to the benefit of it. Greer testifies on behalf of the plaintiffs in error that the deed was delivered, and they claim certain rights by reason of its delivery. It would surely be competent for Erhart and Davies to show an impeachment of Greer, that he had stated that it was not delivered, and while this order in the introduction of evidence was not observed, the practical result of the conflict, is the same.
Again, Greer was one of the grantors in the deed, and the written instrument was in his possession. Now, in a controversy between grantees as to whether the deed had ever been delivered, it seems that his evidence and admissions as to the fact of delivery are primary and not dependent on his agency for either or both parties. We have grave doubts about the ruling of the trial court in permitting Erhart to state, while on the witness stand, that Schaffer paid him nothing for the quitclaim deed, of date December 9, 1871, for an undivided half of the lot. But the execution and delivery of the deed is not in issue; is in fact admitted, and the consideration, whether for $1 or $500, is immaterial. Entertaining a very strong conviction that the judgment rendered below is inherently right, and being in accordance with legal rules and equitable requirements, it is not necessary to consider the question of how far the plaintiffs in error may be estopped by their attorneys having received and receipted for the fees allowed them by the court in distributing the proceeds of the sale of the lot by virtue of the partition proceedings.
One question made by the plaintiffs in error we have heretofore overlooked, and that is, that Davies, not being in possession, could not maintain the action of partition; or, to state it as strongly as in the brief, that the possession of Jock-heck and Helena Schaffer was an adverse one, and that by reason of this the action of partition could not be sustained. Davies alleged possession in his petition, and having acquired the interest of Erhart in good faith, and without notice or knowledge that the plaintiffs in error claimed adverse possession, he succeeded to all the rights of Erhart, and among them Erhart’s. long-continued and, so far as the record discloses, his undisputed joint possession with Schaffer and his heirs until his conveyance to Davies. This is enough for Davies to maintain the action, because it is not shown that, prior to its commencement, there was an absolute denial or a distinct repudiation of his rights in the lot.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
HoiítoN, C. J.:
We do not think that the general execution in this ease, or any of the proceedings under the execution, or under the receivership, can compel or result in any assessment upon the premium notes of the first class to pay the losses or expenses of the second class; nor can any of the premiums notes executed by persons insured in the first class be sold, applied, or used in any way to pay the losses or expenses on the judgment upon the policy in this case, which belongs to the second class; nor can the collections or assets from the premium notes of the first class be applied or used to pay this judgment or any part thereof. In our opinion, all the funds, guaranty or otherwise, notes or other assets of the insurance company, which are expressly devoted by the statute for the payment or protection of any insurance of any property insured by the company in the first class, cannot be levied upon, applied or used in any way, directly or indirectly, to pay any judgment rendered upon a policy insuring property of the second class. Section 83, chapter 50a, Comp. Laws of 1879, relating to mutual fire insurance companies, which was in force at the time of the issuance of the policy to Lydia A. Amick, of the 7th of November, 1883, provides, among other things:
“That any number of persons, not less than five, may associate themselves together for the purpose of mutual protection against loss or damage by fire or lightning or tornado, under the provisions of this act, which property to be insured shall be classified as follows:
“ First. To include all dwelling-houses, barns, sheds, outbuildings and cribs and their contents; farm implements, hay, grain, wool, and other products; live stock, wagons, carriages, harness, household goods, wearing apparel, provisions, musical instruments, and libraries, being upon farms or farm property, or in dwellings, or in accompanying out-buildings that constitute detached risks in villages, and belonging to the members.
“Second. To include all risks on buildings used for merchandising and manufacturing, and the goods, wares, machinery and implements contained therein, and all other property not included in the first class. The business of each class shall be conducted separately and independently of the other, and in no case shall an assessment be made by the company or association upon the premium notes of one class to pay the losses or expenses of the other; and any company or association doiDg business under this act may elect to confine their business to either the first or second class, or to embrace both; and whenever any change is made in the character of their business, under this act, it shall be done by resolution of the directors, which shall be filed, with the by-laws, in the office of the secretary of state.”
See, also, ¶¶ 3417 and 3418, Gen. Stat. of 1889; also, §§86, 89, 90, and 93, ch. 50a, Comp. Laws of 1879; and ¶¶ 3421, 3425, 3426, and 3428, Gen. Stat. of 1889.
When the insurance company issued its policy to Lydia A. Amick, and when she accepted the same, all parties acted with full knowledge of the provisions of chapter 111, Laws of 1875, (Comp. Laws of 1879, ch. 50a.) Lydia A. Amick at that time had notice that, by insuring in the Farmers’ Mutual Fire Insurance Company, she became a member and stockholder thereof, and she also knew at that time, or she was bound to know, that the business of each class of the insurance company was conducted separately and independently of the other. She took her policy in the second class — not in the first class. When she brought her action in the district court, her petition showed that she had insurance in the second class of the company— notin the first class. Therefore her judgment rendered upon the policy issued on property of the second class, and not of the first class, cannot be collected from premium notes, assets, or other funds exempted by the statute from being applied to losses of the second class. The premium notes, assets, or other funds exclusively devoted by the statute for the protection of insurance of the first class, cannot be used or applied to pay losses upon insurance of the second class. Therefore, while the judgment in this case is a general judgment, it cannot be enforced against property which is expressly exempted by the statute. Of course, if any property, assets or funds belonging to the second class at the date of the policy issued to Lydia A. Amick, or at the'date of the fire, or at any other time, has been improperly or wrongfully transferred by the officers of the insurance company from the second class to the first class to evade the payment of any judgment, debt, or other claim, such transfer will not prevent the collection of the judgment from such property, assets, or funds.
Again, if the officers of the insurance company have concealed or secreted any of the property, assets or funds of the second class in the business of the first class, such property will also be subject to the payment of this judgment. Further, if the officers of the insurance company have covered up, by reorganization or any other change, any of the property, assets or funds which belong, or ought to belong, to the second class, or which in any possible way can be used under the provisions of the statute to pay the losses of the second class, such property is also subject to the payment of this general judgment. In case No. 5491, (The Kansas Farmers’ Mutual Fire Insurance Company v. Lydia A. Amick,) the judgment of the district court of Franklin county will be affirmed, but the receiver will not be permitted to take possession of, disturb or control any of the property expressly exempted by the statute.
Case No. 7017, (D. W. Naill et al. v. The Kansas Farmers’ Fire Insurance Company,) from the district court of Dickinson county, will be modified, but the injunction will continue, excepting as to property not exempt, in accordance with the views herein expressed.
JOHNSTON, J., concurring.
VALENTINE, J.:
In my opinion, the judgments heretofore rendered in these two cases are perfectly right. The original judgment involved in this controversy was rendered by the district court of Franklin county on October 7, 1885. It was and is a general judgment against the insurance company in its entirety, and with reference to all its parts, authorizing a general execution to be issued against its property generally. It is just such a judgment as would be rendered against the company for its office rent, or for the purchase-price or cost of erecting a building in which to do business, or for lights or fuel or stationery or advertisements in a newspaper, or other printed matter, etc. It is not a special judgment against the company with reference to some portion of its business, as its first-class business, or its second-class business, or with reference to any particular property. Nor is it to be enforced in some particular manner different from the enforcement of judgments in general. It is a general judgment in all its aspects. It authorizes a general execution to be issued, and under it the clerk could not issue any other kind of execution; and when the execution is issued and placed in the hands of the sheriff, he could not transform it into a special execution. He could not say, in case he could not find some particular kind or class of property to levy on, that he would not levy upon any property at all. Under it he would have the right to levy upon any kind of property belonging to the company subject to execution. It makes no difference now whether the judgment should originally have been rendered in some other form or in some other manner or not. It was originally rendered as it now exists. It was rendered on October 7, 1885, more than five and a half years ago. Afterward, and on July 9, 1887, nearly four years ago, it was affirmed by the supreme court, and it still remains just as it was originally rendered, without the slightest change or modification; and certainly the clerk of the district court could not modify it in effect by issuing a special execution upon it, and he has not attempted to do so; and the sheriff could notin effect modify it by refusing to levy upon any property at all, unless he could find property of a particular kind or class upon which to levy, and he has not attempted to do so; nor could the judge of a district court, other than the one in which the judgment was rendered, nor the court itself, nor any court, not even the supreme court, at this time and upon this present showing, change or modify the judgment, or in effect reverse it or vacate it. The insurance company claims, in effect, that on account of its own transformations and changes in business the judgment cannot be enforced at all. It claims that the judgment as rendered may be virtually ignored as a general judgment, and then it claims that the j udgment cannot be enforced against the company with reference to its first-class business, because the original policy was a second-class business policy; and that it cannot be enforced against it with reference to its second-class business for the reason that that kind of business has been blotted out of existence, extinguished, annihilated, and that it has no assets belonging to such defunct business, and that no execution can be enforced against such business for the reason that no execution can be enforced against a nonentity. It must be remembered, however, that the judgr ment does not of itself authorize any kind of process except an ordinary general execution. Under this judgment, an execution confined to its second-class business or property only could not be issued; but if it could it would be worthless, for such business was annihilated years ago, and no longer has any existence, and all the assets belonging thereto have in some manner been placed beyond the reach of executions. Possibly, by this kind of legerdemain and jugglery, the company may defeat all general judgments rendered against it, and avoid all its liabilities thereon, but it should not be al lowed todo so. If it can, then a judgment, general in its terms, can no longer be considered as importing absolute verity, or as being the end of litigation, and the doctrine of res adjudicata should be obliterated from the law. A thing settled by a judgment would not be settled at all, and all respect for judgments would certainly cease, for judgments could no longer be considered as having any binding force or obligation as against anyone. It is said that since our last decision in this controversy, and while this motion for a rehearing has been pending in this court, the company has undergone another transformation by a reorganization of its corporate existence.
Perhaps I should add a few words with regard to exemptions. Of course a special execution, running against only particular property, could not be levied upon any other property, whether the same be called exempt property or not. But this is immaterial in this case, for no special execution could be issued in the present ease, but only a general execution. It is also true that a general execution, running against all property subject to execution, could not be ■ levied upon property exempt from a general execution; but neither has this anything' to do with the present case; for, so far as insurance companies are concerned, there are no exemptions, constitutional, statutory or otherwise, as against a general execution. It cannot well be claimed that any constitutional provision, ,or any statute, or any legal principle, may anywhere be found exempting any property of any insurance company from any general execution running against all the property of the insurance company subject to execution. I know of no exemption laws in favor of insurance companies exempting any of their property from general judgments and general executions. In my opinion, it makes no difference whether Mrs. Amick’s petition in the case in which the original judgment was rendered shows that her insurance policy belonged to a second-class insurance business or not; or whether Mrs. Amick had any knowledge upon this subject or not; but in fact neither the petition nor the record in that case shows any thing concerning these matters except as follows: The record shows what property was insured and what property was injured or destroyed by fire; and the insurance policy was attached to the petition and made a part thereof, and at one place upon its face, and at another place upon its back, the following isolated letters and figures, occupying in the aggregate less than one and one-half inches in length and less than one-sixth of an inch inwidth, are found, to wit: “Class No. 2.” No allegation is anywhere to be found in the record of the case in which the original judgment was rendered stating that the insurance company did a second-class business, or more than one kind of business, or that Mrs. Amick had any knowledge concerning these matters; and the letters and figures, “Class No. 2,” standing alone upon the insurance policy as they do, do not indicate very much. The petition was an ordinary petition upon an insurance policy, asking for a general judgment for money, and a general judgment for money was rendered, and, in my opinion, it should now be treated as a general judgment.
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The opinion of the court was delivered by
JOHNSTON,' J.:
This was replevin for a small stock of groceries and drugs. The goods were formerly owned by J. S. Patton, who was largely indebted to several creditors, and while so indebted transferred the goods to O. L. Young. The judgment creditors of Patton sued out executions and placed them in the hands of S. I. Youngman, a constable, who seized the stock of goods as the property of Patton. Young then prosecuted this action for the recovery of the stock, but the verdict is that he was not the owner of the property, and that the defendant did not wrongfully detain the same from his possession.
Plaintiff complains that the verdict is contrary to the evidence, but from an examination of a large volume of testimony taken with reference to the good faith of the transfer, we cannot say the conclusion reached by the jury is not correct. After the sale the goods remained in Patton’s house, who still remained in control, claiming to be acting as the clerk of the plaintiff at a salary of $25 per month. The plaintiff devoted very little time or attention to the business, and taking the testimony of the plaintiff, the statements of the parties with respect to what had been paid for the goods were not harmonious or satisfactory. The case presented is one of conflicting testimony, and in that state of the testimony we cannot disturb the verdict or judgment.
There is a general complaint as to the charge of the court, but no specific objection is pointed out, and we will not undertake to search for errors that are not specifically assigned and pointed out. (Wheeler v. Joy, 15 Kas. 389.)
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought before a justice of the peace of Norton county by G. B. La Shell against Charles M. Saum, in which the plaintiff by his bill of particulars claimed $160. The defendant filed a bill of particulars in which he neither admitted nor denied anything stated in the plaintiff’s bill of particulars, but showed a claim against the plaintiff and in his own favor for $65. The case, after passing through the justice’s court and by appeal into the district court was tried before the court and a jury, and a verdict was rendered in favor of the plaintiff and against the defendant for $26.25. The defendant then filed a motion asking that all the costs made in the case after the return of the summons in the justice’s court should be taxed against the plaintiff, for the reason that after the issuing of the summons the defendant had tendered to the plaintiff an amount greater than the amount of the verdict and the costs which had accrued at the time of the tender, and also that he had offered in writing to confess judgment for that amount, which tender and offer the plaintiff refused, which motion was overruled by the court, and judgment was then rendered in favor of the plaintiff and against the defendant for the amount of the verdict and for costs of suit; and afterward the defendant, as plaintiff in error, brought the case to this court.
The only question presented to this court for consideration is, whether the court below erred or not in rendering judgment for costs against the defendant. We cannot say that any such error was committed. It does not appear that the defendant ever offered in writing or otherwise to confess judgment in favor of the plaintiff and against himself for any amount, or that he was even willing to do so, or that either the justice of the peace or the district court ever had any notice that any tender was ever made until on the trial in the district court, when the tender was disclosed and brought to light by the defendant's evidence. It appears from the defendant’s evidence introduced on the trial in the district court, that at the time of the service of the summons in the justice’s court the defendant tendered to the plaintiff* the sum of $35, but it does not appear that he kept this tender good. It does not appear that he brought the amount tendered or any amount into court or that he offered to do so, or that the fact of the tender was at any time prior to the trial in the district eourt brought to the attention of either the justice of the peace or the district court, and probably it was not. In the justice’s court he filed a bill of particulars in winch it' would seem that he claimed $65 as against the plaintiff, and did not admit that he owed the plaintiff anything. Under such circumstances, it cannot be held that the court below erred in rendering judgment against the defendant for the costs which accrued in the case.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortON, C. J.:
The Chicago, Iowa & Kansas Railroad Company commenced proceedings for the condemnation of a certain strip of land owned by William S. Townsdin, for railroad purposes. Townsdin was dissatisfied with the award of the commissioners, and appealed to the' district court. Upon the final trial he recovered the sum of $194.90. Subsequently, the trial court ordered the assessment of the commissioners to be corrected in accordance with the verdict, and rendered judgment in favor of Townsdin and against the railroad company for the costs, taxed at $220.75. As the rail road company offered in open court to confess judgment for a larger amount than that recovered by Townsdin upon the final trial, and as he refused to accept the offer, its contention is that Townsdin must pay all of the costs incurred after the offer. ( Civil Code, § 528.)
The condemnation proceedings originally instituted were special only; not an action in the district court. After the appeal was taken, the proceeding was turned into an action to be heard, tried and disposed of as other actions in the district court. While the judgment did not pass the title to the land, nor to the right-of-way, it did determine the amount which the railroad company was required to pay to the owner of the land, or to the county treasurer for his use, to secure the right-of-way. The judgment for costs in such an action is rendered in the form of an ordinary personal judgment. Technically, the language of § 528 of the civil code does not embrace proceedings in condemnation, because it refers to actions “brought for the recovery of money;” but the spirit and intent of that section does apply where an appeal is taken from the award of damages. (Fuller v. Wells, 42 Kas. 551.) In such a case the trial court may require new pleadings to be filed, and damages are properly allowable for the actual value ofi the land taken by the railroad company, and for the consequential diminution in value of the land not taken.
In Seymour v. Cooper, 26 Kas. 539, the exemption statute was construed to apply to the personal services or earnings of a debtor in attachment or garnishment proceedings. The statutes do not anywhere in express terms create such an exemption, and yet an exemption was declared in such a case, because within the evident spirit and intent of the legislature. The offer of the railroad company on June 11, 1885, was $206.25, with accrued costs. The making of its subsequent offer did not waive or set aside its first offer, and therefore, as the verdict and judgment were less than the first offer, Townsdin cannot recover any costs after June 11, 1885.
The judgment of the district court will be reversed, with the direction to the court below to retax the costs in accordance with the views herein expressed.
All the Justices concurring.
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Per Curiam:
The principal question discussed in this case upon the argument was, whether' exemplary damages ought to be allowed in any civil action, and we are asked to reexamine this question and reverse the prior decisions of this court permitting exemplary or vindictive damages. Our own decisions for a long time have established that, whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages. We could not depart from this doctrine now without overruling all of the prior decisions of this court upon this subject, and we are not willing to do so. In the case of Malone v. Murphy, 2 Kas. 250 (in 1864), it was said that —
“We would rather adopt the compensatory theory, believing it to be more nearly logically correct, but the other having been long-established, recognized and acted upon by enlightened courts, we are not disposed to change it where a change would make no difference in results. In giving this rule to juries in cases the details and circumstances of which are calculated to inflame their passions, the court should be very careful to indulge in no loose expressions which would indicate that the feelings of the jury were in any manner to influence their action.”
In Wiley v. Keokuk, 6 Kas. 94 (in 1870), it was said that—
“ These instructions raise the question so much discussed of late by writers upon law, as to whether such damages as are called ‘exemplary/ ‘vindictive/ or ‘punitive’ ought ever to be allowed. We content ourselves with following the current of authorities, and decide that the instructions go no further than such authorities warrant. If the law is wrong, let the lawmaking power correct it. The rule as laid down by the court below has already received the sanction of this court. (Malone v. Murphy, 2 Kas. 250.) The whole subject is discussed pro and eon, and the authorities referred to, in 2 Greenl. Ev. § 253, and note, and §§254, 255; and Sedg. Dam., 4th ed., p. 533, and note. And after all this discussion, the supreme court of the United States decide the law as laid down in these instructions. Mr. Justice Grier, delivering the opinion of the court, well says: ‘If repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common, as well as by the statute law, men are often punished for aggravated misconduct, or lawless acts, by means of a civil action. and( the damages inflicted by way of penalty, or punishmen', given to the party injured.’ We have no doubt that such is the law. Whether it be founded in sound reason or not, is not so much our province to say, as to determine if it be law* The writer hereof believes it to be not only good law, but founded on sound principles, and beneficial in its application. It often furnishes the only restraint upon a bad man, who cares little for his neighbor’s character, his person, or his property. The party injured pursues the wrong-doer to punishment, when society is too careless to do so.”
These decisions have since been followed in the cases of Hefley v. Baker, 19 Kas. 9; Titus v. Corkins, 21 id. 722; Jockers v. Borgman, 29 id. 109; Winstead v. Hulme, 32 id. 568; Railway Co. v. Rice, 38 id. 403, 404; Clark v. Weir, 37 id. 98; West v. Telegraph Co., 39 id. 93; Mfg. Co. v. Boyce, 36 id. 351. The other questions discussed are disposed of by the following cases: Townsdin v. Nutt, 19 Kas. 282; City of Wyandotte v. Gibson, 25 id. 242; Rose v. Hayden, 35 id. 107, and cases there cited; Reiley v. Haynes, 38 id. 262; Bryan v. McNaughton, 38 id. 98; Woods v. Hamilton, 39 id. 70.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This was an action in the nature of ejectment to recover the possession of lots 28 and 30, on Harrison street, in the city of Topeka. Amelia Korman was the owner of the lots named, i*n 1862, and still continues to be the owner, unless she has been divested of her title by a tax deed executed and delivered to S. S. Cartwright on November 15, 1878. Amelia Korman has been of unsound mind ever since 1869, and on July 16, 1877, she was duly adjudged by the probate court of Leavenworth county to be insane and incapable of managing her own affairs, and immediately afterward she was committed to the insane asylum, where she has since remained, never having been restored to her right mind. In May, 1873, the lots in question were sold for the taxes of 1872, and on November 15, 1878, they were conveyed by tax deed to Cartwright, as has been stated, and the deed was duly recorded on the same day. The property was vacant and unimproved when the conveyance was made and until September, 1879, when Cartwright took possession of the same, and erected buildings and fences thereon, and has continued in possession ever since that time. In July, 1877, B. Korman was appointed guardian of the person and estate of Amelia, and has continued to be such guardian till the present time. The district court found these facts, and also what the rental value of the lots would have been in an unimproved condition as well as in their improved condition for the time Cartwright has been in possession. It also found that the proceedings upon which the tax deed was based were irregular, and insufficient to sustain the deed, and thereupon rendered judgment in favor of Amelia Korman and against S. S. Cartwright for the possession of the lots, and for $1,209 damages for the unlawful withholding of the same.
The main question presented by the record is, whether the irregularities mentioned are now available to defeat the deed, or whether they have been cured by the limitation prescribed in § 141 of the tax law. It reads as follows:
“Any suit or proceeding against the tax-purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, except in case where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax deed, and not thereafter.”
This section is broad and general in its terms, and makes no exception of persons under disabilities. The limitation begins to run immediately upon the recording of the tax deed, and against all persons, except in such cases and against such persons as are expressly excepted from its operation. The only exception provided is where the taxes have been paid or the lots redeemed as provided by law. Provision is made in the code whereby persons who are under disability, such as infancy or insanity, when the cause of action accrues, may bring their action within two years after the disability is removed. (Civil Code, § 17.) But § 141 of the tax law is not modified, controlled or limited to any extent by the provisions of the code. It has been determined that it is complete in itself, except so far as it is modified by other provisions of the tax law. (Bebee v. Doster, 36 Kas. 666; see, also, Edwards v. Sims, 40 Kas. 235.) Our attention is not called to any provision of the tax law which modifies or limits this provision, except § 128 of that statute. It provides that minors may redeem lands sold for taxes at any time before they become of age, and one year thereafter. It also provides that the lands of idiots and insane persons may be redeemed at any time within five years after the sale in the manner provided in the tax law. In § 127 of the tax law the ordinary period of redemption is fixed at three years, and certainly if there had been no exception to this general provision neither minors nor insane persons could have had longer time than three years in which to redeem. The right to redeem is purely statutory, and the legislature having made the exceptions named, indicates that no others were intended. For the same reason the period for bringing actions to defeat or avoid a sale or conveyance of land sold for taxes as provided in § 141 cannot be extended, nor can any cases be excepted from its operation beyond those expressly provided by the legislature. An insane owner may bring an action to defeat the tax deed within five years after the recording of the same, and may redeem or institute proceedings to redeem within five years after the sale of land for taxes. Taking the two provisions together, it is manifest that insane persons are not excepted from the operation of § 141. However wise and politic it might be to give persons laboring under the disability of insanity a longer time in which to redeem, or to begin an action for the recovery of land sold for taxes, the courts have no power to extend the time of limitation beyond that fixed by statute. The legislature alone has this power. In this case the guardian was appointed prior to ‘the execution of the tax deed, and before the expiration of the time to redeem the land or to bring an action to defeat the tax deed for irregularity. He neglected to take any steps to redeem or recover the property, and the responsibility for any loss or damage occasioned by his neglect to protect the interests of the estate rests upon him.
There is a further contention that the deed is void on its face, and therefore Cartwright acquired no right of possession under it; but counsel for plaintiff in error state that this position was not sustained by the district court. The deed purports to convey lots 24, 28, 30, and the south half of 22, on Harrison street. It recites that these lots, naming them, were subject to taxation for the year 1872, and the taxes not being paid, they were sold separately for several distinct sums. In the recitals of the sale the description of each lot is distinct from the others, but all are given together in the body of the deed, and all were sold to the same purchaser. Then follows a recital that the purchaser assigned the certificate of sale of “said property” to Cartwright, who had paid the subsequent taxes thereon, and that “said property” had not been redeemed. The granting clause then provides that in consideration of the taxes due and paid on “said land,” the county clerk grants, bargains and sells to Cartwright “the real property last hereinbefore described.” It is claimed that the “property last hereinbefore described” is only the south half of lot 22, and that under the decision of Spicer v. Howe, 38 Kas. 465, it must be held that the deed was ineffectual to convey lots 28 and 30, which are in controversy. We do not think the present case is ruled by the one cited. In that case there was in the granting clause a single and independent tract of land which was specifically described wholly apart from any other description, and it was held that the property “last hereinbefore described” referred alone to that description. In the present case all four of the lots are described together, and in the* subsequent recitals of the deed all four lots are referred to as “said property” and “said land.” As they wereall sold to a single person, and as they stand described together in the deed, and as all are afterward spoken of together as “ said property” in the recitals relating to assignment and redemption, we think the phrase in the granting clause, “the real property last hereinbefore described,” fairly includes all of them, and that the deed effectually conveys all. follows from these considerations that the plaintiff in error was entitled to judgment upon the findings, and therefore the judgment of the district court will be reversed, and the cause remanded with direction to give judgment in favor of plaintiff in error.
All the Justices concurring.
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Per Curiam:
It is urged, upon the motion for a rehearing in this case, that the court failed to decide whether or not the service of process upon the defendant William J. Dueker, in the case of C. F. Ziegler v. L. C. Pfaffenberger, was sufficient to give the' court jurisdiction over the property claimed to have been attached or garnished. The district court found in the ease of Axman v. Dueker, that Ziegler had a lien for $565.05, by virtue of the attachment and garnishment proceedings instituted in the case of Ziegler v. Pfaffenberger, upon the note sued on. It would seem from the record that a trial was had before the court, and the plaintiff in error in this case was given a judgment for the balance due on the note executed by Dueker to Pfaffenberger, after deducting the amount of Ziegler’s lien, acquired by virtue of the attachment and garnishment proceedings. We stated that there was sufficient in the record, in our opinion, to give the court jurisdiction. This is as far as we think we are called upon to go in this case. Had the question of the sufficiency of the service, raised in the original case of Ziegler v. Pfaffenberger, been brought to this court by proceedings in error, we might have held otherwise. Rut the garnishee was ordered by the district court to appear and answer after the sufficiency of the proceedings had been ques-. tioned by the original defendant. The garnishee answered without objection, and thus waived all defects to the process, unless they were of such a character as to render the proceedings absolutely void. The judgment in that case still stands unchallenged. (8 Am. & Eng. Encyc. of Law, 1118.) The return of the sheriff stated that he received the order of attachment on the 12th day of May, 1887, and served the same by delivering a true and certified copy to William J. Dueker, with a written notice not to pay any money or turn over any property to the defendant Pfaffenberger until so ordered by the court. There may be a question as to whether this return would stand a contest by the garnishee, but we do no* think it is void, and hence, it cannot be attacked in a collateral proceeding.
We are aware that the decisions are conflicting: some states have held that the appearance and answer of a garnishee waives any objection that might have been taken to the notice. Upon this proposition, see Miller v. O’Bannon, 4 Lea (Tenn.), 398; Carter v. Koshland, 12 Ore. 493; Lupton v. Moore, 101 Pa. St. 318; Pulliam v. Aler, 15 Gratt. (Va.) 54; B. O. & Ch. Rld. Co. v. Taylor, 81 Ind. 25; Truitt v. Griffin, 61 Ill. 27; Reynolds v. Collins, 78 Ala. 94; and Hinkley v. Water Power Co., 9 Minn. 56.
While we do not care to go to the extent that some of the authorities do upon the question of a voluntary appearance by the garnishee, still we think that the record in the case of Ziegler v. Pfaffenberger shows that the service was not void. The district court held that it was sufficient and required the garnishee to answer, and we are of the opinion that the service upon the garnishee cannot be attacked in this case. It is further urged, that the opinion stated that the defendant in this case made a special appearance for the purpose of contesting the jurisdiction of the court over the subject-matter of the action, when in fact no such appearance was made by either the defendant or the plaintiff. The language of the opinion is not subject to the interpretation placed upon it by counsel. The opinion stated that the defendant made a special appearance in this case, referring to the case of Ziegler v. Pfaffenberger, and not to the case at bar.
The motion for a rehearing will be overruled.
HoetoN, C. J.:
All of the papers, pleadings and notices in the case of Ziegler v. Pfaffenberger are not before us, or at least the record does not show they are. All presumptions are in favor of the rulings and judgment of the district court, and therefore I cannot say, upon the record as presented, that the court had no jurisdiction over the garnishee from the date of the service of the notice. Again, it does not seem to me that R. Axman purchased the note in controversy in good faith. He is a colorable owner only, not the actual holder. For these reasons, I concur in the foregoing order denying a rehearing.
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The opinion of the court was delivered by
JohnstoN, J.:
This was an appeal from an award of damages, made by the board of county commissioners of Lyon county, for the location of a county-line road over appellant’s land. On the 15th of October, 1886, the board of county commissioners aforesaid, upon a report of viewers who had been duly appointed, proceeded to and did establish the road, so far as that board could. In establishing the road, it was necessary to appropriate to public use several acres of land belonging to Josie P. Rennick, for which the board awarded damages to the amount of $30. The order and the award were made by the Lyon county board on October 15, 1886, and the action of the Wabaunsee county board on the part of the road located in that county was not taken until January 5, 1887. Josie P. Rennick, feeling aggrieved by the award of damages allowed by the Lyon county board, appealed to the district court of Lyon county on January 25, 1887, more than ninety days after the order appealed from was made. A motion to dismiss the appeal because it was not taken within thirty days, the time allowed by the statute, was made and sustained. This ruling is assigned for error.
The motion was properly decided, as the plaintiff in error was too late in taking her appeal. She was not entitled to thirty days after the final action was taken by the board of county commissioners of Wabaunsee county; In establishing county-line roads, each board acts separately. While the concurrent action of both is necessary to the establishment of the road, each is to determine for itself the amount of damages that shall be allowed for the land taken in the county for which it acts; and the order of award is to be entered on its journal. If anyone is aggrieved by the award of damages made by either board, he may appeal from its award to the district court of the county in which the land taken is situate and for which the county board is acting. The appeal is from the award of damages, and not from the order establishing the road, and it must be taken within thirty days from the time the award appealed from is made. (Gen. Stat. of 1889, ¶¶ 5480, 5482, 5483.) The appeal bond was filed and the appeal taken twenty days after the action of the Wa-baunsee county board was taken, but the appeal was not from the order or award of that board, nor to the district court of that county. It was taken from the order of the Lyon county board, which was made more than ninety days prior to the time of taking the appeal.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
A temporary injunction was granted in this case without notice by the probate judge, in the absence of the district judge. Upon notice, and after the hearing of a motion therefor, the district judge dissolved the temporary injunction. It is contended that the notice of the hearing before the district judge was not specific or sufficient. The notice stated that “The application for dissolution would be made upon the petition and the affidavits on which the injunction was granted, and such other affidavits as the defendants might deem proper to use in support thereof.” Upon dissolving the temporary injunction, the district judge ruled that the petition did not state a cause of action. Under these circumstances, the notice was sufficiently specific. The notice was served on the 10th day of September, 1889, and stated the motion would be beard on the next day, September 11, but upon the 11th, as the plaintiff objected to taking up the motion at that time, the hearing thereof was continued to September 16. Ample time was thereby given o.f the hearing of the motion.
It appears from the petition that the city of Horton is a city of the second class, and cities of that class have the power to alter the grade or change the level of the land on which the streets are laid out.
The petition treats the acts of the mayor and street commissioner as if they were acting for the city of Horton. It is true that it alleges that they are- excavating and changing the grade of the streets “ without authority of law,” and that the mayor was “unlawfully” procuring and suffering the excavation to be done, but these words add nothing to the peti tion. (M. E. Church v. City of Wyandotte, 31 Kas. 721.) Upon the authority of that case, the petition does not state sufficient facts to constitute a cause of action.
Again, “An injunction in limine is not a matter of strict right. It may sometimes be properly refused upon the same facts which would entitle the party of right to a perpetual injunction on final hearing.” (Akin v. Davis, 14 Kas. 143; Olmstead v. Koester, 14 id. 463.)
The order of the district court will be affirmed.
All the Justices concurring.
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Opinion by
GííEEN, C.:
This was an action brought in the district court of Cheyenne county by School District No. 2 against School District No. 1, of said county, to recover $460 taxes alleged to have been collected by the latter district in the year 1885, and the apportionment due from the state school fund for the years 1885 and 1886, claimed to have been collected and paid over to District No. 1 by the treasurer of Rawlins county. It seems that before the organization of Cheyenne county it was attached to Rawlins county, and an attempt had been made to form School District No. 2 out of a portion of the territory comprising District No. 1; and when the tax levy was made by the officers of Rawlins county, it embraced the territory of both districts; and when the taxes were collected, School District No. 1 received the entire tax, and failed to account to the plaintiff below for its proportion of the tax. The court below found for the defendant, and the plaintiff brings the case here.
Prom the evidence, it appears that School District No. 2 was organized on the 15th »day of April, 1885. On the 15th day of May following, the voters of the newly-organized district met to perfect the organization, and officers were duly elected and qualified. The defendant below questioned the organization, and considerable evidence was introduced in regard to such organization, and it is obvious that the court decided the case in favor of the defendant on the ground that such district was not organized prior to the annual tax levy in August, 1885, by the board of county commissioners of Rawlins county. This, we think, was error. There was suf ficient evidence to clearly indicate a defacto existence of this school district when this levy was made, and was recognized as such; and it may be that at that time it was legally organized. But that question we do not care to decide in this action. All we care to know is, that it had an actual existence at the time the levy was made. The organization, and the steps taken to effect such existence, cannot be questioned in this action. Such attack must be made in a direct proceeding prosecuted at the instance of the State, by the proper officer. (A. T. & S. F. Rld. Co. v. Wilson, 33 Kas. 223, and authorities there cited.)
We recommend that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
This is a criminal appeal from Saline county. The defendant was arraigned in the police court of the city of Salina, a city of the second class, to answer four complaints filed against him, charging him with unlawfully bartering, selling and giving away intoxicating liquors, contrary to the ordinances of the city. It appears from the record that the defendant pleaded guilty to each one of the complaints, and sentence was duly passed upon him, and entered of record. After conviction and sentence, he filed a motion, supported by affidavit, for leave to withdraw the former pleas of guilty, and enter a plea of not guilty to each complaint. This motion was denied. The case was then appealed to the district court. When application was again made to withdraw the pleas of guilty and enter pleas of not guilty, which was refused, the appellant then interposed his plea to the jurisdiction of the court. The facts, as claimed by the appellant, material to the application for leave to withdraw the pleas of not guilty, as well as the plea to the jurisdiction of the court, are: That when arrested by the city marshal he was immediately taken before the police judge, who read to him the four complaints and asked him if he was guilty; that appellant admitted that he sold beer in the city of Salina, in the original packages in which they had been shipped into the state, and upon being pressed to answer whether he was guilty or not, said he was guilty of selling beer in original packages; that upon making such admission, the police judge accepted the same as a plea of guilty upon each complaint; that when arrested, he became very much excited, and was not asked by the court if he wanted counsel, neither was he given an opportunity to employ anyone to appear for him; that there was a large crowd in the court-room, and but a short time was consumed from the period when he was brought before the court until judgment was entered against him in the four cases; that appellant was not guilty of selling intoxicating liquors in violation of law or the ordinances of the city of Salina, and did not admit that he sold intoxicating liquor in violation of law or the ordinances of the city; that he was and is a eitizen of the state of Missouri, and agent of the Eerd. Heim Brewing Company, of Kansas City, Missouri, a corporation of the state of Missouri, duly chartered under the laws of said state; that the business of said corporation is to brew, manufacture and sell lager beer, an intoxicating liquor; that said corporation brewed a lot of lager beer and put it in original packages and sent a car-load of their product from their brewery, in Kansas. City, in the state of Missouri, in original packages, as made up at said brewery, where the same was manufactured, to Salina, in Saline county, Kansas, in charge of the defendant, as agent for said importers, the Ferd. Heim Brewing Company; that said goods were' in original packages in a store-room leased by defendant, as agent of said brewing company; that all the selling, bartering or giving away by defendant of beer in Salina was the selling and bartering of the same, in original packages, and lawful under the laws and constitution of the United States.
The plea to the j urisdiction was also overruled, and the defendant was thereupon sentenced, upon the plea of guilty entered in the police court, and adjudged to pay a fine of fifty dollars, and stand committed until such fine and costs were paid. The appellant asks a reversal of this sentence and judgment.
I. The first assignment of error which we shall notice, is the action of the court below in overruling and denying the motion of the appellant for leave to withdraw the pleas of guilty, entered by the police judge, and enter the pleas of not guilty. The cases were on appeal from the police court, and the district court seemed to have considered them just as they came from the police judge, with the plea of guilty standing against the defendant in each case. Was it manifest error for the court to refuse this request ? It appears from the uncontra-dicted statement of the appellant that he had been arraigned before the police judge in the presence of a large crowd; was very much excited, and was not asked whether he wanted an attorney; neither was he given an opportunity to secure one, and claimed that the police judge had no right to construe what he said, in regard to the sale of beer in original packa ges, as an admission that he was guilty, or that he intended to say that he was guilty, as charged in each of the complaints ; that everything was done so hurriedly, and under so much excitement, that he did not know what was going on or being done, and was not aware that he had had a hearing until he sent for and procured counsel; that he was entirely innocent of the offenses charged against him. We think the court below, upon this showing, should have sustained thfe 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. Under the state of facts disclosed by the record, it was clearly the duty of the court to accord such a right to the appellant in this case. The law has been well stated in the case of Cochrane v. The State, 6 Md. 400. Le Grand, C. J., said:
“It must be confessed that there is no little indistinctness in the reported cases whether the rights to withdraw the plea of not guilty and to demur belongs unconditionally to the prisoner, or is a matter of favor to be granted by the court. We think, however, that the better opinion is, clearly the'justice in the matter, that the prisoner has the right.”
In the case of Myers v. The State, 18 N. E. Rep. 42, the supreme court of Indiana held that a judgment-should be set aside which had been rendered against a defendant ón a plea of guilty, upon a proper showing that the sheriff had told the defendant that the state’s attorney would accept a sentence of two years, if defendant would plead guilty; that the sheriff advised him to do so; that he was ignorant, and was arraigned without the privilege of consulting counsel; and that he was innocent. The court, in the course of the opinion, said:
“ The rule is, that courts may exercise a discretion in allowing or refusing leave to withdraw pleas of guilty, and that an appellate court will not interfere unless there has been an abuse of such discretion. We think that this a case in which this court is justified in holding that the court below ought to have exercised its discretion in favor of appellant, or, in the language of the law, that the court below abused the discretion which it was authorized to exercise.. No possible harm could have resulted, or can now result, to the state by allowing appellant to withdraw his plea of guilty and substitute a plea of not guilty. If he is innocent of the charge, as he has all the while and under all circumstances claimed, he ought to have a fair opportunity for a defense. If he is guilty, the state may have an opportunity to establish that guilt under a plea of not guilty. In the conclusion we have reached here, we are sustained by the authorities.”
As to the authorities sustaining this doctrine, see: Nicholls v. The State, 5 N. J. Law, 539; People v. McCrory, 41 Cal. 458; People v. Scott, 59 id. 341; Swang v. The State, 2 Coldw. (Tenn.) 212; The State v. Hale, 44 Iowa, 96; The State v. Stephens, 71 Mo. 535.
II. The next assignment of error is in overruling and denying the plea of the appellant to the jurisdiction of the court. We see no error in this. All that was set out in the plea was plainly a matter of defense and could be shown when the cases were tried upon their merits, and the plea did not properly challenge the jurisdiction of the court.
It is unnecessary to notice the other assignments of error, as our view of the first complaint considered will necessitate a reversal of the judgment of the court below.
We recommend a reversal of the judgment in this case.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
StkANG, C.:
Action for specific performance and possession of land. E. M. Whyler settled upon the south half of the southwest quarter of section 2, township 14, range 18, in Ellis county, Kansas, under the homestead laws of the. United States. April 29, 1882, he obtained a patent for said land. On or about November 24, 1879, E. M. Whyler contracted a debt to Kreuger & Kreuger, upon which judgment was obtained, execution issued thereon, and a levy made upon the said homestead of E. M. Whyler, which was sold and a sheriff’s deed therefor executed to the purchaser, Mary A. Nul-ton, who, with her husband, Jonah Nulton, went into possession of the land. Afterward, on the 1st day of October, 1887, E. M. Whyler and Ellen M. Whyler, his wife, sold and agreed to convey said land to W. P. Montgomery for $200, and the further consideration that said Montgomery should, at his own expense, clear the title of said land from the cloud thereon, arising from the sheriff’s deed aforesaid. November 11, 1887, Montgomery commenced a suit in the name of E. M. Whyler and Ellen M. Whyler against Mary A. Nulton and Jonah Nulton to recover the possession of the land. While this suit was pending, and before it came to trial, the defendant Mary A. Nulton purchased from plaintiffs Why-ler and Whyler their interest in the laud, paying them therefor $800 and some costs, and took a quitclaim deed. Then Montgomery, by leave of court, filed a cross-petition setting up bis claim to the land under his contract with the Whylers, and alleged that Mary A. Nulton had full knowledge of said contract when she purchased the interest of E. M. Whyler and Ellen M. Whyler, and that she took said land subject to his rights under his contract, and prayed for specific performance, and for the possession of the land. May 7, 1888, E. M. Whyler and Ellen M. Whyler dismissed their action against the Nultons, and the Nultons filed a demurrer to the cross-petition of W. P. Montgomery, alleging several grounds therefor, none of which require any notice except the fourth, which is as follows: “ The cross-bill does not state facts sufficient to entitle said W. P. Montgomery to intervene herein, or to constitute a cause of action against the defendants, nor against Whyler and Whyler.” The cross-petition alleges that E. M. Whyler settled upon the land in question under the homestead laws of the United States, and obtained a patent from the government therefor April 29, 1882; that on the 1st of October, 1887, and while the said E. M. Whyler and Ellen M. Whyler were the absolute owners in fee of said land, they sold and agreed in writing to convey the same to him, W. P. Montgomery, for the price and conditions therein named; that he had tendered the price of the land, and was performing the other conditions of his contract according to the terms thereof; that the defendants, the Nultons, claim an interest in the land by virtue of a certain sheriff’s deed, and also under a quitclaim deed from the Whylers; that the sheriff’s deed under which they claim is void because the judgment and sale upon which such deed was based were founded upon a debt contracted by E. M. Whyler before he became entitled to a patent to the land from the government; and that the quitclaim deed was obtained by the Nultons ¿fter the Whylers had sold the land to him, and with a full knowledge on their part of his contract, and his rights thereunder. He then prays for specific performance of' the contract, and recovery of the possession of the land, and attaches a copy of his contract to the cross-petition.
We think the cross-petition states a cause of action, both against the plaintiffs and the Nultons, the defendants; and that the cross-petitioner may ask for specific performance and a recovery of the possession of the land in the same action. The defendants in error insist that the contract between the Whylers and Montgomery, on which Montgomery relies in this case, is champertous and void. By this contract, in consideration of the land therein described, the land in controversy in this case, Montgomery agrees to pay the Whylers the sum of $200 in cash, and in addition thereto, to commence proceedings to quiet the title to said land, and pay the expense of such proceedings. We think this is a simple contract, as legitimate as though he had agreed to pay $200 for a quitclaim deed, and then had instituted proceedings to quiet title to the land. Counsel ask, What was Montgomery to get if he failed to secure the title to the land? and answer by saying, Nothing. Nor would he have got anything if he had taken a quitclaim and afterward failed in a suit to recover the land. The fact that Montgomery was a lawyer and agreed to quiet the title at his own expense, We think was nothing more than an agreement to pay $200, and whatever the expense of quieting the title to the land was, in addition to the $200, for the land.
It is therefore recommended that the judgment of the district court be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Dawson J.:
This is an appeal from an award of $2500 in favor of J. W. Williamson, an employee of The Prairie Oil arid Gas Company, for injuries sustained while employed by that company in the construction of a pipe line. On December 10, 1912, while appellee and three other men, under the charge of a foreman, were carrying a pipe about twenty feet long and weighing about seven hundred pounds, the ap-pellee’s fellow servant, one Harvey James, who was not physically fit for such heavy work, and who was carrying the rear end of the pipe opposite Williamson by means of a pair of calipers, suddenly dropped his end of the calipers, thus jerking Williamson to the ground and rupturing him.
The foreman at the time of the accident was Charles Badjent, although the appellant had another foreman, John Johnson, who was probably Badjent’s superior.
James, the incompetent servant, was first employed the day before the accident, without any inquiry into his fitness. There is some discrepancy in the evidence as to whether Johnson or Badjent employed James, but it is clear that they both had authority to give orders on the work, to hire and discharge men, and to change the men from one part of the work to another.
It is also clear that on the afternoon of December 9, and the following forenoon on which the accident occurred, the foreman in charge had notice of James’s incapacity. About half an hour before the accident to Williamson, lie complained to Badjent, the appellant’s foreman then in charge, about James dropping the pipe. The other men on the work also complained; and Badjent promised to change James. Appellee’s testimony, which is corroborated, in part reads:
“Badjent told me he would get another man. I certainly believed what he said, when he said he would get another man. ... It was very uncomfortable to be jerked around that way.”
Part of James’s testimony reads:
“John Williamson complained to Charlie Badjent about my dropping the pipe. Charlie Badjent told Williamson that he would get another man as soon as he could find one. I dropped the pipe at about 11 o’clock. Williamson had the other end of the pipe at that time. At that time Williamson made a complaint about being hurt. He said, when I dropped the pipe it just tore him in two.”
It was also proved that appellee had spent considerable sums of money for trusses, and expenses in going to Kansas City for an operation for hernia; that he had been unable to do much work for a year; that he continued up to the time of the trial to have pain and discomfort, and that before the injury he was an active, robust man, weighing one hundred and seventy pounds, and at the time of the trial, a year after his injuries, he weighed only one hundred and twenty-seven pounds.
The only errors assigned in this appeal relate to the court’s instructions to the jury. On the first it is complained:
“1. That the trial” court erred in reading to the jury the pleadings of the respective parties, and then stating to the jury, that, ‘Within these allegations and counter-allegations is contained the issue for you to try and determine by your verdict in this case.’
“2. That the-court erred in not’stating and defining to the jury the issues to be tried and determined.”
Counsel for appellee answer this criticism by saying that the court did not read the pleadings and that the record does not show that they were read to the jury. An inspection of the pleadings does show that they were closely paraphrased by the court in stating the issues to the jury, but it does not appear that any obscure or technical language of the pleadings was incorporated in the instructions.
In Railway Co. v. Eagan, 64 Kan. 421, 67 Pac. 887, it was held to be error to send to the jury lengthy, prolix and redundant pleadings which were full of tautology and repetition. >
In Stevens v. Maxwell, 65 Kan. 885, 70 Pac. 772, it was held material error to send pleadings which were laden with prolix and intricate averments to the jury.
In Myer v. Moon, 45 Kan. 580, 26 Pac. 40, the court referred the petition to the jury, indicating the paragraphs for their consideration by pencil marks. While this and the foregoing cases cited disapproved the practice of sending the pleadings to the jury it was not considered reversible error because the court did define the issues.
Another pertinent case is Railway Co. v. Sternberger, 8 Kan. App. 131, 54 Pac. 1101, where it was said:
“It is not reversible error for the court in its instructions, after reciting to the jury the nature of the cause of action and the issues to be determined by the jury, arid what it is necessary for the plaintiff to prove thereunder in order to recover, to add ‘the grounds of negligence claimed by the plaintiff are more fully set forth in the petition, to which you are referred.’ ” (Syl. ¶-3.)
In the opinion it was said:
“The fourteenth contention of counsel is that the court [Judge Alfred W. Benson] erred in using certain language in giving its instructions to the jury. After reciting to the jury the nature of the cause of action and the grounds of negligence complained of by the plaintiff, it added: ‘The grounds of negligence claimed by the plaintiff are more fully set out in the petition, to which you are referred.’ The contention is that it was the duty of the court to construe the pleadings. The court did construe them. The court stated to the jury very clearly and concisely what the issues were and what it .was necessary for the jury to find in order that the plaintiff might recover. This reference to the petition, under the circumstances, could not have prejudicially affected the rights of the defendant.” (p. 134.)
In Kamm v. Sloan, 72 Kan. 459, 83 Pac. 1103, it was said:
“Another contention is that the court erred in copying the petition and exhibits into the instructions and submitting them as a whole to the jury. It is much better practice for the court succinctly to state the issues to the jury; in many cases the pleadings do not strictly conform to the code in simplicity, and therefore tend to confuse rather than to elucidate the questions before the jury. (Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887; Stevens v. Maxwell, 65 Kan. 835, 70 Pac. 873; Myer v. Moon, 45 Kan. 580, 26 Pac. 40; Railroad Co. v. Dalton, 66 Kan. 799, 72 Pac. 209.) In this case, however, the petition was short, and the issues were distinctly stated in the instructions to the jury. Therefore, it can not be said that it was prejudicial error to incorporate a copy of such a petition in the instructions.” (p. 460.)
(See, also, Culbertson v. Sheridan, 93 Kan. 268, 280, 144 Pac. 268.)
The foregoing are the principal Kansas decisions on this subject, and from these, as well as the authorities which are cited by counsel, it appears that in cases where the pleadings are involved in complex and intricate phraseology it is not good practice and may be reversible error to send the pleadings to the jury; in cases where the pleadings are simple the practice of sending them is not commended, but is not reversible error; but where the court merely paraphrases and incorporates the plain and simple language of the pleadings in stating the issues to the jury it is not error nor even ground for just criticism.
The next error assigned reads:
“3. That the court erred in giving each and every part of Instruction No. 12;
“(a) In the first part of said instruction, down to and including line 10, the facts involved therein were not in issue on trial;
“(b) The facts therein stated were not supported by any evidence;
“ (c) The same is an erroneous and incorrect statement of the law;
“(d) The second part of said instruction did not contain a full statement of the law, in that it failed to state that the jury must also find that the pláintiff relied upon the agreement and promise of the foreman, Badjent, that he would remove the man James within a reasonable time. '
“(e) In that the jury was not fully instructed as to what would constitute a reasonable time within which to remove the fellow servant Jaxhes.”
This was one of fourteen comprehensive and careful instructions submitted by the trial court and should not be excised from the others and made the basis of error. Certainly the trial court did not err in giving each and every part of that- instruction. We can not agree with counsel that the first ten lines involved facts which were not in issue, and they were supported by evidence; nor does this instruction when read in connection with all the others erroneously state the law. The second part of the instruction when construed with the other instructions could not have misled the jury, either on the point that they must find that the appellee relied upon the promise of the foreman to replace the incompetent workman, or on the question as to what would constitute a reasonable time to replace him. It seems to us that the tenth instruction is sufficient on that point when no special instructions were asked by appellant:
“10. If the master promises to repair, to discharge, or otherwise render safe, the danger may still be so glaring that a reasonably prudent man would not expose himself to it until a change has been made. If so, and the servant continues to work, he assumes the risk. If the hazard is not so great but that with reasonable prudence the work may still be carried on, the servant may, exercising due care, work a reasonable time awaiting repairs or other promised removal of danger without assuming the risk. If after the lapse of such time the promised betterment is not installed, and the negligent condition again takes on the character of permanency, the servant assumes the risk and can not recover damages.”
The next error assigned reads:
“4. That the court erred in each and every part of instructions Nos. 13 and 14, wherein the jury is authorized, instructed or permitted, if the verdict be for the plaintiff, to find and assess damages for future pain and suffering or for permanent injuries, for the reason that such parts of said instructions, Nos. 13 and 14, were wholly unsupported by the evidence and were against the evidence.”
The total damages allowed appellee were $2500. Using appellant’s analysis, the damages for medical expenses and loss of time were $892.85, and for future pain and suffering and for permanent injuries the balance of the total award, $1607.15. We think there was testimony touching permanent injuries alone to warrant this sum; nor do counsel cite authorities showing that it would be improper to allow damages for future pain and suffering in a case like this where actual damages. and pain and suffering had been sustained a,nd the pain and suffering were still continuing. Such allowance was upheld in Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781.
The fifth assignment of error reads:
“5. That the .court erred in instructing the jury that they might find for the plaintiff in any sum not exceeding Five Thousand Dollars ($5000), for the reason that the evidence did not warrant such instruction.”
Since the j ury fixed appellee’s damages at $2500 and that award was sustained by the evidence, we can not see the force of the criticism of this instruction.
In fine, this is- simply a case which was carefully prosecuted, skillfully defended, iree from serious error, and the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action brought by an insurance company against its agent, to recover damages sustained by reason of the agent’s issuing an insurance policy in violation of instructions given by the company to the agent. Judgment was rendered in favor of the defendant. The plaintiff appeals.
The plaintiff alleges that it is a corporation. The defendant for his answer files a general denial, alleges affirmative matter, and verifies the answer, as follows:
“State of Kansas, Marshall Co., ss.
“Joe Baer, being first duly sworn upon his oath, says that he has read and knows the contents of the foregoing answer, and that the statements, allegations and averments therein contained are true.”
No evidence was introduced to show that the plaintiff was a corporation. The evidence shows that Joseph Baer, who was a banker, was the agent of the plaintiff, with power to issue policies of insurance; and that he wrote W. D. Perry, state agent for the company, on February 24, 1908, asking where he could insure stallions and jacks, and in what company. To this Perry replied, on March 2, as follows:
“This will acknowledge receipt of your esteemed favor of the 24th ultimo inquiring relative to insurance on fine horses and in reply beg to advise that while such risks are not regarded in high favor by any company, nevertheless in view of the fact that you have rendered us very satisfactory service during the past years you may feel at liberty to insure such risks in the North America. The rate on such stock in a private barn should not be less than 2.50 per hundred and of course if such stock is kept in a livery barn or other specifically rated risk the rate on such risk would, govern in such cases.
“Your form should read so as to describe the particular animal by name, breed, and positively color, ‘while and only while’ in the premises described.”
March 10, 1908, Perry again wrote Baer as follows:,
“I have for acknowledgement your favor of the 3rd, relative to insurance on fine horses. ..."
“Since writing you last I have received a letter from General Agent Downing with particular reference to this class of business and he advised that he has been scrupulously declining to insure high priced horses particularly those used for breeding purposes. Inasmuch, however, as have been discussing the matter with you I am forwarding your correspondence to him and have asked him to give you such final instructions as he may deem advisable under the circumstances. It seems that I was laboring under a false impression in view of what Mr. Downing had said and I prefer that he give you the final word in connection with this class of business.”
The inquiries of Baer appear to have been turned over to W. N. Johnson, general agent of the company, who on March 13, 1908, wrote him as follows:.
“We are just in receipt of a letter from State Agent Perry with which he enclosed your letter to him under date of March 3d relative to the writing of insurance upon fine horses, and in compliance'with his request we advise you of our wishes in this matter, we beg to say that for a good many years we have declined to insure high priced horses used either for running, trotting or breeding purposes. So far as racing horses are concerned, there is altogether too much moral hazard connected with them to warrant us in insuring them, and as to horses used for breeding purposes, they are so often vicious and unmanageable as to become an extremely hazardous class of property to insure. In either case, the rate of insurance is inadequate, for the hazard is fully equal to that of a livery stable, and we would be unwilling to insure the class at less than 3% while located in the owner’s own barn, or if they go from place to place and our insurance follows and covers them, we should want at least double that rate. For these reasons we would much prefer to be excused from insuring fine horses. We very much regret our inability to accommodate you but trust that we may be able to do so in other directions to our mutual advantage.”
On March 22, 1910, Baer issued a policy of fire insurance on a stallion and jack for $300 each, describing them as one horse and one mule, and making the policy effective anywhere. W. W. Potter, employee of the defendant, made out the daily report of the policy as follows:
“4. On contents of said stable, the sum of $600.00 Dollars. Divided as follows, to-wit:
300.00 on one Horse
$ . . .on Live Stock of all kinds.”
300.00 on one Mule.”
The policy provided that “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . . or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage.”
Sometime after the policy was issued, the owner of the stallion and jack gave a chattel mortgage on the animals, to a bank with which Baer was not connected. He learned of this chattel mortgage and had a conversation with the owner concerning the same. The animals insured were used for breeding purposes, and were burned in a livery barn not covered by the policy. The company compromised the claim, paid the owner $500, expended the sum of $48.84 in adjusting the policy, and sued Baer for the amounts thus paid. A demurrer to the evidence was interposed and was sustained by the court. Of this the plaintiff complains. It also complains that the court excluded evidence offered by the plaintiff. It does not appear that this evidence was produced on the motion for a new trial.
Under instructions given him, it was Baer’s duty to notify the company on learning of any encumbrances on any of the property insured. He did not notify the company at any time of the chattel mortgage. The company learned of this chattel mortgage, and of all the misconduct of the agent, before the payment of the loss and expense.
1. The • defendant contends that the demurrer was properly sustained, because the verified general denial put in issue the allegation of the plaintiff’s incorporation. This seems not to have been specifically presented to the trial court. Technically, it was presented by the demurrer to the evidence. The case was tried as though this matter was not questioned. All parties seem to have assumed that it was .not in issue. The demurrer to the evidence was sustained because, in the opinion of the trial court, the company had a defense to the policy for breach of the encumbrance clause contained therein. We will not decide whether or not the verified general denial properly put in issue the incorporation of the plaintiff, because that question is for the first time presented in this court. We will treat this question, in this case, as it was treated by the trial court, and we will decide this case on the questions on which it was decided by that court. In Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, this court said:
“Unless the record shows that the matter was specifically and unequivocably brought to the attention of the trial court while it had possession of the case and power to dispose of it as justice required, this court will regard the issue as abandoned. It would be gross abuse of procedure for a defendant to veil an oversight in making proof under a general demurrer to the evidence and a general motion for a new trial, and then appeal to this court for a new trial when the evidence is all the time lying in a public office barely outside the reach of judicial knowledge, and when the new trial, if granted, would extend to that issue alone.” (p. 372.)
2. Was Baer liable for the loss sustained by the company on account of this policy? In 31 Cyc. 1451, we find this language:
. “It is the duty of an agent whose authority is limited by instructions to adhere faithfully thereto, regardless of his own opinion as to their propriety or expediency, and if he exceeds, violates, or neglects such instructions he will be liable to the principal for any loss or damage resulting therefrom.”
In 22 Cyc. 1437, under the article “Insurance,” we read:
“The agent must respond in damages for any breach of duty arising out of his relations as agent which has resulted in injury to the company. Thus if the agent violates instructions as.to the class of risks which he is to insure and thereby renders the company liable for a loss on a risk which would not have been accepted had the instructions been observed, the agent will be liable to the company for the amount of loss which it has been compelled to pay on account of such risk.”
In Ins. Co. v. Clark & Cressler, 126 Iowa, 274, 100 N. W. 524, it was said:
“In an action against an insurance agent for wrongfully writing a risk at a lower rate than authorized and failing to report the same, and the evidence tended to show that the company would have cancelled the risk had it known of it, the measure of damages is the total loss sustained thereby.” (Syl. ¶ 7.)
In Hanover Fire Ins. Co. v. Ames, 39 Minn. 150, 39 N. W. 300, a fire insurance agent was held liable for issuing a fire insurance policy contrary to instructions. In 22 L. R. A., n. s., 509, is found' a note to Insurance Co. v. First National Bank, 18 N. Dak. 603, 120 N. W. 545, on “Liability of insurance agent to company for failure to follow instructions,” as follows:
“There is no doubt that an insurance agent will be liable to the company he represents for his negligent or wilful failure to obey instructions, thereby causing loss to his principal.”
The evidence shows that Baer issued this insurance policy in violation of his instruction, and that in his daily report he did not properly describe the property, nor the place in which the animals were to be covered by the policy.
3. The defendant contends that the plaintiff had a valid defense against liability on this pblicy, and that payment on the policy was made with knowledge of those defenses. This does not excuse the defendant. Baer wrongfully issued the policy. On its face the company was liable. The agent of the company knew of that chattel mortgage. His knowledge, as against the policy holder, probably was the knowledge of the company. Having such knowledge, and permitting the policy to stand, the company was probably liable on the policy. The company, in good faith, presumably, paid this policy to avoid litigation. The improper conduct of Baer first created the liability of the company, and afterwards continued that liability. His estate can not escape by asking the company to take chances in a lawsuit.
We think the demurrer to the evidence was improperly sustained, and that the evidence should have been submitted to the jury. The judgment of the district court is reversed, and a new trial is ordered.
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The opinion of the court was delivered by
Burch, J.:
The appeal was taken from the judgment of the district court approving a survey. The chief subject of controversy is the location of the corner common to sections 25, 26, 35, and 36, tpwnship 2, south, range 33, west, in Rawlins county.
There is no government stone at the corner in controversy, no direct evidence of any one having seen such a stone in the vicinity, and the field notes of the government survey describe the corner as being south and east of the water in Beaver Creek, an impossible location. In 1889, the corner was established by the then county surveyor, Lovejoy. The record of this survey was destroyed by fire in 1905. The manner in which Love-joy marked the corner, whether by stone or by stake, can not now be definitely determined, and the mark, whatever its nature, has disappeared. In August, 1912, proceedings were duly instituted resulting in a survey by the county surveyor, Nickols. His report was set aside and the district court appointed F. E. Foote, county surveyor of Norton county, to make the survey. When Foote’s report came in issues were framed regarding its validity, which were duly tried. The evidence consisted of the government field notes, oral evidence relating to the Lovejoy survey, the report of the Nickols survey, and the testimony of a large number of witnesses. The judge of the district court personally viewed the district affected by the survey. The conclusions of the court were set forth in elaborate findings upon which judgment was rendered as stated.
Complaint is made that certain findings are not in harmony with the evidence. Some of the objections are of no consequence, as, for example, whether or not section 26 was included in the Lovejoy survey. Some other objections depend upon the oral testimony of witnesses which the court expressly states was not satisfactory. While the findings of fact extend to items of evidence, those which are material are well sustained by the evidence and by the results of the court’s view of the premises, which are stated in the findings.
It is said the survey should have been set aside because the principal parties adversely interested so desired. It seems the owner of the west one-half of section 25 and the west one-half of section 36 contends the corner was established too far east of the true location, while the owner of the southeast quarter; of section 26 and the northeast quarter of section 35 contends the corner should have been located still further towards the east. If a correct result were reached the dissatisfaction of the parties to the proceedings is not ground for reversal.
It is said the Foote survey did not take into consideration all known original corners. None of the known original corners which were not utilized were material to the survey. Thus, the corner common to sections 35 and 36 on the township line south of them need not be considered because there is no contention that the disputed corner was established too far north or too far south. The northeast corner of section 25 need not be considered because the survey recognized the known corner common to sections 23, 24, 25, and 26. The southeast corner of section 36 need not be considered because the known northeast corner of that section was utilized. . Besides the known corners that .have been mentioned, the corner common to sections 26, 27, 34, and 35, established by a previous survey, and not disputed, and the quarter' corner on the line between sections 25 and 36, probably recognized by Lovej oy and marked by the original government monument, were utilized. Very clearly it was not necessary to extend the survey further.
It is said that the surveyor failed to take the testimony of some witnesses regarding certain matters. Apparently the testimony of all available witnesses was taken by the court, and upon judicial consideration was found to be insufficient to affect the validity of the surveyor’s report.
It is said that the survey disregarded improvements, indicating established boundaries, and boundaries long recognized and acquiesced in. This subject was fully disposed of by the ninth finding of fact, which need not be printed here.
It is said that the survey disturbs a boundary agreed upon by the respective owners of the west halves of sections 25 and 36, and the east halves of sections 26 and 35, upon which fences have been built marking the limits of ownership and possession. The survey merely established the true line. It does not affect the location of an independent agreed boundary, or ownership or possession depending upon a boundary' agreement lawfully made.
The proceeding having been one to establish boundaries, and not to establish title or recover possession, a jury trial was properly denied.
The court found that the measurements given in the government field notes quite uniformly overrun. The corner established by the surveyor bears proper relation to the nearest known government and established corners. In particular, it divides the distance and apportions the shortage between the quarter corner established and not contested on the line between sections 25 and 36, and an established and recognized quarter corner on the line between sec tions 26 and 35. The methods of the surveyor conformed to proper standards and his report is consistent on its face. The report is impeached by nothing more substantial than the oral testimony of witnesses, the probative force of which the district court has estimated. So far as this court can determine, the judgment of the district court is correct and just, and consequently it is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to require the state auditor to register bonds issued by the board of education of the city of Horton, a city of the second class, pursuant to permission of the school-fund commissioners granted under chapter 257 of the Laws of 1911. Registration is resisted on the ground that the act of 1911 is repealed by implication by chapter 270 of the Laws of 1918, and that the bond issue exceeds the limit prescribed by the latter act.
Section 7614 of the General Statutes of 1909, being section 7 of chapter 62 of the Laws of 1.909, provided that whenever necessary to provide funds for the erection of suitable buildings, boards of education of cities of the second class might issue bonds according to a prescribed procedure. The statute contained a proviso that the total indebtedness of the board proposing to issue bonds should not be increased to an amount exceeding one and one-half per cent of the valuation of the property in the territory subject to the jurisdiction of the board. In 1911 the legislature passed an act, sections 1 and 2 of which read as follows:
“Section 1. The limitations placed by the statutes' upon the voting of bonds in cities and school districts for the purpose of erecting school buildings may be modified as in this act provided.
“Sec. 2. The Board of School-fund Commissioners of the state of Kansas is hereby authorized and empowered to make an order authorizing any city or school district to vote bonds for the purpose of erecting school buildings to an amount of not more than fifty per cent in excess of, and in addition to, the amount of bonds that may be voted under laws now in force.” (Laws 1911, ch. 257, §§ 1, 2.)
A method of procedure to obtain the order was prescribed, and it was provided that after an order should be obtained a bond election should be held as in other cases. Subsequently, but at the same session of the legislature, section 7614 of the General Statutes of 1909 was amended by chapter 260 of the Laws of 1911, whereby the limitation of one and one-half per cent of the value of the property affected was raised to two per cent. By chapter 270 of the Laws of 1913 this limitation was raised to two and one-fourth per cent by an amendment of section 1 of chapter 260 of the Laws of 1911, which, as already noted, had amended section 7614 of the General Statutes of 1909.
The act of 1913 is not a new enactment. The act of 1909 was itself merely amendatory of chapter 398 of the Laws of 1905, entitled “An act to authorize boards of education of cities of the second class to issue bonds.” In this act the limitation was placed at four per cent of the assessed valuation of the property affected. The act of 1913 is a mere continuation of the acts of 1905 and 1909 and of chapter 260 of the Laws of 1911, without substantial change, except as to percentage. (Gen. Stat. 1909, § 9037.) These statutes placed a limitation upon bond issues for the erection of school buildings under which all boards of education of cities of the second class might operate at will. Chapter 257 of the Laws of 1911 is in the nature of a special act, to be used in emergencies to meet the necessities of boards of education in exceptional cases. It is a sound principle of construction universally recognized that such statutes are not repealed by subsequent general legislation without a clear manifestation of such an intent. There is no repugnancy whatever between the act last referred to and the act of 1913. They are entirely consistent with each other, may stand without any conflict, and consequently the implication of a repeal is forbidden by elementary principles of construction. Besides this, the legislature fairly indicated the extent to which previous legislation was affected by the act of 1913. It in terms repeals section 1 of chapter 260 of the Laws of 1911, but nothing, else.
It is said that the act of 1913 constitutes a revision of the law relating to limits upon bonded indebtedness and consequently repealed chapter 257 of the Laws of 1911. The limitation upon bonded indebtedness contained in the act of 1905, in the act of 1909, in chapter 260 of the Laws of 1911, and in the act of 1913, is in each instance a mere proviso attached to an elaborate grant of power to boards of education of cities of the second class to issue bonds. It is not an independent subject of legislation. Therefore the act of 1913 was simply amendatory of a particular feature of an act the real subject of which was bond issues by boards of educa tion, and was not revisory of a distinct subject of legislation embraced in several statutes. If the contention under consideration were sound, chapter 257 of the Laws of 1911 was repealed by the later act of the same session (chapter 260), which took effect before the legislature which passed them adjourned. It is manifest that these two acts were intended to stand together.
It is said that the expression used in chapter 257 of the Laws of 1911, “bonds that may be voted under laws now in force,” requires that the fifty per cent excess there provided for be computed upon the iy% per cent limitation expressed in section 7614 of the General Statutes of 1909, because that was the law then in force. It is plain, however, that what the legislature had in mind was to permit bond issues in emergencies in excess of the amount permitted by the general law governing the subject, and not the particular provisions of a general law in force at a particular date.
The result is that with the permission of the school-fund commissioners the board of education of a city of the second class may issue bonds for the purpose of erecting school buildings up to a maximum limitation of 3% per cent. The bonds presented for registration are well within that limit.
Therefore, the writ is allowed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action for personal inj ury. The plaintiff was injured in an automobile accident. The automobile was driven by C. H. Glazier, agent of The Aultman & Taylor Machine Company, while in their employ and engaged in their business. Glazier ran into the plaintiff on a public highway. Negligence in driving the machine was alleged, and found by the jury. The defendants appeal.
Defendants complain that the court committed error in permitting plaintiff to file a reply, consisting of a general denial, after the case was called for trial, and compelling the defendants to go to trial at that time. They also complain of error in the admission of evidence, and of error in overruling defendants’ demurrer to plaintiff’s evidence. Further complaint is made of the refusal to give instructions asked for, and of those given. Another complaint is, that the court committed error in denying a motion'for a new trial. These are presented in three propositions in defendants’ brief: (1) error in compelling defendants to go to trial after the filing of the reply; (2) error in the admission of evidence, and (3) error in refusing to give and in giving instructions.
There was no error in refusing a continuance, and compelling the defendants to go to trial after a reply, consisting of a general denial, had been filed, although filed after the cause had been called for trial. The petition was filed May 28, 1913. The answer was filed • some time thereafter. The case was called for trial and the reply filed December 15,1913. No new element was introduced into the case by the reply. The petition was not changed. The answer was the same as at first. The reply merely compelled the defendants to prove any affirmative defense that they may have alleged. This ought to have been anticipated. No such showing was made that the defendants could not be ready for trial as is contemplated in section 143 of the civil code. Section 313 of the civil code provides that actions shall be triable on the issues of fact in ten days after the issues are made up. The defendants contend that the issues were not made up until the day of trial, when the reply was filed. The case stood ready for trial under the code ten days after the time for filing a reply. It was within the discretion of the court to permit a reply to be filed and then compel a trial of the cause. The practice of permitting a reply, consisting of a general denial, to be filed on the trial, is too general in this state to reverse a judgment because such reply was filed, when it could not have misled or prejudiced the opposing side. (Taylor v. Hosick, Adm’r &c., 13 Kan. 518, 526; Grant v. Pendery, 15 Kan. 236, 241; Wright v. Bacheller, 16 Kan. 259, 266; City of Burlingame v. National Bank, 17 Kan. 407, 408; Rice & Floyd v. Hodge Bros., 26 Kan. 164, 168.)
The principal contention is as to the admission of evidence concerning an injury to the plaintiff’s ear. The petition alleges that the automobile struck the buggy, injured the plaintiff, and caused the horse drawing the buggy to run away and upset the buggy, and throw the plaintiff out to the ground, on her head and arms, breaking her right forearm, throwing the wrist of her right arm out of place, filling her head and scalp with gravel, and “severely injuring and bruising her in all parts of her body and putting her in danger of her life,” but does not say anything about any injury to her ear.
The defendants filed a motion asking “that the plaintiff be required to make her petition more definite and'certain in the language as follows: ‘severely injuring and bruising her in all parts of her body and putting her in danger of her life.’ ” This motion was denied. The plaintiff contends that the defendants have waived their right to complain of the order denying this motion, because the plaintiff afterward amended her petition in other respects, and no motion to make the amended petition more definite and certain was filed. The original petition was amended in minor points by interlineation. No change was made in the allegations of the petition, so far as the injuries sustained by the plaintiff were concerned.
On the trial the plaintiff introduced evidence to prove that one of her ears had been permanently injured. To this the defendants strenuously objected because that injury was not alleged in the petition. Sometime before the trial, when is not disclosed, the defendants learned of the injury to the ear from a physician who had made an examination of the plaintiff. Was it necessary to allege more specifically the injury to plaintiff’s ear, in order that she might recover for that ip jury, under the circumstances of this case? An. allegation of “severely injuring and bruising her in all parts of her body and putting her in danger of her life,” when coupled with knowledge on the part of the de fendants that the ear had been injured, is sufficient to allow the plaintiff to prove that injury and recover thereon. It is argued that the word “body” does not include the head. In one sense this is correct. In another, it is not. The ear is a part of the “body” as that expression is used in the petition.
“The allegation that the plaintiff . . . sustained bodily injuries was sustained by proof of injury to her hands and wrists.” (City of Eureka v. Neville, 70 Kan. 893, 79 Pac. 162.)
In a note in 16 Encyc. PI. & Pr. 396, will be found excerpts from a number of cases supporting this principle.
The first, second, fifth, sixth, and seventh instructions asked for were given in substantially the language in which they were submitted. The law as submitted to the court in the third, fourth, eighth, tenth, eleventh, and twelfth instructions was correctly given by the court in its instructions to the jury, and much of it in substantially the language submitted in the instructions requested. The instructions given fairly covered all that was asked for in those mentioned. It was not necessary to duplicate or repeat them. (Deitz v. Regnier, 27 Kan. 94; Evans v. Lafeyth, 29 Kan. 736, 738; Gray v. City of Emporia, 43 Kan. 704, 706, 23 Pac. 944; Mo. Pac. Rly. Co. v. Johnson, 44 Kan. 660, 664, 24 Pac. 146; Berhenke v. Penfield, post.)
The defendants complain that instruction No. 9 was not given. This instruction is as follows:
“The jury are instructed that unless the plaintiff has proven by a preponderance of the evidence that the automobile alleged to have been run and operated by the defendants actually struck and came in contact with the plaintiff’s buggy, the plaintiff can not recover in this case, and you will find for the defendant.”
This instruction was probably requested on the theory that striking the buggy, that is, the collision, was the act of negligence. The act of negligence was the careless driving. The collision was the result of. that driving. A railway collision is not the negligence. It is the result of the negligence. The negligence and the collision are two separate and distinct things. In this case the allegations of negligence are that Glazier carelessly and negligently drove the automobile against the buggy; carelessly and negligently. failed to keep watch for vehicles drawn by horses; carelessly and negligently failed to stop the automobile for such a time as to enable the plaintiff to pass the automobile; carelessly and negligently ran the automobile at a greater rate of speed than forty miles per hour; carelessly and negligently failed to use ordinary care to discover that the plaintiff was in a position of peril, and after seeing her in such position, carelessly and negligently failed to use ordinary care to stop the automobile. One of the results or consequences of this negligence was the collision with the buggy.
The plaintiff could have recovered without proving that the automobile struck the buggy. If the defendants’ negligence, as alleged in the petition, caused the injury, although the buggy was not struck, the defendants would be liable. In addition to this the jury found that the automobile did strike the buggy.
We are unable to agree to any of the contentions of the defendants. The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs were partners conducting a cleaning, repairing, and'tailoring business, and owning a stock of merchandise, show cases, shelving, hat blocks, electric irons, electric fixtures and other prop- - erty, classified apart from the stock of merchandise as fixtures. The firm was indebted on account to Barnett Cohen and to a number of other creditors. Cohen had guaranteed the accounts of two of these creditors. After some preliminary negotiations with Cohen the' plaintiffs executed and delivered to Cohen’s son, A. R. Cohen, a bill of sale of the stock and fixtures which recited a consideration of one dollar and other valuable considerations, and authorized immediate possession of the property to be taken. Barnett Cohen, who was himself a merchant, took possession of the stock of merchandise, removed it to his own store, mingled it with his own goods, and sold it without keeping a separate account of either the proceeds or the expenses of sale. He also took possession of the fixtures, and disposed of them. He canceled his own claim and satisfied the creditors whose claims he had guaranteed.
The plaintiffs sued the defendants for the value of the property covered by the bill of sale, for an accounting, and for other relief. The petition alleged that the bill of sale was made under a verbal agreement that Cohen would take possession of the goods and fixtures, sell them, pay all the plaintiffs’ creditors, and if any surplus remained return it to the plaintiffs; and it was alleged that the defendants had refused to carry out the terms of this agreement, had converted the property to their own use, and had refused to account to the plaintiffs. The answer alleged that Cohen acquired title to the goods and fixtures by the bill of sale on the consideration that he would satisfy his own claim and the claims which he had guaranteed, which he had done. The petition characterized the transaction as one for the security of debts, as an assignment for the benefit of creditors, and as creating a trust. The answer maintained the theory of an absolute and unconditional sale. The facts were stated, however, as each party understood them, and the court, disregarding characterizations, submitted the cause to a jury as one for damages for misappropriation of chattel securities. The plaintiffs recovered, and the defendants appeal.
The defendants objected to oral testimony tending to establish the nature of the disposition of the plaintiffs’ property alleged in the petition. It is said that such, testimony defeated a written instrument into which all the negotiations and agreements of the par ties merged. If the testimony were true the instrument, in form a bill of sale, was nothing more and nothing less than a chattel mortgage to secure the plaintiffs’ various creditors. A bill of sale absolute in form, but intended as security, stands on the same footing as a deed of real estate absolute in form but intended as security, and the true character of the transaction may be shown by parol evidence under the well-known exception to the rule forbidding the impeachment of written instruments. (Butts v. Privett, Sheriff, 36 Kan. 711, 14 Pac. 247; Gray v. Delay, 53 Kan. 177, 35 Pac. 1108.) It may be observed that the defendants were obliged to resort to oral testimony regarding the consideration of the bill of sale to present their defense, and the testimony on behalf of the plaintiffs went but little beyond the same subject.
The court instructed the jury substantially to the effect that if the claim stated in the answer were true the verdict should be for the defendants; that is, if the agreement were that the defendants should take the property and satisfy the Cohen debt and those debts which Cohen had guaranteed, and that this had been done, the plaintiffs were not entitled to recover. It was conceded that the debts just referred to had been satisfied. On the other hand, the jury were instructed that if the claim stated iff the petition were true the plaintiffs were entitled to recover the difference between the market value of the property at the date of the transfer, less the amount of the plaintiffs’ debts which the defendants had satisfied. The defendants complain of this measure of damages, and insist that the plaintiff should be allowed to recover no more than the debts which the defendants had failed to satisfy.
The evidence of both parties was that after the defendants had obtained possession of the property claims other than those for which Barnett Cohen became responsible were presented for payment and that the defendants denied liability for them and denied liability to account to the plaintiffs. The defendants held the property for a specific purpose and could make no use or disposition of it for any other purpose. Conduct inconsistent with or in 'denial of the plaintiffs’ rights not only amounted to a breach of contract, but also amounted to a breach of faith in accepting and dealing with the security. This being true, the plaintiffs were at liberty to treat the property as converted, and they were damaged to the extent of the value of the property, less whatever debts the defendants had canceled.
The defendants insist that the verdict for $650 in favor of the plaintiffs is not sustained by the evidence.
The bill of sale was executed and the property was surrendered to the defendants about May 7, 1918. The plaintiffs showed that their stock of goods invoiced $1082.22 on January 1, 1918. Between January 1 and May 7 new goods were put into the store to the amount of $1204.44, and goods were sold from the store to the amount of $663.25. This left goods in the store on the latter date of the book value of $1623.33. There was evidence that the goods had a sale value much greater than this book valuation, and that the defendants in fact sold a portion of the goods at a profit of from twenty-five to thirty per cent. The defendants kept no account of their sales, and testified that the goods were sold at a loss. The debts paid by the defendants amounted to $1368.93, leaving a surplus of goods over debts, according to the plaintiffs’ proof, of $254.40, or more. There was some proof that the fixtures cost in the neighborhood of $550. There was other testimony that they were worth considerably more than that sum. The defendants testified that they sold the fixtures for $111. Assuming that the jury accepted the book value of the goods as the fair market value, they found the value of the fixtures to be $395.60, or approximately twenty-eight per cent less than cost. An invoice taken by the defendants, after goods to the amount of $258 had been returned to a guaranteed creditor, showed goods remaining in the store to the amount of $1111.70. The good faith of a portion of this invoice, taken in the absence of the plaintiffs, was questioned. The jury, as they had a right to do, seem to have relied on the testimony favorable to the plaintiffs, and accepting this testimony as true it can not be said that the verdict is unsupported.
The defendants say the petition alleged an assignment for the benefit of creditors, the defendants proceeded on the theory that the action was one for breach of trust, and that the court, disregarding both these theories, submitted the cause to the jury as a simple action for damages for conversion. The plaintiffs could no more make the bill of sale an assignment for the benefit of creditors by declaring it to be such than the defendants could make it an instrument of unconditional sale by declaring it to be such. The court determined the method of trial from the facts stated in the pleadings. The facts stated in the petition indicated that the bill of sale was intended for securitjq that the property delivered as security had been converted, and that, notwithstanding the plaintiffs’ prayers for other relief, they were entitled to damages. The. answer simply gave a different version of the transaction. Therefore the action was in fact one for the recovery of money and a jury was properly called. (Civ. Code, § 279.)
Whatever legal theories of the case the parties may have held, the record indicates that they produced all the testimony they had concerning the origin and nature of the original transaction, the quantity and value of the goods, the disposition made of the goods, and all collateral facts incident to the controversy. The petition was not attacked by motion. No request was made for instructions upon the theory of a trust, or for instructions different from those the court gave. The only objection made to the instructions which were given has been considered. No new or additional evidence was tendered at the hearing of the motion for a new trial, and consequently it is too late to claim prejudice on account of the form of the proceedings. Indeed the only substantial grievance the defendants have is that the jury leaned not upon their evidence but upon the evidence of the plaintiffs. For such a grievance this court has no remedy.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
PORTER, J.:
The plaintiff brought ejectment to recover land then in the defendant’s possession, relying upon title through a sheriff’s deed in a foreclosure action. The defendant’s title is based upon a tax deed less than five years old, which the trial court vacated and set aside on the ground that it is void because of the indefinite and defective description of the real estate in the deed and in the tax proceedings.
One question presented by the appeal is whether the ruling of the court is correct, and another is whether the defect in the description may be cured by extraneous evidence.
The land is described in the tax deed and in all the tax proceedings as follows:
“The east half of the southwest quarter of Section Twenty-Three (23) Township Twelve (12) Range Thirteen (13) less six (6) acres situated in the County of Shawnee and State of Kansas.”
The deed purports to convey eighty acres less six acres, and it is clear from an examination of the tax roll, assessment roll, and notice of sale that there was no intention on the part of the assessing officers to impose a tax upon the entire tract of eighty acres, but, on the contrary, it was the intention to assess the eighty acres less six acres. It will be observed that the deed contains no reference to any fact beyond the description from which the exact land intended to be conveyed can be determined. In the case of Wilkins v. Tourtellott, 28 Kan. 825, the description was “five acres out of the given and described tract of thirty-eight acres . . . excepting two acres off the easterly end, fronting on the Missouri river.” (Syl. ¶ 16.) It was said in the opinion:
“But beyond all this; it is impossible to ascertain what land was included within these five acres. . . . Neither of them described a five-acre tract, and only by mere guessing could it be determined that the land in controversy was intended to be embraced within the description in this tax deed. But 'tax titles never rest on guesses. Tax collections are proceedings in invitum, and must describe the land so that ‘with ordinary and reasonable certainty it can’ be determined exactly what land has been seized and sold.” (p. 842.)
In Johnson and another v. The Ashland Lumber Company, 52 Wis. 458, 9 N. W. 464, the description in the tax deed was as follows:
“Lot 3, and the northeast quarter of northwest quarter, less seven acres.” (p. 465.)
The description was held void. In the opinion it was said:
- “It is very clear from this description that there were seven acres, a part of this tract, which were not intended to be conveyed by said deed, and were not conveyed by it; and as such seven acres.were in no way described, it is quite impossible to determine from the deed itself what lands are conveyed by it. The deed, in fact, purports. to convey all of lot 3, and the N. E. *4 of the N. W. 14 of section 5, etc., but seven acres. Suppose the two tracts contain in all 77 acres, then the deed conveys 70 acres of lot 3, and N. E. % of N. W. % of section 5. What 70 acres are conveyed? It is quite impossible to tell from the deed itself, and there is no way to make the description certain by any reference in the deed to objects on the land, or adjoining it, which would make it certain. From the data given by the deed it is impossible to locate the lands conveyed. We think the deed must be held void on account of the uncertainty of the description.” (p. 465.)
Section 9499 of the General Statutes of 1909 provides that “any description of lands which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.” It appears that the Wisconsin decision was based upon a statute with substantially the same requirement in a description of land in tax proceedings. In 37 Cyc. 1447, the rule is stated as follows:
‘‘Where a tax deed attempts to convey a portion of a tract or lot, it must be so particularly described that it can be definitely and certainly located within the boundaries of the larger tract; it will not do to describe it as a ‘part’ of the tract or the ‘balance’ of it, or as a given fractional part of it, or as so many acres out of the tract, or as a certain tract ‘less’ or ‘excepting’ a given number of acres; all these forms of description being void for uncertainty.”
It is quite evident that the present case is not one where the description can be said to be made definite by taking the entire deed together. Nothing is found in the deed in question, aside from the language referred to, which in any manner aids the indefinite description. We think it is clear that the trial court correctly held this deed void for an indefinite description of the real estate. The appellant contends that the trial court erred in holding that the defect in the description could not be made certain by oral testimony identifying the location of the land. Our attention is called to a number of decisions in which it is held that the description of land is not required to be absolutely certain nor technically accurate. One of the cases relied upon is Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22, the syllabus of which reads:
“Where a description of real estate is true in every particular, and no other property answers to such description, and the property may easily be found by anyone who may be acquainted with such description and with the facts which exist and which may easily be ascertained upon inquiry, held, that the description is sufficient.” (Syl. ¶ 3.)
That was not a tax deed case but one involving a mechanic’s lien, and the real estate was described as “lots 15 and 16, block A A, corner Q and South Fourth streets.” It was said in the opinion:
“The description is true in every particular; no other property answers to this description, and the property may easily be found by anyone who may be acquainted with this description and with the facts which exist, and which may easily be ascertained upon inquiry.” (p. 667.)
It can not be said that any one acquainted with the description in this tax deed could determine what particular six acres of the eighty acres was not intended to be assessed or conveyed. The appellant cites Knote v. Caldwell, 43 Kan. 464, 23 Pac. 625, where the description in a tax deed was held sufficient, the property being described as “Lot No. seventy-seven (77) Main street, in E. L. Lower’s addition to the town of El Dorado, situated in the county of Butler and state of Kansas.” Extrinsic evidence was allowed to be introduced in that case, but it consisted of maps or plats of additions to the town of El Dorado, signed and acknowledged by E. L. Lower. The deed itself, however, directed the purchaser to a certain lot upon a named street in “Lower’s addition.” The extraneous evidence was admissible to show that, while there were several additions platted by Lower, there was only one to which the description in the deed applied. We think the court properly excluded extraneous evidence offered for the purpose of locating the land intended to be taxed.
There is a suggestion that the objections to the validity of the deed are technical. We do not think they can be so regarded. Besides, the decisions respecting tax titles have settled the policy of the state to be that where a tax deed is less than five years old when attacked, no inferences or presumptions will be indulged for the purpose of aiding its recitals, and on the contrary comparatively slight irregularities, except where obviously harmless, will be allowed to defeat it. (Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Taylor v. Adams, 89 Kan. 716, 132 Pac. 1002.) In such case the owner is permitted to redeem and the tax-title holder is repaid his investment with interest. When he made the purchase he did so with notice that until his deed became five years old it might be defeated for just such irregularities in the tax proceedings. After a - tax deed is five years old a liberal rule of construction obtains, and all reasonable presumptions and inferences are indulged in favor of the regularity of the proceedings and the sufficiency of the deed. (Gow v. Blackman, 78 Kan. 489, 96 Pac. 799; Gibson v. Cockrum, 81 Kan. 772, 107 Pac. 32; Taylor v. Danley, 83 Kan. 646, 112 Pac. 595; Hoffman v. Woodward, 86 Kan. 81, 119 Pac. 712; Williams v. Hall, 87 Kan. 63, 123 Pac. 739.)
The judgment will be affirmed. .
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The opinion of the court was delivered by
Marshall, J.:
Plaintiffs brought this action and recovered a judgment for $800 as damages. The defendant appeals.
The action is based upon the alleged breach of the covenants of a lease by which the defendant leased the plaintiffs the first floor and basement of a building in Dodge City, Kan. On the 10th of March, 1912, the building was partially destroyed by fire. The roof was totally destroyed; a portion of the east wall was burned; the falling of the roof broke through an old skylight, and a portion of the second-story floor was burned through. No damage was done to the foundation; the entire west wall, two stories and basement, being a -party wall, was uninjured, and was used in rebuilding. All of the north and south ends, except three or four feet necessary to tie in to the second story of the new east wall, were used. The jury, found that the building was not totally destroyed; that the loss was 75 per cent. The fire, unquestionably, left part of the building untenantable. The basement continued to be occupied. The plaintiffs allege that the premises occupied by them became uninhabitable, and that they were compelled to remove their fixtures, billiard and pool tables, and stock of goods. After the building was burned, the defendant started to rebuild it, and had some talk with one of the plaintiffs, when she told him she was going to fix the building, and intended for him to go in. Later, she told the plaintiffs that she was going to erect a building for other purposes, and that they could not occupy it. It is alleged that the defendant was bound and obligated to repair the building and place it in a habitable condition, but there is no such' covenant in the lease. The building was ready for occupancy about January 1, 1913.
Before the fire the plaintiffs had sublet the basement, and after the fire directed the subtenant to pay the rent directly to the defendant. After the fire the defendant demanded no rent, and the plaintiffs paid none.
At the trial the plaintiffs introduced evidence as to the nature of the business the year before the fire, testified how much business they did, how much money they put in, and how much profit they made.
The court tried the case on the theory that it required a total destruction of the building to terminate and cancel the lease, and submitted the question to the jury as to whether or not the building was totally destroyed. The jury found that there was not a total destruction of the building, that it was 75 per cent destroyed, and found a verdict against the defendant for $800.
The points relied on by the defendant are;
“1. The destruction of the building by fire to the extent of 75 per cent, which rendered it untenantable, and uninhabitable, cancelled and terminated the lease.
“2. After the fire, both parties to the contract recognized and treated the lease as cancelled, and the building as untenantable.
“3. The loss of profits, in any event, is not the true measure of damages.
“4. The instructions of the court were erroneous.
“5. The court erred in sustaining objections to competent testimony offered by the defendant.
“6. The court erred in overruling the defendant’s motion for judgment on the evidence.”
1. Whether or not the building had been totally destroyed was a matter for the jury to determine. Counsel have drawn different conclusions from the evidence on this point. Where different conclusions can be reached, the jury must decide. (Johnson v. Leggett, 28 Kan. 590, 607; Brown, Adm’r., v. A. T. & S. F. Rld. Co., 31 Kan. 1, 16, 1 Pac. 605; Railroad Co. v. Matthews, 58 Kan. 447, 452, 49 Pac. 602; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 36 L. Ed. 485; 38 Cyc. 1517.)
2. Was the lease canceled and terminated because of the building becoming untenantable and uninhabitable by the 75 per cent destruction thereof? The fire ren-* dered the rooms occupied by the plaintiffs untenantable and uninhabitable until repairs were made. If the tenants desired to continue the lease, they could do so, by the payment of rent, whether the landlord so desired or not, because the building was not destroyed, although rendered unfit for occupation. (24 Cyc. 1379.)
In Con. Mutual Life Ins. Co. v. United States, 21 Court of Claims, 195, Davis, J., said:
“Covenants terminating a lease should the buildings be destroyed are strictly construed as' against the lessee, and are held not to relieve him from liability in case of injury to the building short of destruction; that is, if the injury be of such a nature that the property may be repaired without rebuilding the structure, there is no destruction within the meaning of such a covenant, even if the building be temporarily uninhabitable.” (p. 201; Vanderpoel v. Smith, 2 Daly [N. Y. Com. Pleas], 135; Well & another v. Hinds, 70 Mass. 256; Izon v. Gorton, 5 Bing. [N. Car.] 501; Smith et al. v. McLean et al., 123 Ill. 210, 14 N. E. 50; Turner v. Mantonya, 27 Ill. App. 500; Monotuck Silk Co. v. Shay, 37 Ill. App. 542; Note, 22 L. R. A. 613.)
3. Did the parties to this lease treat it as canceled after the fire? This is not alleged in the answer, is not embraced in the instructions requested, nor in those given. Some evidence on this question was introduced, but that evidence does not warrant the conclusion that the plaintiffs considered the lease at an end. They did not consent to its cancellation. Where a lease or other contract is canceled by act of the parties, both parties-must consent to such cancellation. The evidence fails to show such consent on the part of the plaintiffs. It rather tends to show that the plaintiffs insisted on the performance of the contract. The defendant refused to let the plaintiffs o occupy the building after it was repaired.
4. Is loss of profits a proper measure of damages ?
“Damages for loss of profits may be recovered where the amount of such loss and the fact that it resulted by defendant’s refusal to comply with the alternative writ can be determined by the court with reasonable' certainty.” (Larabee v. Railway Co., 85 Kan. 214, syl. ¶ 7, 116 Pac. 901.)
This principle was followed in Mensing v. Wright, 86 Kan. 98, 119 Pac. 374, where this court said:
“Where the business of conducting a skating rink is wrongfully interrupted, damages for loss of profits which are neither speculative nor uncertain but can be determined with reasonable certainty may be recovered.” (Syl. ¶ 1.)
Loss of increase in the growth and weight of cattle has been held to be a proper measure of damages in an action to recover for failure to furnish the amount' of pasture contracted for. (Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513.) The same rule has be<en applied where cattle have been wrongfully disturbed and frightened. (Davis v. Gas Co., 85 Kan. 195, 115 Pac. 977.)
Following these decisions, it was proper for the court to instruct the jury that:
“The measure of damages in such case will be the ■amount of profit that the plaintiffs would have made in their said business for the remainder of the term of the lease, less the rents for the premises from the time of the fire to the date when again ready for occupancy. In arriving at said profit you may take into consideration the gross receipts for the period up to the time of the fire, the total expenses to be deducted from such gross receipts, and arrive as nearly as possible at the average net profits of the plaintiffs.
“You are not bound to take the net profits of the plaintiffs as the absolute measure of their damage, but may take into consideration the probability or improbability of such profit continuing for the remainder of the term.”
5. It is next urged that the instructions of the court were erroneous. Complaint is made of the instruction ■concerning the measure of damages. That is disposed of. The next matter presented is, that the instruction requiring the defendant to prove a total destruction of the building was erroneous. The defendant plead total destruction of the building. 'That question was specially submitted to the jury. The jury found that the building had not been totally destroyed. Other instructions are complained of. We have examined them and find no error therein.
6. It is contended that the plaintiffs were bound to repair the building, if it could be repaired. The lease, in part, reads :
“And the said parties of the second part [plaintiffs] . . . agrees that they will, at their own expense, during the continuance of this Lease, keep the said premises and every part thereof in good repair . . . reasonable use and wear thereof and damages by the elements excepted.”
Is fire one of the elements within the meaning of this stipulation? In 15 Cyc. 482, it is said: “Elements. In common speech, earth, air, fire and water.” In Van Wormer v. Crane, 51 Mich. 363, 16 N. W. 686, 47 Am. Rep. 582, it was held that “ ‘damages by the elements’ excepted from a lessee’s covenant to repair, includes destruction by fire without the lessee’s fault.” (Headnote, 47 Am. Rep. 582.) See Note in 53 L. R. A. 673-678, on “What constitutes damages ‘by the elements’ within the meaning of contracts with stipulations referring thereto.” We are of the opinion that the tenants in this case, the plaintiffs, were not under any obligation to repair the leased premises after the fire.
7. Complaint is made of the exclusion of certain evidence. It does not appear that the evidence excluded was produced in any way at the hearing of the motion for a new trial. (Civ. Code, § 307.) This matter can not be considered at this time. (Davidson v. Timmons, 88 Kan. 553, 558, 129 Pac. 133; Walter, Adm’r, v. Calhoun, 88 Kan. 801, 805, 129 Pac. 1176; Williams v. Withington, 88 Kan. 809, 812, 129 Pac. 1148; Cheek v. Railway Co., 89 Kan. 247, 257, 131 Pac. 617.)
8. The last complaint made is that the court erred in denying the defendant’s motion for judgment on the evidence. This was properly a jury trial. Evidence sufficient to warrant submitting the case to the jury was introduced. The motion was properly denied.-
We have examined all the matters complained of, and do not find anything upon which to base a reversal of the judgment. The judgment is therefore affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action for damages. The plaintiff alleges “that the . . . defendants . . . did . . . unlawfully and with force assault . . . the . . . plaintiff ... to his damage in the sum of twenty-five thousand dollars.” There was a jury trial, and verdict in favor of the defendants. The plaintiff appeals. No abstract of the evidence is filed.
The errors complained of are as follows:
1. Denying plaintiff’s application' for a change of venue.
2. Overruling objections to irregularities of the clerk in calling the jury.
3. Concerning the instructions given.
4. Denying plaintiff’s motion for a new trial. Here the plaintiff complains of his inability to secure the attendance of one witness, of a witness not testifying as plaintiff had expected him to, and because of certain statements made in the presence of one of the jurors.
5. That the trial judge was seen talking to counsel for the defendants concerning instructions to be given.
6. Rendering judgment upon the verdict which contained the words “not guilty.”
We will examine these matters in the order named.
1. Was there error in refusing a change of venue? Plaintiff’s affidavit for a change of venue is as follows:
“. . . that he is the plaintiff in the above-entitled action; that he is a resident of McPherson County, State of Kansas, and is engaged in the business of the practice of law; that there is a prejudice existing in this county against affiant, but that the same is without any just cause, and prevails generally throughout the county, especially among such. citizens as usually compose the juries of the District Court of said County; that the affiant has considerable acquaintance with the citizens of this county, and this-affiant states that a fair and impartial trial of the above-entitled action by a jury can not be had by the said John F. Hanson, the plaintiff therein, in the county of McPherson, State of Kansas, where said suit is pending; that the judge of the District Court in and for said county and state is disqualified to sit in the trial of said ca”use, by reason of the fact that he is biased and prejudiced in favor of the said defendants; that the plaintiff now has a suit pending in the District Court of McPherson County, Kans., for damages for alleged malicious rulings and alleged proceedings. without jurisdiction against the said judge and this affiant states that a fair and impartial trial of the above-entitled action can not be had by the said John F. Hanson the plaintiff therein in the County of McPherson, State of Kansas, where said suit is pending.”
Section 57 of the civil code, in part, is:
“In all cases in any of the district courts of this state in which it shall be made to appear that a fair and impartial trial can not be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit, the court may, upon application of either party, change the place of trial to some county where the objection does not exist.”
This affidavit is not sufficient to compel a change of venue because of the prejudice of the inhabitants of McPherson county.
“A change of venue on account of the prejudice o£ the inhabitants of the county against the defendant should not be granted unless it is made to appear to the satisfaction of the court that the defendant can not have a fair trial in such'county ón account of such prejudice.” (The State v. Bassnett, 80 Kan. 392. syl. ¶ 3, 102 Pac. 461.)
“When a trial judge is conscious that he has no prejudice against a defendant, he is justified in refusing a change of revenue asked for on the ground that he is prejudiced.” (The State v. Sexton, 91 Kan. 171, syl. ¶ 2, 136 Pac. 901.)
The court is not bound by the statements in the affidavit as to his disqualification. (In re Smith, 73 Kan. 743, 85 Pac. 584; Hanson v. Hanson, 86 Kan. 622, 624, 122 Pac. 100.) That no counter-affidavits were filed makes no difference. (The State v. Tawney, 81 Kan. 162, 164, 105 Pac. 218.)
2. It appears that in calling the jury to the box, the clerk called the names of,jurors from slips of paper on which the names were written, and when the name oi: an absent or excused juror was drawn, the slip was laid aside and the name not called. How this prejudiced the plaintiff does not appear. Neither does it appear that the jury was not a fair jury, nor that any particular juror was incompetent. This should be treated as a challenge to the whole array of jurors, otherwise there is nothing before this court.
“A challenge to an array of jurors ought not to be sustained on account of mere irregularities in the drawing of the jurors, or mere informalities on the part of the officers charged with the drawing of the same.” (The State v. Jenkins, 32 Kan. 477, syl. ¶ 1, 4 Pac. 809; A. T. & S. F. Rld. Co. v. Davis, 34 Kan. 199, 204, 8 Pac. 30; The State v. Whisner, 35 Kan. 271, 279, 10 Pac. 852; The State v. Donaldson, 43 Kan. 431, 433, 23 Pac. 650; The State v. Frazier, 54 Kan. 719, 721, 39 Pac. 819; Wood v. McAlpine, 85 Kan. 657, 660, 118 Pac. 1060.)
3. The plaintiff complains of the instructions. There is no attempt to abstract any of the evidence introduced on the trial.
“Where none of the evidence appears in the record, and there is no statement of what it tended to prove, or that it raised the questions on'which instructions were based, this court can not, as a general rule, determine whether there was error in the rulings of the court as to the instructions or not.” (Town of Leroy v. McConnell, 8 Kan. 273 syl. ¶ 1; Hopkins v. Cothran, 17 Kan. 173, 177; The State v. English, 34 Kan. 629, 9 Pac. 761; Insurance Co. v. Curry, 44 Kan. 741, 25 Pac. 221; Insurance Co. v. Thorp, 48 Kan. 239, 246, 28 Pac. 991; The State v. Heth, 60 Kan. 560, 57 Pac. 108; Woodford v. Light Co., 77 Kan. 836, 837, 92 Pac. 1133.)
The instructions state correct principles of law, and are applicable to the facts as disclosed by the pleadings.
4. The plaintiff complains of the denying of his motion for a new trial. In this he alleges accident and surprise which ordinary prudence could not have guarded against, particularly by not getting the witness H. S. Bacon, and in Charley Nelson not giving more definite testimony. If there was a witness who could not be procured, an application for a continuance should have been made. It does.not appear that such application was made. The plaintiff can not complain when he goes into trial without his witnesses, even though he has been diligent in attempting to secure their presence, when he does not make an application for a continuance on account of the absence of such witnesses.
5. Complaint is made that one of the witnesses did not give more definite testimony. In almost every contested trial one or both of the parties is surprised by some witness not giving more definite testimony, or giving testimony contradictory to that which • was anticipated.
6. Complaint is made of certain statements made in the presence of one of the jurors. The plaintiff’s affidavit in support of his motion for a new trial in this respect is as follows:
“That plaintiff heard C. A. Ingman, a juror, in the presence of the juror Charley Johnson, upbraiding the said Charley Nelson (a witness in the case) for coming to testify without being paid his fees; that plaintiff believes that this C. A. Ingman, in his association with the juror, exerted an undue influence on some of those who were jurors in this case.”
The affidavit does not state that either C. A. Ingman or Charley Johnson was a juror in plaintiff’s case. What was said is not disclosed. In what way could this matter prejudice the juror or jury in favor of or against the plaintiff? We do not see why a new trial should have been granted for either of the three reasons last named.
7. The next complaint made by plaintiff is, that the trial judge was seen talking to counsel for defendants concerning the instructions to be given. It is not misconduct on the part of the judge to talk with interested counsel about the instructions to be given in a cause on trial.
8. The plaintiff complains that the judgment was rendered upon the verdict, which contained the words “not guilty.” The verdict is as follows:
“We, the jurors empaneled and sworn in the above entitled cause do, upon our oaths, find for the defendants. Not guilty. A. T. Wilson, Foreman.”
The verdict was clearly in favor of the defendants. Only one judgment could be rendered thereon. If the plaintiff objected to the form of the verdict, he should have made his objections known at the time the verdict was received. (Hazard Powder Company v. Viergutz, 6 Kan. 471; Arthur v. Wallace, 8 Kan. 267; Copeland v. Majors, 9 Kan. 104; Kolleen v. Railway Co., 72 Kan. 426, 428, 83 Pac. 990.)
After examination of the matters submitted to this court, we are unable to find any error, and the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an allowance of the claim of R. B. Faler against the estate of Elizabeth Speer, deceased. She died intestate on July 16, 1907, and on August 21, 1907, J. C. Culver was duly appointed administrator of her estate and filed his bond and published notice of the appointment ending September 13, 1907. On January 29, 1908, Faler filed a claim against the estate for services rendered to Elizabeth Speer during her lifetime, but it does not appear that written notice of the filing of the claim and of the time of its presentation to the probate court was given for some time afterward. Prior to that time, and on December 24, 1907, certain parties began an action for the partition of the real property of the estate, in which Faler was made a defendant, and it was alleged, among other things, that Faler owned a one-fifty-sixth interest in the land. He filed an answer in which the allegation that he was the owner of one-fifty-sixth interest of the land was admitted. Subsequently he filed another answer in which reference was made to the filing of the claim in the probate court and asking for a stay of proceedings in the partition suit until the disposition of the claim in the probate court had been made, but the application was overruled. This allegation as to the claim in the probate court was later stricken out of the an-' swer upon the motion of the administrator. In the partition action Faler alleged and claimed that he was the owner of all of the property of the estate by reason of an agreement between him and his grandmother, Elizabeth Speer, under which he was to remain with her and care for her and her property during her lifetime, in consideration of which he was to receive all the property owned by her at the time of her death. The court gave him no more than a one-fifty-sixth interest of the land, the share to which he was entitled regardless of the agreement set- up in the partition action, but in the judgment entry specific reference was made to the fact that he had presented a claim in the probate court for his services against the estate which was still pending and undetermined.
It is first contended that the claim was barred by the statute of limitations because notice of the claim was not served on the administrator within three years after he had qualified and given bond, the limitation then applicable (Gen. Stat. 1901, §2886), and that the service of notice had not been waived in writing or by an appearance in the probate court. The proceedings in the partition action showed that the attention of the administrator had been called to the filing of the claim, but the decision of the question involved here will not be based upon that notice. The statute provides that the executor or administrator may waive service of the notice of a claim by an appearance in the court or by a writing. (Gen. Stat. 1909, § 3528.) The probate court in a later entry certified that the administrator did appear in court, and in connection with the attorneys for Faler did agree on a time for the hearing of the claim, and that this was done within three years after the filing of the bond of the administrator. The contention that no record of the appearance was made in the probate court when the proceedings were had does not nullify the effect of an actual appearance made by the administrator. The important question is, Did the proceeding occur; was there a waiver of notice by the appearance of the administrator? and if there was, then neither party should lose any rights by the failure of the judge to make a record of the proceeding. The proceedings and the orders made in the court are, of course, to be shown by its record, but in this case a nunc pro tunc entry was made by the probate court which showed an appearance and waiver -by the administrator within the period of limitation, and, besides, there was other testimony which tended to sup port the record. It has been determined that if through accident, mistake or neglect a record is not entered of a proceeding had or an order made in the probate court it is competent for that court to correct or complete its record by a nunc pro tunc entry and that this power is not lost by lapse of time. While an order adding to the record should not be made unless proof in support of the entry is clear and convincing it has been held that it may be done upon oral as well as written testimony, and it has also been held that it may be done upon the testimony of a former judge. (Aydelotte v. Brittain & Co., 29 Kan. 98; Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Graden v. Mais, 83 Kan. 481, 112 Pac. 107; Plummer v. Ash, 90 Kan. 40, 133 Pac. 157.) The estate had not been settled and the administrator discharged when the appearance was made nor when the trial was had, and therefore the rule of Collamore v. Wilder, 19 Kan. 67, referred to by the administrator, is not controlling.
The second contention is that the claim upon which judgment was rendered in this case was adjudicated in the partition suit, wherein Faler alleged that he became the owner of the property sought to be partitioned be-, cause of an agreement that he was to have the property in consideration of his caring for his grandmother while she lived. It is contended that having elected to set up the agreement which involved services performed by him he is barred from thereafter prosecuting his claim for the value of such services. In the first place the issues to be litigated in the partition suit were not the same as those involved in the claim filed in the probate court. The first was an assertion of ownership of the property resulting from an agreement, the conditions of which had been performed, while in the second the claim was merely for the value of the services which had been performed and for which no payment had been made. While the agreement involved the services rendered in compliance with its terms, the court might have held that no agree ment was in fact made and therefore Faler had no interest in the land. Under the agreement, if it was made, Faler would have been entitled to all of the land whether the services performed in accordance with the agreement were of much or little value, and an adjudication that the agreement was not made would not bar Faler from recovering the value of the services actually rendered by him. However, the recitals in the judgment rendered in the earlier case indicate quite plainly that the court recognized that the claim for services was still pending in the probate court and was to be adjudicated there, and in one of its findings the court made a reference to the funds of the estate that would be available if the claim should thereafter be allowed by the probate court. It may have been true that the court decided that Faler was bound by the answer first filed in the partition suit wherein he admitted that he was the owner of a one-fifty-sixth interest in the real property, the share which would have come to him under the statute of descents and distributions. In any event it appears that the value of Faler’s services and his right to recover were not litigated or decided in the earlier case.
No error is found in the record, and therefore the judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Sarah F. Barker, the appellee, recovered a judgment against The Missouri Pacific Railway Company, the appellant, for damages for the destruction of a part of an orchard and some meadow by fire, alleged to have been caused by the negligent operation of one of appellant’s locomotives. In her petition she alleged, substantially, that on August 2, 1911, a freight train of appellant passed through her farm and the locomotive threw out fife, which ignited dry vegetation and other combustible material on the north side of appellant’s railway track; that the fire thus started spread to and burned across the meadow and orchard on her farm, causing a loss of $4000, and she alleged, further, that the fire was caused by the negligent operation of appellant’s railway. She also asked for $500 as an attorney’s fee. The appellant answered by general denial and allegations that its locomotive was properly equipped with modern fire-arresting appliances, that it was handled by competent and careful employees, and that the fire was not the result of any negligence on its part. On the trial appellee offered, evidence tending to show that the locomotive in question was puffing and working hard when it passed through her farm; that shortly after its passage fire was discovered north of and near the track; that the fire spread over her meadow, destroying it, and then entered into the orchard, where it destroyed a considerable portion of it. She also offered evidence tending to show that about ninety-two apple trees were destroyed and about sixty-five badly damaged, and that these were of the value of from $10 to $12 each; that sixty-five peach trees were destroyed, which were of the value of about $3 each, and that the orchard was in good condition and productive before the fire, but was practically destroyed by the fire. Evidence was also given by appellee that a reasonable attorney’s fee for prosecuting the action would be between $200 and $400. The appellant, on the other hand, offered evidence tending to prove that the engine in question was in good condition, that it was not negligently operated, and that it was equipped with modern fire-arresting appliances. The appellant also offered much evidence tending to support its contention that the orchard was not in good condition, but, on the contrary, that it had not been cared for in a proper manner and that many of the trees had been rendered valueless by various insect pests. The verdict of the jury was in favor of appellee, allowing her $1060.50 as damages for the destruction of the orchard and meadow and $250 as attorney’s fees. Special findings were returned to the effect that the fire was caused by the negligence of the appellant, that appellant’s locomotive was not equipped with modern fire-arresting appliances that were in good repair, that the appellant had not exercised reasonable care in selecting the appliances and in keeping them in good order, but also found that the fire was not caused by the negligence of the engineer or fireman nor because of the quality of the coal used.
On this appeal it is contended, first, that there should be a reversal because the damages awarded are excessive. If the court were to look no further than the evidence of the appellant it might conclude that the orchard was not in good condition and was not of much value. There is other testimony in the case, however, and to which the jury no doubt gave credit, which tends to show that the trees constituted what is called a commercial orchard in good condition and that the loss resulting from the fire was as much or more than the amount awarded by the jury. A number of appellee’s witnesses who had orchard experience and were acquainted with the value of trees in that vicinity, and knew the condition of the trees prior to the fire, stated that the trees were in a reasonably healthy condition and constituted a fairly good commercial orchard. The condition of the trees, the value of those injured and destroyed, and the amount of the loss sustained by reason of the fire were interesting and debatable questions until they were determined by the jury upon what appears to be competent and sufficient testimony. It is said that the values fixed by the witnesses of appellee were based on the value of trees that were in a healthy condition, and that proper consideration was not given to the fact that the trees of appellee had been injured by insects and by lack of pruning. It appears that the witnesses for the most part fixed the value of the trees as they found them prior to their destruction by the fire and of trees such as those in question were shown to be. There is complaint that witnesses were allowed to testify what trees would produce or be worth in the future rather than what they were worth just before the fire. While some of them referred to crops usually borne by trees of that character, it appears that they did not base their opinions on the value of the future crops but rather on the character of the trees and the condition of the orchard as it existed before it was burned. The court specifically instructed the jury that in fixing the damages sustained they “should not indulge in any speculation as to the extent or value of the fruit crop which said trees might have produced in the future.”
Objections are made to the instructions but they furnish no ground for setting aside the verdict and judgment.
One objection is that the court did not permit the jury to measure the damages of appellee by finding the difference in value of the entire farm before and after the fire. The court instructed the jury that if they found for the appellee the measure of her damages would be “the reasonable value of the fruit trees destroyed, as a part of the land of the, plaintiff, and the hay destroyed and the amount of loss suffered by the plaintiff by the depreciation of the value of the orchard which was injured by said fire.”
In another instruction the jury were advised that:
“Only such damagés as were proximately caused by the fire in question can be allowed, taking into consideration the value of said fruit trees immediately after the fire in question and immediately before said fire; also, taking into consideration the character of said trees, and all circumstances proven by the evidence which tend to show the actual loss by said fire to the plaintiff.”
The jury were told that in measuring the damages of the plaintiff the trees were to be regarded as a part of the land and that they might consider any and all evidence proven which tended to show the actual loss. The testimony showed the number and character of the trees destroyed and injured, and although they constituted a part of the land they had a distinct value as an appurtenance of the land and the loss sustained could be definitely measured by the evidence of the number and character of the trees destroyed and injured. In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, it was held that when trees were destroyed by fire, as in this case, and they had a distinct value which under the evidence was susceptible of definite measurement, the value of the trees or things destroyed is the best measure and the most satisfactory method of determining the extent of the loss. It was also said that it was only where damages to one part of the land affect other parts and were incapable of more direct proof that it is necessary to resort to the rule of finding the difference in the value of the land before and after the injury. Other cases of like import are, Railway Co. v. Arthurs, 63 Kan. 404, 65 Pac. 651; Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.
Witnesses of the appellant testified that the farm of appellee was as valuable without as with the orchard on it. Some might prefer to have the land clear of trees and regard the naked land to be of more value than if it were planted with fruit trees. The owner, however, is entitled to use his land for an orchard and to compensation in case it is wrongfully destroyed. Appellee had a right to claim damages for being deprived of its use as an orchard, or in fact of any use to which it is adapted and which is most advantageous to her. (Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242; Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577; C. K. & W. Rld. Co. v. Willits, 45 Kan. 110, 25 Pac. 576; Irrigation Co. v. McLain, 69 Kan. 334, 76 Pac. 853; Railway Co. v. Weidenmann, 77 Kan. 300, 94 Pac. 146.)
It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed. He is liable to pay for the loss of the property appurtenant to real estate which is actually destroyed and which has a value independent of the land, such as buildings or trees, and the evidence indicates that there was no difficulty in determining the value of the trees destroyed and the extent of the loss sustained. In fact both parties offered evidence as to the value of the trees which had been destroyed and injured, and the appellant seems to have adopted and approved this rule of measuring the damages by asking that the jury make a special finding as to the number and value of the different kinds of fruit trees that were injured and destroyed. In view of the evidence in the case and the course of the trial we think the appellant has no reason to complain of the rule applied by the district court as to the measure of damages.
There was no occasion to inquire as to the effect of the fire upon the land of appellee on the south side of the railroad. She had not alleged nor claimed that that part of the farm had been injured, but limited her claim for damages to the orchard tract on the north side, and hence the court properly instructed the jury to confine the allowance of damages to the injury to the orchard and meadow lying north of the track and which arose from the negligent operation of .the railroad by appellant.
We find nothing in the special findings inconsistent with the general verdict nor any material error in the proceedings which requires a reversal. The judgment will therefore be affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This case has been in this court before. (Healer v. Inkman, 89 Kan. 398, 131 Pac. 611.) It is an action for damages to Henry Healer, a boy three and a half years old, caused by the falling of the wall of a one-story frame building which was being torn down on the premises of Anton R. Hartwig, the wall falling over on the adjoining lot. The contract for demolishing the building had been let to Henry Inkman, a carpenter and contractor, and Inkman employed one Chris Diehm to do the work. The wall was not exactly on the division line of the Hartwig lot, but stood about a foot inside Hartwig’s lot. Appellant charged both Inkman and Hartwig with negligence; that Chris Diehm, who did the work, was old, deaf and incompetent; that the wall which fell was ten or twelve feet high and twenty or thirty feet long, made of drop siding and boards nailed to 2 x 4 scantling and of sufficient size and weight to crush or injure any person upon whom it might fall; that it fell on account of the careless, willful and wanton manner in which the work of taking down the wall was being done. His petition continues:
“Plaintiff further alleges that on or about said 7th day of May, 1910, while said plaintiff was on his said premises and playing on, around and about thereof, and next to the wall as aforesaid, it, without warning to him and on account of the careless way in which it was being torn down, and on account of the incompetency of the man whom the said defendants had placed in charge of said work, fell to the west and over and upon the premises on which said plaintiff was living and upon said plaintiff, crushing and bruising him in such a manner so as to permanently injure him for life,” etc.
The defendant Inkman answered:
“That if said plaintiff was injured by the falling of said old building, or any part thereof, which this answering defendant denies, such injuries were caused by his own negligence, in that, at the time of said injuries, if any, he was without any right upon the premises of the defendant Anton R. Hartwig, where he then was, with the knowledge and consent of his said grandmother and next friend, and was in a place of danger, where he had no business to be, and that such danger was well known to the plaintiff and to his grandmother and next friend, and that this answering defendant had no knowledge of the presence of said plaintiff upon the premises, and is in no way responsible for the injuries he sustained, if any, and that such injuries so sustained by the plaintiff were the result of his own negligence, in deliberately going upon the premises of the defendant Anton R. Hartwig and into a place, of danger, with the knowledge, consent, directions and threats of his said grandmother and next friend.” .
Part of Hartwig’s answer reads:
“This answering defendant further avers that prior to May 7, 1910, he desired to build on his said premises, and entered into a verbal contract with an independent contractor to erect said building and to remove from this defendant’s said premises the old building then standing thereon; that all of the work of furnishing the materials for and constructing said new building, and of removing the old building from defendant’s premises, was included in the one contract, and this answering defendant had or retained no direction or control as to the plan, manner or method of removing said old building, and at no time assumed any direction or control thereof, but that said old building was torn down and removed by said independent contractor according to his own plans and under his own direction, by his own workmen, in the usual and ordinary way.”
From a judgment in favor of defendants appellant assigns error:
1. Overruling peremptory challenge of Juror Meyers.
2. Allowing Inkman and Hartwig three peremptory challenges each.
3. Admission of expert testimony.
4. Instructions given at request of defendants.
5-. Refusal of instructions requested by plaintiff.
6. The exclusion of testimony offered by plaintiff.
Examining these in their order:
1. Meyers was challenged on his voir dire because one of the attorneys for defendants was attorney for Meyers’ employer, a transfer company, which company did some hauling for Hartwig. The juror testified that the hauling “didn’t amount to much,” and that he would not let that interfere with his duty.
We apprehend" that counsel intended to base error,, not on the overruling of a peremptory challenge of Meyers, but upon a challenge for cause. (24 Cyc. 351.) The common-law niceties of challenge for principal cause and challenge to the favor have been superseded by the provisions of the code (Civ. Code, §§ 282, 283), and in this state a wide discretion is vested in the trial court to determine the qualification of a juror. The code provides that the validity of such challenge shall be determined by the court; and, unless that discretion is abused, such determination is conclusive. (Moore v. Cass, 10 Kan. 288; M. K. & T. Rly. Co. v. Munkers, 11 Kan. 223; Swift v. Platte, 68 Kan. 10, 74 Pac. 635.)
2. It does not appear how appellant could have been prejudiced by allowing three peremptory challenges to each of the defendants. True, appellant sought to hold them as joint wrongdoers, but appellees pleaded unrelated and independent defenses. In some respects they were not united in interest as contemplated by the civil code (§ 283). In 24 Cyc. 356 it is said:
“The rule, however, is to be applied according to the reasons upon which it is based and limited to cases in which the positions of the several parties upon the same side are similar, so while the-fact that several defendants who set up a common defense plead separately does not entitle them to any additional peremptory challenges, the rule is otherwise where they set up separate and distinct defenses presenting different issues, or where the parties on one side, although having a common cause against the other, have conflicting rights among themselves which the verdict of the jury will affect.”
3. Certain hypothetical questions were asked of experienced carpenters and builders to develop the fact as to how long it should ordinarily take a man of ordinary skill and industry to do a certain amount of work and the ordinary manner of doing work like, that in question. Appellant contends that this was not in issue. If not, we think it would be immaterial and not prejudicial. (City of Topeka v. Sherwood, 39 Kan. 690, 693, 18 Pac. 933; Barker v. Railway Co., 89 Kan. 573, 575, 132 Pac. 156.) Moreover, it seems proper, in view of the issue tendered by appellant, that the work was performed by Diehm, “an old, deaf, incompetent man,” and that the work was negligently done. Surely the testimony of men experienced in that kind of work was competent on that issue. Ordinary jurymen would hardly be expected to determine that question without such expert testimony. On issues of that character, it has always been the practice in Kansas to admit such evidence. In N. M. R. R. Co. v. Akers, 4 Kan. 453, Mr. Chief Justice Kingman said:
“So a mason may be asked how long it would take to dry the walls of a house, so as to render it fit for a habitation. (Smith v. Gugerty, 4 Barb. 614, 615.) So also may experienced gardeners give opinions as to the amount of damages done to plants, trees and shrubs by the smoke, heat and gas proceeding from the defendant’s brick kiln. (Vandine v. Burpee and another, 54 Mass. 288.)” (p. 473.)
To the same effect are: Erastus Tefft v. Hardin H. Wilcox, 6 Kan. 46; Latham, v. Brown, 48 Kan. 190, 29 Pac. 400; Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819; Currey v. Robinson, 92 Kan. 117, 139 Pac. 1023; Root v. Packing Co., ante, p. 339.
The authorities cited by appellant merely state the familiar doctrine that questions propounded to experts tending to produce the answer which the jury and not the witnesses must give are inadmissible. Here one of of the questions objected to was:
“Q. Now, where the evidence shows that a party tearing down a building removed the two rear rooms, then started to remove the shingles from the front room — 13 by 14 room — and removed the sheeting and rafters, and then the studding, and later started to re move the flooring, I will get you to state if that is the usual and ordinary way of tearing a building down ?”
This was not the ultimate fact which the jury had to' find. The ultimate fact, or one of them, was for the jury to say whether the defendants, or either of them, was negligent in tearing down this building and whether their negligence occasioned the appellant’s injuries, and the question objected to was pertinent to that issue.
4. The substance of three instructions complained of was that if the appellant was on the premises of Hart-wig, without invitation express or implied, he was a trespasser; and if while on the foundation wall, or on ’ any part of Hartwig’s premises, at the time he received his injuries, he could not recover. This is the only serious question in this lawsuit. The evidence showed that Hartwig’s wall was a foot inside of his line; and that foot of ground on the outside, being contiguous to the premises of appellant’s grandmother, with whom he resided, would naturally be used by the child as part of those premises. Counsel for appellant contends that the child was on- this foot of ground when he was injured by the falling wall, and leaves us to infer, without argument, that the ordinary rule regarding nonliability to trespassers should not apply, and that to all practical intent the foot of Hartwig’s ground contiguous to the Héaler lot was part of the Healer premises. On the other hand, counsel for appellees contend that this is a mere afterthought, and in support of that contention point out that no instruction was asked by appellant covering that feature of the case. Appellees also urge that there was no evidence to show that the child was on this particular foot of ground when injured. The testimony of the grandmother does fairly show that the child was on that foot of ground, although it is difficult to harmonize that fact with the rest of her testimony “that the wall fell in her yard, broke a shutter; when it struck her house it bounced backwards, crush ing Kenneth on the wall.” If Kenneth was standing on the foot of ground contiguous to her premises when the wall fell the child would have been under it, not “crushed on the wall.” Indeed, the witness Jordan, who testified for appellant, said the side of the building was in Healer’s yard and “Kenneth under it.” Another witness testified that the child was on top of the wall and his grandmother picked up a stick “to scare him” and he “ran along the west wall (inside) to the south end with the intention of jumping off in his own yard, but before he got there this part of the house fell over and caught his head in a joist in a nail.” The evidence also showed blood all over the wall on the inside. The witness who picked up the child testified:
“This [foundation] wall is two feet higher than the ground, and the baby is [caught] beyond the second joist below. There was eight penny nail, cut nail, on the first floor came back this way and catches him here (indicating). I came right over here and took a second ceiling joist and raised them up and took the baby out and gave him to her [Mrs. Healer]. He was right on top of the wall inside of the house. I stood between the joists of the floor, raised them up and took the baby out and gave it to her.”
The testimony of another witness reads:
“Q. Now, I will ask you to state what happened in that matter? A. Why, I seen Mr. Diehm picking the boy up on the northwest corner off of the wall.
“Q. What was the first thing you heard that attracted your attention? A. Why, I heard a crash and Mrs. Healer hollered, ‘My baby, my baby,’ so I looked out the window and saw Mr. Diehm pick the boy off the wall on the northeast corner.
“Q. Tell the jury where the little boy was with reference to the foundation wall? A. He was up on top of the foundation, yes. I come out through the kitchen in the back yard and saw Mr. Diehm step down in Mrs. Healer’s yard and give him to Mrs. Healer, and she took him and carried him in the house.”
These excerpts of testimony indicate that neither party attached any particular significance to the fact that one foot of Hartwig’s ground was outside the wall, nor was the ease tried on the theory that this foot of Hartwig’s ground should be considered as part of Healer’s premises.
The petition alleges that the child was injured on his premises (that is, his grandmother’s) and while playing on, around and about thereof, and next to the wall, etc. The instructions complained of told the jury that if the appellant was on the premises of Hartwig, or any part thereof, without invitation, etc., appellees would not be liable. Unless we were prepared to say that the wall or building being dismantled was an attractive nuisance like a railroad turntable, the appel-lees were not liable if the child was a trespasser at the time he was injured. (Mayfield Water & Light Co. v. Webb’s Admr., 129 Ky. 395, 111 S, W. 712, 130 Am. St. Rep. 469; Peninsular Trust Co. v. Grand Rapids, 131 Mich. 571, 92 N. W. 38; Gillespie v. McGowan, 100 Pa. St. 144; Dobbins v. M. K. & T. Ry. Co., 91 Tex. 60, 41 S. W. 62, 66 Am. St. Rep. 856; Ritz v. City of Wheeling, 45 W. Va. 262, 31 S. E. 993, 43 L. R. A. 148; Uthermohlen v. Bogg’s Run Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911.)
Surely if counsel for appellant considered that the case turned upon the question as to whether his client was or was not a trespasser, and that question depended upon whether Hartwig’s foot of ground outside the wall should be considered part of Healer’s premises, he would have asked for an instruction on that point. Prudence would have suggested, also, that he ask for a finding of fact as to whether his client was on that particular foot of ground when injured.
On full consideration we must hold that these instructions were unobjectionable and fairly covered the case as tried. (Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039; Judy v. Buck, 72 Kan. 106, 82 Pac. 1104.)
5. The next assignment of error is based upon the court’s refusal to give instructions which under vari ous phases of the case would fix responsibility upon Inkman and not Hartwig, and in what state of the facts both would be liable, and also under what circumstances Hartwig would be liable. So far as relevant, these instructions asked were sufficiently given. (Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498; Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120.)
There is a controversy between counsel regarding the instructions, and a discrepancy as to them is clearly marked in their respective abstracts; but both the appellant’s abstract and that of appellees show that the entire subject was fully and fairly covered, whichever set of instructions was given. A certified copy of the instructions asked by appellant and refused is before us, but they do not help solve this difficulty. We conclude that all the instructions set out as given in both abstracts were in fact given. Either those set forth by appellant or those set forth by appellees would have been sufficient, nor was it error to give them all. In any event, there was no finding of negligence, and, indeed, counsel for appellant concede that the jury could not fail to find for appellees under the instructions given relating to the child being a trespasser. That concession makes the propriety of the other instructions a question of no importance.
6. The last error complained of relates to the exclusion of the testimony of William Healer, a man who had experience in tearing down buildings. Its principal features were:
“Q. You saw that wall standing there? A. Yes, sir.
“Q. From your experience I will get you to state whether or not that was left in a safe condition? (Objection sustained.)
“Q. I will ask you this question then. You saw that wall as it stood there, I will get you to state to the j ury in order to make it safe how should it have been fixed ? (Objection sustained.)
“Q. I will get you to state whether or not in order to make it reasonably safe it should'have been braced?” (Objection sustained.)
This was not error. Counsel argue that if expert testimony was admissible for appellees it should likewise be admissible for appellant. There is no gainsaying the justice of that proposition, but appellees’ questions related to general facts within their experience and called for opinions based thereon. They were not directed to the ultimate facts of this particular case.- Appellant’s questions were quite the contrary and were objectionable under all the rules of evidence. (K. P. Rly. Co. v. Peavey, 29 Kan. 169; Insley v. Shire, 54 Kan. 793, 39 Pac. 713; Erb v. Popritz, 59 Kan. 264, 270, 52 Pac. 871; Telephone Co. v. Vandervort, 67 Kan. 269, 72 Pac. 771; Oil Co. v. Drilling Co., 80 Kan. 261, 101 Pac. 1072.)
The judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The facts in the case at bar, material to the proper understanding of the points to be decided, and the argument thereof, are as follows: For five years prior to June 8th 1875, Burlingame had been the county-seat of Osage county. In pursuance of an order of the board of county commissioners of said county, based upon a petition of three-fifths of the legal electors of the county praying for an electjon for the relocation of the county-seat of said county, an election was duly and legally held in said county on that subject on May 25th, 1875, at which election 2464 votes were cast, of which Lyndon received 888, Osage City received 791, and Shireton received 785. Burlingame received no votes. The vote was duly canvassed, and the result proclaimed that no place had received a majority of the votes cast, and that Lyndon and Osage City, having received the highest number of votes cast, they were the candidates and the only candidates for the county-seat of said county at a second election to be held on June 8th, 1875. On said June 8th, being the second Tuesday following said canvass, the second election was held. On the Saturday following, the vote of that election was duly canvassed, and such canvass disclosed that Lyndon had received 1131 votes; that Osage City had received 1049 votes, and said Shireton had received 298 votes; and therefore said board of county commissioners proclaimed the result, and declared Lyndon to be the county-seat of Osage county.
It is not disputed that these proceedings were in strict conformity to the statute, and the declared result warranted by its terms. Ch. 26 of the Gen. Stat., the act providing for the location and removal of county-seats, in its 7th section reads: “If no place receives a majority of all the votes cast, a second election shall be held, * * * an(j a^ election the balloting shall be confined to the two places having received the highest number of votes at the preceding election.” But the specific objection is, that such a result thus obtained involves a disregard of § 1 of article 9 of the constitution, which declares that “no county-seat shall be changed without the consent of a majority of the electors of the county.” A majority of the electors have never, it is said, consented to a change from Burlingame to Lyndon; for, whether to be treated as blank votes or not, the 298 votes east for Shireton are witnesses to the existence of 298 electors. A vote cast is evidence of the existence of an elector casting it; and here it is unchallenged evidence. It stands as proof of the fact, and the court cannot say that a majority of the electors have consented to the change. To this it is replied, that the original petition signed by three-fifths of the legal electors shows the consent to a change, and this satisfies the constitutional provision; that if this is not so, both elections (in neither of which did Burlingame receive a single vote) establish the consent, not merely of a majority, but of all the electors, to a change. It is said that the vote signifies two things, first a willingness, a desire to change from Burlingame, and second, a preference for the place voted for; that in this way the unanimous wish was for a change from Burlingame, and the only matter of difference was as to the place to which the change should be made. The .question is asked, might not the legislature submit to the electors the simple question, Are you in favor of a change of the county-seat? and if a majority answered in the affirmative, itself select the new county-seat. The constitutional provision is not the grant of a power, but a restriction upon a power already vested in the legislature. It does not require a vote, nor an election. It does not declare how the consent shall be evidenced. It does not necessitate any selection of the new county-seat by the electors. It simply forbids a change without their consent; and whenever that consent is secured, all other matters are within the legislative control. On the other hand it is said, that the vote is to be taken as a single act; that there is no direct decision upon the simple question of making a change; that the consent implied 0 07 . r by a vote for another place is purely conditional, that is, that the voter consents to the removal from Burlingame, provided, and only provided, it is changed to the place he has voted for. So, that while 1131 electors have signified their consent to a change from Burlingame to Lyndon, 1347 have not only failed to consent to such change, but have actually expressed their disapproval thereof. So also, the question is not to be taken as a consent to the change, but simply as an expression of a desire to ascertain the sentiment of the county. For, where the question of a change in the county-seat has not been presented for some time, and changes have taken place in the population, even a resident of the old county-seat, and one desiring it to there remain, might well seek an expression of the sentiment of the people, to determine not merely as to the expediency of erecting new county buildings, but also as to his own investments and business operations. At any rate, it is said the simple question of consent to a change has never been submitted to the electors; that the change has never been approved by a majority of the electors, , and that it is unjust to infer consent from an act or a vote which not only does not necessarily mean consent, but is even consistent with an entire disapproval of the proposed change. It cannot be doubted that there is great force in the arguments presented on either side, and that it is difficult to determine to which the decision must go. A majority of the court are of opinion that the weight of the argument is in favor of sustaining the election — that thus effect is given to the statute, and at the same time the constitutional restriction is respected. Full power is with the legislature in respect to fc^e change °f the county-seat, except as thus restricted. If in any way a majority of the electors express their consent to a change, then the selection of a new county-seat, or the manner of its selection, is within the power of the legislature. Given, the consent to a change, and the legislature may name the new county-seat, or it may remit the choice to the electors and provide the proceedings by which that choice shall be made. When the entire body of the electors upon the question of relocating the county-seat name as their choice for such county-seat other places than the prior county-seat, is it not an expression of their desire for as well as consent to a change? They divide upon the choice of a new, but agree in a desire to abandon the old. They prefer that it should be located elsewhere than it now is. They consent that it be changed. The law seems to have been framed upon the theory that one question at least shall, be determined by each election. If on the first election no place receives a majority of all the votes, the law respecting the constitutional restriction declares that while no newcountyseat has been selected, yet as a maj ority have named some place other than the old county-seat, that majority have expressed their consent to a change. For, if that majority were unwilling to change, the naming by them of the old county-seat would have been a clear-expression of that unwillingness. If they had so voted, that election would have been a finality, and the county-seat remained undisturbed. If a vote for the old county-seat expresses an unwillingness to change, does not a contrary vote express a contrary wish? So the legislature seems to have thought, and provided that, if no place receives a majority, or in other words that a majority prefer some place other than the existing county-seat, but disagree as to the place to be selected, then a second election shall be had; and, to compel a final determination without repeated elections, it has limited the choice to the two places receiving the highest votes at the first election. By this construction the law is sustained in its application to the 'facts of this case, and apparently to all cases that may arise under it, while full force is given to the constitutional restriction as a protection to the rights of the existing county-seat. No county-seat can be changed unless at one or the other election a ma jority of the electors express by their votes their consent to a change.
All other questions presented in this case necessary for its decision have we believe been decided in recent cases, and need not be noticed here.
The judgment of the district court will be affirmed.
The same judgment will be entered in the other seven cases brought by the same plaintiff in error, the same questions being involved in them.
Valentine, J., concurring.
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The opinion of the court was delivered by
Brewer, J.:
This action was brought. to recover the amount of a promissory note given by the defendants August 29th 1867, and payable one day after date. The petition was filed December 17th 1873, and consequently the demand is barred by the statute unless the cause of action is saved by subsequent acknowledgment. The acknowledgment relied upon to take the case out of the statute is the affidavit of J. H. Wilder, one of the copartners, taken before the clerk of the court, October 30th 1873, one month and-a-half before suit brought. The language of said affidavit is, “There was due and owing on said note on the 25th day of March 1868, when notice of garnishment in this and other cases was served, the amount of said note as above stated, less the $250. Said note is still outstanding and unpaid at this date, except that I claim an offset on a certificate of deposit issued to said W. H. R. Lykins by one A. E. Baird, dated September 17th 1867, for $300, and on a counter-check by said Lykins to one B. W. Fitts, and transferred to me, accompanied by a written order upon Lykins for that amount dated October 9th 1867. The firm of Wilder & Palm, was and is composed of myself and Andrew Palm.” This affidavit was signed by John H. Wilder. The defendant demurred to the petition, and the court below sustained the demurrer.
Three objections are made to this acknowledgment — that it was not voluntary, but enforced; that it is not the admission of a present and subsisting debt, which the party is liable for and willing to pay, and that it was not made to the creditor, or any one acting for him, but to an entire stranger. As the record appears before us we think the last point well taken; and without considering the others, upon that decide the case. All that can be gathered from the record is, that this acknowledgment was made in an answer returned by-Wilder as garnishee in an action brought against the assignor of the plaintiff. It was not therefore made to this plaintiff, or his assignor, or to any one acting for him, but to a party claiming adversely to such assignor. Is such an acknowledgment within the statute? We think not. It may be conceded that at one time the decisions of the courts were in favor of such a construction: Peters v. Brown, 4 Esp. N. P. R. 46; Clark v. Hougham, 2 Barn. & Cress. 153; Montstephen v. Brooky, 3 Barn. & Ald. 141; Halliday v. Ward, 3 Camp. 32; St. John v. Barrow, 4 Porter, (Ala.) 223; Whitney v. Bigelow, 4 Pick. 110. But these rulings grew out of the fact that the statute of limitations was regarded as a statute of presumptions rather than as one of repose. It is well said in 3 Pars, on Contr., 5th ed., p. 63, “A very little observation will show that these two views lead to results which are not only distinctly different, but antagonistic. This difference may be stated theoretically thus: If the statute of limitations be a statute of presumptions, then it is taken away by whatever will rebut the presumption, and this is anything which implies or amounts to an acknowledgment that the debt still exists; but if it be a statute of repose, then it remains in force unless the debtor renounces its benefit or protection, and voluntarily makes a new promise to pay the old debt.” It is perhaps needless to add that the latter is to-day the accepted view. Under that view it"is held,that an acknowledgment to a meré stranger will not avoid the running of the statute. The acknowledgment of a debt, to take a case out of the statute of limitations, must be made, not to a mere stranger, but to the creditor, or some one acting for him, and upon which the creditor is to act or confide. 2 Story’s Eq., § 1521a. See also, as further authorities, Bloodgood v. Brewer, 4 Selden, 362; Wakeman v. Sherman, 5 Selden, 85; 5 Nev. 206; Taylor v. Hendrie, 8 Nev. 243; 3 Parsons’ Contr., 5th ed., p. 85; Collins v. Bane, 34 Iowa, 389; F. & M. Bank v. Wilson, 10 Watts, 261; Christy v. Flemmington, 10 Penn. St. 129; Kyle v. Wells, 17 Penn. St. 286; Johns v. Sands, 63 Penn. St. 324; Rings v. Brooks, 26 Ark. 540; Roscoe v. Hale, 7 Gray, 275; Keener v. Crull, 19 Ill. 190; Farrell v. Palmer, 36 Cal. 187; Georgia Ins. Co. v. Elliott, Taney, 130.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The facts presented by the record are as follows: The petition is for the foreclosure of mortgage given by the defendants to one Dean S. Kelley to secure a promissory note for $600 payable five years after date, and also ten semi-annual interest-notes for $36 each. The notes and mortgage were executed July 14th 1873. The mortgage is in the ordinary form except that it contains a covenant as follows:
“And the said grantors hereby covenant and agree that they will pay all taxes and assessments of every nature that may be levied or assessed on said premises at'the time the same shall become due and payable by the laws of this state; that they will insure or cause to be insured the building on said premises in a responsible insurance company, to be named by the grantee, in the sum of three hundred dollars, and assign the policy or cause the same to be made payable in case of loss to the grantee, his heirs or assigns, as his interests may appear, and continue such insurance until said indebtedness shall be paid in full. But in case of the nonpayment of said sum of money, either principal or interest or any part thereof, at the time or times above limited for the payment thereof, or in case of the nonpayment of any taxes that may be levied or assessed upon said premises, at the time the same shall become due and payable as aforesaid, or in ease of the failure of the grantee to insure and keep said property insured and the policy assigned or made payable to the grantee in manner aforesaid, then, and at the time of such nonpayment, or failure, or either of them, the whole sum hereby secured shall, if the grantee so elect, become due and payable, anything in said note to the contrary notwithstanding, and this deed shall then be and at that time become absolute, and notice of such election may be given to the grantor at any time thereafter. * * * And it is further covenanted and agreed, that in case of fail ure of the grantor to pay taxes or cause said property to be insured as above provided, the grantee, his heirs or assigns, may, if he elect so to do, pay said taxes, or cause said property to be insured as aforesaid, and the amount of money so paid for taxes or insurance shall become an indebtedness against said grantor and draw interest at the rate of twelve per cent, per annum from the time of such payment.”
Kelley transferred said notes and mortgage to one H. M. Holden August 8th 1873, and said Holden transferred the same to the plaintiff afterward and before maturity of said notes or either of them. Defendants did not pay the first interest-note which fell due on January 14th 1874; did not pay taxes for 1873, due November 1st 1873; did not insure property; and did not pay certain back taxes which were due on a portion of said property at the time the mortgage was given; and by reason thereof, and after the maturity of the first interest-note, viz., on February 13th 1874, plaintiff elected to have the whole debt become due, and on that day gave notice thereof to defendants. The answer admits these facts, and sets up that Kelley acted as the agent of H. M. Holden and the plaintiff in making the loan to defendants, and claims a failure of consideration. The testimony shows (and there is no dispute on the point,) that Kelley paid a judgment of foreclosure against Clark upon the premises herein, amounting to $314.36; also, taxes on same land, $114.17; also, for abstract, $5, and for patent, etc., $2.50 — making a total of $436.03, which is alTthe consideration Clark ever received for the notes; that $150 commission was reserved by Kelley, and that he still has about $14 in his hands belonging to Clark. Defendant admits in open court that there is no evidence that Kelley acted as agent for plaintiff, or H. M. Holden, and hence the only question for this court is, whether the plaintiff obtained the notes and mortgage before or after maturity, and consequently, whether the notes are subject to or freed from equities between Clark and Kelley.
Though the defendant admits that the plaintiff received the notes as above stated and in fact long prior to the maturity of either of the notes, yet he claims, and the • court below so instructed the jury, that, “by the election of the plaintiff, Eli Holden, the entire claim became due before he acquired an interest in said notes and mortgage,” and therefore that the notes are subject to equities between Clark and Kelley. Other instructions given by the court were in substance to the same effect, all hinging upon the theory that, by reason of the failure of the defendants to pay the portion of the taxes unpaid at the time the notes and mortgage were executed, and by reason of their failure to insure the property under the above covenant, the notes became due at the time they were executed. As above stated, the election of the plaintiff was made and notice thereof given to the defendants on the 13th of February 1874, one month after the maturity of the first note. The reason assigned for the above ruling is, that the covenant reads that, in case of default, “then and at that time” the entire debt shall, at the election of the grantee, become due; and as plaintiff elects to have the whole debt due, it relates back to “that time,” viz., the time of the default, which (it is said) was that of the date of the papers. The language however of the contract is, that “then and at the time of such nonpayment, or failure, or either of them,” the whole of the debt shall become'due “if the grantee so elect”— showing clearly that it was the intention of the parties, not that the whole of the debt or any part thereof not yet due should become due upon the happening of any default or failure — not that the grantee would be required to make his election at the happening of the first or any intermediate default, or not at all, but that the grantee might wait until-several defaults had occurred, and then, after the last default, exercise his option by electing that the debt should become due, and the debt would then become due, not because of such default merely, but because of the election by the holder thereof that it should become due. The grantee might waive all the defaults except the last one, and then upon that default, and because thereof, elect to make the whole of the debt become due. And then, by no rule of construction could the time for the debt to become due be made to relate back to the time of any default which occurred previous to the last one. No election had been made by any holder of the notes or mortgage when either H. M. Holden or the plaintiff Eli Holden purchased the same, and none of the notes had yet become due by their terms. Hence both the Holdens were innocent purchasers and holders of the notes and 'mortgage. Up to February 13th 1874, when Eli Holden elected that the whole of the debt should be due, he was unquestionably an innocent holder of the notes. Now how can it be said because of such election that he never was an innocent purchaser? Up to January 14th 1874 none of the notes had become due. Then how can it be said that because of said election none of the notes were ever otherwise than due? Evidently all of the notes but the first note became due at the time that Eli Holden elected that they should become due, that is, on said February 13th, and not one of them became due prior to said January 14th. On said January 14th the first note became due, and it had never before that time been due. Then how can it be said after February 13th that it had never been otherwise than due? Can a note become due a second time? Can a note that was always due become due again ? Can a note be due and not due at the same time? H. M. Holden purchased said notes on August 8th 1874, and the first default, as we think, was not made sooner than November 1st, 1874. The maker of the notes was to pay the taxes on the property (in the language of the contract) “that may be levied or assessed on said premises at the time the same shall become due and payable by the laws of this state;” and “that may be levied or assessed on said premises at the time the same shall become due and payable as aforesaid; ” and he was not required to pay taxes “that” had been previously “levied or assessed on said premises,” nor was he required to pay such taxes or any taxes “at the time the same” had “become due and payable,” or that were then “ due and payable.” Besides, the taxes that were then due and payable were paid out of the money for which the notes were given long before the notes were transferred to H. M. Holden. But is it possible to construe this contract so that Kelley might have elected to consider all of the notes du'e the very minute they were given? Such certainly could not have been the intention of the parties. The defendants certainly did not want to put it in the power of the holder of the notes to sue on them as soon as they were made when it was stipulated-in the principal note and mortgage that the loan should be for five years. The insurance was to be (in the language of the contract) “in a responsible insurance company to be named by the granteeand the grantee never named any insurance company; so the defendants of course were never in default in this respect. The first default was therefore after H. M. Holden purchased the notes; and therefore, if we should carry the time back when said notes became due to the first default it would still leave H. M. Holden an innocent purchaser and holder of the notes; and if he was an innocent purchaser and holder, then of course the plaintiff must recover. Upon this whole subject we would refer to the able and elaborate brief of counsel for plaintiff in error.
Counsel, for defendants in error raises the question that the plaintiff’s reply was not verified by an affidavit, and therefore that it did not put in issue some of the allegations of the defendants’ answer. The case was tried however in the court below, in the same manner as though it was considered by all the parties that the reply was sufficient, and therefore this court will now treat the case in the same way. (Bent v. Philbrick, ante, 190; Wright v. Bacheller, ante, 259, and cases there cited.)
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Mason, J.:
0. L. Miller recovered a judgment against H. L. Kerr for an attorney’s fee, and the defendant appeals. The services on which the action was based were performed by the plaintiff while acting in behalf of H. L. Kerr and his brother, C. W. Kerr, in litigation in which they had a common interest. The main issue tried in the present case was whether, as contended by the plaintiff, the defendant H. L. Kerr, had participated in employing him, or whether, as maintained by the defendant, the plaintiff had been employed solely by C. W. Kerr. The principal question presented is whether there was any substantial evidence tending to show that the defendant was a party to the contract of employment. The plaintiff testified to this effect: C. W. Kerr asked him to go into the case for the two brothers, with Judge Alden and another attorney, who were already acting for them; he answered that he thought he could do s'o; that he could not fix a definite fee, not knowing just what was to be done, but that the charge would be reasonable. The response was made: “That is all right.” Shortly afterward H. L. Kerr talked with the plaintiff about the matter and the services were subsequently performed with his knowledge, and without any disavowal of obligation on his part. His conversation with H. L. Kerr was thus narrated by the plaintiff:
“He asked me whether I had made up my mind that I could go into the case. He said, ‘Cord [C. W. Kerr] and I want you to come into the case. Judge Alden is not very well and he wanted you in the case,’ and I said I had been considering it, that I thought possibly I might. And he says, ‘Has Cord come to see you about it?’ I said, ‘Yes.’ He said, ‘Did he arrange fees with you ?’. I said, ‘He made all the arrangement that could be made; I could n’t tell what the fees would be; whatever, though, would be reasonable, after the case was tried,’ and he said, “Well, I guess you will make it as reasonable as you can,’ and that is all that was said from that time on.”
We think this evidence was sufficient to take to the jury the question whether the defendant participated in the employment of .the plaintiff. The conversation referred to did not result in a completed contract, be ■cause the plaintiff did not definitely agree to act in the. matter. But it was open to interpretation as a definite offer by the defendant to employ the plaintiff, followed by an acceptance of which the defendant was notified by the performance of the services. True, the conduct of the plaintiff might have been the same had he been acting solely under the employment of C. W. Kerr. But whether the situation was such that the plaintiff had a right to understand, in the absence of some suggestion to the contrary, that the defendant accepted his services in accordance with their conversation, was a fair matter for the determination of the jury.
Complaint is made of the overruling of a motion for a change of venue on the ground that the judge was prejudiced against the defendant. The substance of the affidavit for a change was that the judge had made rulings against the defendant, and had formed an opinion adverse to his contentions. Neither of these considerations is sufficient to require a change of venue, and the question of actual prejudice was one of fact to be determined by the judge in view of his own knowledge of the matter. (40 Cyc. 133; The State v. Morrison, 67 Kan. 144, 77 Pac. 554; In re Smith, 73 Kan. 743, 85 Pac. 584; The State v. Tawney, 81 Kan. 162, 105 Pac. 218; The State v. Tawney, 83 Kan. 603, 112 Pac. 161.)
The defendant offered in evidence the original written contract between the Kerrs and their first attorneys. This was rejected, and the ruling is assigned as error. It was offered particularly by reason of the testimony of Judge Alden that when he signed it the retaining of Mr. Miller was mentioned as a condition to his own employment at the sum named. The witness explained, howevér, that he did not mean that the written contract referred to the matter. This statement made the introduction of the writing unnecessary so far as concerned this feature of the controversy. Judge Alden testified as to the value of the plaintiff’s services. On cross-examination questions as to the amount of his own compensation in the case were ruled out. They might have been admitted without error, but the matter was not controlling or very vital, and in view of the entire evidence pn the subject and of the amount of the verdict a reversal on this ground would not be justified.
It was shown that the plaintiff and C. W. Kerr had agreed upon a fee of $2500, one-half of which the latter paid, being thereby released from further liability on his part. The defendant asked an instruction to the effect that this should be treated as a credit on the entire fee as fixed by the jury. The court instructed that if the verdict should be for the plaintiff the amount should be one-half of the amount found to constitute a reasonable fee. The jury fixed the plaintiff’s recovery at $1150. This implied a finding that the services were worth $2300. The defendant maintains that as the plaintiff had already received $1250, his judgment should not have been more than the balance, or $1050, under the rule that “a payment made by one of two joint debtors extinguishes the debt pro tanto.” (30 Cyc. 1221.) The original contract of employment did not fix an amount. The brothers were liable under it for the reasonable value of the plaintiff’s services. C. W. Kerr and the plaintiff afterwards made an agreement which fixed the amount so far as they were concerned, but did not in any way affect the defendant, who was not a party to it. Originally the brothers’ liability was the same. From the time of this adjustment their liability was different. C. W. Kerr was liable for a definite amount, and the defendant for an amount that remained to be fixed. C. W. Kerr then paid one-half of the sum agreed upon as a fair fee. This left the defendant indebted to the plaintiff for one-half the value of the services, as it might be determined between them, by agreement or,by litigation. C. W. Kerr did not pay more than half the debt as it was liquidated between him and the plaintiff, and the .defendant is not required to pay more than half of it as it has been liquidated between him and the plaintiff.
Complaint is made that witnesses were allowed to testify to their understanding of the agreement made. The facts were fully developed, and if expressions in .the nature of conclusions were admitted we think no substantial prejudice resulted. (Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019.)
The judgment is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error upon a note executed jointly by plaintiff in error, and S. B. McCord and Geo. H. Stewart. The answer of plaintiff in error alleged payment in full made by Geo. H. Stewart, principal on the note. It appeared that Stewart had died prior to the commencement of the action. Two questions are presented: First, that the finding was against the evidence; and second, that there was error in the admission of testimony.
Under the well-settled rules of this court, we cannot disturb the judgment on the first question presented. The testimony of Esterly was clear and positive, and according to it a balance still remained due. While there was contradictory testimony, still there was not such overwhelming contradiction as compelled a different finding.
The other question is thus presented by counsel in his brief:
Plaintiff Esterly then testified in his own behalf, as follows: “Question by Plaintiff’s Coimsel.- State for what purpose the $150 mortgage, given in evidence by the defendant, was given to you by Geo. H. Stewart?” [The defendant objected to this question, that it was incompetent by virtue of the provisions of § 322 of the civil code, and was irrelevant and immaterial, which objections the court overruled, and defendant excepted.] “Answer. — The mortgage was given to me by Mr. Stewart, as collateral and additional security to the note in suit. The deed, read in evidence by the defendant, was taken in consideration of the credit of $75 indorsed on the note sued oh. It was agreed between Mr. Stewart and myself, that the deed should be given me for the $75, and the $200 consideration named in the deed was not the true consideration. [ To the admission of the above evidence of Esterly, the defendant objected, that^ it was incompetent by virtue of § 322 of the civil code. The court overruled the objection, and defendant excepted.] “ I never had any conversation with Mr. Stewart, in the presence or hearing of his wife, as to the amount to be indorsed on the note in consideration of said deed. I was not present when the deed was made, and don’t know where it was made.”
That portion of the section referred to which bears upon the question provides, that a party shall not be competent to testify “ to any transaction had personally by such party with a deceased partner or joint contractor in the absence of his surviving partner or joint contractor, when such surviving partner or joint contractor is an adverse party.” This language seems applicable to the case at bar, and to render the testimony offered incompetent; and so we should be constrained to hold but for what had previously transpired. The burden of proof being, under the pleadings, upon the defendant, he opened the case, and called, as his first witness, the plaintiff Esterly, who testified:
“ * * * After this, Mr. Stewart brought me the note now in suit here, which I accepted, and gave up the old $240 note, and released the mortgage securing it. Sometime afterward he gave me another note for $150, secured by mortgage.” [Here a mortgage-deed, of which a copy is annexed, marked A, and made a part of the “ case made,” was handed to the witness.] “This is the mortgage given to secure the $150 note. Afterward, Mr. Stewart and his wife conveyed the property described in this mortgage, to me.” [Here a deed of conveyance, of which a copy is annexed, marked B, and made a part of the “case made,” was placed in the hands of the witness.] “This is the deed of conveyance just mentioned. Those above named are all the notes, deeds or mortgages, I ever got from Stewart.”
Now the testimony of the plaintiff in his own behalf was in reference to the same transactions of which he had testified at the instance of defendant. And while, if the defendant had so chosen, none of this testimony could have been admitted, yet, having interrogated the plaintiff concerning these matters, and having obtained some of the facts concerning them, he could not thereafter object to the plaintiff’s giving all the facts. By introducing part, he opens the door to all. Just as a party may not introduce his own statements in his own behalf, yet if his adversary draws out part of a conversation he may introduce the balance. The principle is general, that where a particular witness, or a certain kind of testimony, may be excluded, if the party who has the right to insist upon the exclusion waives that right, and himself calls the witness, or introduces the testimony, he cannot, after he has obtained what he desires, insist upon the exclusion, so far at least as to prevent a full development of the matters which he has partially presented.
These being the only matters presented by counsel, and in them appearing no error, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Is §99 of chap. 100 of the laws of 1872 constitutional? If so, and adjacent territory is sought to be attached to a city for school purposes, by the board of education, is notice to the school district to which the territory belonged, a condition of valid action? These are the only •questions in this case.
The section empowers the board of education of a city of the second, class to attach to it for school purposes adjacent territory upon the application of a majority of the electors of such territory. "What provision of the constitution does this violate? Counsel refer us to none, and we fail to perceive any. He seems to rest his claim upon the proposition that the legislature cannot take A.’s property and give it to B. But we do not see how that proposition, correct as it may be, applies to this case. No man’s, no corporation’s property, is disturbed. The school district from which this territory was detached, does not own it. Neither does such territory .become the property of the city when attached to it. The property remains the property of the same individuals after as before the change. All that is done is, to change the territory from one school district to another. Power to change school-district boundaries seems to be as full in the legislature, as the power to change county boundaries; and as to that, see the recently decided cases of Division of Howard Co., 15 Kas. 194, and Comm’rs of Sedgwick County v. Bunker, ante, p. 498. The county superintendent is given power to create new school districts, or change the boundaries of old. No.provision is made for notice. (Gen. Stat., p.915, §10.) Yet can there be any question of the validity of his acts in these matters? It maybe that at times grievous wrong is done by the legislature in changing the boundaries of counties, or school districts, but that is a matter beyond the power of the courts to control. Application must be made to the tribunal that decreed or authorized the change. Neither can the courts annul the change because the burden of taxation is largely increased upon the undetached territory.. Given, power in the legislature to do an act, and the wisdom of the act as well as the hardships which may result therefrom, are solely for the consideration of that body.
Nor is it necessary that notice be given to the school district. It has no such vested rights as to prevent the change of its boundaries without notice and a hearing before some tribunal. In this case it appears that one of the electors upon this territory appealed to the county commissioners from the order of the board of education, and they in consultation with the county superintendent modified somewhat the order of the board of education. But still it does not appear that -the school district participated in or had any notice of any of the orders or proceedings, nor was notice as we think necessary.
It is unnecessary to consider the ruling of the court upon the motion to strike out parts of the petition, for upon the whole petition we do not see any reason to hold the proceedings of the board of education void, or the section cited unconstitutional.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action bi’ought by defendant in error to recover for goods destroyed by fire in a depot belonging to the plaintiff in error, and the question is, whether the company at the time of the fire occupied toward the goods the position of carrier, or that of warehouseman. The case was tried upon an agreed statement of facts. It is not contended that the fire was caused by the negligence of the company, op that if its liability as carrier had terminated it was responsible for the loss. The material facts are these: Maris was a merchant at "Winfield, a place about ninety miles west of Independence, a point on the company’s road. Goods were shipped to him over the company’s road,' to be delivered to him at Independence. The goods in question reached Independence on the 4th and 7th days of January 1872, and were placed in the depot building, and there remained eight days, (until the 15th of January,) and were then consumed by fire. Immediately after the arrival of each consignment of goods at Independence, notice thereof was forwarded by mail to Maris at Winfield, but did not reach him until the 20th of January, and after the fire. A tri-weekly mail ran between the two places. Ordinarily, only two days were occupied in transmitting the mail. During that month the epizooty was prevailing among the horses in that section of the country, and owing to that or some other cause over which neither party had any control, the notice did not reach Maris until the 20th. He called every day at the post office in Winfield for his mail. The only means of conveying goods from Independence to Winfield was by wagon, and under favorable circumstances the trip from Winfield to Independence took from three to five days, and the round trip six to ten days. By special agreement between the parties, notice was to be given Maris by mail of the arrival of the goods at Independence. The form of the notice given, (and Maris had prior to the 1st of January 1872 received similar notices of the arrival of other goods,) was as follows:
Freight Oeeice, L. L. & Gr. R. R. Line, Independence,-187 — .
M--:
There this day arrived at our depot at-, consigned to you, the following articles:
No. | Articles. || No. | Articles.
EXHIBIT A.
Weight,- Charges, $-
which are ready for delivery to you on payment of freight and charges.
N. B. — No goods delivered until all the charges thereon are paid. Storage will be charged in all cases where goods are not removed within the prescribed time.
The contract of this company as common carriers ends upon the arrival of goods at our depots, and the company will not be responsible for damage from- ordinary leakage, breakage, or insufficient cooperage; and no claims for damages will be allowed after the goods leave the depot, unless by consent of the agent.
Goods will be delivered only to the owner, or his written order. A receipt for the goods will, in all cases, be required, and no claim will be entertained for goods lost after such receipt has been taken.--, Agent.
Upon these facts some questions of importance are presented. It is insisted on behalf of the company, in the first place, “that a common carrier is relieved of its extraordinary liability as an insurer whenever it has carried the goods intrusted to it safely, and deposited them in a safe ___ , warehouse. This question as to the period at which the earner’s extraordinary liability terminates, comes to us borne upon two opposing lines of decision. At the head of one line stands the case of the Norway Plains Company v. B. & M. Rld. Co., 1 Gray, 263, in which the great jurist of Massachusetts, C. J. Shaw, holds that this liability of the carrier terminates when the goods are unloaded at their place of destination, and are ready for removal by the consignee; that if the latter be not present to receive them, and they are kept by the company in its depot or warehouse, its liability is that of a warehouseman. In other words, this liability continues only during the actual transit, and that when this is ended, if the consignee does not immediately receive them the company, as carrier, delivers them to the company as warehouseman, and thereafter the company is liable only for loss resulting from actual negligence. At the head of the other line is the case of Moses v. B. & M. Rly. Co., 32 New Hamp. 523, in which the court decides that the carrier’s liability continues after the termination of the actual transit, and until the consignee has a reasonable time to remove the goods; that, as the carrier’s liability commences, not with the actual transit of the goods, but from the time of receipt from the consignor, so it continues until actual delivery to the consignee, or, what is equivalent to a delivery, until the consignee has had reasonable time after their arrival to inspect and take them away in the common course of business. The mere fact that either before or after the actual transit they are placed by the company in its depot or warehouse does not change the character of its liability. The following cases support the Massachusetts doctrine: McCarty v. N. Y. & Erie Rld. Co., 30 Penn. St. 253; Francis v. Dubuque & S. C. Rld. Co., 25 Iowa, 60; Bauserman v. T. W. & W. Rly. Co., 25 Ind. 434; C. & C. Air Line Rld. Co. v. McCool, 26 Ind. 140; C. & A. Rld. Co. v. Scott, 42 Ill. 133. The other doctrine is adopted in the following cases: Fenner v. B. & St. L. Rld. Co., 44 N. Y. 505; Zum v. New Jersey St. Co., 49 N. Y., 442; Wood v. Crocker, 18 Wis. 345; Derosia v. St. P. & W. Rld. Co., 18 Minn. 133; Morris & Essex Rld. Co. v. Ayres, 5 Dutch. 393; Blumenthall v. Brainard, 38 Vt. 413; McMillan v. M. S. & N. J. Rld. Co., 16 Mich. 79; Jeffersonville Rld. Co. v. Cleveland, 2 Bush. 468; Hilliard v. Wilmington & C. Rld. Co., 6 Jones, (Law) 343. The question is a new one in this state, and one of no small importance both to carriers and shippers. Notwithstanding there is a technical precision in the Massachusetts doctrine which makes it both capable of exact statement and easy of application, we think the other doctrine more just and reasonable in its application to the ordinary transactions of business, protecting both the shipper and the carrier. It extends a little the duration of the carrier’s obligation, but only so far as seems necessary to protect the shipper. The goods remain in the custody of the carrier, and subject to his control. The exact moment of arrival can seldom be known to the consignee, even if he have notice of the shipment. It is unreasonable to compel him to remain at the depot of the carrier, waiting the arrival of the goods, or assume all the risks of the uncertainties in the delay of transportation and time of arrival. We therefore hold that the carrier’s liability continues until the consignee has had a reasonable time to call for, examine, and remove the goods.
What is a reasonable time? This is not a time varying with the distance, convenience or necessities of the consignee, but ^ is such time as will enable one living in ^ vjcjnjty of the place of delivery, in the ordinary course of business, and in the usual hours of business, to inspect and remove the goods. It is well said by the court ' in the case from 18 Minn. 133, that, “What would be under 1 the circumstances of the case, such reasonable time for the removal of the goods, is not to be measured by any peculiar circumstances in the condition or situation of the consignee, or plaintiff, which render it necessary for his convenience or accommodation that he should have longer time or better opportunity than if he resided in the vicinity of the depot, and was prepared with means and facilities of removing them; but what is meant by reasonable time is, such as would give a person residing in the vicinity of the place of delivery, informed of the usual course of business on the part of the company, a suitable opportunity, within the usual business hours, after the goods are ready for delivery, to come to the place of delivery, inspect the goods, and take them away.” Tried by this rule, it is plain that the goods had remained in the depot at Independence more than a reasonable time for their inspection and removal. They should have been removed on the day of their arrival, or at the furtherest, during the business hours of the succeeding day.
It is insisted however, that notice was required of their arrival, and that no notice was received until after the destruction. Whether, independent of the special contract, any notice was requisite, may be doubted. The consignee did not live at or near the place of delivery, and the authorities are conflicting upon the question whether notice is requisite even when the consignee lives at the place of delivery. See upon the question of notice McDonald v. W. Rld. Co., 34 N. Y. 497; Fenner v. Buffalo & St. L. Rld. Co., 44 N. Y. 505; Price v. Powell, 3 N. Y. 322; C. & A. Rld. Co. v. Scott, 42 Ill. 133; Derosia v. St. P. & W. Rld. Co., 18 Minn. 133; McMillan v. M. S. & N. J. Rld. Co., 16 Mich. 79; Hilliard v. W. & C. Rld. Co., 6 Jones, (Law) 343. But whether notice independent of any special contract would have been requisite, need not be determined, for here the parties had stipulated for notice. And the question is, what effect did this notice have upon the company’s liability? On the one hand it is claimed that the reasonable time in which to remove the goods dates from the receipt of the notice, instead of the arrival of the goods; on the other, that the notice was purely a favor to the consignee, and that specifying the time at which the carrier’s liability was to cease, it cannot be construed as enlárging that time. The question is one of difficulty. In those states where notice of the arrival of the goods is required to terminate the carrier’s liability, it is held that the reasonable time for removal dates from the giving of the notice. This seems necessary to make the notice of any value, for if the reasonable time commences with the arrival of the goods it might often expire before the receipt of notice. It would almost invariably so expire if the consignee lived elsewhere than at the place of delivery. Hence, the notice would be meaningless, as affecting the rights and liabilities of either party. On the other hand, the form of notice used by the company, and of which Maris had information by the receipt of such notices, attempts to limit the effect thereof, and plainly states that the company’s liability as carrier is to terminate upon the arrival of the goods. Hence, Maris had knowledge that while the company had agreed to give and would give notice of the arrival, it did so only as a favor to him, and without extending the duration of its extraordinary liability. If Maris was unwilling to continue the shipment of goods under such conditions, he was at liberty to stop. Continuing, he accepts the conditions. To this it is replied that, contracting for notice without any stipulations as to the forms and conditions of notice, carries with it all the rights which flow from the mere fact of notice, and that the company cannot thereafter limit those rights by attaching conditions to that notice. This would doubtless be a satisfactory reply if this were the first consignment and the first notice. But having received notices with similar conditions, and making no objection thereto, or seeking a new arrangement, it seems to us that he cannot insist upon rights other than those given by the form of notice actually used. It must be borne in mind that this is not an attempt by the company to restrict its liability, but an attempt by special contract to enlarge it; and before the company could be bound by such special contract it should be made clear that it had assented to it in full as claimed. It is not pretended that the company had ever given any notice otherwise than with the conditions attached to this; nor is it claimed the company would not be liable for any injuries resulting from its own negligence; so that its interpretation of its contract for notice, an interpretation accepted by Maris without objection, was that of an agreement to. give information of the arrival of the goods without in the meantime assuming any additional liability. We are aware that the agreed statement shows that the first notice was only received Dec. 23d 1871, and that owing to the sickness of one party employed, as well as the prevalence of the epizooty, Maris failed to get a team to Independence before the destruction of all the goods of the various consignments by fire on January 15th 1872. But we fail to see anything which shows that Maris was unable to communicate by mail with the company, or to go himself, or send some one to Independence to make a new arrangement, or stop the shipment, or receive and store the goods. Under these facts, though with some doubts, we are constrained to hold that the company’s liability as carrier had terminated before the fire, and that therefore it was not responsible for the destruction of the goods.
The case having been tried upon an agreed statement of facts, the judgment will be reversed, and the case remanded with instructions to enter judgment in favor of the plaintiff in error, defendant below.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error to recover for a mowing machine sold and delivered to plaintiffs in error. The case was tried by the court without a jury. The testimony is not before us, but only the findings of fact, and conclusions of law; and the only question presented is, whether, upon the findings the proper judgment was entered.. The findings are, that Crenshaw on April 27th 1874 sold to the defendants- a combined reaper and mower for $150, to be delivered within three weeks; that in ten days thereafter the mower was delivered without the reaping attachment, and $25 paid; that the reaping attachment was not delivered nor tendered until June 18th;, that on June 16th the defendants thinking they could wait no longer purchased two machines of other parties, and refused to receive the reaping attachment when tendered; that on the 19th of June 1874 the plaintiff offered to take back the mowing machine, return the money received with 25 per cent, interest, and to pay the defendants for one trip to Girard, and to release them from all obligations on the contract; that this offer the defendants refused unless plaintiff would pay them for six trips to Girard which they had taken to secure the reaping attachment, and which they claimed to be worth $2.50 per trip; that the defendants still keep the mowing-machine, and that it is worth $100.
Upon these findings was a judgment for $75 in favor of Crenshaw erroneous? We think not. True, the contract was for a combined reaper and mower; but the mower had been delivered, and when the reaping attachment was tendered the defendants refused to receive it. It does not lie in their mouths therefore to say that the plaintiff has not completed his contract. They refuse.to receive the reaping attachment, and refuse to return the mower. This mower is worth $100. They have paid but $25. What right have they to the plaintiff’s property without paying for it? But, say the defendants, the plaintiff did not perform his contract in time; he was to deliver it in three weeks from April 27th, and did not offer to deliver until June 18th, more than seven weeks thereafter. Concede all that, and if they have suffered any damage by reason of the plaintiff’s delay, and time was of the essence of the contract, they could recoup such damages. But no damages are found. True, they bought other machines; but it does not appear what they paid for them ; or that they paid more than their actual value; or that they could not turn round and sell them immediately at a profit. It does not appear that they are damaged to the amount of a farthing by this. They took six trips to Girard, which they claim were worth $2.50 per trip, but there is no finding that they were worth a cent, or had cost a cent, or that they had lost anything thereby. Surely, there is nothing from which we can say what damages, if any, they sustained by reason of the delay.
Upon the facts therefore as found, we do not see that there was any error in the judgment, and it must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a note. The defense was, that the note was given for liquors sold in this state without a license. Kaufman & Co. were wholesale liquor-merchants in Cincinnati, Ohio. The evidence shows that the goods were sold by sample, through the agent of defendants in error, and a portion of the samples left with Gill to compare when liquors arrived. Also, that Gill was to pay freight, and if liquors did not come up to standard that defendants in error were to refund freight-money and take liquors away. Did these facts change the place of the contract, which otherwise was clearly an Ohio contract? We think not. The express agreement was no more than the one the law would imply, if nothing had been said. A purchaser by sample always has the right to refuse to receive the goods if they fail to correspond with the sample. This question has already been before us, and so decided. McCarty v. Gordon, ante, p. 35. See also, Boothby v. Plaisted, 51 New Hamp. 436.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court- was delivered by
Valentine, J.:
This was an action brought by Jeh'il Anderson against O. H. P, Polk and John W. Polk, for taking care of and feeding 203 head of cattle from December 22d 1873 to March 22d 1874. We do not think -that the issues in the court below were what the plaintiffs in error (defendants below) now seem to claim them to have been. The case was certainly not tried in the court below as though such were the issues, but was tried upon a very different theory. By the original contract between Anderson and the Polks, Anderson was to receive as compensation for taking care of and feeding said cattle, from December 22d 1873 until July 10th 1874, five cents for each pound which each steer (for they were all Texas steers) should at the end of that time weigh over and above eight hundred and fifty pounds. Afterward, and on March 4th 1874, this contract was superseded, as both parties admit, by another contract, under which second contract the Polks received back all of said cattle except 100 head. The Polks claim that said original contract was superseded by a contract wholly in writing. Anderson claims that it was not. This issue we think was sufficiently raised by the pleadings; and the whole case was tried in the court below upon the theory that this question was put in issue by the pleadings. It is admitted by the pleadings that at the time said second contract was made the following written instrument was executed, to-wit:
“This agreement, signed and delivered this 4th day of March 1874, witnesseth; that whereas, we have become satisfied we cannot carry out and fulfill our contract made and entered into with John W. Polk and O. H. P. Polk on the 22d December 1874 about feeding their cattle, we therefore hereby agree to release to them all but 100 head of heaviest of steers, which we agree to take at 1,000 pounds each, and feed according to our original contract at five cents per pound for all they may gain by the first of July next. Witness our hands. Tempy Anderson.
Jehil Anderson.”
The Polks claim that this embodied the whole of the second contract, and that by virtue of it Anderson was to have nothing for feeding said 203 head of cattle from December 22d 1873 to March 4th 1874. Anderson on the contrary claims that this did not embody the whole of said second contract; but by virtue of the terms of said second contract, as it was in fact made, he was to receive as compensation for feeding said cattle from December 22d to March 4th what was reasonable and right, to-wit: he was to receive compensation for the admitted gain of the 100 head which he was to keep after March 4th, and reasonable compensation for feeding and taking care of the others, less what the Polks had already paid him. This, the pleadings as well as the evidence show. But the question arises, could Anderson show this, either by the pleadings or the evidence, after he had admitted the execution of said written instrument? We think he could. It would not tend to vary or contradict the terms of said written instrument. Said written instrument evidently does not contain the whole of the contract as made by the parties. It does not show what the Polks agreed to do. All that they agreed to do rests wholly in parol. They admit that they agreed to receive the cattle which Anderson released; and to dispense with said original contract; but this is not shown by’said written instrument. It rests wholly in parol. And why may not the balance of Polks’ agreement, as claimed by Anderson, rest .in parol? The written instrument does not pretend to show that Anderson was to receive no compensation for his care and feed furnished to the cattle prior to March 4th. And Anderson claims that the Polks agreed that he should. Besides, it is shown both by the pleadings and Anderson’s evidence that Anderson is an illiterate man, that he cannot read, that he relied upon the statements of the Polks, or rather upon the statements of Polks’ agents, as to what said written instrument contained, and that, from such statements he believed at the time he authorized his name to be signed to said written instrument that it contained all that he now claims was included in said second contract as it was in fact made by the parties. But, however said written instrument might be construed, still the verdict should have been for Anderson and against the Polks for some amount; for, taking the second contract as the Polks claim that it was, they violated even it. They drove away said 100 head of cattle on March 20th without the consent of Anderson. This substantially disposes of this case in this court. It is wholly unnecessary to discuss the points made, that the verdict is against the evidence, or is excessive, for it is certainly not more so than numerous verdicts which this' court has already sustained.
The plaintiffs in error also moved for a new trial because of newly-discovered evidence. Now so far as the newly-discovered evidence was relevant and competent, it was merely cumulative, and we think by the exercise of reasonable diligence it could have been obtained for the trial. The testimony of Ira Allison would have been merely cumulative. It would have had scarcely any weight in the case, and 'probably by the exercise of the slightest diligence it could have been procured. It would seem from the evidence that Allison was a half-witted boy; that he came to Paola, and into the court-room, without a subpoena, for the purpose of testifying for the Polks; that some of the witnesses for Anderson, and one of the bailiffs of the court, played what they considered a practical joke upon him, and scared him out of town. Now this conduct may have been reprehensible, but the plaintiff Anderson was not responsible for it. He knew nothing of it till after the trial.
We think there was no error or irregularities in any of the proceedings that would authorize a reversal of the judgment below.
The judgment will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of an action of ejectment, brought by William H. Clark against Benjamin F. Akers, Benjamin Esterly, Jennie Nugent, and E. J. Nugent, for the recovery of certain real estate. Said real estate consists of 120 acres of land lying in a body, and described as follows: The W. J of the N.W. J of section 27, township 17, range 20, in Franklin county, and theN.E.^of the N.E.J of section 28, same township and range. John W. Early was the original patentee of said land. Early executed three separate deeds for this land or portions thereof, which we shall designate as deeds “B,” “E," and u F,” as they are so designated in the record and in counsel's briefs. The first deed was from Early to John T. Jones for the land in section 27, dated May 23d 1865. This deed we shall designate as deed “E.” The next deed was from Early to John T. Jones and Joseph King for the land in section 28, dated May 8th 1866. This deed we shall designate as deed “F.” The third deed was from Early to Charles Kinney for the whole of the land, dated December 11th 1871. This deed we shall designate as deed “ B.” The plaintiff claims title to said real estate under said deed “B.” The defendants claim title under deeds “E” and “F.” And this entire case depends upon the validity of these three deeds. The court below found in favor of the defendants, and against the plaintiff, and the plaintiff now brings the case to this court. The court below made two sets of findings in this case — the first with reference more especially to the rights of the parties under deed “F;” and the second more especially to the rights of the parties under deed “E;” and in each set of findings the court makes, first, findings of fact, second, findings of law, and then, third, conclusions of law from these findings of fact and law. The first set of findings reads as follows:
And now comes the plaintiff by A. W. Benson his attorney, and the defendant B. F. Akers by U. P. Welsh his attorney, and Jennie Nugent and E. J. Nugent by John W. Deford their attorney: and this cause came on to be heard upon the pleadings and evidence, and to be decided' by the court; and thereupon the court doth find the following conclusions of fact and law in this case. From the evidence presented the court finds the following facts:
1st. Under the provisions of the Ottawa Indian treaty of June 24th 1862, the N.E.J of the N.E.J of section 28, township 17, range 20 in this county, was allotted and patented to John W. Early, an Indian of the Ottawa Tribe.
2d. On the 8th of May 1866, John W. Early, for a consideration of $100, (without the consent of the Secretary of the Interior at any time,) executed and delivered to John T. Jones and Joseph King, Indians of the Ottawa Tribe, a warranty deed for the land herein described, which was recorded on the same day.
3d. On the 10th of November 1867, John T. Jones and Joseph King, for a consideration of $500, executed and delivered to' Isaac S. Kalloch a warranty deed for the land herein described; and on the 1st of April 1870 Isaac S. Kalloch, for a consideration of'$400, executed and delivered to Benjamin F. Akers a warranty deed for the same premises.
4th. On the 18th of August 1870, John T. Jones, for a consideration of $333.33, executed and delivered to Jennie Nugent a warranty deed for the land herein described; but at and before the execution of the deed, and payment of the consideration therefor, Jennie Nugent had actual notice of the conveyance mentioned in the preceding paragraph.
5th. In the year 1871, William II. Clark and M. E. Cheney, partners in the law business, arranged with Charles Kinney to take deeds for Indian lands in his name in cases where the Indians had attempted to convey their lands and such conveyances were of doubtful validity; and to enable Clark & Cheney to control the titles so taken, Kinney executed to Cheney a general power to convey real estate.
6th. On the 11th of December 1871, John W. Early with intent to defraud John T, Jones and his grantees, for a consideration of $2.50, paid by Clark & Cheney, executed and delivered to Clark & Cheney a quitclaim deed for the land herein described, with the name of Charles Kinney written therein as grantee, without Kinney’s knowledge or solicitation, under the general arrangement hereinbefore mentioned.
7th. On the 23d of April 1873, Charles Kinney, at the request of Clark, without any consideration paid, executed and delivered a quitclaim deed for the premises herein described to William H. Clark, who received the same with actual knowledge of all the conveyances herein described, and with intent to defraud John T. Jones and his grantees, and has willingly put the same in use as having been made in good faith.
The court finds the law applicable to the foregoing facts to be—
1st, That the Ottawa Indian Treaty vested in the patentees an estate in fee in the lands allotted, with certain restrictions against alienation.
2d, That prior1 to July 16th 1867 the allottees and patentees under the treaty had no right whatever to alienate any portion of their lands except to each other, and then only with the consent of the Secretary of the Interior.
3d, That after the 16th of July 1867 all restrictions against alienation were removed, and the patentees became invested with a title in fee simple to their lands; but the removal of such restrictions gave no force to the prior void deeds or conveyances.
4th, A deed made by an Ottawa Indian at any time prior to July 16th 1867, without the consent of the Secretary of the Interior, was absolutely void, and could not create even an equitable interest in the land in favor of the grantee, even though he had paid the purchase-money, and taken actual possession.
5th, The statute provides “Every person who being a party to any conveyance of any estate or interest in real estate, with intent to defraud prior or subsequent purchasers, and any person being privy or knowing of any such conveyance who shall willingly put the same in use as having been made in good faith, shall be adjudged guilty of a misdemeanor.”
6th, Where two persons claim title to the same land, and both claim from the same grantor, and where the oldest deed is the first recorded, the grantor named therein has the better or paramount title; and in an action of ejectment the plaintiff must recover on the strength of his own title; and unless he shows a clear right to recover, he cannot evict the possessor, even where such possessor is a mere trespasser.
From the foregoing the court concludes—
1st, That William H. Clark, having actual notice of the prior conveyances from Early to Jones and King, and from Jones and King to Kalloch, and from Kalloch to Akers, could not obtain from Early an estate in the lands, and therefore cannot recover possession.
2d, That as between Akers and Nugent, both claiming to derive title from the same grantor, and the latter having'notice of the prior deed to the former, Akers has shown the better title, and is entitled to the possession as against any claim set up by Nugent.
The second set of findings are substantially the same as the first, mutatis mutandis, except as follows: There is nothing in the second set of findings like the sixth finding of law, and the second final conclusion of law, found in the first set of findings. Deed “E” was not acknowledged and recorded on the day of its date, as deed “F” was, but it was dated May 23d 1865, acknowledged January 10th 1866, and recorded April 15th 1868. And because of this difference, the court below made (in the second set of findings) the fourth finding of law hereafter given, and the second final conclusion of.law hereafter given, which last-mentioned finding and conclusion are not contained in the first set of findings. They, with the first final conclusion of law contained in the second set of findings, are as follows:
[Fowrth finding of law:] “A deed or conveyance for lands takes effect only on delivery. The date in- the deed is ordinarily prima facie evidence of the time of its delivery, but where the deed bears one date, and the acknowledgment one several months later, if recorded, the date of the record would prima faeie be the date of the delivery.”
[The final conclusion.•] “From the foregoing the court concludes, First, That William H. Clark, having actual knowledge of, the prior conveyances from Early to Jones, and from Jones to Nugent, could not obtain from Early any estate in the lands; for title cannot pass when the deed is malum prohibitum; and therefore in the case at bar Clai'k has no vested estate.
“2d, That the deed from Early to Jones, dated May 23d 1865, acknowledged January 10th 1866, and recorded April 15th 1868, was delivered at the last-mentioned date, and by such delivery took effect from that date, and vested in John T. Jones an estate in fee simple in and to the W.J of the N.W.J of section 27, township 17, range 20.”
The sixth finding of fact in the first set of findings shows that the consideration for deed “B” was $2.50. The fifth finding of fact in the second set of findings, (which corresponds to the said sixth finding in the first set of findings,) shows that the consideration for said deed “B” was $5. The deed itself, upon its face, shows it to have been $100. And from the evidence we would infer that it was in fact $10. We think the foregoing is a sufficient ■ statement of the facts of the case for the present. We shall however mention some other facts as we progress with the opinion.
We agree with the court below, that “A deed made by an Ottawa Indian at any time prior to July 16th 1867, without the consent of the Secretary of the Interior, was absolutely void, and could not create even an equitable interest in the land in favor of the grantee, even though he had paid the purchase-money and taken actual possession.” Or, as stated in the second set of findings, “A deed made by an Ottawa Indian, of land allotted and patented to him under the treaty of 1862, conveying such land to another Ottawa Indian, at any time prior to July 16th 1867, without the consent of the Secretary of the Interior, was absolutely'void, and could not create even an equitable estate in the lands in favor of the grantee, even though he had paid the purchase-money.” And therefore we think the said deeds “E” and “F” were wholly void. They were void, not because of any accident, or mistake, or oversight, or irregularity in their execution, but they were void because of a want of power in Early to alienate or incumber his land in any manner or form except with the consent of the Secretary. Early, Jones, and King were Ottawa Indians. Early obtained all the land now in controversy by virtue of the provisions of the treaty with the Ottawa Indians of June 24th 1862, (12 U. S. Stat. at Large, 1237.) By that treaty the Ottawa Indians were to become citizens of the United States on July 16th ,1867. By the treaty of February 23d 1867, however, the time for them to become citizens was extended two years, or until July 16th 1869. (15 U. S. Stat. at Large, 517, article 17.) By the terms of the treaty of 1862 it was provided that—
“Plats and records of all the sections and locations shall be made [by and for said Indians,] and upon their completion and approval proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or her in any manner, until they shall, by the terms of this treaty, become a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands aHotted to him or her, made before they shall become a citizen, shall be null and void. And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title: Provided, that such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of their lands as are subject to sale, with the consent of the Secretary of the Interior at any time.” (12 U. S. Stat. at Large, 1240; article 7.)
The patent issued to Early stipulates that the grant of the lands to him is “upon the express condition, and with the limitation, as required by the treaty aforesaid, that the said John W. Early shall not alienate or incumber the aforesaid tracts of land until he shall become by the terms of said treaty a citizen of the United States; and any conveyance or incumbrance of said land, done or suffered by said John W. Early, made before he shall become a citizen, shall be null and void.” The consent of the Secretary of the Interior was never given in this case, that Early should sell, convey, alienate, or in any manner incumber any part or portion of his said land. Therefore we think the said deeds “E” and “F” were void. (Farrington v. Wilson, 29 Wis. 383; Stevens v. Smith, 2 Kas. 243; Smith v. Stevens, 10 Wall. 321; Blue Jacket v. Johnson Co., 3 Kas. 354; Scoffins v. Grandstaff, 12 Kas. 468; Clark v. Libbey, 14 Kas. 435.) This is wholly unlike the case where a party has the power to alienate or incumber his land, and in attempting to do so makes some mistake. In such a case the courts may rectify the mistake, or in many cases would hold that the title passed under the rule of equitable estoppel. But in this case, Early had no power to convey his land except with the consent of the Secretary of the Interior; and as that consent was never obtained, said attempted conveyance must of course be void. But notwithstanding the want of power in Early to alienate or incumber his said land, it would seem that the court below considered said deeds “E” and “F” valid, and therefore that the deed “B” was void. One of the reasons for considering the deed “E” valid, is shown by the following conclusions of law made by the court below, to-wit: “A deed of conveyance for lands takes effect only on delivery. The date in the deed is ordinarily prima fade evidence of the time of its delivery, but where the deed bears one date, and the acknowledgment one several months later, if recorded, the date of the record would prima fade be the date of the delivery.” And therefore, “That the deed from Early to Jones, dated May 23d 1865, acknowledged January 10th 1866, and recorded April 15th 1868, was delivered at the last-mentioned date, and by such delivery took effect from that date, and vested in John T. Jones an estate in fee simple in and to the west-half of the northwest quarter of section 27, township 17, range 20.” Now it is true, that “A deed of conveyance for lands takes effect only upon delivery.” And it is also true, that “The date in the deed is ordinarily prima fade evidence of the time of its delivery.” But it has never been held, so far as we are informed, that the date of the record of a deed was prima fade evidence or any evidence of the date of its delivery. It has been held in some cases that the date of the acknowledgment of the deed was prima fade evidence of the date of its delivery. (Henry Co. v. Bradshaw, 20 Iowa, 355, 362; Loomis v. Pingree, 43 Maine, 299, 308.) But generally it is held that the date of the deed itself is prima fade evidence of the date of the delivery; and this is generally so, although the date of the acknowledgment may be subsequent to the date of the deed. (Jayne v. Gregg, 42 Ill. 413, 416; Blake v. Fash, 44 Ill. 302; Breckenridge v. Todd, 3 Monroe, 52, 55; Ford v. Gregory, 10 B. Mon. 175, 180; Smith v. Porter, 10 Gray, 66, 68, 69.) In the case reported in 10 B. Monroe, 180, the court says: “ The delivery of a deed is always presumed to have been made on the day of its date, and its subsequent acknowledgment does not change this presumption; but the delivery may be proved to have occurred at a different time.” In the case reported in 10 Gray, 68, 69, the court, after holding that the date of a deed is prima fade evidence of the time of its execution, says: “It is of little importance that the deed was not acknowledged on the same day on which it purports to have been executed.” On the face of the deed which we are now considering, at the usual place for such a thing to be found, the following is found, to-wit: “Sealed and delivered in presence of Asa S. Lathrop.” Many courts have'held that from such words as these, on the face of the deed, a delivery may be inferred. And as these words come immediately after the body of the deed, and immediately before the acknowledgment, why not infer that the delivery was made at some time after the deed was executed, and at some time before the acknowledgment was taken? It is not necessary that a deed be acknowledged in order to be valid. (Simpson v. Mundee, 3 Kas. 172; Gray v. Ulrich, 8 Kas. 112; Ogden v. Walters, 12 Kas. 291.) The acknowledgment of a deed constitutes no part of the execution thereof. It merely furnishes additional evidence of the execution thereof. And the recording of the deed is still further removed from any connection with the execution thereof. In the present case, if the deeds “E” and “F” were delivered on the day that they were acknowledged, or at any time previous thereto, they would be equally as void as though they were delivered on the day that they purport to have been executed. We shall hold that they were delivered at least as early as the day on which.the acknowledgments were taken, and therefore that they are void.
But the main reason why the court below considered the deeds “E” and “F” valid, and -the deed “B” void, would seem to be, that the court considered Clark and his grantors attempted to perpetrate a fraud upon John T. Jones and his grantees, and that Clark in so doing committed a misdemeanor. The following findings and conclusions of the court below will show this, to-wit: The sixth and seventh findings of fact; the fifth finding of law, and the first final conclusion of law in both sets of findings. The statute supposed to have been violated is § 98 of the crimes act, (Gen. Stat. 336.) The substance of this statute, so far as it is supposed to have any application to this case, is given by the court below in the fifth finding of law. It is a statute enacted for the purpose, among other things, of preventing fraudulent conveyances. Now whatever may be the character of the transactions between Early, Kinney, Cheney, and Clark, in their moral aspect, we are unable to discover that any legal fraud was perpetrated by such transactions. .How was John T, Jones, or any of his grantees, defrauded? They never had any legal or equitable right to the property in controversy, They had nothing in law. And is it possible to take something from nothing? How could Clark, or any of hig grantors, take something from Jones or any of his grantees which neither Jones nor any of his grantees ever possessed ? The deeds “E” and “E” were wholly void. They were nothing in law. The rights of all the parties were precisely the s.ame as though they had never existed. Early lost nothing by them, and Jones and King gained nothing by them. Therefore, suppose that Clark has obtained the full title to the land in controversy, then what has he obtained that Jones or King, or any grantee of either, ever possessed? What has he procured from either of them by any transaction, fraudulent or otherwise ? They have lost no legal right, and are not in any danger of losing any such right from any act of Clark’s, and are therefore not in any situation to call Clark’s acts fraudulent. . Such acts are certainly not' legally fraudulent as to Jones and King and their grantees, whatever they may be in their moral aspect. The court below says that Clark has no title to said land, “for title cannot pass when the deed is malum prohibitum.” Now in the language of.the court below, why are not the deeds “E” and “F” malum prohibitum ? They were executed and put in operation in contravention of the provisions of the treaty of 1862. And can it be possible that the ineffectual attempt of Jones and King to obtain Early’s land in contravention of the provisions of said treaty shall forever take away from Early all power to ever afterward dispose of his land ? This is undoubtedly just what this particular proviso of the treaty was intended to guard against.
We agree with the court below that “In an action of ejectment the plaintiff must recover on the strength of his own title;” but if the said deeds “E” and “F” are void, then under the other facts of this case Clark’s title must necessarily be good; and that said deeds “E” and “F” are void, we have already held.
The judgment of the court below must be reversed, and cause remanded with the order that judgment be rendered on the findings of the court below for the plaintiff for the recovery of the property in controversy.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus to compel the mayor, council, and city clerk of the city of Topeka to issue to the plaintiff a certificate of election showing that he was elected to the office of justice of the peace in and for the city of Topeka on the 6th of April 1875. All questions have been so arranged and disposed of by the parties that the only question for us to determine is, whether the plaintiff was duly elected to said office of justice of the peace or not. Involved in this question, however, are several others, which we shall consider as we proceed with this opinion. We think we may assume as among the established facts in this case, that there were two justices of the peace to be elected in the city of Topeka on the said 6th of April 1875; that the mayor however issued his proclamation for the election of only one; that each elector voted to elect onty one; that the electors did not in fact know that more than one was to be elected; that 1598 votes were cast for the various candidates for that office, of which Thomas Johnson received 655 votes, Seth H. Wood, the plaintiff, received 342 votes, Samuel S. Urmy received 324 votes, and J. C. Chesney received 277 votes. The question is, whether upon these facts the plaintiff was duly elected to said office. The objections urged against his election are, .that no notice was given or proclamation issued for the election of more than one justice of the peace, the electors believed that only one justice was to be elected, and they voted to elect only one — each elector voting for one person only for that office. Now it is true, that the plaintiff knew before the election, and at the time thereof, that two justices were to be elected, and he told several other persons so, and he thinks that one or two ballots were cast at that election in the first ward with two names for the office of justice of the peace thereon; but still the agreed statement of facts shows that “the electors in casting their ballots for justice left the name of but one candidate on their tickets, and so each elector voted for but one person for said office of justice of the peace;” and the fact undoubtedly is, that the electors, with scarcely any exceptions, did not know or even suspect or imagine that more than one justice was to be elected at that election. The voters were of course mistaken in supposing that there was but one justice to be elected at that election, but the mistake was clearly one of fact, and not one of law. Justices of the peace are elected in this state each for a term of two years; but there .is no law designating when their terms shall commence, or in what years they shall be elected to fill such terms, and these questions depend upon the facts of each particular case. They really depend upon what year the first election for justices of the peace within the particular city or township where the inquiry is made took place. For instance, the first election held in and for and by the city of Topeka for justices of the peace was on April 5th 1869: hence, the regular elections for that office in Topeka would be held in April in the years 1871,1873,1875,1877, and so on, in every alternate year thereafter. But if the first election had been held in 1868, or in 1870, instead of in 1869 as it was held, then all the regular elections held thereafter would have been held in the even years, instead of in the odd years as now held. From this it will be perceived that the regular elections for justices of the peace may be held in the various cities and townships in the state in different years, and that no one can tell when a regular election for justices of the peace is to be held in any particular city or township except from proof, or evidence, or knowledge of facts. This is not so with reference to state or county officers. With reference to them the law (Gen. Stat. 427, 428,) fixes absolutely and uniformly throughout the state the time for their election. And therefore, as all persons are presumed to know the law, all persons are presumed to know when a state or county officer is to be elected, although he may receive no notice thereof from any other source. (George v. Oxford Township, ante, 79.) The courts will take judicial notice when state and county officers are to be elected. (Ellis v. Reddin, 12 Kas. 306.) But courts cannot take judicial notice when justices of the peace are to be elected. Or rather, courts may take judicial notice that justices of the peace are to be elected in April of each alternate year, (in cities of the second class, and in townships also up to 1875,) for the law thus far prescribes.; but courts cannot take judicial notice as to which these alternate years are. Courts cannot judicially know, except from evidence, whether these alternate years are the odd years, or the even years. And probably voters, who receive no notice, actual or constructive, cannot be required to know more in this respect than the courts. Under the laws of this state the mayor of each city of the second class, (and Topeka is such a city,) is required to issue a proclamation giving at least ten days’ notice of each election, and “ announcing the offices to be filled” at such election. (Laws of 1872, page 196, §17.) Now probably if such a notice were given the voters could not ignore the notice, and refrain from voting. Or, if the body of the voters were in fact to receive notice in any other manner, probably they could not ignore it. Or, if sufficient facts should come to the knowledge of the body of the voters to put them upon inquiry, possibly they could not ignore the election. This has been so held where the election was held at the same time and place of some other election which called out substantially all the voters, and the matter was discussed among the voters, and a large proportion of them voted upon the subject. But none of the foregoing cases is this case. In this case the body of the voters had no notice from any source, and they did not participate in the election. That is, they had no notice of an election for two justices, and each elector voted for only one justice. In fact, the notices that they actually received, from whatever source they came, might almost be construed into an actual and affirmative notice that there would be an election for only one justice. The first election by the city for justices was in 1869. The regular election would therefore have been held every alternate year thereafter. But instead of an election coming only once in every two years, there has been án election for one or more justices held in Topeka every year since 1869. In 1870 one justice was elected. In 1871 two were elected. In 1872 one was elected, and one of those elected the year before held over. In 1873 one was elected, and the one elected in 1872 held over. In 1873 the mayor’s proclamation was for the election of only one justice, and only one was voted for by each of the electors. In 1874 one justice was elected, and the one elected the year before held over. And the one elected in 1874 was elected and .commissioned for two years, and he is now holding the office under that election. It will therefore be seen, that the whole city of Topeka has been laboring under a mistake as to the regular time for electing justices, and that the mistake originated at least as early as the spring of 1873. Now as this mistake is a mistake' of fact, and not of law, we hardly think that it is sufficient to defeat the will of the voters. “The real will of the people” should generally “not be defeated by any informality.” In the present case more than three-fourths of the electors voted against the plaintiff; and should less than one-fourth who voted for him override the will of the other three-fourths who voted against him ? Under the circumstances of this case we think the law to be, that only one justice was elected, and that such justice was not the plaintiff. There was in fact no election for a second justice. It has been held in many cases that a mere want of notice will vitiate the election. (See authorities cited in case of George v. Oxford Township, ante, 80.) This is. generally so where the law does not fix the time for holding the election. But even where the law does fix the’time for holding the election, it has been held that if no notice was given as required by law, and no notice was in fact received, and the great body of the electors were misled by such want of notice, they believing that no such election was in fact to be had, and only about one-fourth of the electors voted at such election, and they voted for a single candidate, such election is void. Foster v. Scarf, 15 Ohio St. 532. See also The State v. Gœtze, 22 Wis. 368, et seq. And it has several times been held, where a majority of the electors vote for an ineligible candidate, that the election is a nullity, although eligible candidates may also have been voted for. (Saunders v. Haynes, 13 Cal. 145; State v. Giles, 1 Chandler, 112; State v. Smith, 14 Wis. 497; Commonwealth v. Cluley, 56 Penn. St. 270; People v. Clute, 50 N. Y. 451; State v. Swearingen, 12 Geo. 23; State v. Gastinel, 20 La. An. 114; Opinion of Judges, 38 Me. 597, et seq.) The person receiving the highest number of votes in such a case is not elected because of his ineligibility ; and no other candidate can be considered as elected, because a majority of the electors have expressed their will and determination that he should not be elected. This reasoning fits the present case. In the present case the electors chose to elect only one justice of the peace, and a vast majority of them voted against the plaintiff and for other candidates. The candidate elected received nearly twice as many votes as the plaintiff.- In our opinion there was no election for a second justice of the peace. An election should therefore be held in April of the present year (1876) to elect another justice to fill the unexpired portion of the term which should have commenced in April 1875.
Judgment in this case will be rendered for the defendants.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Appellant was convicted of manslaughter in the fourth degree, under an information charging murder in the second degree; and from such conviction brings this appeal. Three questions are presented.
I. Two trials were had. Upon the first, the jury returned the verdict, “We the jury find the defendant not guilty in manner and form as charged in the information, but do find him guilty of manslaughter in the second degree.” Upon this defendant moved to be discharged, on the ground that, as murder includes all the degrees of manslaughter, the information in fact charged all those degrees, and the first part of the verdict finding him “ not guilty in manner and form as charged,” was responsive to all the charges, and acquit ted him of guilt, not only as to murder, but as to all the degrees of manslaughter; and that therefore the latter part of the verdict must be disregarded as surplusage. The point was not well taken. The verdict must be taken as a whole, and its meaning determined from a consideration of every part. So taken, there is no chance for misconception as to the meaning of the jury. It finds the defendant guilty of a crime, and states the crime of which it finds him guilty. That crime is included in the offense charged, and the verdict of guilty is good under the information. So much as declares the defendant not guilty, is plainly, when taken in connection with the other part of the verdict, to be limited to the major offense in terms charged.
II. After the motion to discharge defendant had been denied, a motion for a new trial was sustained. Before the second trial the defendant entered a plea in bar of “once in jeopardy,” and by it presented anew the question of the effect of said verdict. Upon this plea he demanded that the s^ate ke compelled to demur, or reply, and also that a jury be called to try the truth of the plea; but the court refused. Now whatever might have been the proper course, if the plea had raised a question of fact to be settled upon evidence, we see nothing in the ruling here of which defendant has cause to complain. All that was presented was as to the effect of a prior proceeding in the case. Upon this, no testimony was required, because the proceedings of record had in a case are always taken judicial notice of. It was a question of law, as to the effect of a certain verdict, which it was proper for the court to determine; and changing the mere form of presenting the question, did not affect the right'of the court to determine it.
III. It is claimed that the information is insufficient, in that it fails to allege the place of the death. It charges that on the 10th of October 1874, at the county of Wilson, the defendant inflicted two mortal wounds upon John Hoppeler, of which wounds the said Hoppeler af terward, and on October 13th 1874, died, but it does not charge that he died in Wilson county, or in .the state. Hence it is said, that as the offense of murder or manslaughter is consummated only by the death of the party assailed, the place of the death is as important as the place of the assault, and that a failure to allege the one is as fatal as a like failure to allege the other. Waiving any question as to the effect of the second clause of § 110 of the criminal code, (Gen. Stat., p. 838,) and conceding that except upon a strained and unnatural construction there is no allegation as to the place of Hoppeler’s death, we still think the information must be sustained. It does not appear that any question was raised in the district court as to the sufficiency of the information. The defendant plead “not guilty,” and went to trial upon it. Perhaps this is immaterial, and the defendant has waived nothing. There has been much confusion and conflict as to the jurisdiction and power to punish in cases in which the fatal blow is given in one county or state, and death ensues in another county or state. So far as counties are concerned, the statute settles all question. (Gen. Stat., p. 824, § 29.) It is however silent as to cases in which the wound is given outside the state and death ensues within, or the reverse. In The State v. Carter, 3 Dutch. 400, the power of the state to punish, was denied in a case where the fatal blow was given in New York and the injured party voluntarily came into New Jersey and there died. On the other hand, the power was sustained under similar circumstances in the cases of Tyler v. The People, 8 Mich. 320, and Commonwealth v. Macloon, 101 Mass. 1, in which last case is a very full and exhaustive examination of the authorities, English and American. In the case in 8 Mich, is a dissenting opinion by Judge Campbell, whose judgment in criminal questions is entitled to the highest consideration, in which he holds the law to be, in the absence of statute, that jurisdiction to punish for the homicide is in the state and county in which the fatal blow was struck. In Riley v. The State, 9 Humph. 646, the supreme court of Tennessee decided that according to the principles of common law, where the fatal .blow was given in one county, and death ensued in another, jurisdiction qf the homicide was in the first county. In State v. McCoy, 8 Rob. Rep. 545, followed in State v. Foster, 7 La. An. 255, and same cases in 8 La. An. 290, the supreme court sustained the jurisdiction where the fatal blow was given within but death ensued without the state. They rested their decision however, it should be said, upon an act of the legislature of 1805 adopting the common law of England, which they construed as including a statute of 2 Geo. II, upon this matter. In The People v. Gill, 6 Cal. 637, where intermediate the hlow and the death a change in the statute had been made, the crime was held to be of the date of the blow, and governed by that law. See also, Grosvenor v. St. Augustine, 12 East, 244; 1 Bishop Cr. Law, §§ 112, 116; 1 Bishop Cr. Procedure, 51, 52, and cases cited on both sides of the question. [ It seems to us, without pursuing the authorities further, reasonable to hold that as the only act which the defendant does toward causing the death is in giving the fatal blow, the place where he does that is the place where he eommits the erime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime; at least, that those movements do not, unless under express warrant of the statute, change the place of offense; and that while it may be true that the crime is not completed until death, yet that the death simply determines the character of the crime committed in giving the blow, and refers back to and qualifies that actT/ It follows, that there was no error in rendering a judgment against the defendant upon this information. No other question being presented, the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
In this case the constitutionality of the following act is challenged, and this is the only question presented for our consideration:
Ch. 94; Laws oe 1874. — An act relating to killing or wounding stock by railroads.
Be it enacted by the Legislature of the State of Kansas:
Section 1. Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each and every animal killed, and all damages to each 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, or the assignee or lessee thereof, or not.
Sec. 2. In case such railway company or corporation, or the assignee or lessee thereof, shall fail for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal, or damages thereto, together with a reasonable attorney-fee for. the prosecution of the suit,, and all costs in any court of competent jurisdiction in the county in which such animal was killed or wounded.
Sec. 3. The demand mentioned in section two of this act may be made of any ticket-agent or station-agent of such railway company or corporation, or the assignee or lessee thereof.
Sec. 4. In all actions prosecuted under this act, it shall be the duty of the court, if tried by the court, or jury if tried by a jury, if the judgment or verdict be for the plaintiff, to find in addition to their general finding for plaintiff.the amount if anything allowed for an attorney-fee in the case. ■
Sec. 5. This act shall not apply to any railway company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road. — Approved, February 27, 1874.
"We have been favored with several briefs upon this question, both from counsel for plaintiff in error, and counsel representing other railroads. There are quite a number of cases in this court in which various roads are interested, turning upon this question, and we are informed that there are many more in the several district courts waiting for the decision in this. While the amount in controversy in each of these cases is small, yet the number of cases already in suit, and the still greater number which in the ordinary experience of the management of railroad trains may be expected to arise in the future, render the question one of considerable moment. It is generally conceded by the counsel, and we think is both settled by the authorities and resting in sound reason, that the legislature has the power to require railroad corporations to fence their tracks, and to make them liable for the value of all stock killed by their trains in consequence of a failure to so fence. See as authorities: Fawcett v. The Y. & N. M. Rly. Co., 2 Eng. L. & E. 289, and the adjudications of eleven American states, as follows: Connecticut: Bulkley v. N. Y. & N. H. Rld. Co., 27 Conn. 479; New Hampshire: Dean v. Sullivan Rld., 2 Foster, 316; Cornwall v. Sullivan Rld., 8 Foster, 161; Smith v. Eastern Rld. Co., 35 N. Hamp. 356; Vermont: Thorpe v. Rutland & Burlington Rld. Co., 27 Vt. 140; Nelson v. Vt. & C. Rld., 26 Vt. 717; New York: Corwin v. N. Y. & Erie Rld. Co., 13 N. Y. 42; Statts v. Hudson River Rld. Co., 3 Keyes, 196; Waldron v. Rensselaer & Saratoga Rld. Co., 8 Barb. 390; Bruce v. N. Y. Cent. Rld. Co., 27 N. Y. 269; Pennsylvania: Pennsylvania Rld. Co. v. Riblet, 66 Penn. St. 164; Illinois: Ohio & Miss. Rld. Co. v. McClelland, 25 Ill. 140; Same v. Brubaker, 47 Ill. 462; Indiana: M. & I. Rld. Co. v. Whiteneck, 8 Ind. 217; Indianapolis Railroad Co. v. Kercheval, 16 Ind. 84; Indianapolis Rld. Co. v. Marshall, 27 Ind. 300; Same v. Townsend, 10 Ind. 38; New Albany Railroad Co. v. Tilton, 12 Ind. 3; Iowa: Jones v. Galena Railroad Co., 16 Iowa, 6; Wisconsin: Blair v. Milwaukee Railroad Co., 20 Wis. 254; Missouri: Gorman v. Pacific Rld. Co., 26 Mo. 441; Trice v. Hannibal & St. Jos. Rld. Co., 49 Mo. 438; Maine: Norris v. Androscoggin Rld. Co., 39 Me. 273, This power is sustained as a part of the police power of the state, a power whose limits are perhaps as illy defined as any power claimed or exercised by the state. “It is much easier,” says Ch. J. Shaw, in Com’lth v. Alger, 7 Cush. 84, “to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise.” It aims to regulate the intercourse of citizen with citizen, to prescribe the manner of using one’s property, and pursuing one’s occupation, so as not to trespass on the property or rights of others; and as such, is a power whose necessity and uses grow with the increasing complexities of our civilization, and the increasing diversities in the industries and modes of life. The sphere therefore of its operations is ever widening. Every new use to which the forces of nature are put, calls for a new interference of this power, that such use may not operate to the injury of others. Probably no single agency has made so large a demand for the exercise of this power as the agency of steam in locomotion. It is by virtue of this power that the state has assumed to regulate the speed of trains, to require flagmen at crossings of streets in popu lous cities, the blowing of a whistle or the ringing of a bell at places of supposed extra danger, and the erection of conspicuous sign-boards at all crossings of highways, and indeed all the other various measures to secure safety in the necessarily dangerous matter of running railroad trains. In the exercise of the same power the legislature can require railroad corporations to fence their tracks. As police is, according to Jeremy Bentham, “in general a system of precaution, either for the prevention of crimes, or of calamities,” so, to prevent the injuries which might result to a train full of passengers thrown from the track by a stray animal upon it, a calamity of not infrequent occurrence, the general judgment of the public has declared that the track should be fenced, and the state has cast the duty of fencing solely on the "corporation, the running of whose trains gives rise to the danger. It is said by Cooley in his work on Constitutional Limitations, p. 579, that this power “has been sustained on two grounds: first, as regarding the division fence between adjoining proprietors, and in that view being but a reasonable provision for the protection of domestic animals; and second, and chiefly, as essential to • the protection of persons being transported in the railway carriages.” So, in Trice v. Hannibal & St. Jo. Rld. Co., 49 Mo. 438, it is said, “While the protection of property of adjacent proprietors is an incidental object of the statute, its main and leading one is the protection of the traveling public. To insure such protection, railroads are imperatively required to fence their tracks, and the penal liability deemed necessary to enforce this requirement, is a matter of legislative discretion.” In Ohio & Miss. Rld. Co. v. McClelland, 25 Ill. 140: “When the safety of persons and property both demand the fencing of these roads, it is no more than the exercise of a reasonable police regulation to require it, and to impose adequate penalties to secure a compliance.” In Blair v. Milwaukee, &c., Rld. Co., 20 Wis. 254: “ Experience had shown that it was entirely insufficient for the protection of the public to leave the building and maintaining of these fences, so as to prevent such intrusion upon the track, to the sense of duty or interest of the multitudes of proprietors of lands adjoining our long lines of railroads. To remedy this evil, and insure the safety of the traveling public so far as possible in this respect, the act-in question was passed making it the sole and absolute duty of all railroad companies to fence and provide their roads with suitable cattle-guards.”
But say counsel, this law does not come within the scope of those decisions — is not the exercise of that power. That power may impose the duty of fencing the road upon the company, and punish a failure to perform this duty by liability for all injuries resulting therefrom. But here no duty of any kind is imposed. Fencing is not declared a duty; it is only held up as a means of escaping liability, and only the single liability for' animals killed. “As long,” say counsel, “as the railroad companies pay for the cattle they are guilty of no breach of their obligations. They can fence or not, just as they please, and the traveling public is in no way benefited.” And again, “A law that lays down no rule of conduct, that neither commands nor forbids, cannot be a police regulation.” While doubtless there is weight to the suggestion of counsel in this respect, we are disposed to think they overestimate its importance. We think they place too much stress on the form of the enactment, and regard it as unconstitutional legislation to do that by indirection which it is clearly constitutional to do directly. The difference between the concession of counsel, and the law, is about this: The concession is, that it is lawful to say to the railroads, you must fence, or pay for stock killed. The law is, you must pay for stock killed, unless you fence. In each case, payment for stock killed is the result; non-fencing, the condition. In each case the liability is the same, and the manner of avoiding liability the same. For, though where the command to fence is in terms expressed, a failure to fence may carry the liability of the company to a further reach, and a wider extent, yet it is almost the unvarying rule in such legislation to follow the command with but one expressed penalty, that of payment for stock killed. And conceding the larger results, if the legislature has power indirectly to subject the company to more extended liabilities, has it not the power directly to impose the lesser and included liabilities? While it seems to us that that form of legislation, which counsel contends is essential to the validity of such enactment, is the better, and approaches the- subject in the more correct way, because stating first and in mandatory words what the company must or at least ought to do in respect to the manner of its carrying on its dangerous lousiness, and afterward the penalty for non-compliance, yet we are not prepared to hold a disregard of that form fatal. While generally the protection of the train and its passengers is considered the main ground upon which to sustain this railroad-fence legislation, and rightly that should be the paramount consideration, yet the protection of domestic animals, the property of adjoining proprietors, is also laid down as one of the grounds for upholding it. (See the citations heretofore made.) It seems as though our legislature had specially in thought the minor consideration. If so, it may have been because the past experience of railroad matters in this state had called more special attention thereto. Either was a proper subject for its consideration, and within its powers. Looking to the legislation of other states, we find much that is kindred in form, and yet has received the approval of the courts. In New Hampshire, at one time, there was a law in force in terms requiring railroads to fence. A commission to revise the statutes included this in their report, but the legislature struck it out, and in lieu thereof enacted that if any railroad should neglect to keep a sufficient fence, the adjoining landowner might give notice, and then, if not built, build it himself, and recover of the company double the cost thereof. Here it will be seen that there is in terms no duty of fencing cast upon the company, and the argument is strong, from the change in the law, that the duty had been removed. Still, the court held it the duty of the company to fence, and that it was liable for the stock killed if it did not. Dean v. Sullivan Railroad, 2 Foster, 316. In Vermont, Gen. Stat., ch. 28, § 78, railroad companies are declared liable for all property adjacent to their roads destroyed by fire from their engines, “unless they shall show that they have used all due caution and diligence, and employed suitable expedients to prevent such injury;” and this is approved in G. T. Rly. Co. v. Richardson, U. S. Sup. Ct., 3 Cent. Law J. 353. In Massachusetts is a much stronger statute: “Every (railroad) corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, and shall have an insurable interest in the property upon its route for which it may be so held responsible, and may procure insurance thereon in its own behalf.” Gen. Stat., ch. 63, § 101. This has been sustained in Hart v. Western Rld., 13 Metc. 99; Lyman v. B. & W. Rld., 4 Cush. 288; Ross v. B. & W. Rld., 6 Allen, 87; Ingersoll v. S. & P. Rld., 8 Allen, 438; Perley v. Eastern Rld., 98 Mass. 414; Safford v. B. & M. Rld., 103 Mass. 383; Pierce v. W. & N. Rld., 105 Mass. 199. In the case in 98 Mass, the court say, that “The liability of this railroad is not at common law, nor dependent upon the defendant’s want of care.” In that in 8 Allen, “The legislature has chosen to make it a condition of the right to run carriages impelled by the agency of fire, that the corporation employing them shall be responsible for all injuries which the fire may cause.” And again, in the case in 4 Cushing, “The right to use the parcel of land appropriated to a railroad does not deprive the legislature of the power to enact such regulations, and impose such liability for injuries suffered from the mode of using the road, as the occasion and circumstances may reasonably justify.” A similar statute was recognized as valid in Adden v. White Mts. Rld., 55 New Hamp. 413. And another was sustained in Chapman v. A. & St. L. Rld., 37 Maine, 92; Pratt v. A. &. St. L. Rld., 42 Maine, 579. These cases are in principle very strongly in point. An additional liability is in terms directly and absolutely imposed upon the * .company, a liability which they cannot, as in the case before us, by any means avoid, but to compensate for which they are given an additional privilege. If in lieu of the privileges given by the 5th section of our statute, the companies were given an insurable interest in the cattle along the line of their road, the parallelism would be very close. And this insurable interest is granted to the companies as the only equivalent for the added burden, and- it is something which they may or may not avail themselves of. . The burden they may not avoid; the insurance they may use or not, as they choose. So here, the burden is absolute; the stock must be paid for; the fencing is discretionary, though unlike the law in Massachusetts, the privilege if used will avoid the burden. But in Indiana we find authority still more closely in point. Their stock-law is, so far as any question here is involved, precisely like ours. It imposes the liability directly, and then declares that the liability shall not rest upon any company that securely fences its road. The supreme court of that state have frequently passed upon that statute, and uniformly sustained it. See the cases heretofore cited from Indiana. We conclude, therefore, upon both reason and authority, that the act before us is, as to its essential elements at least, within the scope of the legislative power. And that is, in this direction, the limit of judicial inquiry. All further questions must be considered and passed upon elsewhere;
Some minor matters are also presented which require brief notice. It is insisted first that this act cannot apply to the plaintiff in error, because it holds under a charter granted by the territorial legislature, and therefore now incapable of change without its consent. But the chartered rights of a corporation are not more sacred than the individual’s rights of person and property, and all must give way to any legislative exercise of the police power of the state. In Nelson v. Vt. & C. Rld., 26 Vt. 717, it is said, “It is certain, we think, that the legislature cannot impose new burdens upon corporations under such circumstances, which are merely and exclusively of private interest and concern, and which have nothing to do with the general security, quiet and good order. But there can be no doubt they have the same right by gen eral legislation over these corporations, which they have over natural persons. By general laws they may require them to conform to such regulations of a police character as they may deem for the security of the rights of citizens generally, and most conducive to quiet and good order, and the security of property, and even the life of animals.” See also, Thorpe v. R. & B. Rld. Co., 27 Vt. 140; Lyman v. B. & W. Rld., 4 Cush. 288; Pratt v. A. & St. L. Rld., 42 Maine, 579; Norris v. Androscoggin Rld., 39 Maine, 273; Bulkby v. N. Y. & N. H. Rld., 27 Conn. 479.
Again, it is said that that portion of § 2 giving to the stock-owner the right to recover attorney-fees is unconstitutional. The proposition is thus stated by the learned counsel for plaintiff in error:
“Our state constitution, (Bill of Rights, §§ 1, 18,) guarantees to all equity of rights, and remedies for injury by due course of law. We contend that a law which gives a successful plaintiff in a civil action his attorney’s fees, and denies them to defendant, is a most gross violation of these constitutional provisions.”
We do not think the contention of counsel can be sustained. While the law may be harsh and rigorous, (and yet its rigor may have seemed to the legislature as essential to its value, ' for, if a claimant for stock killed was compelled to pay his own attorney’s fees, it might well happen that in all cases the amount of his claim — such amounts being uniformly small — would be consumed by attorney’s fees, and so leave the claimant in no better condition than before,) we see no reason to hold it beyond the power of the legislature. It is no uncommon thing for legislatures to provide, in cases where a failure to pay seems to imply more than ordinary wrong, that such failure should carry with it something in the nature of a penalty. Sometimes double or treble damages are given. The Iowa stock-law gave double damages. Our trespass act provides for both double and treble damages; (Gen. Stat., p. 1095, §§ 1 and 2.) Ten per cent, may sometimes be added in the discretion of the court. Other illustrations might be suggested.
Some other matters are suggested, but it is unnecessary to prolong this opinion. We are of opinion that the act is constitutional, and applicable to the plaintiff in error.
The judgment will therefore be affirmed.
It is understood that the cases of the same plaintiff in error against Israel M. Tolls, and same against E. J. Hopper, and the case of the L. L. & G. Rld. Co. v. H. M. Waters, involve only the same question, and the-judgments in those cases will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an an action in the nature of an action of ejectment, brought by Stephen H. Allen, defendant in error, (plaintiff below,) against E. M. Tucker. The action was tried by the court below without a jury, on the following agreed statement of facts, to-wit:
1st. The land in dispute has a common title in Morgan Fickes, under whom both parties claim.
2d. The title of plaintiff Allen is a quitclaim deed from Fickes and wife, dated September 21st 1870, a copy of which is herewith presented, together with the register of deed’s certificate of record, marked “A,” and made a part of these facts.
3d. It is further admitted, that one William Cameron and Octave Chanute duly platted into blocks, lots, streets and alleys, as part of the original town-site of Pleasanton, the lands in the said quitclaim deed mentioned, and filed the same in the office of the register of deeds, September 2d 1869, and that the lot in the petition described is an odd-numbered lot in said plat of said town-site, so filed and recorded. Afterward, October 4th 1871, the plaintiff signed said plat and recognized it.
4th. The title of defendant Tucker is under a deed from Fickes and wife to Octave Chanute, dated June 7th 1869, which conveyance, together with the register of deeds’'certificate of record, is herewith presented, marked “B,” and made part of these facts. And it is agreed and admitted that all the conditions and limitations in said deed were fulfilled within the time therein provided; that said deed was delivered by said Fickes before the insertion of the name of the grantee therein mentioned, and no • grantee was mentioned therein at the time of the delivery. The deed was handed by Fickes to C. C. Smith, resident engineer .of the company, with verbal directions to the company to insert in the blank whosesoever name the railroad company mentioned in the deed should desire, and the president of the company told Mr. Chanute that for his extra services in behalf of the company it desired him to take the lands, and his name was thereupon inserted in the deed by himself, with the full assent of the railroad company.
5th. The other half of the lands in the conveyances to said Chanute and said plaintiff mentioned were conveyed by warranty deed, July 24th and August 14th 1869, by Fickes and wife to William Cameron, which was duly recorded in said July and August in the office of the register of deeds in said county.
6th. Said Chanute, prior to the commencement of this action, cohveyed by warranty deed to the defendant herein the lot in the petition mentioned, who took possession thereunder, and still holds possession thereof.
7th. The consideration for the deed from Fickes to Chanute is therein recited.
8th. The land and lots mentioned in the quitclaim deed of Fickes to plaintiff at the time of conveyance were worth about ten thousand dollars.
9th. Fickes, shortly after the execution and delivery of the deed “B,” knew that it was filled with Mr. Chanute’s name, and also knew that the town-site of Pleasanton was being platted, surveyed and laid out by all the parties in interest, including Mr. Chanute, and made no objection thereto, and assented to such survey and platting.
10th. Lots 15 and 17 in block 121, mentioned in the exception to the quitclaim deed from Fickes to plaintiff, were bought by Fickes after such platting and laying out of said town-site, and are in the lands mentioned in said deed from Fickes to Chanute, and were bought by said Fickes in the fall of 1869, of one H. C. Swift, who, was the surveyor in laying out said town-site, said Swift being the agent of one or more lot-owners in Pleasanton.
11th. When Fickes gave the quitclaim deed to plaintiff, he (Fickes) stated to him that he made no claim to any of said lands in the deed mentioned, except a one undivided-half of two strips of land, one fifty feet wide on the west side, and one of one hundred feet wide on the east side of the right of way of the Missouri River, Fort Scott & Gulf Railroad Company through said lands, which said strips were not laid out into lots, or included in any blocks, and were designated on said plat of said town-site as “railroad depot grounds.” Plaintiff said to Fickes, “I want the deed to cover all the lands, so that I can use it against other interests besides those strips which I think you have.” Fickes said, “ I don’t care about Chanute being bothered, as he has n’t used me just right.” This reference to Mr. Chanute by Fickes was in answer to something Mr. Allen said to Fickes touching Chanute’s interest in the lands. Fickes also stated to plaintiff that he would n’t ever thought of conveying any interest in those strips if it had n’t been for the difference between himself and Mr. Chanute.
12th. The Missouri Biver, Fort Scott & Gulf Bailroad Company is a corporation duly incorporated and existing under the general incorporation law of 1865, (being chapter 44 of the laws of that year;) and during the years 1869 and 1870 Mr. Chanute was the chief engineer of said company. The consideration in said quitclaim deed “A” is correctly recited.
13th. Fickes, after he learned that Mr. Chanute was grantee in the deed, stated to Mr. Chanute that he had sold the other half of the land to Mr. Cameron, who would be a good man to push the town.
DEED MARKED “A.”
This indenture, made this 21st day of September 1870, between Morgan Fickes and Minerva Fickes his wife, of the county of Linn, and State of Kansas, of the first part, and Stephen H. Allen of the same place, of the second part, witnesseth: That the said parties of the first part, in consideration of the sum of three hundred dollars to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained, sold, remised, released and quitclaimed, and by these presents do bargain, sell, release, remise and quitclaim unto the said party of the second part, and to his heirs and assigns forever, all our and each of our right, title, and interest, estate, claim and demand, both at law and equity, and as well in possession as in expectancy, of, in and to the following-described premises or pieces and parcel or parcels of land, to-wit: The N. W. ^ of the S.W. J, and the S.J of the N.W. -j- of section 31, in township 21, range 25, lying and being in the town of Pleasanton, county of Linn, and state of Kansas, and all lots, blocks, streets and alleys, strips and pieces of land therein contained, saving and excepting any part of the same heretofore deeded by the said parties of the first part to William Cameron; and lots number 15, 16, 17 and 18, in block 121; and lots num ber 6 and 34, in block 122; and lots numbered 1, 2, and 3, in block 139 — together with all and singular the hereditaments and appurtenances thereunto belonging.
In witness whereof we have hereunto set our hands and seals the day and year first above written.
Morgan Fickes. [seal.]
Minerva Fickes. [seal.'
[Said deed was duly stamped and acknowledged, and was duly recorded on the 21st of September 1870.]
DEED MARKED “b.”
Know all men by these presents, that Morgan Fickes and Minerva Fickes his wife, parties of the first part, do by these presents, for and in consideration of the sum of one dollar in hand paid, and the further considerations hereinafter specified, grant, bargain, sell and convey unto Octave Ghanute, of Jackson county, Missouri, under the several limitations and conditions and restrictions hereinafter provided, the one-half of (as is hereinafter designated) the N.W.J of the S.W.J, and sixty acres off the east end of the S.J of the N.W.J of section 31, of township 21, of range 25, in Linn county, state of Kansas, together with the appurtenances thereunto belonging; and we the said parties of the first part, warrant that we are seized of a good and indefeasible fee-simple title to the real estate hereby conveyed. The parties of the first part agree, and it is one of the conditions of this deed, to cause, on or before the completion of the depot hereinafter named, to have the land hereinbefore described surveyed, laid out and platted in village or town lots, with streets and alleys, by a competent surveyor, and that said lots'shall be by said surveyor numbered, and the lots being designated on the plat of said survey by odd numbers, shall vest in the grantee an indefeasible fee-simple title, and the lots being designated on said plat by even numbers, the title to remain in the grantors. Now the conditions, limitations, and provisions, and the only uses and purposes for which the real estate aforesaid is conveyed, are as follows, to-wit: Whereas, the parties of the first part desire to secure the location and construction of a good and substantial freight and passenger depot on the line of the Missouri River, Fort Scott & Gulf railroad in the vicinity of the Round Mound which is situated in the west line of section 31, in town 21, range 25 in said Linn county: Now, in order to secure this object, it is herein agreed and provided, on the part of said grantors, constituting the parties of the first part, that for and in consideration that the said grantee, his, her, or their heirs, executors, administrators or assigns, shall cause said Missouri River, Fort Scott & Gulf Railroad Company to locate and construct a good and substantial passenger and freight depot within one mile of said Round Mound, within six months after the commencement of the running of the cars to or near said Round Mound, and that at the expiration of one year from the commencement of the running of the cars to said Round. Mound neither said railroad company nor any other person or persons for or in behalf of said railroad company shall not have located or constructed a station or depot within four miles of said Round Mound, except the one herein provided for, then the title in fee simple to said real estate shall vest in said grantee, his, her, or their heirs or assigns. But if at the expiration of six months after the commencement of the running of the cars to said Round Mound, or as far south on the line of said road as said Round Mound, said railroad company shall n'ot have located and constructed a good and substantial freight and passenger depot within one mile of said Round Mound, or if within one year after the commencement of the running of the cars to said point, or as far south as the said Round Mound, said railroad company or any other party or parties shall have located and constructed a station or depot other than the one provided for herein upon the line of said railroad within the space of four miles from said Round Mound, then the title to said real estate shall revest to the said Morgan Fickes and Minerva Fickes, their heirs of assigns.
In witness whereof, we have hereunto set our hands and seals the 7th day of June, 1869.
Morgan Fickes. [seal.]
Minerva Fickes. [seal.]
[Said deed was duly acknowledged by the grantors and duly certified on said 7th of June 1869, and was duly recorded in the registry of deeds of Linn county, August 10th 1869.]
Upon this agreed statement of facts the court below rendered judgment in favor of the plaintiff below and against the defendant below. Was this judgment correct? This is the only question in the case; but involved in this question are several others which we shall notice as we proceed. We shall decide however only such of these questions as are necessary to be decided in order to dispose of the case.
In the first place then, we shall assume, but without deciding the question, that the deed executed by Fickes and wife in blcmk as to the grantee, was void when so executed, and was still void after Chanute filled up the blank by inserting his own name therein. (Ayres v. Probasco, 14 Kas. 176, and cases there cited.)
The next question, and one of the two main questions in the case is, whether the deed was made valid by any of the subsequent transactions. The other main question is, whether the deed is void as being in contravention of public policy. In discussing the first of these two questions we shall assume that the deed is not void because of any supposed antagonism to public policy. We have heretofore occasjon examine similar questions in the cases of Knaggs v. Mastin, 9 Kas. 532, and Ayres v. Probasco, 14 Kas. 177, 196, 197. But those two cases differ from this in essential particulars. In the Knaggs case the deed was held to be good upon the ground of an equitable estoppel and of a subsequent ratification. But in this case we hardly suppose that an equitabl.e estoppel can be interposed to aid the defective execution of the deed; for Chanute was fully aware of its defective execution when he inserted his own name therein as grantee. (See Ayres v. Probasco, supra.) The record does not show whether the defendant Tucker was aware of said defective execution or, not, but as his counsel do not seem to claim that he stands in any better situation than his grantor (Chanute) did, we have concluded to treat the question now under consideration just as though it had arisen between the original parties to said deed. In the Ayres case the mortgage was held bad because there was no ground upon which an equitable estoppel could be founded, and there was nothing showing a subsequent ratification of the mortgage by Mrs. Ayres, in whom the title was; and as the mortgaged property was a homestead, the mortgage was wholly void without her consent. In the present case there is very much tending to show that Fickes, the grantor, in whom the title was, did by his subsequent acts and words ratify and confirm the deed after it was filled up, so as to make it a deed to Chanute; and there is no pretense that the property attempted to be conveyed was at any time a homestead. The only question then for us now to consider is, whether the subsequent acts and words of Eickes did ratify, confirm, and make valid said deed. We think they did.. Of course the regular way to execute a deed would be to complete the body of the same first, and then to affix the signature of the grantor; but this manner of executing a deed is not absolutely necessary. If the deed is complete when it is delivered, that is all that is necessary. It makes no difference in what order, or when, or where, or by whom the different parts of the deed are drawn up; or whether they are drawn up in the presence or absence of the grantor; or whether they are written or printed, or partly one and partly the other; or whether the grantor makes his signature before or after they are drawn up, or at some intermediate point of time, provided however, that before the deed is delivered it is made complete and perfect, and that the grantor has actual knowledge of its contents, and that with such knowledge he authorizes its delivery. Now the present deed comes very nearly within the foregoing description of a good deed. All that it lacks is, that it was not formally delivered by Fickes to Chanute after its final completion by inserting Chanute’s name therein, for Chanute already had the possession of the deed. If after Chanute inserted his name in the deed he had handed it to Fickes, and Fickes had returned it to Chanute with the intention that it should be his deed, it would undoubtedly have become a good and valid deed by virtue of such act. (Speake v. U. S., 9 Cranch, 28; Malarin v. U. S., 1 Wallace, 282, 288.) But an actual or formal delivery of a deed never was necessary. A deed may be good by constructive delivery as well as by actual delivery. Any words or acts showing an intention on the part of the grantor that the deed shall be considered as completely executed, and the title conveyed, is sufficient. (4 U. S. Dig., First Series, 481, paragraph 306, et seq., and cases there cited.) And where a deed has been delivered to the grantee before it is finally completed, and the grantee completes the same, as in this- case, we think the grantor may with a full knowledge of all the facts ratify and confirm the deed and make it valid by any words or acts’which show a clear intention on his part that the deed shall be considered as having been properly executed and delivered, and as conveying the title to the property. (Devin v. Himer, 29 Iowa, 297.) Where a grantor obtained a deed without authority, it was held that the grantor might make the deed and the delivery thereof good by ratification, without any subsequent delivery thereof. (Parker v. Hill, 8 Metc. (Mass.) 447, 450.) It has also been held that a void deed already^clelivered may be ratified by words or acts without a reéxecution or redelivery of the deed. (Garrett v. Gouter, 42 Penn. St. 143; Warden v. Eichbaum, 3 Grant’s Cases, (Penn.) 42; Jones v. Evans, 7 Dana, (Ky.) 96, 98.) Also held, that a bond or deed may be materially altered after its delivery, with the consent of all the parties, and still be valid. (Speake v. U. S., supra; Bassett v. Bassett, 55 Me. 125, 127.) And other sealed instruments affecting real estate, void when delivered, have been held to be made valid by ratification without a second execution or delivery. (Breithaupt v. Thurmond, 2 Rich. (S. C.) 216; Powell v. Gossom, 8 B. Mon. 179; Hall v. Vanness, 49 Penn. St. 457.) In the present case, Fiekes knew that the deed was filled up with the name of Chanute as grantee; he knew that Chanute took possession of the land under the deed, and laid it out into town lots, streets, alleys, etc.; he knew that Chanute claimed the property under the deed, and yet he made no objection to all this, but on the contrary he recognized Chanute’s right to the property at various times, and bought two of the .lots that went to Chanute under the deed. Fiekes sold his remaining half of the property to Cameron, and then told Chanute that Cameron “ would be a good mail to push the town.” And when Fiekes executed the quitclaim deed to the plaintiff, Allen, he told Allen that he did not claim any of the land claimed by Chanute except the undivided-half of certain strips not laid out into town lots, streets, or alleys, and that he would not claim even this except for a difference between himself and Chanute. Was not this a good and sufficient ratification of the deed, known by Fickes to have been completed, and known by him to have been in Chanute’s possession ? Does not this show beyond all' question, that Fickes intended that the deed should be a good and valid deed conveying the property to Chanute ? And if so, was there any necessity to go through with the useless form of Chanute handing the deed to Fickes, and Fickes returning it to Chanute so as to constitute a formal delivery ? We think the deed was ratified, and so made valid so far as this question is concerned.
Is the deed void because in contravention of public policy ? We think not. It is a deed conveying an estate upon condition, but whether upon condition precedent, or condition subsequent, or partly one and partly the other, it is £0 determine. As Chanute was to take immediate possession of the property, and survey it into town lots, streets, alleys, etc.; and as the title to the property was to “revest ” in Fickes for any conditions broken, it would seem that all the conditions were intended to be conditions subsequent, and not precedent. But there is other language in the deed that would seem to indicate a contrary intention, and that all the conditions were intended to be fulfilled before any estate should vest in Chanute. Probably however the fairest interpretation of the deed would be, that no estate was to vest in Chanute until the land should be surveyed, platted, etc., and the desired depot built, and then that the estate should vest in him subject to be defeated or forfeited upon condition that the prescribed depot should be built within the prescribed time and limit. This would make the surveying and the platting of the town-site, and the building of the desired depot, conditions precedent, and the refraining from building the other depot a condition subsequent. And surely, this last condition should be considered a condition subsequent; for under the terms of the deed it could not possibly have been fulfilled under one year from the time when the cars com menced to run to that place, while all the other conditions might have beeen fulfilled before the cars commenced to run at all, and must have been fulfilled within six months thereafter. Now it can hardly be possible that the parties intended that Chanute should lay out said town-site, should know which were his town lots, and be in possession of them, and then hold them six months or a year before any title to them should vest in him. This is not the way people do business in this western country. Probably the parties expected to sell nearly all said town lots before the end of the year. Indeed, Fickes bought two of Chanute’s lots within less than a year, and even within less than six months after said deed was executed. (In connection with this subject, see Southard v. Central Rld. Co., 2 Dutch. N. J. 13; Nicoll v. N. Y. & Erie Rld Co., 12 N. Y. 121, 131.) The deed in one place reads as though it was intended that the survey, platting, etc., should “ vest in the grantee an indefeasible fee-simple title ” to the odd-numbered lots. Now if the condition not to build said depot was a condition subsequent, then under no circumstances could the deed be held void on account thereof, because, first, the condition was fulfilled; second, if it had been broken, Allen could not claim a forfeiture on account thereof, but only Fickes, or his heirs; (2 Washb. Real Prop. 451; 1 Hilliard Real Prop. 430;) and third, if the condition were really illegal, immoral, or against public policy, then the effect would be to leave the estate already vested in Chanute absolute and not conditional; (2 Washb. Real Prop. 447; 1 Hilliard Real Prop. 510.) But for the purposes of the case we shall suppose that all the conditions were conditions precedent; and then, would the deed be void? We think not. We suppose it is not claimed that the agreement to lay out the land into a town-site, was illegal. Neither do we suppose that it is claimed that the agreement to build the depot, was illegal. (Workman v. Campbell, 46 Mo. 305.) It is the agreement that a depot should not be built, which we suppose the defendant in error claims was illegal. Now a contract that a depot should not be built for all time, would surely be illegal. (St. Jo. & D. C. Rld. Co. v. Ryan, 11 Kas. 602.) A contract that a depot should not be built at or near some particular town or city for the space of one year, would probably also be illegal. The courts could see from the facts of such a case that such a contract would be against public policy; and they could therefore determine, as a matter of law, from such facts that such a contract would be illegal and void. But how can any court, without knowing the facts, determine as a matter of law that a contract not to build a depot at a particular place (not a town or city) for the space of one year only, would be against public policy, and therefore illegal and void ? There are whole counties in this state without any population. There are many places where a depot will probably not be needed for the next century. And is it possible, that a contract, not to build a depot at any one of such places, for the space of one year only, would necessarily, and as a matter of law, be illegal and void? It is not enough for the present case that the contract, or rather the condition of the deed, should be merely indifferent or valueless. It must be absolutely illegal in order to be available to the plaintiff below. Whether there was any population at or near said “Round Mound,” or not, the record does not disclose. Or, whether any depot might ever be needed there, the record does not show. And courts cannot take judicial notice, without any facts being brought to their knowledge, where depots might be needed, and where they would not be needed. When this deed was executed, there was a railroad in prospect, and a town in prospect; and that is about all there is to show that there was any necessity for any depot anywhere within that whole country. But for the purposes of this case we will suppose that the courts can determine as a matter of law, and without reference to the facts, that the condition in the-present deed that no depot should be built at a particular place within one year, was illegal; and upon such supposition, would the deed be void? We still think not. Every condition of the deed was scrupulously fulfilled, within the very terms of the deed, long before the plaintiff, Allen, claims to have obtained any interest in the property. At the time that Allen procured his quitclaim deed from Eickes, nothing pertaining to the original transactions between Fickes and Chanute, or contemplated in the deed from Fickes to Chanute, remained executory. Everything had previously been executed and fulfilled, and executed and fulfilled without the commission of any illegal, immoral, or injurious act. It is not pretended that the failure to build said proscribed depot injured or produced any inconvenience to any person or society. And Chanute and his grantees have long been in the possession of the property, holding the same under said deed. The question then to be now considered is, not whether an illegal executory contract shall be enforced, but it is whether vested rights held under an illegal executed contract shall be disturbed. Or, to state the question more accurately, it is, whether vested rights, held pnder a contract partially illegal in its origin, but now wholly executed, and executed without the commission of any wrongful act, can now be disturbed because of such original illegality, by an assignee of one of the parties to the contract, where both parties to the contract were equally in the wrong? The assignee in this case is not an innocent purchaser. He obtained said quitclaim deed knowing all the facts, and of course he can have no greater or better rights than Fickes had. If Fickes could not avoid the deed to Chanute for illegality, then of course Allen cannot. And we do not think that Fickes could. It is a general rule of law that a man will not be allowed to set up his own illegal acts for the purpose of avoiding his own deed. And with regard to executed illegal contracts, where the parties thereto are in equal wrong, it is a general rule that the law will not aid either of them, but will leave each and all of them where it finds them. In pari delicto potior est conditio defendentis; and In pari delicto potior est conditio possidentis. (2 Pars. Contr. 747, note w, and cases therein cited.) This rule of law has been applied to cases very similar to the one at bar. (Worcester v. Eaton, 11 Mass. 368, 375, et seq.; Swain v. Russell, 10 Ind. 438.) And we think it ought to be applied to this case. If the contract not to build said depot was illegal, then clearly Eickes was in pari delieto with Chanute; and he would not be allowed to set- up his own wrong for the purpose of defeating his own deed. And this is especially so where he has received the full consideration for his contract, and where it has probably proved immensely valuable to him, and where he has not offered to return any portion of the same.
It is also claimed that the' description of the land' in the deed was indefinite and uncertain. Now the description was such that, it could easily be made certain by a fulfillment of the terms and conditions of the deed itself. And the description was made certain, exactly in accordance with the deed, and to the full satisfaction of all the parties interested. The land was surveyed. It was laid out into lots, streets, alleys, etc. The lots were numbered. And a plat thereof was made, and filed in the office of the register of deeds September 2d 1869, according to law. (Gen. Stat. 618.) And by these transactions the description of the property conveyed was made as absolutely certain as it could be. And the whole description of the property now rests in record evidence. We think such a description is good. _ In connection with this question we would refer to Armstrong v. Mudd, 10 B. Mon. 144; Grover v. Drummond, 25 Me. 185.
The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered on the agreed statement of facts in favor of the defendant below, and against the plaintiff below.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
At the trial in the court below the court instructed the jury to find for the defendant. This is the only ground for error presented by the plaintiffs in their brief. Was this error? The evidence tends to prove the following facts: On January 13th 1873, the “Iola Bridge Company” (a duly-organized corporation,) owed the plaintiffs the sum of $980.65; and on that day the secretary of the defendant, B. M. Smith, and the vice president thereof, Daniel M. Adams, executed said note to the said plaintiffs for said sum. The note purports on its face to be the note of the defendant; but it is signed only by “Daniel M. Adams, ~V. President,” and “B. M. Smith, Secretary.” Smith then caused an entry of the note to be made in the “bill book” of the defendant, and three entries thereof to be made in the ledger of the defendant. But the same were afterward canceled by order of certain other officers of the defendant. There is no evidence that Smith and Adams, or either of them, ever had any authority from the defendant to execute or sign said note, except the general power they had as officers to sign notes in proper cases. And there is no evidence that the defendant ever ratified their acts. The plaintiffs had no actual knowledge of any want of power on the part of Smith and Adams to execute said note, but they received the same in good faith. About the time this-note was signed, but whether before, or after, is not very clearly shown, the defendant bought of the Iola' Bridge Company its good-will, and certain property, and assumed and agreed to pay certain indebtedness of said Iola Bridge Company, but the claim of the plaintiffs was not included in said indebtedness. The witness Ennis testifies: “The claim of Ehrgott & Krebs was never mentioned, and I am quite positive that their claim was not assumed at any meeting of the board of directors or stockholders.” There is no evidence-that the defendant ever assumed or agreed to become responsible for the payment of said note, or said claim of the plaintiffs, further than we have already stated. There was some evidence contained in the deposition of the witness Mills,, and possibly some in the deposition of the witness Gress, tending to show that the defendant assumed and agreed to pay the plaintiffs’ claim; but all of such evidence was stricken out by the court, and was not permitted to be read to the jury. We do not think that the court committed any error in this- respect; but still, as the question is not presented to us by the plaintiffs’ brief, it is not necessary to decide the same. The only question therefore, for this court to decide, is merely this: Where certain officers of a corporation, (for the defendant is a corporation,) having general authority to execute promissory notes for their corporation in proper cases, but having no authority in the particular case in question, do, in a transaction having no connection with the corporate business, and not authorized by the corporation, and without any consideration going to the corporation, execute in the name of their corporation to a third person who has no actual knowledge of their want of authority a promissory note for a claim which such third person holds against another and a different corporation, is the first-mentioned corporation liable on said note to the payee thereof, where there has been no subsequent ratification by the corporation of the acts of its officers? We answer this question in the negative. Rahm, v. Bridge Manufactory, ante, p. 277.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Herd, J.:
This is an action for libel arising out of publication of a series of articles regarding the events surrounding plaintiff Myron S. Steere’s defense of Nellie L. Schoonover in a trial for first degree murder and his subsequent public censure by this court. Defendants in this action are Roderick B. Cupp, Edwina W. Cupp, B. H. Brewer d/b/a Ottawa Broadcasting Company; Ken MacNevin; Ottawa Herald Inc.; Robert B. Wellington; Harris Enterprises, Inc.; The Kansas City Star Co., Inc.; The World Co.; and the Associated Press. The trial court granted defendants’ motion for summary judgment and Steere appeals. We affirm.
The facts giving rise to this action are lengthy but necessary for a full picture of the case. Plaintiff, Myron S. Steere, is an attorney admitted to practice in the State of Kansas. In 1973, he represented Nellie Schoonover, who was charged with the murder of her husband. The Schoonover trial and its significance to this case will be discussed later in this opinion. Defendants Roderick B. Cupp, Edwina W. Cupp and B. H. Brewer do business as Ottawa Broadcasting Co. and Ken MacNevin is a reporter and newscaster for the station. They operate radio station KOFO in Ottawa. Defendant, Ottawa Herald, Inc. is a Kansas corporation which publishes the Ottawa Herald, a daily newspaper circulated in Northeast Kansas. The editor of the paper is Robert B. Wellington. Harris Enterprises, Inc. is a Kansas corporation and is the majority stockholder in Ottawa Herald, Inc. The Kansas City Star Co. is a Missouri corporation which owns and publishes The Kansas City Star and The Kansas City Times. The World Co. is a Kansas corporation which owns and publishes the Lawrence Daily Journal-World. The Associated Press (AP) is a non-profit New York membership corporation engaged in the collection and dissemination of news for publication or broadcast by its members and subscribers. The Ottawa Broadcasting Co., the Ottawa Herald, Inc., Harris Enterprises, Inc., The Kansas City Star Company and The World Company are members of AP.
J. W. Schoonover was found murdered at his home on October 24, 1973. When his wife, Nellie, was suspected of the crime, she employed plaintiff to represent her. Three days later, Nellie Schoonover was charged with first degree murder and plaintiff was appointed her attorney under the Indigent Defendants Act. K.S.A. 22-4501 et seq. On March 4, 1974, while acting as Mrs. Schoonover’s attorney, Steere entered into a contingent fee contract with her. It provided that if Mrs. Schoonover were acquitted of murder or convicted of a crime which would not deprive her of her right of inheritance from her husband, plaintiff would receive all of her inheritance, less $10,000.00. The contract was drafted by Steere but its existence was kept secret until plaintiff withdrew as counsel after trial. Nellie Schoonover was convicted of first degree murder on March 25, 1974, and thereafter, in May 1974, plaintiff submitted his claim voucher in the amount of $4,229.48 to the State for his attorney’s fee. The claim was paid.
After Steere was permitted to withdraw, Mrs. Schoonover’s new counsel revealed the contingent fee contract and initiated a proceeding pursuant to K.S.A. 60-1507, alleging she had been denied her right to effective counsel. Mrs. Schoonover testified plaintiff presented the contract to her and told her if she wanted him to continue to represent her, she would have to sign the contract. The district court denied Mrs. Schoonover’s motion to set aside the conviction and referred the matter of plaintiff’s possible misconduct to the disciplinary administrator for investigation. She appealed the trial court’s denial of the motion to this court. The primary issue on appeal was whether the existence of the contingent fee contract amounted to ineffective assistance of counsel. We held counsel had indeed been guilty of unprofessional conduct in entering into the contract with his client in a criminal action. We, however, refused to find a violation of the constitutional rights of the accused and affirmed the trial court. Schoonover v. State, 218 Kan. 377, 543 P.2d 881 (1975), cert. denied 424 U.S. 944 (1976).
The State Board of Law Examiners found Steere had violated DR 2-106(C) (214 Kan. lxxxii) by entering into a contingent fee contract in a criminal case:
“[T]he State has stipulated that the respondent had no intent to violate the disciplinary rule or the law and the contingent fee contract was an oversight. The State further stipulated the contingent fee contract was entered into at the suggestion of Nellie L. Schoonover. The panel is of the opinion that there is a disputed question of fact on that issue, but we accept the stipulation . . . .”
The panel recommended public censure which Steere accepted. The discipline was ordered invoked by this court. In re Steere, 217 Kan. 276, 536 P.2d 54 (1975).
On May 28, 1975, Ken MacNevin, working for KOFO Radio, telephoned the disciplinary administrator’s office and spoke to then administrator Earl Hatcher. He requested the status of the case involving the contingent fee contract. Mr. Hatcher informed him a decision had been reached but it could not be disclosed until it had been filed with the Clerk of the Supreme Court. MacNevin subsequently called Lewis Carter, Clerk of the Su preme Court, who informed him plaintiff had been publicly censured. MacNevin composed a news account of the matter and the story was broadcast over KOFO Radio that day. No allegations are made by plaintiff regarding this news account. MacNevin then called Huell Warren of the Associated Press in Kansas City and relayed the information Mr. Carter had given him. Warren telephoned Lew Ferguson, the AP correspondent in charge of the Topeka Bureau to check out the story in further detail. He requested that Ferguson verify the recommendation of the State Board of Law Examiners. Ferguson telephoned Mr. Carter and was informed no recommendation had been made. Ferguson telephoned Warren and advised him to hold the story until it could be confirmed. Later in the afternoon on May 28, 1975, Ferguson again telephoned Mr. Carter and learned that the panel had recommended that plaintiff be publicly censured. Carter informed Ferguson that although the story was not formally released to the public, Ferguson could proceed with his reporting of the matter because other individuals in the Ottawa area had obtained the same information from either his office or from the office of the disciplinary administrator. No details were given by Carter regarding the panel’s findings and conclusions. Ferguson called Warren about the conversation he had had with Carter. Warren then prepared a news report based upon the information he had received from Ferguson and MacNevin. It stated:
“Topeka, Kan. (AP) - The State Board of Law Examiners recommended to the Kansas Supreme Court Wednesday that it publicly censure a lawyer at Ottawa, Kan., for his conduct of the defense in a sensational murder case.
“The examiners found that Myron S. Steere required Mrs. Nellie Schoonover to enter a contingency agreement with him after he was appointed to defend her in Franklin County District Court.
“In her plea for a new trial after she had been convicted and sentenced to life in prison for slaying her 80-year-old husband, Mrs. Schoonover testified that Steere got her to agree to give him all but $10,000 of Schoonover’s estate if he was able to obtain her acquittal.
“Such a contingency agreement is a violation of the code of ethics of the Kansas Bar Association. Judge Michael Barbara of Topeka, who presided in the Schoonover trial on a special assignment, said he would call Mrs. Schoonover’s testimony about Steere to the attention of the law examiners.
“The examiners could have recommended a penalty as severe as disbarment. The Supreme Court can accept Wednesday’s recommendation or it may prescribe a stiffer penalty or none at all.
“J. W. Schoonover was shot to death on the night of October 24, 1973, at his farm five miles southwest of Ottawa. He was the ninth husband of the former Nellie Rutledge, who had served prison sentences for mail fraud in a lonely hearts club and on a bad check charge. They had eloped to Miami, Oklahoma, on July 12 after she had been his housekeeper for about two weeks. She was on parole from prison.
“Mrs. Schoonover is at the Kansas Women’s Reformatory at Lansing, serving the life sentence imposed by Judge Barbara after her conviction on March 25, 1974. Represented by new lawyers, she appealed her conviction and sentence to the Kansas Supreme Court; and it is expected to take up the case in September.”
On May 29, 1975, AP transmitted a further news release to its members. The dispatch, prepared by Lew Marks, an AP employee in the Kansas City Bureau, was virtually a rewrite of the earlier story written by Warren containing alterations in verbs and length of the story. On June 3, 1975, the AP Kansas City Bureau transmitted to certain of its members a follow-up report based upon the earlier report written by Warren.
Plaintiff’s complaint centered around the statements in the first and second paragraphs of the news release. The statements alleged he was publicly censured for “his conduct of the defense” and because he “required” Mrs. Schoonover to sign the contingent fee contract. Steere alleged the defendants negligently, carelessly, recklessly and maliciously published these statements. He further alleged the statements were false, unfair and inaccurate. He also complained that the Ottawa Herald and Harris Publications, in addition to printing stories containing the alleged false phrasing, printed parts of Mrs. Schoonover’s pleadings and brief where he was characterized as “dishonest” and as “bilking” her. He alleged the statements were untrue and were printed recklessly with utter disregard for the truth.
All of the defendants filed motions for summary judgments accompanied by affidavits and briefs. The trial court sustained all defendant’s motions for summary judgment and its findings of fact are summarized as follows. The court found Steere was a public official because he was appointed by the district court to represent an indigent defendant, and because he was paid by the State of Kansas. The court found he was a public figure for all purposes because of the extent of his activity in Ottawa and Franklin Counties. In addition, the court found Steere was a public figure for the limited purpose of the litigation by “virtue of his role as the court-appointed attorney for Mrs. Schoonover and of his public censure by the Supreme Court of Kansas for his conduct as her attorney.” Finally, the court found no actual malice had been shown in order for Steere to recover.
In the case of defendants the Ottawa Herald, Inc., Robert Wellington and Harris Enterprises, Inc., The Kansas City Star, The World Company and the Associated Press, the trial court found the use of the two questioned phrases in newspaper stories and radio broadcasts published by these defendants was not actionable. The court stated the two phrases were substantially true. The court found the remaining newspaper articles in the Ottawa Herald regarding the complaint filed by Mrs. Schoonover to be “impartial and reasonably accurate” and “when considered as a whole, present both sides of the controversy.” In the case of defendants Roderick Cupp, Edwina Cupp, and B. H. Brewer, d/b/a Ottawa Broadcasting Co., and Ken MacNevin, the trial court found the news account aired on May 29, 1975 had been edited by the personnel of KOFO to delete the word “required.” Later broadcasts on June 5, 1975, October 29, 1975, and December 13, 1975, were all received from the AP and did not originate with KOFO Radio. These broadcasts did not contain the two phrases Steere regards as actionable.
Appellant Steere contends the trial court erred in concluding the media publications were substantially true and were absolutely or conditionally privileged. He claims the court erred in holding plaintiff was a public figure and public official and in finding the facts failed to show either negligence or malice.
We will begin by resolving the question of plaintiff’s status as a public or private figure. It is well recognized that publications concerning a public official or public figure are qualifiedly privileged and are actionable only if malice can be shown. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975 (1967). In Rosenblatt v. Baer, 383 U.S. 75, 86, 15 L.Ed.2d 597, 86 S.Ct. 669 (1966), the U.S. Supreme Court stated:
“Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.”
See also Annot., 19 A.L.R.3d 1361, 1371: “The employee’s posi tion must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.”
In Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 298, 543 P.2d 988 (1975), an invasion of privacy case, we held a policeman was a public official, a person “in whose conduct the public has a vital interest.” In Sowers v. Wells, 150 Kan. 630, 633, 95 P.2d- 281 (1939), we stated, “. . . it universally has been held that the right to exercise some definite portion of sovereign power constitutes an indispensible attribute of ‘public office.’ ”
“A lawyer engaged in the private practice of the law does not hold a ‘public office,’ and is not a ‘public officer.’ He holds a license, privilege or franchise, under which he practices his profession as an officer of the court, and his admission to so practice is not an appointment to ‘public office,’ nor does it make him a ‘public officer.’ ” Sowers v. Wells, 150 Kan. 630, Syl. ¶ 1.
We find Myron Steere was acting as an officer of the court in his capacity as Mrs. Schoonover’s court appointed attorney and not as a public official. His position did not afford him the opportunity to exercise any sovereign power, an essential element of public office. The fact that he was paid by the State of Kansas for his services does not make him a public official.
We now turn to the question of whether Steere is a public figure. It is well settled there are two types of public figures. There are those who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974); those persons who are “intimately involved in the resolution of important public questions, or by reason of their fame, shape events in areas of concern to society at large,” Curtis Publishing Co. v. Butts, 388 U.S. at 164. There are also those persons who are classed as public figures for a limited purpose because they have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. at 345; see also Associated Press v. Walker, 388 U.S. 130, 18 L.Ed.2d 1094, 87 S.Ct. 1975 (1967).
The reason for extending the New York Times rule to public figures is twofold. As stated in Wolston v. Reader’s Digest Assn., Inc.,_ U.S__, 61 L.Ed.2d 450, 458, 99 S.Ct. 2701 (1979):
“First, we recognized that public figures are less vulnerable in injury from defamatory statements because of their ability to resort to effective ‘self-help.’ They usually enjoy significantly greater access than private individuals to channels of effective communication, which enable them through discussion to counter criticism and expose the falsehood and fallacies of defamatory statements. [Citation omitted.] Second, and more importantly, was a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have ‘voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.’ ”
We have considered the recent cases of Wolston and Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979), and cases cited therein. We find appellant was a public figure for all purposes by virtue of his general fame and notoriety in the community. Myron Steere had been practicing law for 32 years in Franklin County. For 8 of those years he was the county attorney. He was well known in the community for the publicity he received in that capacity. After Steere ended his service as county attorney, he served as special counsel for the board of county commissioners in a controversial dispute over the construction of a new courthouse. During plaintiff’s 32 years in Franklin County, he was a prominent participant in numerous social activities and served as an officer and representative for many professional, fraternal and social activities. He was well known to the public prior to his defense of Nellie Schoonover.
We are mindful of the court’s caution against assuming “that a citizen’s participation in community and professional affairs” automatically renders an individual a public figure for all purposes. Gertz v. Robert Welch, Inc., 418 U.S. at 352. The court noted in that case the petitioner Robert Gertz, an attorney, had been active in community and professional affairs. He had, however, achieved no general fame or notoriety in the community. The court noted “[n]one of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation . . . .” Gertz v. Robert Welch, Inc., 418 U.S. at 352. In contrast, Steere’s active involvement in important community affairs has made him well known to the public. He has achieved a position of some influence in local affairs capped by his representation of Nellie Schoonover in her well publicized, famous murder trial. We find the totality of his experience in Franklin County gave Myron Steere the requisite fame and notoriety in his community to be declared a public figure for all purposes.
We now turn to whether Steere may be classed as a public figure for the limited purpose of this controversy. As the attorney for Nellie Schoonover, he took an active role in her representation. When the murder occurred, he took Mrs. Schoonover into his own home, became her private counsel, then accepted the indigent defendant appointment. He prepared the contingent fee contract, signed it, and presented it to his client who was in jail. He was interviewed by the press and asked for comment on every facet of the controversy.
Although we recognize Myron Steere’s representation of Nellie Schoonover may have constituted a more active visible role in a public controversy than the role of the petitioner/attorney in Gertz v. Robert Welch, Inc., we do not believe Steere “thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” Gertz v. Robert Welch, Inc., 418 U.S. at 352. We are mindful of the case of Bandelin v. Pietsch, 98 Idaho 337, 563 P.2d 395 (1977), cert. denied 434 U.S. 891 (1977), which presents a remarkably similar situation to the present case. There, the attorney was held to be a public figure by virtue of being “a pivotal figure in the controversy regarding the accounting of the estate that gave rise to the defamation and invasion of privacy actions.” Bandelin v. Pietsch, 98 Idaho at 340. We hesitate to expand the classification of public figure to that extent. We hold an attorney who actively represents a client does not become a public figure for limited purposes without additional evidence of an attempt to gain public attention to influence the outcome of the controversy. We hold therefore, Myron Steere was not a public figure for a limited purpose.
The classification of appellant as a public figure for general purposes changes his burden from that of proving simple negligence to proving actual malice. New York Times Co. v. Sullivan, 376 U.S. at 279-280. The radio broadcasts and the news reports made by appellees were covered by a limited privilege.
An examination of the record reveals all of the relevant facts are before the court by virtue of the depositions, interrogatories, admissions and exhibits to the pleadings. Is there evidence of malice? In New York Times Co. v. Sullivan, the Supreme Court defined “actual malice” as “knowledge that [the news report] was false or . . . reckless disregard of whether it was false or not.” p. 280.
Even if it is assumed the AP reports were proven false, there is no evidence the reporters knew of the falsity. Appellant concedes a majority of the reports were true. We find the two statements regarding the “conduct of the defense” and the fact he “required” Mrs. Schoonover to sign the fee agreement are substantially true. Steere’s censure arose out of his defense of Nellie Schoonover and whether he required her to sign the contingent fee contract or had her sign it or let her sign it, is of no consequence. Appellant was the lawyer. It was his duty to know the law and the possible ethical violation. He was responsible for the contract, not Nellie Schoonover. He drafted the instrument, had it typed and took it to the jail for Mrs. Schoonover to sign. Under the circumstances, the use of the word “required” is not out of line. We hold as a matter of law the published statements are substantially true and no actual malice is shown.
Certain general rules are applicable. Summary judgment should not be entered if there remain genuine issues of material fact. In considering a motion for summary judgment, a trial court must give to the party against whom judgment is sought the benefit of all inferences which may be drawn from the admitted facts under consideration. Welch v. Young, 225 Kan. 189, 589 P.2d 567 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978).
We note The Kansas City Star Co. and The World Co. have charged, as it relates to their companies, that this appeal was taken frivolously and for the purpose of harassment. They request that we assess their costs and attorneys’ fees against the appellant. We find this contention to be without merit and we decline to assess the requested fees against appellant.
We have carefully considered all of appellant’s issues of error and find no issue of material fact remaining. The motions for summary judgment were properly sustained by the trial court.
The judgment of the trial court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by a conservator to set aside a deed to certain farmland, executed by the conservatee, Helen M. Reller, to the defendant, Larry D. Nolte. The petition further prays that the title to the real estate be quieted against the defendant. The facts in the case are not complicated and essentially are as follows: On September 19, 1972, the plaintiff, Citizens State Bank and Trust Company of Hiawatha, was appointed conservator for Harvey F. Reller and Helen M. Reller as a result of voluntary petitions for conservatorship filed by the Rellers. Harvey F. Reller died on July 14, 1974. At the time of the trial in 1977 Helen M. Reller was 83 years of age. Prior to the appointment of the bank as conservator and down to the present time, Helen M. Reller was the owner of 400 acres of farmland in Brown County. This property has been in her family since 1871, when it was purchased by her grandfather. The defendant, Larry D. Nolte, has been a life-long resident of Brown County and a close friend of Harvey F. Reller and Helen M. Reller. Nolte was raised and lived all of his life on a farm adjoining the Reller farm. The Rellers were a strong-willed, independent couple and until later years self-reliant. In 1967, Harvey F: Reller became ill and was operated on for a cancer. Thereafter, he was unable to perform his usual farm duties. The trial court, in its findings, found that those farm duties were performed by the defendant, Larry D. Nolte, willingly and without expecting compensation. The defendant shopped for the Rellers and ran errands for them and took Harvey to St. Joseph about twice a month for checkups. This continued until Harvey’s death. Harvey, for a period, was placed in a nursing home. During that time, the defendant made daily visits and tended to Harvey’s needs which included cleaning him and dressing him up. He also assisted Helen Reller with chores and shopping and visited her every day. After a time, Harvey Reller was able to return to his farm from the nursing home. The Rellers became concerned for their personal well being and support. They turned to their friend, Larry Nolte, and at the Rellers’ request a contract was prepared under which the defendant agreed to care for the Rellers during their lifetime and support them. In consideration thereof, the Rellers agreed to execute a deed conveying to defendant Nolte the 400 acres of land which stood in the name of Helen M. Reller. By the terms of the contract, the deed was placed in escrow with William L. Stevenson, an attorney, of Hiawatha, Kansas, to be delivered to Larry D. Nolte at the death of the survivor of Harvey F. Reller and Helen M. Reller. Both deed and contract were dated December 7, 1973, at which time there was in existence the voluntary conservator-ship created on September 19, 1972. At the time the contract was entered into, Larry D. Nolte knew of the conservatorship for the Rellers at the Citizens State Bank and had had knowledge thereof since the day it was initiated.
After Harvey Reller’s death, the defendant, Nolte, had another contract and deed prepared by his attorney in Lawrence, Kansas. This contract and deed were signed by Helen M. Reller on November 13, 1974. The contract terminated the contract previously entered into between Nolte and Harvey and Helen Reller on December 7, 1973. Under the terms of the new contract, Nolte agreed to provide care and services to Helen M. Reller until her death should her financial resources be depleted to the extent that she could not provide herself with the financial requirements of life. Nolte further agreed to pay the expenses of her last illness and funeral, if her estate was insufficient. In consideration of Nolte’s services, Helen Reller executed and delivered to Nolte a warranty deed conveying to him a remainder interest to the 400 acres of farmland, reserving in herself a life estate with full rights of possession, occupancy, and income until her death.
From the record it appears that certain relatives of Helen M. Reller became concerned about her attachment to Larry D. Nolte and took steps to prevent Larry Nolte from visiting Helen Reller. Apparently, Larry Nolte intended to hold the deed to the 400 acres of Reller property until Mrs. Reller died. However, he changed his mind after Mrs. Reller was hospitalized in 1976. On November 10, 1976, Nolte filed the deed for record in Brown County. Prior to this time the conservator, Citizens State Bank, had no knowledge of the deed. On November 22, 1976, the Citizens State Bank, as conservator for Helen M. Reller, filed an action to set aside the deed and to quiet Helen Reller’s title in the 400 acres. In its petition, the conservator alleged that the deed should be set aside for the following reasons: (1) When it was signed on November 13, 1974, the plaintiff was conservator for Helen M. Reller and at no time did she have any intent to convey any interest in the real estate to the defendant; (2) that there was no consideration given for the deed; (3) that Helen M. Reller did not acknowledge the deed before a notary public; and (4) that duress, undue influence, fraud, and misrepresentation were used by the defendant to obtain Helen Reller’s signature to the deed. In his answer to the petition, defendant Nolte admitted that letters of conservatorship were issued to the Citizens State Bank by the Brown County Probate Court on September 19, 1972. He admitted that Helen M. Reller had been the owner of the real estate until she conveyed it to the defendant. By his general denial, defendant denied there was any want of consideration, duress, undue influence, fraud, or misrepresentation, and further denied that Helen M. Reller did not intend to convey any interest in the real estate to the defendant. Thereafter, the plaintiff bank moved the court for summary judgment. In its motion, the bank argued, in substance, that the contract and deed executed by Helen M. Reller were void and of no legal effect, because, at the time they were executed, Helen Reller was a conservatee and could not, as a matter of law, make an inter vivos conveyance or create a charge on her property without the consent of her conservator. The defendant opposed the motion on the basis that a decision should not be made on that legal issue until there had been a complete presentation of the facts. The trial court, in its memorandum decision, overruled the motion for summary judgment on the basis that there appeared to be some unresolved factual issues “that may or may not be material” and set the case for trial. Thereafter the case was fully tried on the merits in a hotly contested trial.
The trial court entered judgment in favor of defendant Nolte, finding that the deed and contract were valid and binding. Specifically, the trial court found that Helen Reller was mentally competent and aware of legal procedures in executing the deed and contract which were the subject of the lawsuit. The court further found that there was adequate consideration for the deed and contract and that the defendant did not unduly influence Helen Reller in their execution. Following entry of judgment in favor of defendant Nolte, the plaintiff, Citizens State Bank, appealed to this court.
The plaintiff conservator has raised four basic points on the appeal. The first point presents a question of law: Whether a conservatee under a voluntary conservatorship, who is neither a minor nor an “incapacitated person” within the meaning of K.S.A. 59-3002(1), has the capacity to contract and make an inter vivos disposition of conservatorship assets without the knowledge or consent of either the conservator or a court of proper jurisdiction. The other three points challenge the sufficiency of the evidence to support the findings of the trial court and allege trial errors in the admission of certain testimony. If the plaintiff conservator is correct on the first point presented, it is not necessary for this court to consider the remaining points.
Stated in simple language, the question of law presented for our determination in this case is whether the imposition of the voluntary conservatorship without a finding of incapacity, deprived the conservatee, Helen Reller, of her capacity to contract and convey away her real property by deed during the existence of the conservatorship. This is the same basic issue raised in the plaintiff’s motion for summary judgment and renewed by motion after all of the evidence was presented. The trial court held that Helen M. Reller, as a voluntary conservatee, had such capacity and upheld the contract and deed. We have concluded that the district court was in error and that the question presented must be answered in the affirmative. In arriving at this conclusion, we have carefully considered the Kansas statutes pertaining to conservatorships. It would be helpful to review those statutes which are pertinent to the issue presented in this case. The “act for obtaining a guardian or conservator” may be found at K.S.A. 59-3001 et seq. K.S.A. 59-3002 defines the term “conservator” to mean any person who has been appointed by a court of competent jurisdiction to exercise control over the estate of any person. The term “conservatee” is defined as a person who has a conservator. Section 59-3006 provides that a conservator may be appointed for an incapacitated person, a minor, and an adult who has made application pursuant to K.S.A. 59-3007.
K.S.A. 59-3007 provides for the appointment of a conservator on the voluntary application of any adult person who is neither an adjudged incapacitated person nor is a proposed ward or proposed conservatee. That section requires the court to make a determination that there is a need for the appointment of a conservator. K.S.A. 59-3008 prescribes the procedure to be followed in the creation of a voluntary conservatorship. K.S.A. 59-3019 prescribes the rights and duties of a conservator. That section vests in the conservator broad powers to possess and manage the estate of the conservatee, to invest the conservatee’s funds, to pay his debts, and pay reasonable charges for his support and maintenance. The title to real property acquired by the conservator is in all cases to be taken in the name of the conservatee. Under K.S.A. 59-3021, the conservator is given the power to lease any real estate of his conservatee for a period of three years or less. K.S.A. 59-3022 grants the conservator the power to sell or lease property for more than three years subject to the approval of the court. K.S.A. 59-3028 provides that a voluntary conservatorship shall terminate (1) upon an order of the court finding that there is no further need for a conservatorship; (2) upon the death of the conservatee; (3) upon the finding that the conservatee is an adjudged incapacitated person; and (4) upon the filing of a verified application by a conservatee that he or she no longer desires to have the conservatorship continued.
It is clear from a careful analysis of the statutes cited above that a voluntary conservatorship may be created even though the conservatee has not been adjudged incapacitated or incapable of handling his own affairs. The question then naturally arises whether a voluntary conservatee, not having been adjudged incapacitated, may enter into contracts or convey his property by deed inter vivos or dispose of it by testamentary disposition. That question is answered in part in Union National Bank of Wichita v. Mayberry, 216 Kan. 757, 533 P.2d 1303 (1975). In Mayberry, the decedent, Marie Pierce, had purchased United States Savings Bonds, Series H. The bonds were registered in her name, as owner, and were by her initially made payable on death to her sister, Emma Scruggs. Emma Scruggs died in 1963. In 1971, Mrs. Pierce, then a seventy-eight-year-old widow, was physically injured in an automobile accident which resulted in her hospitalization. On August 10, 1971, a voluntary conservatorship was established for her pursuant to K.S.A. 1974 Supp. 59-3007. 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 an incompetent person. Upon this appointment, the First National Bank took possession of all of Mrs. Pierce’s property including the bonds in question. In September 1971, Mrs. Pierce went to the bank and, with the assistance of a bank official in the trust department, obtained a change of the POD designee from Emma Scruggs to Clara May-berry, Mrs. Pierce’s sister. 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 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. The Union National Bank of Wichita was appointed administrator of her estate. The administrator bank then brought an action against Clara Mayberry to determine the ownership of the bonds in question. In Mayberry, this court held the fact that the decedent was under a voluntary conservatorship and that prior approval or authority had not been obtained from the probate court, did not void the change in the POD designee. In the course of the opinion, the court discusses the pertinent statutes. It is pointed out that the procedure providing for a voluntary conservatorship was enacted to make it possible for a mentally competent adult, who has some physical condition or disability rendering the handling of his property difficult or impossible, to voluntarily apply to the probate court for the appointment of a conservator thus avoiding the stigma of having a “guardian” or being adjudged an incompetent or incapacitated person. The court points out that, euphemistically, this may be of significance to the individual affected, although the functions of the conservator may be identical to those of a guardian under the former law.
In Mayberry, it is stated that a conservator has 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 during the conservatee’s lifetime. It is not his function, nor that of the probate court supervising the conservatorship, to control disposition of the conservatee’s property after death. The court concluded that the execution of a will by the conservatee did not interfere with the conservator’s function. In Mayberry, the court clearly makes a distinction between testamentary dispositions by a voluntary conservatee and inter vivos transfers which diminish the conservatee’s estate during his lifetime. Mayberry, of course, did not involve an inter vivos contract or conveyance affecting real property executed without the knowledge or consent of the conservator. Thus the issue presented in this case was not reached in Mayberry and is at this time a novel question in this state.
Cases from other jurisdictions are not in agreement on the issue presented. Variations in the decisions depend to some extent on the specific state statutes involved, some of which vest more power and control in the voluntary conservatee than is provided for under the statutes of other states. In this case, the defendant, Larry D. Nolte, relies primarily on Board of Regents of State Univ., St. of Wis. v. Davis, 14 Cal. 3d 33, 120 Cal. Rptr. 407, 533 P.2d 1047 (1975). The question presented in Davis was whether the imposition of a conservatorship without a finding of incompetency deprived the conservatee of the capacity to contract. The California Supreme Court held that, under the applicable California statutes, it did not. In arriving at this decision, the California court emphasized that the language of the California statutes required such a result. It is pointed out in the opinion that a California statute provided that the conservator is required to pay any debts incurred by the conservatee after the creation of the conservatorship, except that ability of the conservator to continue to provide the conservatee with the necessities of life shall not be impaired. The conservator is also required to pay debts of the conservatee during the conservatorship, if they appear to be such as a reasonably prudent person might incur. Other California statutes provided that a conservatee, if employed, may retain complete control of his wages or salary, and, further, that a court, upon petition of the conservatee, may provide that the conservator pay the conservatee an allowance for the personal use of the conservatee, and the funds so paid to the conservatee shall be subject to his sole control. The court, in Davis, overruled the prior case of Place v. Trent, 27 Cal. App. 3d 526, 103 Cal. Rptr. 841 (1972), which had held that a voluntary conservatee, as a matter of law, lacks capacity to contract, even if the conservatee has not been adjudged incompetent. It should be noted that Place v. Trent was relied upon, at least to some extent, by this court in Mayberry.
The appellate courts in other jurisdictions, with statutes similar to ours and not having statutory provisions similar to those in California discussed above, have held that a conservatee under a voluntary conservatorship may not contract with respect to or make an inter vivos conveyance of his property without the authority of his conservator. See Normandin v. Kimball, 92 N.H. 62, 25 A.2d 39 (1942); Morse v. Slocum, 192 Iowa 1080,186 N.W. 22 (1922); and Foss v. Twenty-Five Associates, 239 Mass. 295, 131 N.E. 798 (1921).
As noted above, we have concluded that a conservatee under a voluntary conservatorship cannot contract or deed away his property inter vivos without the prior approval of the conservator or, where required by statute, the approval of the district court. However, as established by Mayberry, he may make a testamentary disposition if the conservatee has testamentary capacity. In arriving at this conclusion, we are convinced that a contrary rule would defeat the primary purpose of the voluntary conservator-ship statute to dignify old age by eliminating, in many instances, the stigma of having the elderly person declared incapacitated or incompetent. Incapacity is a matter of degree. As all of us grow older, we gradually lose our faculties, both physical and mental. The longer we live and the older we become, the more we lose. If a voluntary conservatee, not mentally incapacitated, were to be given an unbridled power to contract or deed away his property inter vivos, the voluntary conservatorship would seldom be used, because the relatives of the elderly person, seeking to protect the loved one from his or her own actions, would of necessity, utilize the compulsory conservatorship procedure. Hence, the old folks would in most instances be required to spend their golden years branded as “incapacitated” or “incompetent.”
It also appears to us that, if a voluntary conservatee were given the power in his discretion to dispose of his property inter vivos, it is doubtful that any person would want to accept the position of conservator, since such a conservator, although given responsibilities and duties, would really have no control over the estate of his conservatee. This would be an extremely difficult, if not an impossible situation. We also note that such a holding would create a judicial exception, diminishing the broad powers of a conservator to control and manage the conservatorship assets provided for under the Kansas statutes. The Kansas legislature has not specifically granted a voluntary conservatee the power to contract or to incur debts while the conservatorship is in existence as is provided by the California statutes. If the legislature desires to make such an exception, it may do so.
We have also concluded that there is no need for such a rule. We note that, under K.S.A. 59-3028, a voluntary conservatorship may be terminated by the mere filing of a verified application by the conservatee that he or she no longer desires to have the conservatorship continued. If the voluntary conservatee really wants to convey his property and is opposed by an uncooperative conservator, the conservatee may go to court and have the voluntary conservatorship terminated. Furthermore, an elderly person, who does not like the rule that we have adopted today, may execute an appropriate power of attorney so that he may have assistance in the management of his affairs without eliminating his power to dispose of his property inter vivos. It must also be emphasized that an elderly person, under voluntary conservatorship but with testamentary capacity, may use a will to make a testamentary disposition of his property by authority of the rule adopted in Mayberry. Finally, it should be pointed out that a third party, who innocently contracts with a voluntary conservatee, may be protected from injustice on rescission by the court’s application of the equitable principle of restoration of the status quo. See Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 147, 515 P.2d 757 (1973).
For the reasons set forth above, we hold that the existence of the voluntary conservatorship deprived the voluntary conservatee, Helen M. Reller, of the capacity to contract and to convey away her property inter vivos in such a way that her estate would be diminished during her lifetime. On remand, if the court finds that the defendant, Larry D. Nolte, has given up valuable consideration which has benefited the estate of the conservatee, appropriate relief may be granted in the district court to restore the status quo by applying the basic principles of equity.
The judgment of the district court is reversed and remanded to the district court for further proceedings in accordance with the views expressed in this opinion.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is a dependency and neglect proceeding brought under the juvenile code (K.S.A. 1977 Supp. 38-816 et seq.). The sole issue raised on the appeal is whether the petitioner, who was not the parent, legal guardian or conservator, or custodian of the neglected child, could be ordered to pay a portion of the court costs in the proceeding. The case was presented here on an agreed statement of facts.
The undisputed facts are as follows: The petitioner, Charles Boardman, is the maternal grandfather of Brandon Exum Boehm. He became concerned that his grandson was being neglected by the parents, Tom and Carmen Boehm, who at that time had legal custody of Brandon. In October of 1975, the petitioner filed with the juvenile court of Ford County a petition alleging that the child, then seven months old, should be found to be dependent and neglected. After the petition was filed, the court made the child a ward of the court pending further hearing. The court placed the child temporarily under the authority of the probation officer of Ford County and ordered that the child should be placed in the home of Carla and Craig Swagerty. Carla Swagerty is the sister of the natural mother, Carmen Boehm. The child remained in the home of the Swagertys until a temporary court order permitted the child to return to his natural parents in July of 1976. In September of 1976, this temporary order was revoked and the child was again placed under the control of the court and in the home of Carla and Craig Swagerty, where he remained until February of 1977, at which time the child was placed with the petitioner and his wife, Mr. and Mrs. Charles Boardman. An amended petition was then filed asking that the parental rights be severed. On August 16, 1977, the child was found to be dependent and neglected and made a ward of the court. On December 19, 1977, an order was entered finding that the child should remain a ward of the court with care and custody placed in the petitioner and his wife until the natural parents satisfied the requirements of the order to regain custody.
At the close of the proceedings and as part of its judgment, the trial court ordered the petitioner, Charles Boardman, to pay one-half of the court costs, which amounted to $2,269.11. It should be noted that in June of 1977 the petitioner became concerned about the expenses of the hearing and moved the court to determine who would pay the expenses of two witnesses who were to travel from Mission, Texas, to appear at the hearing in Ford County. In the motion, the petitioner stated that he lacked the funds to pay voluntarily the court costs for those witnesses. On June 9, 1977, the court held that the court costs would not be determined until after the final hearing.
Included among the costs that petitioner was required to pay was the fee of the attorney appointed to represent the natural parents who, because of their indigency, were unable to employ counsel. The fee was authorized by K.S.A. 1977 Supp. 38-820. Also assessed as costs was the fee of the guardian ad litem appointed to represent the child pursuant to K.S.A. 1977 Supp. 38-821. In addition to these fees, the costs assessed included the general court costs provided for by K.S.A. 1977 Supp. 38-817(f). Following the assessment of one-half of the costs to the petitioner over his objection, he brought a timely appeal to this court.
We reverse. Under the statutory provisions in effect at the time of the final hearing when the costs were assessed, there was no statutory authority for the assessing of any of the court costs or fees to the petitioner. In Hodges v. Lister, 207 Kan. 260, 485 P.2d 165 (1971), it was held that the taxation of costs is purely a creature of statute and a court has no inherent power to award costs beyond statutory authorization. Various sections of the juvenile code provide for the taxation of fees and general costs. Under K.S.A. 1977 Supp. 38-820 the fee of an attorney appointed to represent an indigent parent who may be deprived of his or her parental rights, is required to be paid from the general fund of the county. Under K.S.A. 1977 Supp. 38-821, the fee of a guardian ad litem appointed to represent and defend on behalf of either the child or a parent who is a minor, mentally ill, or incompetent and whose child is the subject of the proceedings, may be taxed to the parent, conservator, or custodian of the child or the fee may be taxed to the county and paid out of the county general fund. There is no provision for the taxing of this fee to a petitioner who is not the parent, conservator, or custodian of the child.
At the time judgment was entered in this case the taxation of general court costs was governed by K.S.A. 1977 Supp. 38-817(J), which provided as follows:
“38-817. . . .
“(f) At the time fixed in the summons, or by order of the court, the court shall proceed to hear and dispose of the case and enter judgment or decree therein. The court may apply the schedule of fees provided for in K.S.A. 1977 Supp. 28-171, where appropriate, to compute the costs of all proceedings under the Kansas juvenile code and, in the discretion of the court, the costs of such proceedings may be adjudged against the person or persons so summoned or appearing, and collected as provided by law in civil cases, or charged to the county and paid out of the general fund.”
Section (a) of K.S.A. 1977 Supp. 38-817 provided that, upon the filing of a petition to declare a child dependent and neglected, the court shall give notice of the hearing to the child and the parent, guardian, or other person having legal custody of such child or, if there be none, then to some relative or other interested person, if there be one. Section (b) provided that unless the parties shall voluntarily appear or be in court, a summons shall issue in the name of the State of Kansas, requiring the child and the person having custody and control of the child or with whom the child may be, to appear with the child at the place and at the time set in the summons.
Section (c) provided in substance that, unless they shall voluntarily appear or be in court, summons shall also issue to the parents of the child, if living, or to the child’s guardian, if there is one, or, if there is neither parent nor guardian, then to some relative, if there is one. K.S.A. 1977 Supp. 38-817(/), as noted above, provided that the costs of the proceedings may be adjudged against the person or persons so summoned or appearing or charged to the county and paid out of the general fund. We have concluded that, under 38-817(f), court costs could be assessed only against the parent, guardian, or person having the custody and control of the child or to the county general fund. There was no statutory authority for taxing general court costs to a petitioner who was not a parent, guardian, or custodian of the child at the time the proceeding was commenced.
K.S.A. 1977 Supp. 38-716 declares that it is the policy of this state to provide for the protection of children who have been subject to physical or mental abuse or neglect by encouraging the reporting of suspected child abuse or neglect. Furthermore, K.S.A. 1977 Supp. 38-718 declares that anyone participating without malice in the making of an oral or written report shall have immunity from any liability, civil or criminal, that might otherwise be imposed. It seems obvious to us that to permit the trial court in a dependency and neglect proceeding to tax the costs against a petitioner who is not the parent, guardian, or custodian of the child at the time the proceeding is commenced, would thwart the legislative purpose of encouraging the reporting of instances of child abuse or neglect. On the basis of our interpretation of the statutes as discussed above, we have no hesitancy in holding that the trial court erred in taxing one-half of the court costs against the petitioner, Charles Boardman, because at the time the proceeding was commenced, he was neither the parent nor the custodian nor the legal guardian or conservator of the neglected child.
The judgment is reversed and the case is remanded to the district court with directions to assess the costs in accordance with the statutory provisions discussed in the opinion.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Edith Brown, plaintiff-ap pellant, from an order of the district court denying her an allowance of attorney fees under K.S.A. 40-256. Plaintiff was successful in the trial court in an action against Combined Insurance Company of America to recover disability insurance payments under a group policy issued by the defendant. After a jury verdict in her favor, appellant moved for the allowance of attorney fees which was denied by the trial court. This appeal followed. Defendant insurance company has cross-appealed from that part of the judgment of the trial court which established the date of the plaintiff’s total disability. Under the terms of the policy, the date of disability controls the amount of certain payments to be received by the plaintiff.
Appellant was employed as a teller by The Peoples Bank of Pratt, Kansas, from October 19, 1956, to July 31, 1972. Appellee, during this period, issued a group disability insurance plan to the bank. Appellant was enrolled in this plan on May 1, 1966.
Around February, 1969, appellant began feeling ill and made a number of visits to her doctor. During the latter months of 1971, and the spring and summer of 1972, appellant developed a mental illness subsequently diagnosed as Alzheimer’s disease, which has been defined as follows:
“Alzheimer’s disease (ahlts’hi-merz). [Alois Alzheimer, Ger. neurologist, 1864-1915.] Presenile dementia, which is similar to senile dementia but occurs in the 40-60 year age group. The disease has a relentless and irreversible course but may take from a few months to four or five years to go to the stage of complete helplessness.” Taber’s Cyclopedia Medical Dictionary, A-59 (12 ed. 1973).
One of the predominant symptoms of this disease is memory loss.
Appellant retired from her job at the bank on July 31, 1972. There is a dispute over the precise reason for appellant’s retirement. Appellant claimed it was due to memory loss and mental malfunctioning resulting in her being unable to perform her employment responsibilities. Appellee claimed the disease was not contracted until after July 31, 1972, and therefore was not a consideration in appellant’s decision to retire. Both parties presented evidence supporting their contentions. The disease was not diagnosed until May, 1973. Following her retirement, appellant’s mental faculties progressively deteriorated until she became totally incapacitated and she remains so to this day. Homer Brown, appellant’s husband, was appointed her conservator.
In January, 1973, an officer of the bank visited appellant’s home and delivered a manila envelope to Mr. Brown, advising him it contained Mrs. Brown’s insurance policies. It was not until January of 1976 that Mr. Brown examined the contents of the envelope and discovered a certificate of insurance under the policy issued by appellee. Mr. Brown contacted a bank officer who notified appellee of a potential claim for disability benefits by Mrs. Brown. This was approximately three years and six months after appellant retired. By the terms of the insurance policy, appellant’s coverage terminated when she ceased to be employed at the bank and it also contained a proviso requiring written notice of a claim within ninety days of the date of loss. A grace clause made possible the waiving of the ninety day notice requirement in cases where it would not have been reasonably possible to furnish such notice providing notice was given as soon as possible.
Because of the late notice, appellee initially denied coverage but, upon being contacted by appellant’s counsel, agreed to investigate the claim. Appellant contended that the grace clause was applicable thereby preserving her claim. After extended correspondence, appellant filed suit on July 14, 1976, which ultimately resulted in a jury verdict allowing recovery under the policy.
With the foregoing facts before us we will first address the appeal of the plaintiff.
K.S.A. 40-256 provides in pertinent part:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company . . . if it appear from the evidence that such company . . . has refused without just cause of excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action . . . .”
The general rules applicable to the allowance of fees under K.S.A. 40-256 were enunciated by this court in Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P.2d 756 (1970).
“Generally speaking, it is a question for the district court as the trier of the facts to determine whether an insurance company has refused to pay the full amount of an insured’s loss ‘without just cause or excuse’ thereby subjecting itself to payment of an attorney’s fee under K.S.A. 1968 Supp. 40-256. . . .
“It has been held that whether an attorney’s fees are to be allowed depends upon the facts and circumstances of each particular case. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P.2d 937; Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34.) Where the only issue between the parties is a factual dispute with respect to coverage under an insurance policy, and the insurer has refused to pay the full amount of the insured’s loss for such reason, we are of the opinion the phrase ‘without just cause or excuse’ as used in K.S.A. 1968 Supp. 40-256, means a frivolous and unfounded denial of liability. However, if there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay ‘without just cause or excuse.’ And whether there was any reasonable ground for contesting the claim depends upon circumstances existing when payment is withheld or liability is declined. It is not necessarily determined by the outcome of the ensuing litigation. (Wolf v. Mutual Benefit Health & Accident Association, supra [188 Kan. 694].) The statutory penalty is not to be imposed merely for the reason that it turned out at the trial in the district court, there was, in reality, no reason for denial of liability. The question is, how did the matter appear before the trial as judged by a reasonable and prudent man seeking to determine the facts of the controversy which it was his duty in good faith to investigate.” pp. 564-565.
See also Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973).
Before attorney fees can be awarded under K.S.A. 40-256, it must first appear that the insurance company “refused” to pay appellant’s claim. Sloan v. Employers Casualty Ins. Co., 214 Kan. 443, 521 P.2d 249 (1974); Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 491 P.2d 917 (1971). Prior to such “refusal”, the insurance company has a duty to make a good faith investigation of the facts. Lord v. State Automobile and Casualty Underwriters, 208 Kan. at 234; Koch, Administratrix v. Prudential Ins. Co., 205 Kan. at 565. The “refusal to pay” need not be an express one as “constructive” refusal will suffice. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 627, 567 P.2d 1359 (1977). Appellant argues that the appellee failed to make a good faith investigation of her claim. While it is true the defendant did not make an on-the-scene formal investigation, it sought through letters to appellant’s counsel and the bank to verify the nature of appellant’s illness, when it occurred, the reason for the termination of Mrs. Brown’s employment and other information necessary to properly evaluate the claim. The learned trial court filed a memorandum decision stating:
“MEMORANDUM DECISION
“(Matter of Allowance of Attorney Fees)
“I have carefully reexamined the written evidence submitted at the time argument was heard in this matter, also the authorities cited, and, without the benefit of a transcript, I have also reviewed the evidence presented at the trial of this matter. I am simply unable to find in this case that the defendant insurance company ‘refused without just cause or excuse to pay the full amount of the loss’. The Supreme Court has construed the phrase ‘without just cause or excuse’ as used in K.S.A. 40-256 as meaning ‘a frivolous and unfounded denial of liability’. I have concluded that the defendant had good cause and ample reason to submit the matter to a jury and should not be penalized for doing so.
“Here are my reasons:
“1. The long delay in submitting the claim. Some 42 months elapsed from the time Edith Brown became eligible to recover on this policy to the time the defendant was notified that she had a claim. It is quite true that the jury excused her for this long delay, but it cannot be denied that the defendant was at least to some extent prejudiced in making a proper investigation of the matter. Indeed it seems to me that the defendant was justified in requiring that the matter be submitted to a jury on the notice issue if for no other reason.
“2.1 do not wish to decide this matter on a technicality, but I am not at all sure that the defendant had actually gotten to the point of finally refusing to pay the claim prior to the time suit was filed. The company’s letter of June 4, 1976, indicates that investigation was continuing.
“3. Although the date and reason Edith Brown terminated employment with The Peoples Bank was of utmost importance to the defendant in evaluating this claim, much confusion is found in the correspondence to the defendant, both by counsel for plaintiff and the Bank, as to such date. As late as May 18,1976, counsel was advising the defendant company that Edith Brown’s employment continued until December 31, 1972.
“4. The evidence presented at the trial by this matter easily convinced the jury and this Judge that Edith Brown was ‘wholly disabled’ during the month of August, 1972, and became entitled to benefits under the terms of the policy, but the testimony of friends and fellow employees was the determining factor in the jury reaching its verdict. There was no evidence that the defendant company was ever advised prior to suit being filed as to what these persons would testify to. On the other hand, certain medical testimony was furnished to the defendant, but these evaluations were all made some months after she terminated her employment, and for this reason were not much help to the defendant in evaluating the claim.
“5.1 have a strong feeling that had the Bank, when called upon to do so, frankly and without equivocation, notified the defendant that in their opinion Edith Brown became unable to perform her duties as teller during the early summer of 1972, and was terminated on August 1, 1972 for that reason, the defendant company would have taken a more positive attitude in handling this claim and perhaps this lawsuit could have been avoided. The Bank’s attitude and failure to act in a positive way cannot, of course, be blamed on the plaintiff, but neither can it be blamed on the defendant.
“6. Along the same line, Dr. Black’s statement of April 23, 1976, regarding the condition to Edith Brown’s health during the critical period of 1972, was anything but convincing that she was entitled to recover under the terms of the policy.
“I realize that counsel for plaintiff relies heavily on the rule of ‘good faith investigation’ and cites Lord vs. State Auto and Casualty Underwriters, 208 Kan. 227; Brown vs. Continental Casualty Company, 209 Kan. 632, and Matthew vs. Travelers Insurance Company, 212 Kan. 292.1 have read these cases and I agree with what is said in Syllabus 2 of the Matthews case. I quote:
‘2. Insurance — Payment of Claim — Bona Fide Question of Liability — Good Faith Investigation. With respect to the application of the provisions of K.S.A. 1972 Supp. 40-256 an insurance company is not required to pay a claim without litigation where a bona fide question of liability exists, but the company is under an obligation to conduct a good faith investigation into the facts before it finally denies liability and refuses payment.’
“The trouble comes when we try to apply what is said above to the situation before the Court. I feel it is safe to say that the company was, at least to some degree, dragging its feet on its investigation, but considering the matter as a whole I am not ready to find that it had finally denied this claim without making a good faith investigation, in fact I am not at all sure it had finally denied the claim at all.
“The matter of assessment of attorney fees is to be determined on the facts and circumstances of each particular case. This case contains a rather odd set of circumstances and I must refuse to order the defendant to pay attorney fees.
DATED OCTOBER 21st, 1977.”
The decision of the trial court was adequately supported by the evidence and we find no error in his holding that plaintiff was not entitled to recover attorney fees under K.S.A. 40-256.
We next turn to the cross-appeal of the defendant insurance company. Although the jury returned a general verdict to the effect that Mrs. Brown became totally disabled while employed at the bank and at a time when the group insurance policy was in effect, the determination of the actual date of total disability was left to the trial judge. The trial judge found such date to be July 31, 1972, the date of the termination of Mrs. Brown’s employment. The dispute arising around the date of disability is important as it affects the amount of the disability payments to be received by Mrs. Brown. Under the original group policy the benefits for total disability consisted of 50% of the disabled employee’s base pay for a period of five years and 25% for the second five years of disability. Effective May 1, 1972, the payments to be paid during the second five year period were increased by a “rider” issued by the company to 37-14% of the employee’s base pay. There was no change in the amount to be paid during the initial five year period as it remained at 50%.
Before proceeding to the merits of the defendant’s contentions we must first consider a procedural matter. Appellant has filed a motion with this court to dismiss the cross-appeal of the defendant on the grounds defendant has acquiesced in the judgment by paying into court, on December 16, 1977, the court costs and the sum of $10,738.75 in partial satisfaction of the judgment. This amount evidently represents the amount due Mrs. Brown for the first five years of her disability under the 50% clause in the policy and, not being in dispute, will not be affected regardless of our decision on either the appeal or cross-appeal. It has long been the rule, with certain exceptions, that the payment of costs by an appellant or any other action that indicates an acquiescence in the lower court judgment bars an appeal. Gordon v. Gordon, 218 Kan. 686, 545 P.2d 328 (1976); Howell v. Howell, 142 Kan. 323, 46 P.2d 866 (1935); Moffett v. Moffett, 142 Kan. 9, 45 P.2d 579 (1935), and cases cited therein. See also West’s Kansas Digest, Appeal & Error § 154(1), and 4 Am. Jur. 2d, Appeal and Error §§ 250-259. The basis for the general rule is that one who has acquiesced in or accepted the benefits of a judgment cannot thereafter take an inconsistent position and be heard to complain on appeal that the judgment is erroneous. However, numerous exceptions to the rule have developed and it is now generally held that in divorce cases the acceptance of periodic alimony payments does not preclude an appeal based upon the insufficiency of such payments. Gordon v. Gordon, 218 Kan. 686. In Wollard v. Peterson, 145 Kan. 631, 66 P.2d 375 (1937), this court in considering a motion to dismiss stated:
“A preliminary question arises on the suggestion of the plaintiff that the defendant surety company is estopped to assert error in the judgment a portion of which it has paid. The rule in Kansas is that acquiescence in a judgment, even to the extent of paying costs, is a bar to the right to take an appeal (Paulsen v. McCormack, 133 Kan. 523, 1 P.2d 259), and of course Kansas has uniformly held that the acceptance of proceeds of litigation or the benefits derived from the judgment amounts to a waiver of any error in the whole trial, but the acceptance of benefits and the acquiescence in a part of the burden of a judgment are two very different things, and no Kansas authority has been pointed out as to such a rule applying to acquiescence in some of the distinct and separate burdens of the judgment and appealing as to others. The question is whether one is estopped from showing errors in a proceeding where he submits to a burden imposed by the court as to one or more separate and distinct features of the judgment and appeals from others.
“It is said in 2 Am. Jur. 978:
‘Another exception to the general rule has also been applied in the case of a decree consisting of two separate, distinct, and unrelated parts, the disposition of either of which can in no wise affect the decision as to the other.’
“It is also said in 4 C.J.S. 396:
‘The right of appeal is favored by the law, and it will not be held to have been waived except upon clear and decisive grounds, and, where a judgment or decree involves distinct and severable matters or demands, a waiver or estop pel as to only one or a part thereof will not prevent an appeal as to the residue.’ ” pp. 632-633.
The rule set forth in Wollard was approved and followed in the recent case of In re Estate of Moore, 219 Kan. 719, 725, 549 P.2d 981 (1976). See also Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, 549 P.2d 927 (1976). In the instant case the insurance company in its cross-appeal is not attacking the general verdict of the jury and does not now contend that it is not liable under the policy. It also concedes that there is no argument about the amount of its payments to be made to Mrs. Brown during the first five years of her disability. The record shows that Mrs. Brown’s unfortunate affliction has taken its toll and she now requires full time care and attention. Under such circumstances, the action of the insurance company in paying such sums as are not in contention on appeal is to be encouraged and it should not be penalized for having done so. Likewise, Mrs. Brown, if she has accepted such payment, should not be penalized. We hold that when a party to an appeal has paid any portion of a judgment rendered against such party, including the costs, such party will not be deemed to have acquiesced in the judgment so long as the issues on appeal cannot affect the payments made and the payment thereof is not involved in the issues on appeal. Likewise, any party to an appeal who accepts such payment shall not be deemed to have acquiesced in the judgment so long as the issues on appeal do not affect the obligation for the payment of or the right to receive such portion of the judgment. With the ever increasing costs of medical care and the high rate of inflation, the payment of sums acknowledged to be due from one party to another, and which are not involved in the appellate process, is to be encouraged rather than discouraged. We also hold that in such a case the payment of costs in the trial court by the appellant, when the assessment and amount of such costs cannot be affected by the decision on appeal, does not constitute such an acquiescence in the judgment that the appeal must be dismissed. Our prior cases to the contrary are overruled. The appellant’s motion to dismiss the cross-appeal is denied.
We now turn to the merits of the cross-appeal. Defendant-appellee argues that the determination of July 31, 1972, as the date of total disability is contrary to the evidence and contrary to the arguments and position of the plaintiff. While it is true the plaintiff took the position that she became totally disabled no later than April 1, 1972, there was also evidence to the contrary. The trial court took the logical position that considering the nature of Alzheimer’s disease there was no specific date on which one could say Mrs. Brown suddenly became totally disabled. The nature of the disease precludes any distinct and specific instant or day when the disease renders one totally disabled.
In determining the definition of “disability” it is necessary to refer to the insurance contract. Initially, we recognize the general rule that a contract of insurance is to be strictly construed against the insurance company which prepared it and in favor of the insured. St. Francis Hospital & School of Nursing, Inc. v. Eckman, 212 Kan. 131, 510 P.2d 175 (1973).
Appellant’s Certificate of Insurance provides the following with regard to monthly sickness indemnity:
“(1) If Sickness shall continuously, necessarily and wholly disable the Insured and prevent him from performing each and every duty pertaining to his usual business or occupation, and the Insured is under the regular care and attendance of a legally qualified physician or surgeon other than the Insured, the Company will pay periodically, commencing with the first day of disability following the applicable Elimination Period stated in the Schedule of Benefits, the applicable Monthly Indemnity stated in the Schedule of Benefits . . . .” (Emphasis supplied.)
This provision requires a continuous, wholly disabling sickness that prevents the insured “from performing each and every duty pertaining to his usual business.” If allowed, benefit payments are to commence with the “first day of disability.” While Alzheimer’s disease is in its early stages an employee is still capable of performing his or her duties. At some point in time the illness inevitably renders the employee disabled to adequately carry out his duties.
Similarly, it appears appellant was not continuously and wholly disabled until her forced retirement on July 31, 1972. Appellant could not have made a claim prior to this time because the disease was only in the process of rendering her totally disabled. The record reveals that appellant worked until July 31, 1972, although her illness caused a high rate of absenteeism. Co-workers testified to specific instances where appellant couldn’t get her window to balance or remember her customers. These occurred in the latter part of 1971 and early in 1972. However, the bank officers saw fit to keep appellant on the job performing her duties. Not until July, 1972, did they seek to work out an arrangement with appellant so that she could retire. It was at this time the bank officers found it necessary to terminate appellant’s employment because she could no longer perform her duties. Her employment was terminated July 31, 1972. It was not illogical for the trial judge to determine that date as the date of disability and his determination is supported by credible evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
HortON, C. J.:
In the former opinion banded down in this case, prepared by SimpsON, C., it was asserted that Martin Stewart, the resident land-owner, who signed the petition for the improvement of the county road complained of, was not estopped by his acts or conduct from successfully prosecuting his action of injunction to restrain the collection of the special taxes levied on his land to pay the cost of grading and paving the county road known as the “Quindaro boulevard.” We have reexamined that opinion and various decisions affecting, the question involved, and we are now of the opinion, without passing upon the constitutionality of the statute, that facts are disclosed in the record which amount to an estoppel against Stewart. The special facts found by the trial court show that Stewart lived in the immediate vicinity of the work during its entire progress; that he was present upon the work at different times; that he signed the petition presented to the county board, and circulated and filed it with the board; that he knew the contents of the petition; that he knew a majority of the resident landholders within the half-mile limit had not signed the petition; that he presented the petition to the board, and asked that the improvement be made; that he knew of the fatal defect in the petition; that he knew that his property would be taxed for the improvement; that he knew at the time the work was being done that one-inch cypress plank was being used therefor; that he complained to the commissioners about using one-inch instead of two-inch plank; that at the time the apportionment was made, he filed a protest against the cost being'taxed to him; that his property lies contiguous to the improved road, and was greatly enhanced in value by reason of the improvement, much in excess of the tax imposed upon him for the improvement.
In Sleeper v. Bullen, 6 Kas. 300, it was decided that—
“A contract made by the city council, under chapter 70, Laws of 1867, for grading a street in Leavenworth city, without a sufficient petition having first been presented to the council, is, and all the proceedings under such contract are, void as against the lot-owners. A lot-owner who has notice of all the proceedings and makes no objection, but, on the contrary, encourages the contractors to do the grading, and tells them that they shall be paid therefor, is not entitled to an order of injunction to restrain the collection of a special tax levied on his lots to pay for said grading.”
In Lee v. Tillotson, 24 Wend. 337, it was held in New York that—
“A party may waive a constitutional as well as a statute provision made for his own benefit. The contrary argument would deprive a criminal of the power to plead guilty, on the ground that the constitution had secured him a trial by jury.”
In Ferguson v. Landram, 5 Bush, 230, it was said:
“Upon what principle of exalted equity shall a man be permitted to receive a valuable consideration through a statute procured by his.own consent, or subsequently sanctioned by him, or from which he derives an interest and consideration, and then keep the consideration and repudiate, the statute as unconstitutional.”
In Daniels v. Tearney, 102 U. S. 415, it was also said that—
“ It is well settled as a general proposition, subject to certain exceptions not necessary to be here noted, that, where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense, although such unconstitutionality may have been pronounced by a competent judicial tribunal in another suit. In such cases the principle of estoppel applies with full force and conclusive effect. . . . The principle of estoppel thus applied has its foundation in a wise and salutary policy. It is a means of repose. It promotes fair dealing. It cannot be made an instrument of wrong or oppression, and it often gives triumph to right and justice, where nothing else known to our jurisprudence can, by its operation, secure those ends. Like the statute of limitations, it is a conservator, and without it society could not well go on.”
“A party is, as a general rule, not estopped to deny the constitutionality of the statute which assumes to confer authority to order improvements and direct assessments by a mere failure to actively oppose improvements which he knows are being made. This is obviously the correct rule, for without a valid statute there can be no jurisdiction, and parties are incapable of conferring jurisdiction of the subject, although they may confer jurisdiction of the person. But when the doctrine is pressed farther there is much difficulty, for the rule as now established by the weight of authority is, that a party who procures or actively aids in procuring the enactment of an unconstitutional statute and accepts benefit under it cannot question its validity. It would require a very clear and strong case to warrant the application of this rule to street assessments, and yet such a case is conceivable. The fact that such a rule exists proves that the courts will.carry the principle of estoppel to great lengths in the interests of justice, and proves, also, that the courts which confine the operation of the principle of estoppel in assessment cases to mere irregularities have gone astray.” (Elliott, Roads and St. 422; The State v. Mitchell, 31 Ohio St. 529; Burlington v. Gilbert, 31 Iowa, 356; Motz v. Detroit, 18 Mich. 526.)
That “the principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached upon other grounds,” is not an open question. (See Counterman v. Dublin Tp., 38 Ohio St. 515; Tone v. Columbus, 39 id. 281, 308; The State v. Mitchell, supra.)
Under the decision in Sleeper v. Bullen, supra, the special taxes levied for grading .were held illegal, and it was further held that the city had no legal right to sell the lots of Sleeper, yet Sleeper was denied an injunction in that case, because he had encouraged the contractors to do the grading. (See, also, Ritchie v. City of South Topeka, 38 Kas. 368.)
This case is unlike Barker v. Comm’rs of Wyandotte Co., ante, p. 681, because in that case Barker refused to sign the petition for the improvement when it was presented to him, and is also unlike the case of Comm'rs of Wyandotte Co. v. Barker, ante, p. 699, because in that case it was sought to estop Barker by mere silence and inaction. Here, Stewart instituted the proceedings which led to the improvement and the assessment complained of. He was a willing and active consenting party in the whole matter. Whether, therefore, the tax be legally valid or not, there is no good ground upon his part for claiming the interposition of a court of equity by its extraordinary process of injunction to stay the collection of the tax against his property. (Tone v. Columbus, 39 Ohio St. 281, 308, and cases there cited; Cooley, Tax. p. 573.)
It is claimed, however, that this is a statutory action, having been brought under § 253 of the civil code, and therefore that it is not a suit in equity. Ohio has a statute somewhat similar. It was said in Steese v. Oviatt, 24 Ohio St. 248, that—
“The act of May 1, 1856, (S. & C. Rev. St. 1151,) gives to the courts jurisdiction to restrain the collection of taxes illegally assessed; but the jurisdiction thus conferred is an equitable jurisdiction, and is to be exercised upon equitable principles. Proceeding under the statute, the party complaining is not required to show a case of threatened irreparable injury, or the absence of a remedy by ordinary legal proceed ings; but be must exhibit a case in which, upon the merits, he is entitled to the equitable relief demanded.”
This case was followed in Stephen v. Daniels, 27 Ohio St. 527. It is there stated:
“That this is a statute creating new statutory rights of action not theretofore existing is, in the opinion of a majority of the court, quite clear. . . . The tax-payer, stripped of any valuable or practical remedy for the injuries inflicted under color of law and by authority of the state, was almost powerless. To provide a proper remedy was the object of this law. It was a legislative recognition of a fundamental duty enjoined by the constitution of the state, that, while the power to tax was essential to government, the duty of protecting the citizen from illegal exactions under the name of taxes, and under the forms of law, was not to be forgotten or neglected. It being, therefore, remedial in its character, it should receive that construction, if the words will reasonably admit, that will effect the manifest intention of the legislature and remedy the evil. It gives a remedy by injunction on the application of a single person taxed when none existed before. In his application he need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law, but only that the tax is illegal which is about to be assessed or collected. (Steese v. Oviatt, 24 Ohio St. 253.) It thus becomes apparent that a new equitable remedy was given by this statute.”
In Tone v. Columbus, supra, it was said:
“Under section 24 of the act, the city council had no right to authorize the improvement until such two-thirds of the owners had petitioned the council for the privileges of the act. We have no doubt that this requirement of the law may be waived by the owners, or that they may by their acts, and under circumstances by their inaction, estop themselves from alleging its failure.”
See, also, City of Ottawa v. Barney, 10 Kas. 270. In that case, Mr. Justice Brewer said:
“It alleges that the assessment actually made upon one lot was $184.80, while a legal assessment would not have exceeded $50, and that a similar proposition existed as to the other lots. It nowhere alleges payment or tender of the amount due under such legal assessment. He who seeks equity must do equity. The plaintiffs below admit they owe something, but deny that they owe all that has been assessed. Before injunction will lie under these circumstances, they must pay or tender what they owe.”
The cases of City of Ottawa, supra, and City of Lawrence v. Killam, 11 Kas. 499, were decided by this court after §253 of the civil code had been adopted. We must therefore conclude that, although § 253 of the civil code gives an enlarged or additional remedy to the tax-payer, yet if the tax or assessment is illegal, and it is shown that the principles of estoppel apply against the tax-payer, the jurisdiction of the court under the statute is to be exercised upon equitable principles, and the tax-payer, to succeed, must exhibit a case “in which, upon the merits, he is entitled to the equitable relief demanded.” (Steese v. Oviatt, supra.) We now decide, upon the facts found, that the motion for a rehearing be granted; that the judgment of reversal heretofore entered be set aside, and that the judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
JohnstoN, J.:
This action was brought by plaintiffs in error to recover damages for certain horses and colts alleged to have been killed through the negligence of the railroad company. After they had offered their testimony, a demurrer to the same was interposed by the railroad company, on the ground that the evidence offered did not prove a cause of action in their favor and against the company. The court sustained the demurrer and rendered judgment for the company. After the rendition of the judgment, a motion for a new trial was made and overruled, and the plaintiffs then instituted this proceeding to secure a reversal, alleging three grounds of error: First, the exclusion of evidence; second, the sustaining of the demurrer to plaintiffs’ evidence; and, third, the giving of judgment for defendants instead of plaintiffs; but the overruling of the motion for a new trial was not assigned for error.
At the submission of the case in this court, an application was made to amend the petition in error by adding a new assignment of error upon the action of the court in overruling the motion for a new trial. The amendment was permitted to be filed, subject to such objections as defendant in error might make, the court reserving its decision on the effect of the amendment until the final disposition of the case.
It is contended that the testimony offered on the trial tended to sustain the cause of action alleged by plaintiffs, and that the court erred in sustaining the demurrer and taking the case from the jury. This ruling, like all others occurring on the trial, is not available on error, unless a motion for a new trial be made and filed within the time prescribed by law. (Gruble v. Ryus, 23 Kas. 195; Norris v. Evans, 39 id. 668.) Nor can any of the points or questions involved, and which were subject to review upon the motion for a new trial, be considered in this court, unless the overruling of that motion is assigned for error. (Carson v. Funk, 27 Kas. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; City of McPherson v. Manning, 43 id. 129.) We are therefore precluded from reviewing any of the rulings complained of, unless the petition in error may be and is treated as amended in accordance with the application made by plaintiffs.
The defendant objects to the amendment and the consideration of the order overruling the motion for a new trial, for the reason that more than one year has elapsed since the order was made. S.ection 556 of the civil code provides that “No proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of,” except in cases where the person entitled to such proceeding be under disability.
The judgment in the case was rendered in November, 1886, and the petition in error was filed in this court on August 27, 1887. The motion for a new trial was made and overruled after the rendition of the judgment and on November 16, 1886, while the application to amend the petition in error and assign the overruling of the motion for a new trial as error was not made until January 6, 1891, more than four years after the ruling complained of was made.
We think the application to amend was made too late. Such applications are usually allowed as a matter of course, if made within a year after the final order or judgment complained of is given. Even, after that time, if the amendment requested related to matters of form only, or the new error assigned was involved in the final judgment or order of which complaint was made, the amendment would ordinarily be permitted upon such terms and conditions as the court might deem just. But where the new assignment of error is not involved in the assignment already made, but states a new and distinct cause of complaint, the amendment cannot be made after the lapse of the period of limitation. It has been held, in cases where the order overruling the motion for a new trial followed the rendition of the judgment, and the petition in error was not filed in the supreme court until more than a year after the rendition of the judgment, but within less than one year after the motion for the new trial was heard and overruled, that the court could not review the judgment or other ruling of the court, except the order 'overruling the motion for a new trial and such other orders or rulings as are necessarily involved in the ruling upon the motion for the new trial. (Osborne v. Young, 28 Kas. 709; Dyal v. City of Topeka, 35 id. 62; Bates v. Lyman, 35 id. 634.) The order complained, of was not involved in .the judgment, nor included in any of the original assignments of error, but was a distinct and independent ground of complaint, and therefore it is barred by the limitation and not reviewable at this time. See, also, Blackwood v. Shaffer, 44 Kas. 273; same case, 24 Pac. Rep. 423; 13 Am. & Eng. Encyc. of Law, 746.
Nothing further remains for our consideration,' and therefore the judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an injunction proceeding, begun in the district court of Wilson county by the de fendant, to enjoin the plaintiff from committing waste upon the land described in the petition. The defendant answered:
“1. A general denial.
“2. Alleges ownership of the land in fee, and peaceable possession thereof.
“3. Denies the execution of the contract under which the plaintiff claims to be the equitable owner of the land.
“4. Alleges the plaintiff’s claim is a cloud upon his title, and asks to have title to the land quieted in him.”
The plaintiff below replied by a general denial. The court directed a jury to be impaneled and submitted to them the following question :
“Did the defendant execute the written contract of which a. copy is attached to the plaintiff’s petition, marked ‘A’ ? A. Yes.”
The court also permitted the parties to submit the following questions to the jury.
BY THE PLAINTIFF:
“ Q,. Did the defendant sign his name to the contract, the base of this action? A. Yes.
“Q,. Did the defendant sign his name to the promissory note for $1,000 offered in evidence? A. Yes.”
BY THE DEFENDANT:
“Q,. Did Mrs. Johnson pay Holmberg ■ anything for the contract sued upon? A. Yes.
“Q,. If she paid him anything on the contract, what did she pay him in? A. In notes.
“Q,. How much did she pay him for the contract in controversy, if she paid him anything? A. $2,850.
“Q,. Was Holmberg indebted to Mrs. Johnson at the time this (contract) purports to have been executed, viz., December 3, 1884? A. Yes.
“ Q,. If the answer to the above question is in the affirmative, how much was he indebted to her at that time ? A. $2,850.
“Q. Did Holmberg receive any consideration for the contract sued on? A. Yes.”
The defendant moved to set aside the findings of the jury, a.nd for a'new trial. Motion overruled, and judgment pefr petually enjoining the defendant from committing the waste complained of, and for costs entered.
The plaintiff in this court says the petition does not state a cause of action because it does not aver the insolvency of the defendant. This court says, in Snyder v. Hopkins, 31 Kas. 557: “Doubtless injunction will lie at the instance of the owner, to restrain the cutting of timber, quarrying of rock, mineral, or any other act which is in the nature of waste,” and cites Iron Co. v. Reymert, 45 N. Y. 703, and Wilson v. Mineral Point, 39 Wis. 160.
We think the authorities approve of the allowance of injunctions to restrain waste, as distinguished from mere trespass. (High, Inj., §§419-457.)
So far as the second complaint is concerned, we think the plaintiff misapprehended the language of the amended petition. It does not read as the plaintiff seems to think in his brief it does.
The plaintiff does not, in this proceeding, ask for specific performance. This statement disposes of the third complaint.
In the fourth complaint, plaintiff avers that the court erred in permitting the defendant in error to offer evidence of the genuineness ■ of the signature of Holmberg to other papers than the contract sued on. It is the established law of this state, and of many other states of this country, to permit proof of the genuineness of a disputed signature by comparison with other signatures, on other instruments in writing, admitted or proved to be genuine. (Macomber v. Scott, 10 Kas. 335; Joseph v. National Bank, 17 id. 256; Ort v. Fowler, 31 id. 478; Woodman v. Dana, 52 Me. 9; The State v. Hastings, 53 N. Y. 452; The State v. Ward, 39 Vt. 225; Tyler v. Todd, 36 Conn. 218; Koons v. The State, 36 Ohio St. 195; 33 Iowa, 540.)
Plaintiff also says the court erred in excluding the expert testimony of Dr. Willits, as to the sickness of Holmberg, and its effect upon his mind. As the sickness of Holmberg pccurred a considerable time after, .the execution' of the contract in question, .it could. hardly throw .any light .upon its execution. And besides, there was nothing in the pleadings justifying an attempt to avoid the contract upon any such ground.
The sixth and seventh grounds of complaint relate to the action of the court in refusing to open the case and hear further evidence three days after it was tried. The opening of a case by the court for the purpose of hearing further testimony is a matter lodged in the discretion of the trial court, and this court cannot reverse the action of the court in refusing to open a case for such purpose, unless satisfied that the trial court has abused its discretion.
We cannot say a trial court abused its discretion in refusing to open a case three days after the trial thereof had closed.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
George Merrill brought this action in the district court of Reno county to recover two lots situate in the city of Hutchinson. Henry King was the fee-simple owner of the lots for several years prior to May 10, 1877, at which time he executed a conveyance of the same to the plaintiff, but the deed was not recorded until more than ten years had elapsed. Merrill now claims title and right of recovery under this conveyance. Hutchinson, the defendant, claims title through certain tax proceedings and a conveyance made to him by Henry King and wife on July 16, 1885. It appears that King paid the taxes on the lots until 1877, and not being paid for that year, the lots were sold for taxes, and were bid in by the county. No taxes thereon were afterward paid by any one until January, 1883, when the tax certificate was assigned to L. A. Bigger, and a tax deed was executed to him on January 16, 1884, which was recorded on the same day. Bigger paid taxes thereon up to 1885, and about that time he sold the property to Isaac A. Kitzmiller, but the deed was not executed until March 17, 1886, and it was recorded on March 24,1886. On April 12, 1886, Kitzmiller and wife conveyed the lots to William E. Hutchinson, and on July 16, 1885, He.nry King and wife executed a quitclaim deed, purporting to convey the property to Hutchinson, which instrument was recorded on July 17, 1885.
The plaintiff contends that the tax proceedings were irregular in two respects, and this is not denied by the defendant; and hence we may assume that the tax proceedings alone will not sustain the defendant’s claim of title. It is said by the defendant that the court below held against the validity of the tax proceedings; but it also held that the quitclaim deed of Hutchinson was obtained from King after making diligent inquiry to ascertain the condition of the title, and without notice of the unrecorded deed of plaintiff, and therefore adjudged the quitclaim deed to be superior to the prior unrecorded deed of plaintiff. This is the only question in the case.
It appears that when King conveyed the lots to Hutchinson, he had forgotten the previous conveyance to Merrill, and he supposed that he still held the original title to the lots and the complete title except as it was affected by the tax title which had been taken, and which had then passed to Hutchinson. Before purchasing the lots from KiDg, Hutchinson searched the records, and in good faith made diligent inquiry and examination as to the condition of the title, and found nothing indicating the prior conveyance, or that Merrill had or claimed any interest in the property. Kitzmiller had taken possession of the lots and made permanent improvements thereon before the purchase of the same by Hutchinson. None of the parties connected with the tax proceedings, or who paid tbe taxes, or who took possession and made improvements on the property, knew anything of the prior deed, and Merrill did not disclose the fact until long after the tax deed and subsequent conveyance had been placed on record, nor for a long time after the permanent improvements had been made.
The plaintiff urges that the defendant cannot be regarded as a bona fide purchaser, and cites Johnson v. Williams, 37 Kas. 179. It was there held that where the grantor gives only a quitclaim deed, the purchaser is put upon inquiry; but it was not decided that the mere taking of such a deed deprived him from being considered a bona fide purchaser under all circumstances. It was said that “A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.” In deciding the case, however, it was remarked, that —
“It may be that with reference to some equities or interests in real estate, the purchaser who holds only under a quitclaim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret and concealed, and not only unknown to the purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. It is possible also that a purchaser taking a quitclaim deed may under the registry laws be con sidered a bona fide purchaser with reference to a prior unrecorded deed with respect to which he has no notice nor any reasonable means of obtaining notice.”
The facts of the present case bring it within the suggestion made in the cited case, and we think the rule suggested should be adopted for the determination of this controversy. (See authorities cited in Johnson v. Williams, supra.) The form of the deed alone did not conclude Hutchinson, nor prevent him from becoming a purchaser in good faith; it- simply operated as a warning to him, and put him upon inquiry. It was his duty then to look further, and ascertain why the deed was made without covenants of warranty; and he took it loaded with such outstanding equities or interests as he might have discovered by the exercise of reasonable diligence. As we have seen, he examined the records, inquired of those in possession, and who paid the taxes thereon, and of every one who had any apparent interest in the property, and could not learn from any of them that Merrill had any claim upon the property. And King, the owner of the record title,-to whom Hutchinson applied for a deed, had forgotten the conveyance to Merrill, so that it could not be learned from that source. The reason why King gave and Hutchinson took a deed without covenants of warranty was the outstanding tax title, under which parties had taken possession and made improvements; and these circumstances justify the making of a quitclaim deed, and would naturally set at rest any doubts which might arise in the mind of Hutchinson on account of the form of the deed. He paid a fair consideration for the lots, and although his conduct has been criticised we find nothing in it to impeach his good faith. It may be remarked that the deed from King purported to convey the property, and did not in terms limit the conveyance to the mere interests of the grantors, nor did it contain any express restriction upon an absolute conveyance. King evidently intended to convey a complete title to the property, except that which had been acquired through tax proceedings, and Hutchinson supposed and had a right to suppose that having acquired the rights of the tax-title purchaser, and a conveyance from King, he was vested with a complete and perfect title. The interest of Merrill was so concealed as to be undiscoverable by any reasonable search, and his conduct in the premises does not appeal strongly to the equitable consideration of the court. He purchased the property when it was of little value, and withheld the deed from record for about ten years. During this time he paid no taxes and made no improvements thereon, and did nothing to disclose his ownership. With au unrecorded deed in his pocket, he stood by while others who had obtained deeds placed them on record, erected buildings and other improvements on the lots and paid accumulated taxes thereon, never intimating that he held an interest in the property. After the value of the property had been greatly enhanced by the improvements made, and by the growth and general prosperity of the city, he uncovers a deed and asserts title. The act relating to conveyances provides for the recording of all instruments conveying real estate or whereby any real estate may be affected, and that from the time of filing the same with the register of deeds they shall impart notice to all persons of the contents of the instruments, and that all subsequent purchasers and mortgagees shall be deemed to purchase with notice. It then provides that ano such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Gen. Stat. of 1889, ¶¶ 1128, 1129, 1130.) The duty of placing the deed on record was enjoined by the statute and required by public policy; but the plaintiff ignored both, and it is now too late for him to assert his title against' one who purchased in good faith and without notice of ^the outstanding interest. Even a purchaser at sheriff’s sale, other than a judgment creditor, who has parted with value on the strength of the record, and that there are no outstanding equities or titles which are discoverable by ordinary diligence, is entitled to the protection of the recording act. As to him, it has been said:
“If the record shows the title clear in a party, and the pur chaser has no notice of any outstanding equities or titles, he may as a rule safely purchase from such party, and the holder of the unrecorded title is estopped to set up his title as against one who purchasing bas parted with value on the strength of the record. ' And this is true, whether the purchaser obtains title from the apparent owner by voluntary conveyance, or purchase at a sheriff’s sale.” (Lee v. Birmingham, 30 Kas. 312.)
In the same case it is remarked that —
“Every claimant of title owes a duty of notice to the public. Generally speaking, the record is the means of information ; and the spirit of our laws is to encourage reliance upon the record. Where that fails and the claimant knows of the failure, he owes to the public the duty of in some way making good the omission, and if he is derelict in this duty, he may be estopped from afterward setting up his title against one who has purchased and parted with value on the strength of the record.”
In Lewis v. Kirk, 28 Kas. 505, it is said that—
“A purchaser in good faith of real estate is never bound to take notice of secret equities, liens, interests, trusts, or in-cumbrances, which cannot be discovered from an inspection of the public records, or cannot be ascertained by inquiries from the parties in possession. He may always rely upon the public records, and such inquiries as they suggest, and such inquiries as are proper of the parties in possession; and if, from all these, the title appears to be clear, he will then obtain a good title, although there may be some outstanding equity or lien in favor of some other person.”
The defendant acted in good faith and was not derelict in examining the record or in making inquiries of those in possession or of those likely to know of outstanding equities or titles. The plaintiff, on the other hand, was at fault in failing to give the notice which the law and fair dealing with the public requires. In consequence of his fault, the property was purchased for a valuable consideration, taxes were paid and improvements made thereon, and he who is in fault should suffer the loss which his conduct has occasioned.
We think the title of the defendant under the quitclaim deed is paramount to that of the plaintiff, and the ruling of the district court must be upheld.
The judgment will be affirmed.
All the Justices concurring.
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Opinion by
GreeN, C.:
This action was commenced in the district court of Washington county, by J. C. Bowers & Sons, to foreclose a lien upon certain real estate for iron fencing, gates and posts furnished by them to E. C. Knowles, one of the defendants in the court below, who held the land upon which the lien was claimed under a bond for a deed from J. B. Besack. E. C. Knowles assigned his interest in the property to Edwin Knowles, and the same was afterward assigned by him to the plaintiffs in error, who received a deed from J. B. Besack and wife, having complied with the terms of the original contract to convey. Service was made upon E. C. Knowles by publication. The other defendants answered that the material had never been used in the erection, alteration or repairs of the fences upon the premises purchased by them; that the material for which plaintiffs claimed a lien had never been placed on said premises, or used thereon in any manner. At the November term, 1887, judgment was rendered by the court below against the defendant, E. C. Knowles, for the amount due for the material, and the same was declared a lien upon the premises of the plaintiffs in error, who bring the case here. It was proven upon the trial that the material furnished was never used to build a fence on the land upon which a lien was claimed. It was piled upon the public highway in front of the premises, where it remained some time, and was afterward taken by the sheriff of Washington county on an execution issued against E. C. Knowles, and sold. In the sale of the property by Knowles to the plaintiffs in error, the fencing was expressly exempted upon the ground that it had never been accepted by the purchaser.
We think the court below erred in sustaining this lien. The material was never attached to and made a part of the land. The language of the statute is the same with reference to buildings as fences: “Any . . . person who shall, under contract, . . . furnish material for erecting . . . any building.” “Any . . . person who shall, under contract, .' . . furnish material for erecting any fence,” (Laws of 1872, ch. 141, §1.)
This court has held that to sustain a lien for material, it must appear, not only that the materials were purchaábd to be used in the building, but also that they were in fact so used. (Rice v. Hodge, 26 Kas. 164.)
“At common law, the mechanic had a lien on personal property benefited by his labor, but this lien, being a mere possessory right, could not apply to real estate which is incapable of manual possession. The statutory remedy simply extends the same right to real estate by giving the mechanic a charge thereon in the nature of a mortgage-lien. As the law pertains only to the realty, it follows that to come within the intent of the statute, the structure should be so affixed to the soil as to become a part of the realty.” (Kneeland, Mech. Liens, 87; Bottomly v. Grace Church, 2 Cal. 90; Houghton v. Blake, 5 id. 240; Rogers v. Carrier, 13 Gray, 129; Chapin v. Paper Co., 30 Conn. 461.)
In the latter case, the court expressly held that no lien was created upon the building for which materials are expressly furnished if they do not in fact go into the building. The fencing never having been placed upon the land, we are of the opinion that no lien attached.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
On January 30,1889, the Board of Education of the city of Newton commenced an action in the district court of Harvey county against G. W. Holmes, an ex-treasurer of such board, and his sureties on two certain bonds, to recover $3,857.14, an alleged balance due from Holmes as said ex-treasurer, which he had not at any time accounted for. The defendants W. G. Pearson, who signed only the first of the aforesaid bonds, and Fox Winnie, A. B. Gilbert, Joseph Gerson and McKinney Smith, who signed only the second of such bonds, and some of the other defendants, demurred to the plaintiff’s petition upon the grounds, first, that several causes of action were improperly joined in the action; and second, that the petition did not state Lets sufficient to constitute any cause of action. The demurrers were all overruled. The record shows that Pearson then answered; that a trial was afterward had upon such answer, and that judgment was rendered against him for the amount stated in the plaintiff’s petition; but the particulars are not stated. The defendants Winnie, Gilbert, Gerson and Smith also answered, setting forth in their answers, first, a general denial; second, that the bond which they signed, the second bond, was executed without any consideration; third, that the default óf Holmes, if any, occurred prior to the execution of the second bond, and that all the school moneys which Holmes had at the time of the giving of the second bond, or which were afterward received by him, were properly applied and accounted for. A trial before the court and a jury was afterward had between the plaintiff and these four defendants, and judgment was rendered in favor of the plaintiff and against these defendants for the sum of $3,939.87, with interest and costs. The defendant Pearson, for himself, has filed in this court a petition in error for the purpose of reversing the order and judgment of the district court as against him. The defendants Winnie, Gilbert, Gerson and Smith have filed another and a separate petition in error in this court for the purpose of reversing the order and judgment of the district court as against them; and these two petitions in error we shall now proceed to consider.
The facts of this case briefly stated are substantially as follows: On April 5, 1887, G. W. Holmes was elected treasurer of the Board of Education of the city of Newton, a city of the second class, and on April 28, 1887, he qualified by taking the oath of office and by giving a proper bond in the snm of $20,000, with the defendant Pearson and others as his sureties, and he at once entered upon the discharge of his duties as such treasurer. On October-3, 1888, upon the order of the board of education he gave another bond in the sum of $30,000, with the defendants Winnie, Gilbert, Gerson, Smith and one other, as his sureties. On December 17, 1888, he resigned his office as treasurer of the board of education. Afterward a successor was duly appointed and qualified, but Holmes failed and refused to pay over to his successor in office the sum of $3,857.14, the balance due to the school corporation, and he made default in that amount. During the time while he was treasurer of the board of education he was also the general manager of the Kansas Investment & Guaranty Company, and had the control of its funds; and he also acted for and had the control of funds belonging to other corporations, and also had funds of his own. During that time he deposited in the First National Bank of Newton all the funds 'of which he had the control, whether they were his own or belonged to the public-school fund or belonged to some one or more of the other parties for which he did business, and he deposited the same in the name of the Kansas Investment & Guaranty Company. This was all done with the knowledge and the consent of the officers of the bank.
I. It is claimed that in this action two causes of action were improperly joined, one upon the first bond, and the other upon the second bond. There is some plausibility in the argument of the plaintiffs in error attempting to sustain this claim, and yet upon the peculiar facts of this case and the authorities cited, we think the claim is not tenable. In the first place the plaintiff sets up the facts of its case and asks for relief as though the entire facts of the case could constitute only one cause of action. In the second place it alleges only one default on the part of the treasurer, Holmes, and that default occurred after the second bond was given, and indeed not until after Holmes had resigned his office; and this default is the only one for which the plaintiff has sought to recover or has recovered in this action. Besides, the condition of the two bonds was and is substantially the same, and all the sureties on the two bonds are equally liable for any and all the defaults made after the second bond was executed, and for the only default for which the plaintiff asked to recover or did recover any judgment. And if any one of the sureties should pay more than his proper share in making this default or the judgment good, all the other sureties on both the bonds would be equally liable for contribution. Under the authority of the following cases we do not think that several causes of action were improperly joined in this action: Holeran v. School District, 10 Neb. 406; Powell v. Powell, 48 Cal. 234.
II. It is further claimed that this action is not prosecuted by the proper party as plaintiff. It is claimed that the treasurer of the board of education, the successor to Holmes, the person who is entitled to the custody of the money when obtained, should be the plaintiff in the action instead of the board of education, which, it is claimed, has no right to the custody of the money. Now the board' of education of a city of the second class, as the plaintiff in this action is, is the general representative of the legal organization created in such cities for the purpose of carrying on and conducting the public schools. Section 4 of chapter 122 of the Laws of 1876 reads as follows:
“The public schools of each city organized in pursuance of this act shall be a body corporate, and shall possess the usual powers of a corporation for public purposes, by the name and style of ‘The board of education of the city of —-, of the state of Kansas;’ and in that name may sue or be sued, and be capable of contracting and being contracted with, of holding and conveying such real and personal estate as it may come into possession of, by will or otherwise, or as is authorized to be purchased by the provisions of this act.” (Gen. Stat. of 1889, ¶ 5726.)
The board of education is the representative of the corporation, the real party in interest, and the treasurer of the board is not. (See also Gen. Stat. of 1889, among others, ¶¶5731, 5737; see also Coffman v. Parker, 11 Kas. 9.) A school corporation in a city is a school district.
III. It is further claimed that there was no consideration for the second bond, and this for the reason, as is claimed, that the first bond was all that Holmes was required to give, and that the board of education had no power to require him to give any other, further, or additional bond. We think this claim is erroneous. In the first place, the bond originally given, while it may have been sufficient at the time it was given, was clearly insufficient when the second bond was given. The first bond was only for $20,000, while at the time the second bond was given Holmes had over $40,000 belonging to the school corporation in his possession or under his control; and when the first bond became inadequate, as it did, we think the board of education, as the representative of the school corporation, had ample authority to require, as it did, that Holmes should give another and an additional bond as he did. See the sections of the statutes above cited, and others.
IV. The next thing to be considered in this case has relation to the question whether the default for which the plaintiff recovered in this action occurred, as a fact, prior or subsequently to the execution of the second bond. If it occurred prior thereto, the judgment in this case is evidently erroneous; but if it occurred subsequently, then the judgment is right. It is admitted by the parties that Holmes in fact had $4,467.47 less of school moneys in his hands and in the bank at the time of the execution of the second bond than he ought to have had; but it is claimed by the plaintiff, and we suppose it is a fact, that more than that amount of money other than school money was afterward deposited in the bank by Holmes and the investment and guaranty company, in the name of the company, in the same manner as the other deposits were made; and that such amount then became, like all the other moneys deposited in the bank by Holmes, subject to the order of Holmes for school purposes, and therefore that any deficit which may have existed at any time after that time would be considered as occurring under the second bond as well as under the first-, and the sureties on the second bond would be liable for such deficit as well as the sureties on the first bond. It appears that in all cases when Holmes received school funds, he at once deposited them in the exact form in which he received them in the First National Bank of Newton, in the name of the Kansas Investment & Guaranty Company; but they were at all times afterward, while they remained in the bank, subject to his checks for schools and school-corporation purposes. Hence as the moneys were absolutely under his control, as the treasurer of the board of education, and subject to his checks for schools and school-corporation purposes, they must be considered as school moneys; and as they were actually deposited in the First National Bank of Newton, that bank must be considered as a custodian or depositary of the funds for the school corporation. Also, as they were deposited in the name of the Kansas Investment & Guaranty Company with the knowledge and consent of its general manager, Holmes, and with the knowledge and consent of the banking officers, the Kansas Investment & Guaranty Company must also be considered as a custodian or depositary of the funds for the school corporation. It was a kind of double or joint custody of such funds by the bank and the investment and guaranty company, and both were liable for such funds, for their safe-keeping, and for their return or payment whenever called for by Holmes, as treasurer of the board of education, or by his successor in office, or by any other person or board legally representing the school corporation and having the legal authority to call for the same. Holmes and the investment and guaranty company were certainly at all times liable for this money, and therefore whenever there was any deficit in the school fund caused by Holmes or the investment and guaranty company drawing the same out of the bank in the name of the investment and guaranty company, any deposit which might be subsequently made by Holmes or by the investment and guaranty company would at once inure to the ben efit. of the school fund, so far at least as to make good any deficit in, or any balance due such school fund, and would apply instantly in liquidation and satisfaction of such deficit or balance. Therefore, as there was more than enough money deposited in the bank by Holmes and the investment and guaranty company after the execution of the second bond to make up the deficit which existed at the time of the execution of such second bond, we think the sureties on the second bond were liable for any deficit or default which may have occurred or existed at any time subsequent to the execution of such second bond. In all cases where accounts exist between parties, including bank accounts, a cause of action does not exist with reference to each item of the account, but ouly as to the balance that may be due to one or the other of the parties; and it exists in favor only of that party in whose favor the balance is due. (Waffle v. Short, 25 Kas. 503; Tootle v. Wells, 39 id. 452.) And each new item added to the account in favor of the person against whom the balance is due, operates as payment or partial payment of such balance; and it will generally operate in payment or partial payment of the oldest item of the account not yet paid or satisfied. (Shellabarger v. Binns, 18 Kas. 345; 1 Morse, Banks, § 355.) Hence, as more than one deficit occurred in the school fund and in the account between the school corporation and Holmes and the investment and guaranty company and the bank, one of such deficits existing before the execution of the second bond, and the other occurring subsequently thereto, the deposits made in the bank by Holmes and the investment and guaranty company after the occurrence of the first deficit-would certainly operate as a payment and satisfaction of that deficit, even if it were made subsequently to the second deficit.
Other questions have been presented by counsel, but we do not think that they require any comment.
The orders and judgments of the court below in both the cases which we have been considering will be affirmed.
All the Justices concurring. ■
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought in the district court of Harper county on June 11, 1886, by M. S. Thrailkill and Dora Thrailkill, husband and wife, against Rachel Ann Gee and Edwin Gee, wife and husband, to obtain the title to certain real estate situated in the city of Harper. The case was tried before the court without a jury, and the court found generally in favor of the plaintiffs and against the defendants, and rendered judgment accordingly; and the defendants, as plaintiffs in error, have brought the case to this court for review.
The following are among the-admitted facts: M. S. Thrail-kill and Mrs. Gee were and are brother and sister. On May 3, 1884, the Thrailkills owned and occupied as a homestead the property in controversy, but on that day they executed a general warranty deed therefor to Mrs. Gee, with the expressed consideration of $1,500, which deed was duly acknowledged and recorded. Afterward the property was occupied, at one time by a tenant, at another time by the Gees, but generally by the Thrailkills, and it was occupied by the Thrailkills at the commencement and during the prosecution of this action. "With respect to most of the remaining facts the evidence was directly and irreconcilably conflicting. Thrailkill testified to one state of facts, while Mrs. Gee and her husband testified to a wholly different state of facts — Thrailkill contradicting the testimony of the Gees, and they contradicting his testimony; but as the court below found in favor of the Thrail- kills and against the Gees, we must decide the case upon the theory that the testimony of Thrailkill was and is correct, and the contradictory testimony of the Gees is not true. Thrail-kill’s testimony is substantially as follows: He testified that at the time of the execution of the aforesaid deed his wife and one of his two children, a daughter, were sick, and their physician advised that they should be removed from that locality, and they all finally agreed to remove to the state of Colorado; and believing that they might need additional funds while there, conveyed the property in question to Mrs. Gee as aforesaid, without any consideration whatever except the parol understanding that Mrs. Gee might sell or mortgage the property and thereby obtain funds to send to them in Colorado; and that she should convey back to them whenever they might so desire any part of the property remaining in her hands; that the sick daughter died; that they did not go to Colorado; that Mrs. Gee did not sell or convey any of the property and has never conveyed back to them any part of the same, and that they have never in fact received from Mrs. Gee or from any one else the slightest consideration for the property. Now if all this testimony of Thrailkill’s were true, then the property was conveyed to Mrs. Gee for the sole purpose that she might hold it for them in trust for the aforesaid specified purpose, and such trust was created by the parol agreement of the parties, and was an express trust. Would such a trust be valid? It was not created in writing, but, if created at all, was created only in parol. The deed of conveyance was absolute and unconditional upon its face; conveyed the property in fee without the slightest reservation or condition; it contained all the usual covenants and made no attempt to create a trust. Therefore the trust, supposed to have had an existence, was created wholly by the parol agreement of the parties, in contradiction of the written terms of the deed of conveyance, and destroying its terms and its tenor and effect to a great extent. Such a trust cannot be created under the laws of Kansas. (Act relating to Frauds and Perjuries, §5; Act relating to Conveyances, § 8; Act relating to Trusts and Powers, § 1; Morrall v. Waterson, 7 Kas. 199; Knaggs v. Mastin, 9 id. 532; Ingham v. Burnell, 31 id. 333.) Under the laws of Kansas, an express trust concerning real estate can be created only in writing. The trust in the present case was not so created, and therefore it was void, and the deed from Thrailkill and wife to Mrs. Gee was absolute and valid.
We think the court below erred in overruling the defendant’s demurrer to the plaintiff’s petition, the defendant’s demurrer to the plaintiff’s evidence, and the defendant’s motion for a new trial.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Henry Wright was prosecuted for a violation of the prohibitory law. He was convicted, and sentenced to imprisonment in the county jail for sixty days, and to pay a fine of $100, and costs of prosecution. It was also ordered by the court that he remain committed to jail until the fine and costs were paid, and until he executed a bond in the sum of $500, conditioned for his good behavior and for his abstaining from any violation of the prohibitory law of the state for the space of two years from the date of his sentence. Prom this conviction and sentence he appeals to this court.
The only question presented concerns the challenge to the array, which the defendant claims to have made, and which he maintains the trial court should have sustained. He alleges as a reason for making the challenge that the jury was not selected, drawn or summoned according to law; and he asserts that the record not only shows this affirmatively, but that it also shows that the lists furnished were taken from the assessment rolls of the year 1890. The counsel for the state insists that the challenge to the array was made too late. We agree with this. Such a challenge is, in general, founded upon some error or manifest partiality committed in obtaining the panel, and which, from its nature, applies to all the jurors so obtained. In this case it was alleged that the jury was not selected, drawn or summoned according to law. If such was the case, the defendant had full knowledge thereof when the jury was first called upon the panel. Instead', however, of making a challenge to the array at the convenient and proper opportunity, both plaintiff and defendant examined the jurors at great length, and challenges to the polls for cause were made and allowed. After the state had passed for cause and the defendant had passed for the same reason, then a challenge to the array was made by the defendant. The examination of the jurors, upon which the challenges for cause were made, covers thirty-four pages of the record. This examination all took place before the challenge to the array. We think that all challenges to the array must precede those made to the polls for favor or prejudice; and we think that should a party make challenge to the polls for favor or prejudice, he will be held to have waived his right of challenge to the array. (Coke, Litt. 158; Bacon Abr , Title “Juries,” ch. 11; 6 Cal. 214; Whar. Crim. Pl. & Pr., 9th ed., § 610; The State v. Bryan, 40 Iowa, 379; Cooley v. The State, 38 Tex. 636; The People v. Roberts, 6 Cal. 214; Gropp v. People, 67 Ill. 154; The State v. Davis, 14 Nev. 439-448; Thomp. & M. Juries, § 266, p. 284.)
The trial court, in sustaining the demurrer to the challenge to the array, very pertinently said:
“The court does so because no specific ground of challenge .to the array is urged that can apply to all of the members of the jury now selected, as the court takes judicial knowledge of the fact that a portion of the jury was drawn by the direct order of the court after the commencement of the present term, under an order on file for said drawing, and that another portion of the jury are talesmen selected by the sheriff upon the order of the court from among the bystanders.”
The counsel for the defendant refer to The State v. Jenkins, 32 Kas. 477, and insist that this court has decided that the challenge to the array may be made at any time before the jury are sworn to try the issues in the case. Incidentally, it was said in that case that the objection to the panel must be made before the jury are sworn. But in that case, the question was not raised as to the proper time of making the challenge to the array; therefore, we assume it was made in that case at the proper time. It was not intended to decide that the challenge to the array could be made after challenges for favor, undue influence or prejudice had been allowed.
The judgment of the district court will be affirmed.
All the Justices concurring.
Per Curiam:
The case of The State of KANSAS v. JoitN Eigle, from Ford district court, presents the same question as in the case of The State v. Wright, just decided. We must hold in this case, as in that, that the challenge to the array or to the panel always precedes a challenge to the polls. These challenges are taken separately. When the latter is made, the former is regarded as waived. Judgment affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought by the Chicago Lumber Company to enforce a mechanic’s lien against real estate in the city of Wichita, for lumber and building material furnished to S. T. Jones. It appears that on April 29, 1887, Henry Schweiter, who was the owner of the real estate mentioned, as well as other lots in the same locality, entered into a written contract agreeing to sell a large number of lots to S. T. Jones, who in turn agreed to build one house on each parcel of four lots, each of the houses to cost uot less than $1,500, and to be worth that sum. It was stipulated that when each of the houses was inclosed, Schweiter should convey the four lots upon which the same was situated to Jones by a good and sufficient warranty deed, and that Jones should then have the privilege of placing a mortgage for a loan,'not exceeding $1,200, on any one house and parcel of four lots, which should be a first lien on the lots, and that thereupon Jones should execute to Schweiter two notes, each for one-half of the purchase-price of the parcel of lots so conveyed, one due in six months, and the other due in one year from date, with 8 per cent, interest per annum until due, and 12 per cent, interest per annum after maturity until paid, together with a mortgage on each parcel of lots to secure the payment of said notes, and that, until the execution and recording of each of said mortgages, Jones should keep said lots clear of all liens, judgments and taxes, of every kind and description, on his account, so that the mortgage to Schweiter should be a lien second and inferior to said first-named mortgage of $1,200. The purchase-price of each of the lots was $350, and it was provided that the title of all of the property mentioned in the contract, both legal and equitable, should remain in Schweiter until the mortgages and conveyances aforesaid were made, and that Jones should be liable for interest upon the purchase-price of the property at 8 per cent, during that period, which interest should cease when the mortgages for the purchase-money were executed, and then the interest therein stipulated should be paid. On May 2, 1887, Jones contracted with the •Chicago Lumber Company for lumber and material with which to build a house and barn on four of the lots mentioned in the contract, and the delivery of the same to Jones was begun on that day and completed on June 25, 1887, arid the same was purchased for use and was used in the construction of the house and barn. The price of the lumber and material so sold and delivered amounted to the sum of $963.83. On May 20, 1887, Schweiter executed and delivered a deed of the lots to Jones, and on the same day, and in pursuance of the contract between Jones and Schweiter, Jones and wife executed a note and mortgage to Smedley Darlington, and received thereon the sum of $1,200, and this mortgage was recorded on May 21, 1887. On May 20, 1887, and in pursuance of the contract, Jones and wife executed and delivered to Schweiter notes for $1,400, being the purchase-price of the lots, and also a mortgage to secure the payment of the same. This mortgage was given subject to the Darlington mortgage, and it stipulated that it was given to secure tbe balance of the purchase-money of the mortgaged property. This instrument was filed for record on May 23,1887. On September 9, 1887, the Chicago Lumber Company filed in the office of the clerk of the district court a statement, claiming a lien against the real estate for the lumber and building material furnished under a contract with S. T. Jones, as owner; and it is admitted that Jones was indebted to the lumber company in the sum of $963.83, with interest thereon, and that the lumber and building material were purchased by Jones from the lumber company to be used in the construction of the house and barn, and were so used. The lumber company brought this action on November 11, 1887, to foreclose its lien, and made Sehweiter and Darling-ton parties defendant, and asked that their interests be held to-be inferior and subordinate to the lien of the lumber company. On the trial, the court found and decreed Darlington’s mortgage to be the first lien on the premises, Schweiter’s to be a second lien, and that the Chicago Lumber Company held the third lien.
It is claimed that the court erred in postponing the lien of the lumber company to those of Darlington and Sehweiter. The claim of the plaintiff depends on the right of Jones to subject the property to a lien. The contract of the lumber company was made with Jones at a time when Sehweiter held the legal and equitable title to the real estate, and no statement for a lien by the lumber company was ever made or filed against Sehweiter as owner. He made no agreement and gave no consent which would subject his interest or estate in the land to a lien. It is true, he made a contract for-the sale of the lots with Jones which contemplated the erection of buildings thereon, but in this contract it was expressly stipulated that the legal and equitable title should remain in Sehweiter until certain conveyances were made, and until that time Jones should have no authority to subject the lots to liens of any kind or description. To create a valid lien for material or labor, it is necessary that the person for whom they are furnished should be an owner within the meaning of the statute, and have a right at the time the contract for the same is made to create a lien. The only claim which Jones had upon the land was derived from his contract with the owner, and any one who relies on the contract to establish ownership in Jones must be governed by the limitations and conditions therein contained. When the lumber and material were purchased and furnished, Jones did not have the legal title, and by the terms of the contract which he made he did not have the equitable title, and he could create a lien on no greater interest than he held. “In general, it must be said, that only the interest of the contracting party can be subjected to the lien ; and if he has no interest, there is nothing to which the lien can attach.” (2 Jones, Liens, §1245; Wagar v. Briscoe, 38 Mich. 587; Hayes v. Fessenden, 106 Mass. 230.) If the lumber company had examined the public records when the material was sold and delivered, it would have ascertained that the legal title was in Schweiter; and if it had pursued the inquiry as it should have done, it would have learned of the contract between Jones and Schweiter, with all of its conditions and limitations. As has been said:
“They, should have exercised some care and caution as to whether their employers — or the purchasers — had such an interest in the property as they could subject to a lien for the lumber and material furnished. Under the statute, no lien attaches to the building unless the person with whom the contract is made has some interest or estate in the land on which it is situate. The lien is upon the realty with the building attached to the extent of the ownership of the one who contracted for the construction of the building, and no further; and if there is no ownership, there is no lien on either land or building.” (Huff v. Jolly, 41 Kas. 537.)
The lumber company, therefore, can claim only through the contract under which Jones held, and must take subject to the restrictions and limitations therein imposed on Jones. The contract stipulated that the $1,200 mortgage should be the first lien on the lots when they were conveyed to Jones, and the one given to Schweiter for the purchase-money should be a second, and an examination of the contract would have warned the lumber company that it must look to the proceeds of the first mortgage, which was doubtless provided as a fund for the erection of the building, or else it must make a contract with Schweiter, who was both the legal and equitable owner. Whatever equities Jones had in the property under his contract were subject and subordinate to the interest of the owner, as the contract provided; and as the lien-can in no event cover more than the qualified interest that Jones had, it follows that such lien is subject and subordinate to the liens and mortgages expressly provided for in the contract. The contract appears to have been carried out by Schweiter strictly in accordance with its terms and in good faith, and we find no room for the application of the principle of estoppel as against either of the mortgagees.
The facts in the cases cited by the plaintiff are unlike those in the present case, where the relations and rights of the parties are fixed by express agreement by which all must be governed.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StrANG, C.:
This was an appeal from right-of-way condemnation proceedings.
It was tried in the district court of Cowley county before a jury January 4, 1888, resulting in a verdict for the defendant for the sum of $1,460. Motion for a new trial was overruled, and the plaintiff brings the case here for review. The first error complained of arose out of the action of the court in refusing to withdraw certain evidence from the jury. The plaintiff was asked the following question:
“ Q. What other inconvenience arises from the cultivation of the land on the west side of the railroad? A. It is very inconvenient in regard to my teams; it frightens my teams to cultivate up close to the railroad.”
Again, a witness for the plaintiff was asked as follows :
“ Q,. You may state what inconvenience the location of this railroad causes him in the use of his farm? A. Another thing, in crossing the road, if you drive your team up there, you have got these gates to open, and leave your team standing while you are doing it; his horses are generally like mine, he cannot leave them standing safely, and get off and open the gates.”
The defendant moved the court to withdraw the above answers from the jury, because the matter to which they relate was not a proper subject of damage, and could not be considered in the estimate of damages in the case. This was refused by the court. The question raised on this assignment has already been settled by this court in favor of the plaintiff in error. (A. & D. Rly. Co. v. Lyon, 24 Kas. 745.) But as the findings of the court determine the exact amount of damage awarded the defendant on account of the matter raised by this evidence, it becomes the duty of the court to modify the judgment to that extent, and let the balance of the judgment, so far as this assignment is concerned, stand.
The second assignment of error relates to the admission of evidence. A witness for the plaintiff was asked the following questions:
“Q,. State what this land was worth just after the line was taken by the railroad as a whole tract? A. Taking into consideration the damages the railroad did-the land?
“Q,. Yes, sir. A. I couldn’t only put my own estimate upon it,
“Q. What is that?” [Defendant objects to this as incompetent, irrelevant and immaterial, and calling for a conclusion of the witness; which objection was overruled, and defendant excepted.] “A. $4,500.”
This court is of the opinion that the question here complained of was a proper one. We think from an examination of the evidence, before and after this question, that the use of the word “ worth ” in the question was treated by all parties on -the trial as equivalent to value, market value. There was no objection to its use at any time, and it seems to have been employed constantly throughout the trial.
In the third complaint, the plaintiff alleges that the jury did not obey the instructions of the court. The court instructed the jury that the plaintiff had introduced testimony tending to show that the right-of-way left a wedge shaped strip of land on the east side of the railroad, and that by reason thereof the real estate was worthless, and had introduced testimony tending to show that by reason of the taking of the right-of-way by the defendant through plaintiff’s land, he had been damaged by having his land cut into two pieces, and having gates to open and close that he did not have before; and then added: “But he has not introduced testimony to prove the amount of such damages. The burden of proof of damages by reason thereof is upon the plaintiff, and in the absence of testimony as to the amount of such damages which the plaintiff has sustained by reason thereof, you will be justified in finding only nominal damages therefor.” The jury should have obeyed the instructions of the court respecting this item of damage. (U. P. Rly. Co. v. Hutchinson, 40 Kas. 51.) This item of damage, $60, as found by the jury, will be stricken out.
We also think this item should be deducted from the amount of the judgment, because it is apparent that it was included in the amount found in the 17th finding by the jury. In this finding the jury return $743 damage by reason of the railroad passing between the house of the plaintiff below and the public highway. It was this fact that rendered the gates necessary, and resulted in whatever damage was or may be suffered by reason of opening and shutting the same.
It is recommended that the judgment in this case be modi- • fied by reducing the same to $1,350, and that the costs be divided between the plaintiff and the defendant, each paying one-half thereof.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This action was brought by the defendant in error against the plaintiff in error to recover damages for an injury, which he alleges was inflicted upon him by the agent of the plaintiff in ejecting him from its train of ears, on October 11, 1887. The defendant was a passenger on the plaintiff’s train from Kansas City west, on the evening of that day. When the conductor in charge of the train demanded his ticket he did not produce any, and refused to pay fare, and was put off the train. At some time, either while being put off the train, or after he was off, his ankle was sprained, and this action was brought to recover damages therefor. At the January term, 1888, the case was tried by the court and a jury, and a verdict for the plaintiff therein returned for $150 — $100 compensatory damages, and $50 as punitive damages. Motion for new trial was overruled.
The undisputed evidence in this case clearly shows that the defendant twice failed to produce a ticket when it was demanded by the conductor, once before reaching the station at Argentine, and again before reaching Holliday. And each time he not only refused to surrender his ticket, but refused to tell where he was going, simply saying in response to the inquiry of the conductor as to where he was going, “ I guess I know where I am going.” The first time he refused to surrender his ticket or tell where he was going, the conductor directed him to get off the train at the next station, Argentine, which he failed to do. The defendant thus ceased to be a passenger on the plaintiff’s train and became a trespasser thereon, and especially so, after he had the second time refused to surrender his ticket, or tell where he was going, so the conductor, could fix the amount of his fare, and the conductor had a right to put him off, at a station, or between stations, only so he did not put him off at a dangerous place nor use any more force than was necessary to eject him, nor put him off with a wanton disregard of the consequences of his ejectment. (64 Mo. 464; 48 Ind. 90; 47 Iowa, 82; 15 N. Y. 456; 37 Mich. 342; 38 Kas. 621, and cases there cited.)
Was the defendant ejected at a dangerous place? This question must be answered in the negative. He was put off near the station, in sight of the depot, where the ground was level and smooth, he himself testifying, “I had pretty good footing from there on; I could see all before me. Pretty good road where I came.” That is, it was a pretty good road from the place where he was put off to the depot. There is nothing in the record that shows that the conductor assaulted the defendant, or used violence, or any more force than was sufficient to eject him. The evidence shows there was very little resistance. The defendant was led, or pushed out of the car, and put off of the platform on to the ground without much fuss or force.
We think the evidence clearly shows that the defendant was, at the time, just enough under the influence of liquor to make him somewhat stupid when left to himself, and more or less contrary when aroused; unable to offer much resistance, and certainly not able to remember afterward much about what transpired.
Was the conductor guilty of negligence or wantonness in putting the defendant in error off, under all the circumstances of this cáse? ' A strong preponderance of the evidence shows that the train was standing still when the defendant in error was put off. The conductor says the train was standing still. The defendant in error also says it had stopped when he was put off. It is true that he says, in answer to a leading question in his examination-in-chief, it was moving. But having testified both ways, his evidence must be taken more strongly against himself. And under ordinary circumstances, his evidence against himself would outweigh the evidence of a mere witness in his behalf, contradicting him on this point. All the witnesses agree that the train stopped outside the switch, to allow the brakeman to turn the switch, and again, after it had run in on the switch, to let the brakeman get on. And it must be remembered that this stop was within two hundred or three hundred yards of the depot, where the train must stop again. Mr. Hodges, a passenger on the train, says the train was in motion when the defendant in error was put off. He says the train had stopped inside the switch. But he says it had started up again before the defendant in error was put off. He also says that the first thing he saw in connection with the ejectment of the defendant in error was the conductor setting down his lantern and pulling the bell-rope to stop the train; that immediately thereafter he went out upon the platform at the rear end of the car to see what the train was stopping for; and while there he heard a noise inside as though made by a shuffling of feet, and went into the car, and as he went in the conductor and the defendant in error were going out of the front end of the car, and that he did not see or hear anything further. He did not go out again, but says the train was in motion.. The evidence also shows that the conductor stepped from the platform to -the ground with the defendant in error. Under such a state of facts the ordinary mind would not long hesitate in reaching the conclusion that the train was standing still when the defendant in error was ejected; that he was put off after the train had run in on the switch and stopped, and before it had again started. It is hardly within reason to believe that having stopped outside of the switch, where the conductor says he would not put the defendant in error off because it was not a good place, and then having run in on the switch and stopped, where it was a good place to put him off, that he waited until after his train had started to run up to the depot not three hundred yards away, and then pulled the bell-rope and slowed his train up and put him off. Under such circumstances, it is much more in consonance with reason to believe that Hodges was mistaken about the train being in motion when the ejection occurred, especially as he is directly contradicted on this point by the conductor and the defendant in error himself; and that the train was in fact standing still when the defendant in error was ejected.
But counsel for defendant in error reminds us that the jury found for the defendant in error, and that, with no special finding in the case, the general verdict is conclusive upon all questions upon which there was a conflict in the evidence. We concede this, though reluctantly under the evidence in this case, and are therefore confronted with the question, Was it negligence or wantonness per se for the conductor to put the defendant in error off from the train while it was in motion ? As there is no finding of the jury, as to how fast or how slow the train was moving when the ejection was made, we must, to sustain the verdict and judgment in this case, say that it is negligence or wantonness per se for a conductor to remove a trespasser from a train in motion, no matter how slow it is running. In the case of A. T. & S. F. Rld. Co. v. McCandliss, 33 Kas. 366, 373, 374, this court held that “stepping from a train of cars in motion to a stationary platform, or to the stationary ground, which is more dan-t / ° ,, . gerous, is not negligence per se” and cited m support of that position G. H. & S. A. Rld. Co. v. Smith, 59 Tex. 406; Doss v. M. K. & T. Rld. Co., 59 Mo. 27; Filer v. N. Y. C. Rld. Co., 49 N. Y. 42; Banking Co. v. McCurdy 45 Ga. 288; Pa. Rld. Co. v. Kilgore, 52 Pa. St. 292. The court also said in that case, that “the same rule obtained in getting on a train while in motion,” and cited Swigert v. H. & St. J. Rld. Co., 75 Mo. 475, and Eppendorf v. B. C. & N. Rld. Co., 69 N. Y. 195. It is held in that case that the question of negligence, in such cases, is usually a question of fact for the jury, although sometimes and under some circumstances it may be a question of law for the court. So, where a trespasser is removed from a train of cars by the agents of the company operating the train while a train is in motion, we think the question of negligence, of wantonness, of the amount of force used, and of the character of the place where the ejection took place, are usually questions of fact for the jury. Where the evidence shows that the train, at the time of the ejectment, is moving very slowly, it is not negligence or wantonness per se to put a trespasser off of the train. In this case, the plaintiff below could not have recovered, except upon the theory that it was negligence, or wantonness per se for the conductor to put him off of the train while it was in motion. It is difficult to say whether or not the court intended to instruct the jury that it is negligence or wanton ness per se to remove a trespasser from a train of cars while in motion, because of the fact that the court coupled so many other conditions with the element of motion of the train in its charge. But we have no doubt the jury were led by the charge to believe that the plaintiff below had a right to recover if he was put off of the train while it was in motion, without regard to the rate of its speed. This is apparent from the verdict, since the evidence clearly shows that there was no other element of negligence or wantonness in the case, and to that extent we think the instructions misleading and erroneous.
We also think some of the instructions refused should have been given; they stated the law correctly, and the matter was not covered properly by the instructions that were given. If it ever is a question of fact for a jury to say whether it is a wanton wrong to put a trespasser off of a train while in motion, then this case is such a one, for the evidence clearly shows that the train was moving very slowly, if moving at all, while the ejection occurred. The court should have submitted it as a question of fact, coupled with proper instructions in relation thereto, for the jury to say, if they should find the train was in motion when the defendant in error was removed therefrom, whether or not the train was moving at such a rate of speed as to render the removal dangerous.
For the reasons herein given, it is recommended that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
In this action Nora Lewis joined her husband, J. C. B. Lewis, with her as plaintiff, and asked for the cancellation of certain conveyances of a quarter - section of land which they acquired by settlement and improvement under the laws of the United States relating to public lands.
The petition states that Nora Lewis with her husband have at all times since taking said land resided upon and claimed the same as their homestead; that J. C. B. Lewis, singly and without her knowledge or consent, executed and delivered warranty deeds to W. R. Hill for the land, which deeds have been duly filed and recorded in the office of the register of deeds; that W. R. Hill knew at the times the conveyances were made that Nora and J. C. B. Lewis were husband" and wife, and that they occupied the land as a homestead at and prior to the times the deeds were made; that Nora Lewis did not receive any consideration or part of the purchase-money paid by Hill to J. C. B. Lewis; and that subsequently W. R. Hill and Lydia Hill, his wife, executed and delivered to James P. Pomeroy a warranty deed to the same tract of land, in consideration of the sum of $650. W. R. Hill and James P. Pomeroy were made parties defendant in the action, and the plaintiffs ask that the deeds to W. R. Hill and from W. R. Hill and Lydia Hill to James P. Pomeroy be set aside and canceled, and the title to the land be quieted in the plaintiffs. The defendants demurred to the petition, and one of the grounds of demurrer was that there was a defect of parties defendant. The demurrer was overruled, and the defendants electing to stand on the demurrer, the court entered a judgment canceling the deeds as prayed for.
The demurrer should have been sustained. Lydia Hill joined in the execution of the deed to Pomeroy, and she was not made a party. The deed in which she joined with W. R. Hill contained the usual covenants of warranty, and she will be liable thereon to Pomeroy, if the allegations of the petition are true. The plaintiffs seek to have this deed to Pom-eroy canceled and set aside, without having all the parties who joined in its execution and in its covenants before the court. It is the right of Pomeroy, who must ultimately look to the covenants of his grantors, that both of them should be made co-defendants. Lydia Hill is liable on the covenants to the same extent as her husband, and it appears on the face of the petition that she is a necessary party to a complete determination of the controversy. It is certain that the homestead cannot be alienated without the joint consent of the husband and wife, and if the facts alleged are established, the plaintiffs below are entitled to prevail; but before the deeds which they claim to be a cloud upon their title are canceled and set aside, all the parties who joined in the same and who are liable upon the covenants therein should be brought before the court.
For the error in overruling the demurrer, the judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
The present case, as made in the district court and brought to this court, is a model of brevity, containing only two pages as copied by a type-writer, and yet it contains all that is necessary to present the questions sought to be presented by the parties. It appears that the Kansas Central Railroad Company, which is the plaintiff in error and was the plaintiff below, is a railroad corporation of .this state; that a public county road was legally laid out and established across its right-of-way; that at the time this was done, the railroad was operated by the Union Pacific Railway Company, another duly-organized railroad corporation of this state, as lessee; that no notice was ever given to the plaintiff with respect to any of the proceedings for the establishment or creation of this highway prior to its creation, though a proper notice was given to the Union Pacific Railway Company with respect thereto. Within twelve months after the location of this highway, the plaintiff filed with the board of county commissioners of Jackson county, which is the defendant in error and was the defendant below, its application for damages claimed to have been sustained by reason of the location and opening of the aforesaid road, which application was in due form and for an amount exceeding $150. The application was refused, and the plaintiff in due time appealed to the district court, where the case was tried before the court without a jury.
“Upon the trial it was agreed by the parties that it would cost the plaintiff the sum of $150 to put in, at said crossing, the cattle-guards, fences, crossing-planks, crossing-signs and whistle-posts, as required by the laws of Kansas to be put in by the railroad company at every highway crossing of a railroad in the state of Kansas; and that, if the plaintiff was entitled to recover damages, that judgment should be for $150. It was admitted by the parties on the trial that the plaintiff is a railway corporation duly created and existing under the laws of the state of Kansas, and had lawfully condemned the right-of-way for and built and completed its railway at the place where this highway crosses its track prior to the location of such highway; that plaintiff's railway is operated by the Union Pacific Railway Company, a corporation duly organized, which is the lessee of the Kansas Central Railroad Company. It was also proved on the trial that no notice of the meeting of the viewers to lay out said road was ever served upon the plaintiff or any of its agents, and that no copy of such notice was on file in the office of the clerk of Jackson county. All the facts hereinbefore stated were agreed upon by the parties at the trial.”
' Upon these facts, the court below found generally in favor of the defendant and against the plaintiff, and rendered judgment accordingly, and the plaintiff, as plaintiff in error, brought the case to this court for review.
We think the court below erred in its findings and judgment. A railroad company’s right-of-way is property, an estate in land, the dominant estate, securing to the railroad company the exclusive right to the occupancy, use and control of the property as against all persons, except the owner of the fee; and the paramount right to such occupancy, use, and control, even as against him. (K. C. Rly. Co. v. Allen, 22 Kas. 285.) In all cases where a railroad company procures its right-of-way under the authority of the state, in the exercise of its sovereign power of eminent domain, by what are usually termed condemnation proceedings, the railroad company pays to the owner of the land the full value of all the land actually taken, and full and complete compensation for all the losses or damages which might result to the remainder of the owner’s land, and both such value and compensation are paid by the railroad company irrespective of any benefit or supposed bene fit which might result to the owner of the land from the construction or the operation of the railroad. (L. & W. Rld. Co. v. Ross, 40 Kas. 598; Rapid Transit Rly. Co. v. Simpson, just decided.) And the railroad company, in paying this value and for these damages, always pays largely more in the aggregate than the land actually taken is worth — sometimes ten or twenty times more than it is worth. And while the railroad company procures its right-of-way through the intervention of the state in the exercise of its sovereign power of eminent domain, and procures the same ostensibly for public purposes —and land can never be taken under such power for any other than a public purpose — yet the railroad company alone pays for such right-of-way, and sometimes, as before stated, pays an amount aggregating ten or twenty times more than the land actually taken is worth. And although the property is taken ostensibly for a public purpose, yet all the authorities agree that the railroad company, by procuring its right-of-way and paying for it, procures an actual, individual, private right, an easement, and an estate paramount to the rights or interests of all others, except the right of the state to again subject the land to be taken under the power of eminent domain. The railroad company in such a case is the dominant owner, and the owner of the fee is only a servient owner. It, therefore, necessarily follows, that any person who should interfere with the railroad company’s occupancy, use or control of its right-of-way, except with the authority of the railroad company, or in subserviency to its rights, or under the sovereign power of eminent domain, would be a trespasser, liable to the railroad company for all damages that might result from the trespass. And it would also seem to follow, that where the interference is under the sovereign power of eminent domain, and the railroad company sustains substantial loss from such interference, the railroad company would be entitled to just compensation for all such loss. Certainly, whenever the railroad company’s right to the exclusive occupancy, use and control of its right-of-way is interfered with permanently under the power of eminent domain, something is taken from the railroad com pany. Of course, it is not the fee in the land that is taken, for the railroad company does not own the fee, nor is the fee, under our present laws, ever taken from any one under the power of eminent domain. What is taken in such a case is a portion of the railroad company’s exclusive right to the occupancy, use and control of its right-of-way, a part of its easement, and making it a tenant in common with some other person, corporation, or the public. This is certainly a taking of something from the railroad company which is valuable. It is a taking of a portion of the railroad company’s estate, for which it has paid full and ample compensation, and for the taking of which it is entitled to compensation. Where a railroad company is compelled by condemnation proceedings to surrender the use of a portion of its right-of-way in part to another railroad company, all the authorities agree that something is taken from the railroad company, and that just compensation should be awarded to it. And nearly all the authorities agree that where the railroad company is compelled to surrender the use of a portion of its right-of-way in part to the public for a public highway, something is again taken from it for which it is also entitled to fair and just compensation. It is true that where a highway is established by proper authority across a railroad company’s right-of-way without at all interfering with the company’s use of its right-of-way, and without requiring the company to be at the expense of constructing crossings, or cattle-guards, or erecting fences or signs or whistle-posts, or being at. any other expense or suffering any substantial loss, no compensation can be allowed ; but where any real or substantial loss is suffered, or damage sustained, the railroad company may have adequate compensation. In Mills on Eminent Domain, § 33, the following language is used:
“Sec. 33. The laying of a highway across a railroad track is considered an additional burden in those states where the law imposes upon the railroad company the additional expense of erecting and maintaining signs at the crossings, of erecting and maintaining cattle-guards, and of flooring the crossings and keeping the planks in repair. These expenses, being directly imposed, must be paid for. In New York and Pennsylvania the laying of highways across the tracks of railroads may be done without compensation, and the railroad company may be compelled to make the necessary excavations, embankments, and bridges to safely accommodate the highway. This authority would not include the opening of roads through grounds used for necessary buildings, yards, etc., although it was suggested in Pennsylvania that a street might be opened through depot grounds, and that the wisdom of such action could not be questioned by courts.”
In Lewis on Eminent Domain, §491, the following language is used:
“In New York a statute has been held valid which authorizes the laying out of highways over the tracks of a railroad without compensation, and although it compelled the railroad company to make the necessary excavations or embankments to take the highway across. This is put upon the reserved power to repeal, alter, or amend the incorporation acts. The act in question only provided for crossing the ‘ track ’ of any railroad, and it was not held to apply to grounds taken for a station-house, etc., or to tracks used simply for storing cars. Substantially the same ruling has been made in Maine, though the right to repeal, alter, or amend the charter was not reserved. In other states it is held that, in such cases, the railroad company is entitled to compensation for taking its land for a highway subject to its right to use the same for railroad purposes, and to such a sum as will enable it to make and maintain the crossing with suitable signs, cattle-guards, planking, etc. Nothing can be allowed on account of the possibility of the company being compelled to pay damages for accidents at the crossings, and evidence of what the company has paid for accidents at other crossings is incompetent. Nor can anything be allowed for the expense of ringing a bell at the crossing, nor in view of the contingency of its having to build a bridge.”
In Eedfield on Eailways, sixth edition, star page 40, number 13, the following language is used:
“A railway corporation is entitled to damages for land taken by laying a public highway across its line, and for the expense of maintaining signs and cattle-guards at the crossing, and of flooring the same and keeping it in repair; but not for any-increased liability to accidents, for increased expense of ringing the bell, or its liability to be ordered by the county commissioners to build a bridge for the highway over the track. And in assessing damages, in such a case, no supposed benefits from an increase of travel on the railway can be set off against the company.”
In Pierce on Railroads, page 193, the following language is used :
“The laying out of a highway across land of a railroad company which is used for a station, or for other purposes than a right-of-way, is a taking of its property entitling it to compensation. So, also, it is entitled to compensation where the highway appropriates lengthwise a part of its right-of-way. The laying out of a highway across the company’s track, without further interference with it, is, however, not a taking of its property. The state, in authorizing the crossing, simply regulates and adjusts private rights with reference to public interests, and exercises its reserved police power. The crossing should be laid in a manner to cause as little injury as possible to the previous use, and the railroad company is entitled to compensation where the crossing is so constructed as to result in serious inconvenience.”
In 6 Am. & Eng. Encyc. of Law, pp. 554, 555, the following language is used:
“When a highway is laid out by the proper authority across a railroad company’s right-of-way, this is not such a taking of property as entitles the company to damages; but where the company is required to erect sign-posts and maintain the crossing, there is in such case a taking for which compensation must be made. Where a railroad company constructs its track across a turnpike, compensation must be made to the turnpike company. The owner of property which abuts upon a highway cannot recover damages for the mere crossing of the highway by the tracks of the railroad; but if his property is injured by change of grade made for the purpose of laying said track, he can recover. Where one railroad company is authorized to run its track over the land of another, this is a taking for which compensation must be made.”
Also, as in favor of the doctrine that railroad companies may recover compensation in such cases, see the following cases: O. C. & F. R. Rld. Co. v. Plymouth Co., 80 Mass. (14 Gray,) 155; Crossley v. O’Brien, 24 Ind. 325; D. M. & T. Rld. Co. v. City of Detroit, 49 Mich. 47; same case, 12 N. W. Rep. 904; Grand Rapids City v. G. R. & Ind. Rld. Co., 58 Mich. 641; same case, 26 N. W. Rep. 159; C. & G. T. Rly. Co. v. Hough, 61 Mich. 507; same case, 28 N. W. Rep. 532; P. & R. Rld. Co. v. Deering, 78 Me. 61; same case, 23 Am. & Eng. Rld. Cases, 51; same case, 2 Atl. Rep. 670; Kansas City v. Kansas City Belt Rly. Co. (decided by the Supreme Court of Missouri, December 1, 1890), 14 S. W. Rep. 808. The following cases possibly hold a different view: Rly. Co. v. Sharp, 38 Ohio St. 150; B. & A. Rld. Co. v. President, etc., of Greenbush, 5 Lans. 461. In the case of the C. & G. T. Rly. Co. v. Hough, ante, it was decided as follows:
“ Where a highway is laid out across a railroad, the railroad company is entitled to include in its damages to be paid by the township the expense of cattle-guards, fencing and other outlays to complete the approaches, besides the cost of maintaining them; and a statute which imposes this expense upon the railroad company is in conflict with the constitutional provision forbidding the taking of private property without (just compensation.’ ”
The principal objections urged against the right of the railroad company to receive compensation for its losses, in cases where a public highway is laid out across its track, are the following: First, it is claimed that the railroad company obtains its right-of-way through the intervention of the state and by the exercise of the state’s sovereign power of eminent domain, and, therefore, it must be presumed that the state reserves to itself the right, or, in other words, creates the right, to take a portion of such right-of-way at any time afterward for any other public purpose without any compensation to the railroad company. Second, it is also claimed that no substantial damages are suffered by the railroad company, except by its expenditures in the construction of cattle-guards, fences, signs, etc., and that the duty of constructing these things is imposed upon the railroad company under the police power of the state, and, therefore, that the railroad company cannot receive any compensation for their construction.
It is true the railroad company obtains its right-of-way under the authority of the state, and by virtue of the exercise of the sovereign power of eminent domain, but the railroad company pays for all the property which it procures, and the state pays nothing. Indeed, as a general rule, the railroad company pays vastly more than all the property which it actually receives is worth, paying not only the actual value of the land taken, but also all the damages supposed to result to that not taken; and all this without deducting anything fo benefits received; and no one else pays anything. Of course the state continues to hold the power to take the property again for some other public purpose, as for a right-of-way for another railroad company or for a public highway; for this power, that is, the power of eminent domain, is inherent in the state, inalienable, permanently existing, inexhaustible, and extends to all property, and the state could not deprive itself of such power by anything it might do. But there is nothing in law or in reason that would even intimate that the state would desire to retake the property for another public purpose without fair compensation to the railroad company, even if it could do so. When the state takes a portion of a railroad company’s rightrof-way for the right-of-way for another railroad company or for a highway, it takes it just as it takes any other private property, and the railroad company which suffers the loss should receive just compensation.
Whether the duty imposed upon the railroad company of constructing cattle-guards, fences, signs, etc,, can be or is imposed upon it under the police power of the state, makes no difference in this case. If the highway should not be established across the railroad company’s right-of-way, then it would not be necessary for any of these things to exist; but if a highway is so established, then the duty under the statutes immediately springs into existence, requiring the railroad to so construct these things. The establishment of the highway is therefore the cause of all these additional burdens being imposed upon the railroad company. . And must the railroad company bear these burdens and suffer these losses without compensation? Why should it be treated differently from others who have interests in real estate? All others having interests in real estate are entitled to compensation for losses resulting from the location of a public highway interfering with their free and rightful use of such interests. (Comm’rs of Smith Co. v. Labore, 37 Kas. 480, 484, et seq.) And why should not a railroad company be entitled to compensation for losses in like cases? With reference to all the public highways existing at the time when the right-of-way for any railroad is procured, and which might affect the location of the railroad, the railroad company has notice, and therefore has notice with reference to what cattle-guards, etc., it must construct when it constructs its railroad; and it constructs its railroad with the understanding that it must make all the necessary expenditures for the construction of such cattle-guards, etc. But with respect to highways not already established when the right-of-way is procured, there can be no such understanding.
We think a railroad company may recover in a case like the present, for all expenditures it is required to A J 1 * make under the statutes by reason of the location of a highway across its right-of-way. With regard to notice, the notice to the Union Pacific Railway Company was no notice to the plaintiff.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
HortoN, C. J., concurring.
JOHNSTON, J., dissenting.
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Opinion by
Green, C.:
The record of this case discloses the fact that a trial was had in the district court of Allen county on the 8th day of November, 1886, and on the same day the jury returned into court with a verdict for the plaintiff below; a judgment was accordingly rendered thereon. On the 26th day of January, 1887, the court considered a motion for a new trial and overruled the same; the record is silent as to when this motion was filed. The affidavits used upon the hearing were filed on the same-day the motion was heard.
As it does not appear from the record that the motion was filed within the statutory time, and no reason is assigned for the delay, it will be presumed by this court, for the purpose of upholding the verdict and judgment of the district court, that the motion was not filed within the time required by §308 of the code. (Bartlett v. Feeney, 11 Kas. 593; Nesbit v. Hines, 17 id. 316; Lucas v. Sturr, 21 id. 480; Hover v. Tenney, 27 id. 133.)
The judgment of the district court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
StbaNG, C.:
Action of ejectment for the possession of lots 9, 10, 11, 12, and 13, in block 36, in the city of Chetopa, Labette county, Kansas. Defendant admits possession in herself, and alleges that she is the owner of the lots in dispute by virtue of a tax deed, and other conveyances. The case was submitted to the court below without a jury upon the following agreed statement of facts, November 2, 1887:
“1. Before the sale in September, 1875, hereinafter mentioned, the title of the property in controversy in this suit was perfect in Willoughby Doudna, the husband of the plaintiff, Ruth A. Doudna, and the father of the other plaintiffs.
“2. Said property was sold for taxes in September, 1875, for the taxes thereon for the year 1874, costs, penalties and expenses, and was by the county treasurer of Labette county at such sale bid off to and for said county.
“3. Said Willoughby Doudna died intestate on November 4, 1878, leaving a widow, said Ruth A. Doudna, and four children, who were then minors; and the younger died in March, 1886. The other three children are the plaintiff above named, Mrs. Mattie Bennett, now twenty-three years of age, Hosea W. Doudna, now sixteen years old, and Oliver R. Doudna, now fourteen years old.
“4. In the month of July, 1880, Lee Clark purchased and took an assignment of the tax-sale certificate of said property-on said tax sale of September, 1875, and in said month of July procured tax deeds therefor, ther'ecords of which, including date of recording, may be used in evidence instead of originals,' as hereinafter stipulated, and thereafter he and his wife sold and conveyed said property to one J. L. Nan Note, and Van Note and his wife thereafter sold and conveyed said property to said defendant, Emma J. Harlan. The records of these conveyances, including date of recording, may be used in evidence instead of originals.
“ 5. Defendant, Emma J. Harlan, since the purchase of said property improved same to an extent left for further inquiry and determination, if necessary to an adjustment of the rights of the parties to this suit. She is now in the possession of the property, and has been in possession thereof since this suit.
“6. In October, 1886, said plaintiff paid to the county treasurer of said county for the purpose of redeeming said property, except lot 13, from tax sale of September, 1875, the sum of $114.60, and received from the treasurer of said county the redemption certificate, which is to be introduced in evidence to speak and show for itself, and for all purposes for which it is competent. The payment of said money was for and on behalf of said minors, and the money is still in the hands of the treasurer of said county.
“7. Said property was no part of the homestead of said Willoughby Doudna nor of his family. That exhibit ‘A,’ hereto attached, contains the levies of the taxes for general county purposes and poor and incidental funds for the year therein described and set forth.
“8. Said lots 9, 10, 11, 12, and 13, and lots 14, 15, and 16, comprise the northwest quarter of said block 36; and in the summer and fall of 1881, said Van Note built a house on lots 15 and 16, and a barn on 12,13 and 14; and in February, 1882, completed the building of an iron fence in front of all said lots, and part way on east line of said lot 9, and part way on west line of said lot 16, and a wooden fence around balance of said quarter block. This house was burned down in February, 1884.”
It was likewise admitted on the trial of the cause, that more than five years had elapsed from the time of the recording of the tax deeds under which the defendant claims and the commencement of this action, and that at the time of the sale of the property therein described, the plaintiffs had no interest therein other than that Ruth A. Doudna was the wife of Wil-loughby Doudna, and the other plaintiffs were his children, he then being alive.
That the assessed valuation of both personal and real property in Labette county, Kansas, from 1874 to 1880, did not exceed $3,000,000. And that the levies made by the county commissioners, as above stated and set forth, were not submitted to a vote of the electors of said county of Labette and state of Kansas, before said levies were made, or at any time. “No. 1179,. 1180, 1181, 1182. $113.75.
“COUNTY TREASURER'S OuEICE.
“State oe Kansas, Labette County, ss. — I,C.W. Lit-tleton, treasurer of Labette county, Kansas, do hereby certify that Mrs. Ruth Ann Doudna, for Hosea Doudna and Oliver Doudna,/minors,' has this day redeemed the following real estate from the sale of 1875, to wit: Chetopa, lots 9, 10, 11, and 12, block 36. The above-described real estate was sold on the 7th day of September, 1875, to Labette county, and assigned July, 1880, to Lee Clark for the sum of $3.04, being the delinquent tax for the year 1874, by the payment to the said treasurer of the following amounts:
Paid by purchaser at sale.:. $3 04
The following tax indorsed on sale:
1875-6-7-8-9, amount. $5 56
Tax paid by purchaser, 1880. 1 12
Tax paid by purchaser, 1881. 1 20
Tax paid by purchaser, 1882. 2 11
Tax paid by purchaser, 1883. 2 12
Tax paid by purchaser, 1884. 9 93
Tax paid by purchaser, 1885. 10 04
Interest.•. 68 83
Costs and certificate of sale. 9 80
Total $113 75
“Deeded July 13, 1880.
“Witness my hand this 18th day of November, 1888.
C. W. LittletoN, Treasurer.
By H. T. Atwood, Deputy.
“Oounty Fees:
Teeasubeb.$0 40
County Clebk. 25”
The court upon said statement of facts found for the defendant, and adjudged that she recover her costs. The plaintiffs objected to the findings of the court, and moved for a new trial, which motion was overruled.
The first contention of the plaintiffs in error is, that the tax deed relied upon by the defendant in error is void, and therefore never operative as a transfer of title. Coupled with this is the further contention that, said deed being void, it never did and could not set the five years’ statute of limitations to running, and therefore the trial court should have set aside the tax deed in controversy, and found for the plaintiffs in error. In support of this position, counsel cite the case of Richards v. Thompson, 43 Kas. 214. An examination of that case shows that the tax deed involved therein was void on its face. It is well settled that a deed void on its face will not set the statute to running. The defect in the deed in that case is patent. The deed itself, and the record thereof, carry with them the evidence of their invalidity, of which the grantee and those who claim under him must take notice, and the five years’ statute of limitations prescribed in ¶ 6977 of the General Statutes of 1889 will not run in favor of such a deed.
But the defect which renders a deed invalid may not appear upon its face. It may be ascertainable only upon an examination of the proceedings antecedent to the issuance of the deed, or the sale. Such a deed carries with it a presumption in favor of the regularity of the conditions precedent thereto. And in such a ease, our understanding is, that it is sufficient to set the statute to running in its favor. In this case, it is not insisted that the land was not subject to taxation at the time it was listed. It is admitted that the tax was not paid before the sale, and that the land was not redeemed according to law, before the deed was issued.
But it is claimed that, as the tax upon which it was sold was in excess of the amount that the commissioners were by law allowed to levy, they had no power to levy the tax upon which the sale was had, and that a deed following a sale on a tax that the commissioners were without jurisdiction to levy could not start the statute of limitations to running in its favor. If there were no question of the statute of limitations involved in the case, the showing might be sufficient to avoid the deed. But this court has settled the question as presented here, against the plaintiffs in error, in the case of Edwards v. Sims, 40 Kas. 235. In that case Mr. Commissioner. SimpsoN, writing the opinion for the court, says:
“We have noticed all the objections urged against the tax deed, and it not being pretended that the taxes were paid, the land redeemed, or that it was not subject to taxation at the time it was listed, it becomes to us a matter of positive duty, in obedience to the law-making power of the state, to apply the limitation contained in § 141 of the tax law to the facts as shown by the record, and the result is, that none of the matters alleged against the deed can be considered by the court, because the deed had been recorded for more than five years before the commencement of this action against the assigns of the tax purchaser for the recovery of the land, and at that time the bar of the statute is complete.”
In Jordan v. Kyle, 27 Kas. 190, it is held that—
“Where the land is taxable, and the taxes have not been paid, or the land redeemed as provided by law, and the tax deed is executed by the officer authorized by law, is regular on its face, contains a perfect description of the land conveyed, and has been of record more than five years before December 3,1879, the date of the commencement of the suit against the tax purchaser, the bar of the statute of limitations fully attached to said tax deed before the action was brought.”
In Maxson v. Huston, 22 Kas. 643, the court held that—
“A tax deed regular on its face, containing a perfect description of the land conveyed, and of record the time prescribed by the statute of limitations, is protected by said statute from impeachment by evidence that the description of the land on the assessment roll, and in the sale certificate, is fatally defective.”
In this case Mr. Justice Brewer, in promulgating the opinion of the court, very pertinently says:
“If the proceedings must be so regular as to make a valid sale before the statute of limitations will start to run upon a tax deed good upon its face, then the statute has but little virtue in these cases as a statute of repose; for upon a valid sale, a valid deed can be compelled, and the statute will rarely be invoked except in cases where it is not needed.”
See also, as bearing upon this question: Barr v. Randall, 35 Kas. 126; Mack v. Price, 35 id. 134; Sanger v. Rice, 43 id. 580.
We are referred by counsel for plaintiffs to the case of Kemper v. McClelland, 19 Ohio, 327. In that case, however, there was no question of the statute of limitations, and we have no doubt that the court properly avoided the tax deed, because of the excess of tax upon which the sale was had. If, however, the deed had been valid upon its face, and the five years’ statute had run in that case, as in this, the question would have been analogous to the one in the case before us, and the decision would have been different.
The tax deed under which the defendant claims being valid on its face, and having been of record more than five years before the commencement of this action, and it being admitted that the land in controversy was subject taxation when listed, that the taxes were not paid, and the land not having been redeemed as provided by law, the action to avoid the deed cannot be maintained.
The plaintiffs next complain that “the court erred in finding that the bidding off of the lots in controversy by Labette county was a sale.” The contention of the plaintiff is that when the county bids off property at a tax sale, it does not become a purchaser, but simply bids off property and holds it until some one pays the taxes and penalties thereon, and takes an assignment of the bid from the county; and that in such case there is no sale of the property until it is assigned by the county to the party paying the county the taxes, penalties, and costs thereon. We do not think this position is tenable. There is but one sale mentioned in the statute, and that very clearly refers to the bidding off of the property at the time it is advertised to be sold for the taxes. Nor do we think it any less a sale because it is bid off by the treasurer for the county, than when bid off by some person for himself, or some other individual. The “bidding off” of the property by the treasurer in the name of the county and for the county, has been constantly treated as a sale by the bench and bar of the state. If the county is not a purchaser when property is so bid off, who is the owner in the meantime? The former owner has lost his title except so far as he has the right of redemption. No third party has obtained any interest therein as yet, and there must be some person, natural or artificial, in whom the ownership of the property rests. Besides, if the county has obtained no interest in the property bid off, how can it transfer by assignment any interest therein? We think the county becomes a purchaser at the tax sale when, in the absence of other bids equal in amount to the taxes, \ ■ penalties and costs against the property, the treasurer bids the property off in the name of the county; and that the redemption period commences to run from the date thereof. (Stevens v. Casady, [Iowa,] 12 N. W. Rep. 803.)
The third complaint is, that the court erred in not permitting the minor plaintiffs to redeem. Paragraph 6977, General Statutes of 1889, so far as it relates to this question, reads as follows: “The lands of minors, or any interest they may have in any lands sold for taxes, may be redeemed at any time before such minor becomes of age, and during one year thereafter.” It will be seen that the lands that may J pe redeemed by minors are lands of said minors sold for taxes, or lands in which minors have some interest when they are sold for taxes. The lots in controversy in this case were not the lands of the minor plaintiffs herein when they were sold, but were the lands of their ancestor, Wil- loughby Doudna. Nor did the minor plaintiffs in this case have any interest in the lands in controversy at the time they were sold for taxes. We do not think it will do to say that the lands sold for taxes in which minors may subsequently obtain an interest may be redeemed by said minors at any time during their minority, and during one year thereafter. If that were the law, then, by a series of transfers the right of redemption might be prolonged indefinitely. The ancestor, before the right of redemption expired, could transfer the land to his minor child, who before his right of redemption expired could transfer to a second minor, and so on without end.
The Iowa supreme court has settled the question so far as that state is concerned, and we believe the construction placed upon the Iowa statute by the court of that state, in Stevens v. Casady, supra, was in accord with the meaning of both the statute of that state and of our own. It is recommended that' the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
Counsel for the defendant in error in his brief in this court uses the following among other language:
“Although the record fails to show it, the fact is, this case has been finally disposed of and settled, and ought to have been dismissed. I can see no reason to burden the supreme court with useless and unnecessary litigation of this kind.”
Counsel for the plaintiffs in error in his reply brief uses the following among other language:
“In answer to the suggestion contained in the brief of the defendant in error, ‘that the case is settled,’ and that the supreme court ought not to be burdened ‘with useless and unnecessary litigation of this kind,’ I will say that it is true that the case has been compromised, the costs in the district court have been paid, and the costs in this court have been provided for. But as a part of that compromise it was agreed and understood that the questions of law involved in the case should be settled, and to that end the case should retain its place on the docket of this court, and when its turn should come it should be decided upon its merits. . . . The compromise was effected long after the case was brought to this court; and, as a part of the terms of that compromise, it was agreed and understood that the case should go to final judgment in this court; not for the benefit of the parties to this particular case, but for the benefit of the bench and the bar of the state.”
It seems to be admitted by counsel for both parties that no decision which this court could render in this case would be of any benefit or could answer any beneficial purpose so far as any of the parties to this action are concerned, but it is claimed that it will be of benefit to the bench and the bar of the state. Now this court has no desire to be transformed into a moot court, and agreeing with counsel for the defendant in error, we shall order the ease to be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover $1137.50 alleged to have been paid to the defendants by reason of their fraud and misrepresentation in respect to the sale of certain territory for the sale of a phtented article, “The Star Combination Tool.” He alleges in substance that defendant Rightmire, attorney in fact for Brewer, the patentee, entered into a secret arrangement with defendant Penfield by which it was agreed that the latter should represent to the plaintiff that the patented article was a good article and -a profitable seller, and that the right to sell such article in the territory comprising Oklahoma and certain Kansas counties was worth $2275; that in furtherance of the scheme Penfield told the plaintiff that he would take and pay for a half interest in suehi territory and would enter into a partnership with the plaintiff for the sale of the article therein; that relying upon this representation plaintiff paid $1137.50, Penfield pretending to pay a like sum, and a written contract was entered into by which the plaintiff and Penfield were to pay Brewer $2275; that the patented article turned out to be worthless and unsalable, and the plaintiff afterwards discovered that Penfield paid nothing whatever for his pretended interest in the contract, but, on the other hand, received one-half of the money paid by the plaintiff, for his services for inducing the plaintiff to part with his money. The plaintiff recovered judgment for the full amount sued for and defendant Penfield appeals, and assigns error in overruling a demurrer to the evidence, in giving and refusing certain instructions, and in failure to submit certain special questions.
The court eliminated the question of fraudulent representation as to the value and salability of the patented article and the right to sell it, and it is claimed that this leaves the plaintiff in the situation of having received exactly what he bargained for, and it is argued that even if the defendants practiced fraud upon the plaintiff the latter can not recover except upon a showing of actual damages. But this was eliminated for the reason that the statute had run as to it and the other ¡allegations as to the fraudulent scheme and pretense by which the plaintiff was induced to part with his money still remained, and the evidence was sufficient to sustain them.
The defendants requested an instruction that unless the jury should find that before the representations were made to the plaintiff the defendants had agreed among themselves that Penfield was to pay nothing for his share in the patent right, they must find for the defendants, and that if they should find that Penfield was not indebted to Brewer for his one-half interest or had not paid him therefor the verdict must be for the defendants ; also, that it was the duty of the plaintiff to make a reasonable effort to realize upon his investment before seeking to rescind the contract. These and certain others not necessary to mention were refused, and a charge was given to the effect that if the secret agreement was entered into to induce the plaintiff to believe that Penfield was purchasing one-half of the territory at the agreed price of $2275, and the plaintiff was thereby induced to pay such sum after the defendants having in fact agreed that Penfield was to pay nothing, the plaintiff could rescind by reason of such fraud. We have examined the instructions given, and they appear to have fairly and correctly stated the law applicable to the controversy.
The special questions requested and refused had reference to the previous knowledge and experience of the plaintiff and Penfield in the business of selling and handling patent-right agencies for tools, to plaintiff’s endeavor to dispose of his interest, and also whether Penfield received any of the money paid by the plaintiff, and if so, how much. Such of these as were not included in the general verdict were immaterial, and the refusal of the request was not erroneous.
The pleading and the proof were to the effect that the defendants concocted a scheme to get the plaintiff’s money by leading him to believe that the investment was one in which they would show their faith by their works, in that Penfield should falsely pretend to share in the adventure and put in an equal amount with the plaintiff; that instead of sharing in the risk or spending any money, Penfield helped the other defendants divide that which was procured from the plaintiff. Although the question requested, as to whether any of the money paid was received by Penfield, and if so,- how much, would have been proper enough to submit, its answer either way would not have been sufficient to overturn the general verdict; for whether Pen-field received any of the money or not, he helped obtain it from the plaintiff, for whose loss he is jointly responsible with his codefendants. The refusal to submit the question requested does not affirmatively appear to have prejudicially affected the substantial rights of the defendants. (Civ. Code, § 581.)
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Mason, J.:
Daniel G. Sappenfield recovered a judgment against the National Zinc Company for injuries received while in its employ, and it appeals. It was a part of the plaintiff’s duty to attend to a furnace twelve feet long, seven feet wide and twelve to fifteen feet high, in the top of which were several openings a foot and a half square, ordinarily closed with iron covers, but opened for the purpose of feeding coal and slack. As the coal burned a crust would form, and before fresh fuel was introduced it was necessary to break this up by prodding it with an iron bar ten or twelve feet long, introduced through one of the holes referred to. The plaintiff was injured while poking the fire in this manner. He had just started to poke it when a flame burst out through the opening to the height of ten or fifteen feet, burning him severely. The conduct of the defendant which is relied upon as constituting negligence was the omission to provide small holes, little larger 'n diameter than the iron bar referred to, through vvhic-h it might be inserted, thus preventing the escape of flames while the fire was being poked, a device employed upon another of the defendant’s furnaces.
Witnesses for the plaintiff were permitted to testify that both furnaces were equipped with “safeties,” that is, with valves at the bottom that were supposed to open as the coal fell, and so relieve the pressure; that at the time of the injury these valves on the furnace where the plaintiff was hurt were in poor condition and were not working; and that if they had been in proper condition thé flame would have gone out at the bottom instead of at the top. The defendant complains of the admission of this evidence on the ground that it amounted to charging it with a form, of negligence that was not alleged in the petition. We do' not regard the complaint as well founded. It was competent for the plaintiff to try to show just how the injury was occasioned. It may have been due to the concurrence of two causes, only one of which was the result of the defendant’s want of care, this being a sufficiént basis for liability. (29 Cyc. 496.) If it was due to two concurring causes, the stopping of the valves and the want of small poke holes, no prejudice results to the defendant from the plaintiff electing to exculpate it from all blame for the former, and to rest his case upon the claim that the latter was culpable. Counsel for the plaintiff distinctly stated that the condition of the valves was not relied on as a ground of-negligence. For the same reasons the trial court was justified in refusing an instruction that the jury should disregard all the evidence concerning the “safeties.” If the re quest had been to instruct them that no recovery could be based on the condition of the valves as a ground of negligence it would doubtless have been given.
The petition as originally drawn alleged that the defendant was negligent in not providing a larger platform for the plaintiff to stand on while poking the fire. One of the plaintiff’s witnesses was asked whether the platform was large enough to give a man room to -get out of the way of the heat. The defendant objected to the question as calling for a conclusion. The objection was overruled and a negative answer was returned. This ruling is now complained of, on the ground that the width of the platform had nothing to do with the accident. At the conclusion of the evidence the allegations of negligence with respect to the size of the platform were stricken out on motion of the plaintiff. This was a withdrawal of the claim of negligence in that regard, and rendered the ruling nonprejudicial.
Objection is also made to the evidence that the other furnace referred to was equipped with small poke holes. It has been said that “evidence going to show .that some other kind of instrumentality would have been safer and better than that which caused the injury should be excluded.” (3 Labatt’s Master & Servant, 2d ed., § 931, p. 2506.) But there seems to be a conflict of authority on this point. (8 Eneycl. of Evidence, 938.) The fact that an appliance by which an employee is injured is not so safe as one used elsewhere does not constitute negligence, but it does not follow that it is not in some circumstances a fair matter to be taken into consideration in determining the existence of negligence. It does not establish and may not tend to establish any standard to which the employer is bound to conform, but it may sometimes throw light on the feasibility of providing a higher degree of protection. Here, however, the evidence was rendered competent upon another ground. Evidence was introduced tending to show that the plaintiff had complained of the want of proper poke holes, and had been promised that they should be provided. The testimony of one witness is thus stated in the abstract:
■ “He heard Sappenfield make complaint to Moore [the foreman] about the same time that he made a complaint, which was four or five days before Sappen-'field was burned. The remarks made to Mr. Moore were that he would like to have the poke holes in the top of No. 2 [the furnace where the injury occurred] like they were on No. 1 [the other furnace]; didn’t see why they didn’t have them that way, and heard Moore say he thought so himself, and would try and have them put there, and heard him say that to Sap-penfield.”
In view of this evidence, which had a manifest bearing on the question of assumption of risk, it was competent to show the character of the poke holes on the other furnace, in order that what had been said concerning them might be fully understood.
The defendant maintains that there was no evidence of negligence on its part. Whether ordinary care required small poke holes to be provided was a fair question for the jury. The defense of assumption of risk was relied on, but is met by the evidence of a complaint of the existing condition and a promise to remedy it. The defendant asserts that the complaint-and-promise principle applies only where an old appliance is out of repair and requires restoration, not where a new kind of appliance is demanded. Such is not the rule. It has been said that unless the condition complained of (whether due to an appliance being out of order, or to its not being adapted to meet the needs of the situation) is such as to sustain a charge of negligence, the failure of the employer to keep a promise to improve it will not render him liable for an injury which would have been prevented by such improvement; in other words, that the condition complained of, in order that the promise may affect the employer’s liability, must amount to a “defect,” but that word in this connection applies to any condition which is inconsistent with the exercise of ordinary care. The contention is also made that the conversation narrated by the plaintiff’s witnesses did not show a promise to remedy the defect complained of. Whether what was said was fairly to be interpreted as a promise made under such circumstances as to relieve the plaintiff from carrying his own risk was a question for the jury. (Anders v. Railway Co., 91 Kan. 378, 137 Pac. 966.) The defense of contributory negligence is relied on, but this also presents an issue of fact, which is concluded by the verdict and judgment.
An instruction concerning contributory negligence, going somewhat into detail, was refused, but its substance was sufficiently covered in the general charge. The language of the instructions given on the subject is criticised, but we think when read as a whole they sufficiently advised the jury as to the law of the case.
Complaint is madé that the amount of the verdict— $1500 — is excessive. There was evidence of pain and permanent injury, and we can not say that the verdict is without support.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
June 26, 1913, plaintiff filed his petition charging that on April 19, 1913, he was burned while working in a coal shaft in one of defendant’s mines, by an explosion of gas. It was charged that the defendant knew or should have known that gas was generating in the mine and that explosions were liable to occur; that the defendant unlawfully and negligently failed to have the working places therein examined or properly inspected. The answer consisted of a' general denial and an allegation that whatever injury occurred was due solely to the plaintiff’s carelessness and failure to comply with the orders and instructions of the mine foreman; further, that he knew the exact condition; that he assumed the hazards, and that the coal produced by the mine was used in interstate commerce. The jury returned a verdict in favor of the plaintiff for $1000, $410 of which were for permanent injuries as shown by the special findings. The instructions were strictly in line with an action under the statute for failure to comply with the provisions governing the operation of mines, the jury being expressly told that the laws of this state require the operator of a coal mine -to appoint a competent fire boss, whose duty it is to carefully examine and inspect every working place and opening in such mines, and to notify the employees of the existence of fire damp or gas, and that a willful failure to comply with these provisions or any violation of them, which was the proximate cause of the injury, would make the defendant liable. The defendant appeals, and insists that the petition contained no allegation that either party had elected not to accept under the terms of the compensation act, and that there was no evidence to sustain a recovery for permanent injuries.
Under section 7 of chapter 216 of the Laws of 1913 all employers entitled to come within the provisions of the act shall be presumed to have done so unless they file with the secretary of state a written statement that they do not so elect, and under section 8 a similar rule is laid down touching employees. It is argued that in the absence of an allegation of nonacceptance it must be presumed that the parties were acting under the compensation act. The plaintiff replies that under the circumstances of the case he should be permitted to amend his petition and prove what he suggests is a fact not shown by the record — that the defendant had filed a, statement, which has been a matter of record since April 19,1913; that unless thus permitted, the remand, if ordered, should be for the sole purpose of trying this question.
When the parties are actually within the purview of the compensation act no other remedy than the one therein provided remains. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193; McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.) The statutory presumption that all employers affected by the act are within this provision remains until the contrary appears, and the matter of election to stand outside of the provision is an affirmative defense. Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244.) Presumptions of law need not be pleaded. (Civ. Code, § 131.) As the pleadings, proceedings and instructions were all in line with a statutory action for damages under section 4992, and as the affirmative defense of nonelection was not presented, it is difficult to see how the defendant can complain.
As to the other question presented, while it is true that it was testified by physicians that the bums were first-degree burns, and that a gas explosion to affect the hearing would have to be strong enough to burst the ear drums, still the testimony showed that the bums covered the face, ears, back of the neck, both hands and a portion of the forearm; that the plaintiff was confined to his home about two weeks; that at the time of the trial, which was seven months after the injury, the plaintiff’s right ear was at times swollen and blistered on the inside, and caused an eruption so that the plaintiff could not hear, and that he could hardly read at nights on account of the injury to his right eye; that he never had anything wrong with him before the injury; that whenever his ears were swollen he could not sleep on account of a sensation like that of a hammer pounding. One of the physicians, testifying on behalf of the plaintiff, was asked if from the character of the injury he saw, after the burns had passed away they would leave no permanent injury, and his answer was: “I could not say that.” Numerous authorities from other states are cited to the effect that before recovery can be had for permanent injury reasonable certainty of such injury, and not merely possibility thereof, must be shown. This is also the rule in this state. In C. R. I. & P. Rly. Co. v. Kennedy, 2 Kan. App. 693, 43 Pac. 802, it was said:
“Before such damages can be given, the evidence must show that the permanency of the injury is reasonably certain; there must be more than a mere possibility that such will be the result.” (p. 702.)
It was further said that the jury should have been instructed as to the degree of proof required, but that the failure so to instruct would probably not be reversible error, as no further instruction was requested on that subject. There is no essential difference between proof of permanent injury and proof of any other matter. If competent evidence showing or fairly tending to show its existence be submitted, the weight and effect thereof are for the jury, and from the evidence already referred to it would seem fairly deducible that the plaintiff will never be free from the results of. the burning and concussion.
Finally, no objection was made to proceeding as if the action were one for damages under the act relating to mines (Gen. Stat. 1909, § 4992). No instruction was offered touching the compensation act, but both parties tried the issues as framed by the pleadings, and on that basis no error is apparent. It is too late now to invoke the provisions of the compensation act for the first time.
The judgment is affirmed.
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